The Soft Underbelly of the Sustainable Groundwater Management Act

Clark Hill PLC


Winston Churchill once used the phrase the “soft underbelly of Europe” to attempt to coax the Allies into invading Europe to force Germany to split its resources. The Sustainable Groundwater Management Act (SGMA) also has a “soft underbelly” that seems to have escaped many commentators. We are, after all, talking about groundwater rights and thus we have to be mindful of the oft-quoted saying by Mark Twain, “Whiskey is for drinking, water is for fighting.” Unfortunately, SGMA is constructed in a way that offers individuals or entities an opportunity for mischief to hold other water rights holders hostage, which could derail dealing appropriately with groundwater extractions. This “soft underbelly” deals with water quality, which is often ignored in a water rights fight. The concept of water quality and water rights being twins is, at first blush, viewed in the same way as Arnold Schwarzenegger and Danny DeVito were in the movie Twins. Alas, with water this is no laughing matter. Indeed they are twins, and in dealing with SGMA their DNA should not be separated.

SGMA was a long time coming. Was it not for the drought, it is likely that water rights would continue to be settled through the long and arduous process of groundwater adjudication. While providing for another pathway to deal with sustainability of groundwater resources, the California State Legislature and Governor Brown created SGMA which has lofty goals to deal with the currently delineated 431 groundwater basins of the State which underlie about 40 percent of the surface area of the State.

Of those, 24 basins are subdivided into a total of 108 sub-basins, giving a total of 515 distinct groundwater systems. Only 22 basins are adjudicated. The State Water Resources Control Board (SWRCB), the agency in charge here, sets forth a very ambitious goal for SGMA: “the Sustainable Groundwater Management Act (SGMA) established a framework for sustainable, local groundwater management. SGMA requires groundwater-dependent regions to halt overdraft and bring basins into balanced levels of pumping and recharge.” This is to be accomplished by the creation of a Groundwater Sustainability Agency (GSA) that has the power to carry out the dictates of SGMA.

SGMA—Broken Down into Its Critical Parts

What is management? There are a lot of definitions, including “to wield (a weapon, tool, etc.),” which in this case is very clear. If there can’t be local management, the state will come in and manage it for you. That is a big hammer, and it certainly has gotten a lot of localities’ attention which obviously was its purpose. Interestingly another definition of manage is “to handle or train (a horse) in the exercises of the manège (the art of training and riding horses/the action, movements, or paces of a trained horse),” which oddly feeds right into the old phrase “you can lead a horse to water but you can’t make it drink.” Given that there is no basin or sub-basin in the state that is not contaminated, naturally or otherwise, with levels of contaminants of concern (and others yet to reach that level) the issue of water quality cannot be ignored.

Dictionary definitions aside, SGMA contains its own critical definitions. Sustainable groundwater management is defined as “the management and use of groundwater in a manner that can be maintained during the planning and implementation horizon without causing undesirable results.” It also defines what undesirable results would be that are problematic and need management that includes “significant and unreasonable degraded water quality, including the migration of contaminant plumes that impair water supplies.”

What is a plume? Essentially it is a body of groundwater containing contaminants, emanating and migrating from a point source. But such plumes can be very large and many are amorphous, that is, just big blobs.

What is migration of contaminant plumes? According to the EPA: Subsurface contaminant movement depends on both the site environmental, physical, chemical, and biological characteristics and the contaminant chemical properties. Migration pathway, mobility, and persistence are chemical dependent and are also affected by site environment factors, including pH, concentration of other chemicals, oxidation-reduction potential, groundwater geochemistry, organic matter content, and the presence of microorganisms. Mobility is the potential for a contaminant to migrate from a source, and persistence is a measure of how long a contaminant will remain in the environment.

To simplify, it is the movement of contamination which can be determined by looking at a wide variety of chemical and physical parameters. In other words, to know about this movement, at the very least you have to know:

  • What are the contaminants you should be looking for?
  • Where are they?
  • What will make them move?
  • When will they move?
  • Why will they move?
  • Where are they going?
  • What will they be like when they get there?

These are questions whose answers are not the same for every basin or sub-basin and could differ for various parts of the basin or sub-basin.

Typical Steps of Water Rights Battles

In the usual water rights battles, which will be fought out in SGMA, the following is often done:

  1. Someone has to develop conceptual model of the basin/sub-basin and then everyone else has to buy in to it. (In adjudications it’s the Court that has to be the decision maker when everyone disagrees and in no adjudication is there ever 100% agreement).
  2. Aquifer testing will have to be done or if there is data already available will have to be reviewed, re-reviewed and batted to and fro.
  3. A determination of who are the water rights holders, how much each claims to own, and whether or not their claims are valid. This includes of course who uses what, how much and when, but that is not only a factual fight, the somewhat byzantine rules of water rights that exist in California are another source of dispute as to how the rules apply, to who and why.
  4. There will need to be a determination of what is the safe yield of the basin/sub-basin. Safe yield is the amount of water that can be withdrawn from an aquifer without significant ecological impacts. Based on this calculation water withdrawals can be balanced with return flows to the aquifer, which can include wastewater returns, after appropriate treatment, and collecting and infiltrating treated stormwater, artificial recharge.

