Understanding the prevalence and use of dispute resolution processes in water management arrangements in California

Groundwater serves as the primary water supply for more than two billion people and supplies approximately 40% of irrigation water worldwide. This heavy reliance on groundwater aquifers has led to the unsustainable depletion of groundwater aquifers at the regional and global scale and an increasing number of conflicts over the resource. Similar to global trends, a long-term overreliance on groundwater in California has resulted in historically low groundwater levels in groundwater basins throughout the state. Groundwater level declines have had widespread impacts, including drying of domestic wells, land subsidence, and the loss of supply wells resulting from seawater intrusion.

In 2014, California passed the Sustainable Groundwater Management Act (SGMA) to address the impacts resulting from chronic groundwater overdraft in the state. SGMA will require local agencies, stakeholders, and water users to make many difficult and potentially contentious decisions such as regulating pumping, levying pumping fees, and finding and purchasing alternative water sources to meet legislated sustainability goals. These decisions are prone to conflict, particularly when pumping restrictions are viewed as infringing on property rights, or when fees are charged to support local management. In recent decades, alternative dispute resolution processes have gained momentum by promoting consensus building, facilitation, mediation, and other forms of assisted negotiation as alternatives or supplements to adjudication to resolve environmental conflicts.

This research analyzes the agreements of multi-entity local management entities formed under SGMA. We assess agency membership and representation, voting structures, and the presence of dispute resolution clauses and their structure. 64% of the 74 JPAs and MOAs analyzed include dispute resolution clauses. However, our research highlights the challenges in developing and using effective mechanisms for resolving conflicts. Specifically, our research suggests that even when included in agreements, dispute resolution clauses are rarely used. Learning from the experiences of water management agencies in California may help lawyers, water managers, facilitators, and others develop more robust dispute resolution plans and processes to incentivize their use.