Ready or not, California’s new Sustainable Groundwater Management Act (“SGMA”) is here and mine operators should be vigilant in monitoring and actively participating in developments under the law. Previously, the use of groundwater was largely unregulated. Now local agencies are in the driver’s seat when it comes to addressing a very complex problem: managing groundwater to ensure sustainability.
Earlier this week, environmental consultant Bob Anderson, of Geosyntec and Stoel Rives attorneys Wes Miliband and Tom Henry hosted a webinar about the implications of SGMA for mine operators. You can view a recording of the webinar here. Below are a few key take away points for operators as they tackle SGMA.
The Compliance Timeline is Aggressive
SGMA requires the formation of local Groundwater Sustainability Agencies (“GSAs”) that must assess conditions in their local water basins and adopt locally-based groundwater sustainability plans (“GSPs”). GSAs have already started to form and will be developed by June 30, 2017. Operators should investigate the proposed GSAs affecting their sites. The Department of Water Resources has developed a useful interactive map showing the proposed GSAs. Operators and the general public have the opportunity to be involved in the formation of GSAs and preparation of GSPs.
Knowing Your Water Rights and Water Supply is More Important Than Ever
Operators should evaluate their water rights and water supply to better participate in the GSP process and assess the true impact of GSPs. GSAs will start developing GSPs soon. SGMA gives little guidance as to what these GSPs must contain, which gives the GSAs a long leash in developing these plans. This means that GSPs could potentially vary a great deal from GSA to GSA.
The GSPs have the potential to upend traditional water laws as GSAs seek to regulate an area of law that had previously been governed by complex rules covering water rights holders. There is a high likelihood for conflicts between senior and junior water rights holders as the GSPs restrict groundwater use.
Establishing the Correct Usage Baseline is Critical
There is a famous quote that states: “In order to understand how to get to where you are going, you must know where you have been.” SGMA requires agencies to conduct studies to establish baseline conditions. Performing your own water audit will enable operators to provide critical information to your GSA to ensure that GSPs accurately reflect your operations. These audits may identify areas where operators could improve efficiency and reduce costs in the long run. In reaching “sustainability,” GSAs are given broad authority to impose fees, fines, and to undertake enforcement proceedings for violations of groundwater sustainability plans. Accordingly, the establishment of an inaccurate baseline could be costly.
Overall, SGMA remains somewhat of a wildcard. The flexibility it provides in the creation of GSAs and GSPs could be both a blessing and a curse. Operators should be aware of the deadlines and actively pursue opportunities to have their voices heard in the formation of GSAs and GSPs. There will be an inevitable tension between sustainability and traditional water rights. Where SGMA does not succeed in balancing those interests, adjudications and/or litigation are very likely. Operators could save a lot of time and money by identifying their water sources and assisting GSAs in establishing baselines.
