Groundwater Fee Litigation On The Rise
As the Sustainable Groundwater Management Act (“SGMA”) moves forward in its tenth year of implementation since three landmark pieces of legislation were passed in 2014 taking effect on January 1, 2015, what is evolving in recent times is a string of disputes involving the funding of the Groundwater Sustainability Agencies (“GSAs”), with several disputes now around the state. GSAs naturally need a revenue stream to fund administrative and implementation efforts, though the legal mechanism and/or the extent of the cost burden imposed on stakeholders are the topics of great contention, whether imposed under Proposition 218 or otherwise.
One of the pending actions in the state is venued in Madera County Superior Court, captioned California United Water Coalition vs. Madera County, contending that the County as the GSA has imposed unlawful assessment fees. Proposition 218 was used by the GSA to impose land assessment fees, purportedly to pay to import water and construct recharge basins, amongst other actions. The GSA’s boundaries encompass approximately 215,000 acres across parts of three subbasins. A coalition of farmers in the Madera subbasin sued, contending the Proposition 218 process failed to follow proper procedures and the farmers were carrying an unjust burden of the fees. They sought an injunction and won. Most recently in the case on June 18, the court issued a ruling calling for more information, specifically relating to a California rule of “pay first, litigate later.” This rule has become an issue in several SGMA-fee related pending around the state of California.
The funding, albeit to some extent necessary for the GSAs, the “pay first, litigate later” rule may not always be equitable or even possible in instances where the stakeholder simply does not have the funds to advance, and/or, the methodology being used by the GSA is so poor as to create draconian impacts to stakeholders that are highly inequitable and/or illegal. For instance when basing groundwater fees on quantity of land ownership rather than historical groundwater usage. As the issues evolve, the courts (or the Legislature) may be called upon to create exceptions that better ensure protection of stakeholders, while also providing accountability of GSAs to generate their revenue stream with lawful processes and methodologies to meet SGMA’s long-term goal of sustainability.