BB&K In The News

BB&K Managing Partner Eric Garner discusses in Circle of Blue controversy over the word “substantial” in the Sustainable Groundwater Management Act.

By Brett Walton

It was never going to be easy.

California’s attempt to exert tighter control over groundwater use, the purpose of a landmark 2014 state law, was designed to be a compromise between state authority and local oversight.

The tension dogged the writing of the law two years ago, and is playing out again as the California Department of Water Resources (DWR) drafts the regulations that will put the law into practice.

The regulations in question are those that the state will use to evaluate groundwater sustainability plans, the 20-year planning documents required of local management agencies by the 2014 law. The debate today hinges on a single word repeated throughout the 62-page draft regulations. That word is “substantial,” used in phrases such as “substantial compliance” with the rules.

Opinions are divided. Legal scholars, scientific watchdogs, and environmental groups, some befuddled by its inclusion, argue that “substantial” weakens the law by allowing local agencies to avoid all of the mandates for data sharing, monitoring, land use, oversight, and others.

…

Eric Garner, a lawyer with Best Best and Krieger and author of the legal text “California Water,” said that the lack of groundwater data, compared to surface water data, makes the management effort much more difficult than for rivers or streams.

“There’s going to be trial and error in this process,” Garner told Circle of Blue. “There are going to be issues with the plans. There have to be adjustments. Substantial compliance is a recognition that there is not a simple recipe to get every basin to sustainability.”

To see the full article posted May 5, 2016 in Circle of Blue, click here.