Groundwater court disputes will consider environmental justice in new law signed by Gavin Newsom

Governor Gavin Newsom signed a bill into law last week that will incorporate environmental justice principles in legal disputes that stands to impact future groundwater use decisions across California’s agriculture dominated regions.

The law, AB 779, will require state courts to consider water use by small farmers and disadvantaged communities when settling those disputes, which historically skew in favor of larger agricultural businesses.

California is implementing the 2014 Sustainable Groundwater Management Act, which aims to address groundwater depletion across the state. Solving disputes through adjudication in the courts costs millions of dollars in legal fees and takes years.

“Small farmers and disadvantaged communities are underrepresented in adjudications because of their high costs and long duration,” said Julia Stein, deputy director for UCLA’s Emmett Institute on Climate Change and the Environment.“This law takes steps to ensure those communities have access to information about adjudication proceedings and that the court takes their water use into account.”

The law was inspired by historic and ongoing groundwater disputes underscoring the issue, such as in Southern California’s Cuyama Valley outside Santa Barbara. Much of the state’s severely overdrafted groundwater basins are located in the San Joaquin Valley, where disputes could be settled through future adjudication.

In that process, a court defines the legal rights each agricultural, residential or municipal entity has to groundwater in the area. California Courts have adjudicated approximately 30 groundwater basins.

Small farmers who utilize the overdrafted Cuyama Basin have called for a boycott of products sold by Bakersfield-based carrot giants Bolthouse Farms and Grimmway Farms, whom its detractors refer to as “Big Carrot.” The two companies are responsible for the majority of the region’s groundwater pumping.

Bolthouse and Grimmway shocked many smaller farmers in the region when they triggered a groundwater adjudication process after a years long collaborative effort established a sustainable groundwater management plan for the basin, taking them to court instead.

Brenton Kelley, watershed and advocacy director of Quail Springs, a small permaculture educational nonprofit farm in the Cuyama Valley, called their filing a “phenomenal turning point.” He has participated in the groundwater sustainability process through SGMA, but can’t afford a lawyer to participate in adjudication.

“As soon as this suit landed from those plaintiffs, the two largest carrot growers in the nation, against every groundwater user in the basin, it was insulting,” he said. “There’s no way I can speak up in court without paying a lawyer to do it for me.”

Representatives for both carrot giants have said that they filed for adjudication to ensure sustainability of the basin and set guidelines for all property owners, not to increase their own water use. Neither company responded to requests for comment before deadline.

“By filing the adjudication,” Grimmway wrote in a statement to the Bakersfield Californian, “the parties involved believe it will not only ensure sustainability of the basin but also protect the groundwater rights of all water users, including small pumpers and the Cuyama Community Services District, in accordance with California law.”

The new law aims to balance the scale between large growers who can afford a protracted legal proceeding and those of small farmers or other less resourced groups that can’t afford years of legal fees — including small farms, small municipalities or tribal governments.

Authored by Assemblymember Lori Wilson, D-Suisun City, the law will require courts to consider “the water use of and accessibility of water for small farmers and disadvantaged communities” and allow the court to refer adjudications to state water agencies.

It also requires courts to provide all pleading and briefing materials to the local groundwater sustainability agency (GSA). Lastly, the law would prevent groundwater over-pumping during the adjudication process by forcing litigants to stick to existing groundwater sustainability plans.

Several water districts opposed the legislation, including Indian Wells Valley Water District, Searles Valley Minerals, Inc., Sierra Shadows Ranch, Meadowbrook Dairy, and Mojave Pistachios, LLC.

“AB 779 will impose onerous new procedures and tens of millions of dollars in new and unnecessary costs to comprehensively adjudicate groundwater basins, invite courts to shed their constitutional duties to investigate and impose physical solutions and determine the rights of the parties,” they wrote, “while also expanding the role of [DWR] and [SWRCB] into areas they currently do not function.”

Nataly Escobedo Garcia, water programs coordinator at the Leadership Counsel for Justice and Accountability, called it a “step in the right direction.“

“It brings a level of transparency that we didn’t have before, “ she said, “and with the state Water Board and the DWR weighing in with expertise that’s being guided by the human right to water. “The hope is it will bring some type of equity into the process.”