Project applicants and agencies alike should think carefully about developing robust analyses that demonstrate the adequacy of water supply.

By Marc T. Campopiano, Diego Enrique Flores, and Lucas I. Quass

Mark Twain is often credited with saying, “Whiskey is for drinking; water is for fighting over.” This remains true in California, where drought conditions, climate change, and population growth throughout the state’s history have made water an increasingly valuable and regulated resource. The legal landscape involves complex questions related to water quality, water sustainability, and competing claims to water rights. One notable area of controversy involves the adequacy of water supply for new development projects.

Two decades ago, in 2001, the state legislature enacted Senate Bill (SB) 610 and SB 221 to promote sustainable long-term water planning. Collectively, SB 610 and SB 221 require public agencies to determine whether adequate water supply exists for certain large development projects as part of the environmental review process under the California Environmental Quality Act (CEQA) by, in part, requesting water supply assessments (WSAs) from water service providers.

By Paul Singarella, Maria Hoye, John Heintz, Lucas Quass & John Morris

California enacts basin adjudication statutes with the goal of reducing uncertainty, costs and time of water rights litigation.

On October 9, 2015, California Governor Jerry Brown signed AB 1390 (Alejo) and SB 226 (Pavley) to implement a comprehensive approach to groundwater basin adjudications throughout the state. Basin adjudications involve a judicial process in which a party initiates a lawsuit against all other users in a groundwater basin so that the court can determine the groundwater rights of all parties overlying the basin and whether others may export water from the basin. Through basin adjudications, courts can require the cooperation of users who otherwise might resist limits the on pumping of groundwater. Currently, 22 basins in California have been adjudicated. (There are over 500 such basins.)

Basin adjudications, however, have been costly and time consuming (in some cases taking over a decade to complete). In light of the time and expense associated with basin adjudications, the Legislature developed AB 1390 and SB 226 ostensibly to reduce the burden of groundwater adjudications on both the courts and claimants without modifying groundwater rights law. The new law will be effective January 1, 2016. A summary of these two companion bills follows.