Agricultural irrigation system with a well of water, for the cultivation of corn and beet during the summer.In 2014, California passed the Sustainable Groundwater Management Act (SGMA), which “requires critically overdrafted groundwater basins to adopt plans by 2020 to sustainably manage their aquifers.” Matt Weiser, “As California Groundwater Regulation Unfolds, Some Feel Left Out,” News Deeply, Jan. 22, 2018. Local groundwater regulatory agencies were created and tasked with meeting this looming deadline, and many groups, from environmental protection organizations to farmers’ advocacy boards, have concerns about how to best meet the “sustainability” requirement of the law. See, e.g., id.; See, e.g.., Tim Hearden, “Study: Farmer input critical in creating water plans,” Capital Press, Jan. 18, 2018. This article examines the legal implications of the SGMA and its upcoming deadlines, as well as the role expert witnesses may play in ensuring compliance with the law and addressing the impacts of implementing it.

Discussion:

The SGMA was passed to manage California’s groundwater, which is retained in subterranean aquifers, and which was being extracted in a way that caused multiple environmental harms, including “land subsidence, saltwater intrusion and water quality problems.” Tara Lohan, “The Key to Saving California’s Groundwater,” News Deeply, May 30, 2016. The entirety of the SGMA will not be implemented for decades, but there are benchmarks that must be met in 2020 and 2022. See id.; See also Matt Weiser, supra. Whenever a new law is passed, particularly one like the SGMA, which some analysts have considered a “Herculean effort,” challenges about how to implement that policy arise.

Currently, state and local governments, as well as environmental and agricultural experts and advocacy groups, are trying to determine how to meet the “sustainability” mandate in the SGMA and bring groundwater basins up to code. See id. There are a number of diverse issues that agencies must consider in crafting plans to comply with the upcoming deadlines. The following matters are a sample of some concerns that have been raised by various parties with respect to how to best plan for optimal groundwater management under the SGMA.

(1). Agricultural Issues:

According to a group of scientists who researched how to most effectively develop sustainability plans for groundwater basins, farmers and agriculture advocacy organizations should play an important role in planning. See Tim Hearden, supra. One analyst explains that “[a]s newly assembled local agencies prepare to implement California’s new groundwater law, now is the time for farmers and their advocacy organizations to get involved. So advises a researcher who co-authored a report stating that officials should work harder to gauge the impact on agriculture as they prepare plans required by the 2014 Sustainable Groundwater Management Act. …Among their findings was that growers reported feeling ‘written out of the process’ and suggested there was no ‘one-size-fits-all solution to groundwater management’ in the state, so a focus on local context and needs was important.” Id.

The new local agencies charged with properly implementing the SGMA will, according to scientists, require agricultural experts’ knowledge to adapt to a specific area’s topography.  See, e.g., id. Experts in farming may play a critical role in advising local agents on how to adapt to the SGMA. Consulting agricultural experts may be retained in every stage of planning to meet benchmarks of the groundwater regulation. Because local plans may have a direct impact on the farming industry, experts in this field can help lawmakers determine how to implement the SGMA in ways that protect agriculture.

Should a specific commission’s findings have a negative impact on farms, as some communities and organizations have alleged, litigation may ensue. See generally Matt Weiser, supra. According to one analyst, “sustainability” is “a loose term under the law. Each newly formed groundwater sustainability agency can define it for themselves, depending on local needs. The stakes inherent in defining that term are huge.” Id. If a particular agency does not, in the views of the agricultural industry, adequately protect farmers, that entity may be forced to address its decisions in court. In that event, both planning commissions and aggrieved parties will require the assistance of agricultural expert witnesses to interpret the SGMA’s requirements and address the impacts of a specific implementation strategy.

(2). Environmental Concerns:

While the impact on agriculture is an important consideration in implementing the SGMA, it is not the only matter local agencies must concern themselves with. See, e.g., id. Two environmental issues may be raised in conjunction with groundwater plans.

(a). General Environmental Risks: The environmental impact of an agency’s SGMA plan is an important consideration. As one environmental leader articulates, “many groundwater sustainability agencies are fixated on meeting the 2020 deadline to complete their groundwater sustainability plans. It’s a monumental task that requires gathering data on groundwater volume in each basin, measuring recharge and extraction rates and assessing effects on nearby streams and other surface water, among other things.” Id. Evaluating all of these highly technical factors will require the knowledge of experts in the field. Agencies must take these matters into account in planning, which means consulting environmental experts for guidance to mitigate harming the environment. Moreover, if a given plan is found to negatively affect the environment, litigation may result. In such instances, plaintiffs will require the assistance of environmental expert witnesses to help make a case against a given plan. Local agencies will also require such witnesses to refute such claims.

(b). Environmental Discrimination: As one commentator points out, “If ‘sustainability’ considers only agricultural interests, for example, small water users with shallow wells could get short-changed. For this reason, involvement by low-income groups, Native American tribes and domestic well owners is critical as the groundwater sustainability agencies are getting organized, said Jennifer Clary, California water programs manager at Clean Water Action….Waiting to involve these groups until the groundwater sustainability plan is developed is too late, she said.” Id.

Local groundwater agencies may need to examine whether a particularly vulnerable community is disproportionately affected by their plans. To make these evaluations, planning boards should consult environmental expert witnesses who are familiar with a specific region and can assess whether a particular plan negatively affects a vulnerable group. Experts in matters such as environmental racism, poverty, and related fields can help agencies ensure that their policies minimize risks to certain communities. If a specific plan is alleged to disproportionately impact such groups, litigation may arise. At that point, prospective plaintiffs and defendants will require expert witnesses to assess whether a plan has a disparate impact on an oppressed class. Economic experts may also play a role to determine whether lower-income groups are forced to bear a larger share of the burden or harms associated with a particular policy.

Conclusion:

Myriad legal concerns should be considered by the agencies that create plans to meet upcoming deadlines for groundwater regulation. Agricultural, environmental, economic, and other expert witnesses can act as consultants and assist in groundwater planning. Experts can also play a critical part in any litigation that arises, in the event that a local policy is contested in court. Whether an agency is determining its implementation strategy or has already passed a proposal and must defend its effects, expert witnesses can be invaluable.