Best Best & Krieger LLP

Antelope Valley Groundwater Basin Adjudication

A California Court of Appeal recently issued two opinions affirming a physical solution limiting the right to pump groundwater by a landowner who has never pumped from the groundwater basin or who has not established the amount or reasonableness of pumping.

A landowner filed the underlying lawsuit in 1999 to quiet title to its claimed superior groundwater rights in a groundwater basin that had been in a state of overdraft for decades. The lawsuit became a comprehensive groundwater adjudication involving approximately 70,000 landowners in the Antelope Valley area of California, including two separate classes and the United States. The majority of the litigants settled their dispute in a physical solution that manages the basin’s water resources by limiting the parties’ ability to pump groundwater and providing for ongoing basin management. The trial court adopted the physical solution and entered judgment in December 2015.

Landowners Who Do Not Pump Groundwater May Have Their Pumping Rights Limited Under Certain Circumstances
A class of landowners who has never pumped groundwater from the basin (Non-Pumper Class) objected to the physical solution, which did not allocate any specific amount of the native safe yield for the class to pump without paying an assessment.

The Fifth District Court of Appeal held on March 16 that, in an overdrafted basin where a court must adopt a physical solution and allocate a limited water supply that is insufficient to meet the needs of all water right holders, a court may equitably allocate the available water resources among competing claimants with equivalent priorities. Specifically, a physical solution can “subordinate” the overlying rights of non-pumpers to overlying rights of landowners who are presently pumping groundwater. However, the physical solution cannot “entirely extinguish unexercised” water rights.

The Appellate Court concluded that the trial court’s physical solution equitably allocated the native safe yield. While the physical solution subordinates the Non-Pumper Class’ unexercised overlying rights, it also preserves the class’ overlying rights. Specifically, the physical solution subjects future pumping to certain conditions and permits class members to pump groundwater in the future without paying any assessments if the pumping is de minimis and limited to domestic use for a single household.

The appellate opinion also affirmed other established principles concerning water right and physical solution:

  • Allocation of native safe yield can be permanent, provided that subsequent unreasonable use may be challenged;
  • ​Provisions permitting transfer or carrying over of water allocations does not violate the doctrine of reasonable and beneficial use;
  • While courts should consider a physical solution regardless of whether all parties agree to it, courts need not consider every proffered alternative physical solution.

Landowner Who Failed to Establish Amount and Reasonableness of Groundwater Use May Have His Correlative Rights Subordinated
A landowner who had pumped groundwater, but was not allocated a share of the native safe yield under the physical solution, had also appealed the judgment. While evidence was presented at trial that the landowner did pump groundwater to irrigate crops, his claimed amount or reasonableness of his claimed beneficial use was rebutted during trial, and the trial court rejected his evidence as not credible. The Appellate Court affirmed the judgment and held:

  • The public water suppliers have prescriptive rights that are equal in priority with overlying rights.
  • ​The trial court could subordinate this landowner’s overlying rights to the rights of pumpers as he did not establish the extent or reasonableness of his historic water use.

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