The Future Of Agriculture In A Changing World With Less Water And More Regulations
Stoel Rives LLP
With drought or water supply shortages occurring around the globe, the State of California has taken unprecedented steps to overcome historic shortages and drought conditions, yielding lessons for other jurisdictions - regionally, nationally and internationally. Challenges arising from drought in California include adjustments to the proverbial regulatory line in the sand for groundwater, impacting agricultural and other water users. While water supply and transfer agreements illustrate that stakeholders can navigate toward calmer waters with proper strategies and the right dynamics in place, disputes are certain to erupt in some instances, with the unanswered question being where will those disputes inevitably arise. Agriculture specifically is placed by media outlets and other stakeholders (public or private) in the middle of debates about solutions for solving water supply shortages, often cast as criticisms of water usage by farmers. Irrespective of one’s personal views toward agricultural use and methods utilized for irrigation, agricultural operations, while necessary for producing food, will be impacted by the historic and relatively new regulatory requirements in California. These requirements bear value for other regions and jurisdictions to decide how to regulate groundwater, particularly with population growth, changing land use patterns (such as agriculture to land development) and climate change.As of last year, California’s statewide regulatory framework for groundwater took effect with what is known as the Sustainable Groundwater Management Act (“SGMA,” pronounced “sigma” and codified as Water Code § 10720 et seq.). SGMA is designed to establish sustainable groundwater management, with local agencies to manage groundwater by forming a Groundwater Sustainability Agency (“GSA”) by June 30, 2017. A GSA would then need to form a Groundwater Sustainability Plan (“GSP”) by January 31, 2020 for basins in “critical overdraft,” and by January 31, 2022 for “medium- and high-priority” basins not deemed by the state to be in critical overdraft. Ultimately, SGMA’s goal is to achieve “long-term sustainability.”Part of achieving long-term sustainability requires recognition of specific challenges of today and tomorrow that arise from California’s legal and regulatory challenges, such as a hybrid water rights regime of riparian and appropriative rights; the state regulating surface/subterranean stream water for the past 100 years while now implementing a statewide regulatory program for groundwater; use limitations arising from water quality, time of year, and place of use; and compliance with “reasonable and beneficial use” requirements under the California Constitution. Other challenges include “technical” conditions involving geological characteristics for determining and maintaining a groundwater basin’s sustainable yield, as well as most of the state’s surface water supply being in northern California with approximately two-thirds of the state’s population located hundreds of miles away in southern California. Today's collaborative dialogue often seeks the elusive balance between environmental interests and human consumptive needs, making long-term sustainability all the more necessary to avoid the alternative too often seen with litigation, where a zero-sum game mentality exists. In turn, proactive, cooperative efforts for solutions provide a prudent approach, particularly for creating sustainability of water supplies and agricultural operations.