The Surprise

The surprise here is that SGMA mandates you need to avoid contamination movement and to do that you need to know where the yucky stuff is, what it is, who put it there, how much is there, and what happens to it if you MANAGE the basin. As we will see shortly, if you do move it, you are giving someone a chance to stop you in your tracks to get a sustainability plan moving and as we will also see, the agency you are trying to get together may be considered a polluter.

You may ask just who is going to make a “stink” over this because aren’t we all trying to do the right thing? Well, the list could be long and the motivations varied—some legitimate and some not. The types of persons/entities could include:

  1. A polluter who does not want its plume to be impacted or remediate affected by pumping or the cessation of pumping or even recharge in a given area.
  2. Water rights holders who believe that certain sustainable actions negatively impact their rights.
  3. Citizens who believe that the sustainable actions will cause their drinking water will contain toxic chemicals or that there will be some impact on lakes, streams, etc.
  4. Water providers who have and need to rely on specific areas and volumes of groundwater.
  5. State or Federal agencies and NGO’s who believe that the sustainable actions may impact, for example, various species of plants or animals or other possible natural resource damage.
  6. And of course, your local gadfly.

This is not just speculative. These people exist, and these types of actions do occur.

So how do these folks get to legally do all this? Unfortunately the opportunity to take such courses of action lies in SGMA itself and in other laws, particularly federal law.

Enter the Comprehensive Environmental Response, Compensation, and Liability Act

By far the biggest problem is the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) commonly known as Superfund (and its state equivalent, the Hazardous Substance Account Act). These laws do not make for good water management and use.

The law is broad as it sites to potentially responsible parties (PRPs—CERCLA speak for “polluter) who are operators of the facility. While not defined in the statute, an operator has been defined by the Courts as someone who has control over the environmental operation and can affect its functioning.

CERCLA comes into play with the release or threatened release of hazardous substances from a facility which is defined as any site or area where a hazardous substance is located. Section 101(9) of CERCLA. It specifically includes: Any “building, structure, installation, equipment, pipe or pipeline, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container.” Good groundwater management may use or regulate the type of “things” as set forth in the definition. So the GSA or some of its members have facilities, or at least are responsible for running them.

The second cog in the CERCLA set of gears is the issue of “release.” CERCLA  § 101(22) defines “release” as any “spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.” The courts have construed CERCLA's definition of “release” broadly.

Here is the kicker: if you “manage” as required by SGMA, you have control over the environmental operation and can affect its functioning. So if you move a plume or threaten to move it, you may be staring down a barrel of a lawsuit.

Al Gore to the Rescue

But all is not lost and we can thank then Senator Al Gore who sought to change CERCLA by inserting into the bill to essentially diminish liability of a PRP. While he failed to have it written into the legislation, the Courts have picked up his attempted insertion and made them part of the lexicon of CERCLA to apportion liability among the parties to an action. They are referred to as the “Gore Factors.”

These factors are:

  1. Parties’ ability to demonstrate that their contribution to a release of a hazardous waste can be distinguished;
  2. Amount of hazardous waste involved;
  3. Degree of toxicity of the hazardous waste involved;
  4. Degree of involvement by the parties in the generation, transportation, treatment, storage or disposal of the hazardous waste;
  5. The degree of care exercised by the parties with respect to the hazardous waste involved taking into account the characteristics of the hazardous waste;
  6. The degree of the parties’ cooperation with federal, state and local officials to prevent any harm to public health or the environment.

Other factors that Courts consider include:

  1. Relative fault of the parties;                                                                           
  2. Use of the property during time of ownership;
  3. The parties’ state of mind;
  4. Knowledge of or acquiescence to the contaminating activity;
  5. Benefit from remediation.

The Issue with the Factors is Fluid

Unfortunately, each of these factors is weighed by the Court differently from matter to matter. The standards by which the weighing are done does give considerable deference to the Court hearing the matter as opposed to some higher court that may be reviewing the decision. So your first chance to get it right is the critical one. The biggest chip to play is that you are doing what the state legislature requires you to do, that you didn’t put the contamination there and moving it is a result of trying to have a sustainable basin.

The tables should be turned on a contaminator and all guns should be fired at that person/entity to maximize their inherent responsibility. More troublesome, and less clear as to a course of action, is someone who is not the contaminator but is using CERCLA as a negotiating tool to bend a plan to their advantage or to stop a plan altogether. There is no good card to play here unfortunately and the opponent’s legal grounds are likely solid. This is the problem with SGMA and CERCLA. It is really in need of a fix.


You have to accept the fact that there may be someone who will use SGMA’s soft underbelly to undermine sustainability, maybe for good reason, maybe for not-so-good a reason.

So it comes down to this because if you are trying to create a sustainable basin, your choice is really very simple and Yogi Berra said it correctly many years ago,

“When you come to the fork in the road, take it.”

Given that, the choice is either to move forward or quit before you start. That makes the choice clear.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Clark Hill PLC | Attorney Advertising

Written by:

Clark Hill PLC

Clark Hill PLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.