Ventura County groundwater adjudication is first under new statute

Water Rights

Matthew T. Kline, Russell M. McGlothin, Heather A. Welles, Kathryn K. Turner, O'Melveny & Myers LLP

Fights over rights to water have marked California's history almost from its beginning. With climate change, those disputes might easily grow more difficult. Ten years ago, the state Legislature created the Sustainable Groundwater Management Act to codify how such problems should be adjudicated and solved locally.

Last year, attorneys from the O'Melveny & Myers water industry group successfully completed the first comprehensive groundwater adjudication ever tried under the act. In all, the process took five years of negotiations and three trials. The process was "a mix of diplomacy and in-court advocacy," said Matt Kline, who heads O'Melveny group. Las Posas Water Rights Coalition v. Fox Canyon Groundwater Management Agency, VENCI00509700 (Sta. Barbara, Super. Ct., filed July 27, 2018).

The goal was to resolve rights to groundwater in the Las Posas water basin, a 66-square mile section of Ventura County around Moorpark, among municipal water districts, farmers and ranchers, golf courses, gravel pits and other users. All told, about 100 parties participated in the adjudication, including a group of farmers and landowners that the O'Melveny team represented, according to Heather Welles, who led its brief writing.

The adjudication divided into three phases with the first dealing with prescriptive rights between public water suppliers and farmers and other users over roughly 15% of the basin's groundwater. Kline compared the prescriptive issue to adverse possession of water. "The argument the cities would make was, 'We were basically using you farmers' water for years and years and years, and you didn't do anything about it," he said.

He and his team developed a consensus plan and won court approval of it in a short trial.

Phase two broadly concerned the remaining 85% of the water. It was the most complicated part of the case because it "was about how do you allocate the water to all the different water users in the basin basically for the next 100, 200, 1,000 years," Kline said.

The O'Melveny team again developed a proposed resolution that a very diverse group of about 85% of the parties adopted. Included among the supporters of the proposal was the Las Posas Water Rights Coalition, the original plaintiff in the underlying litigation.

"I think one of the reasons we were able to persuade people to join our approach, one, it was very fair and consistent with the law, but two, it was supported by this very, very diverse group of people all over the basin," Kline said.

Some claimants objected to the plan, leading to a trial over Zoom from late September till late October 2022. "We were able to prevail pretty decisively at that second phase," he said.

The third phase, and third trial, dealt with how to manage groundwater in the basin going forward. The team again developed a consensus plan to deal with potential future concerns such as better ways to import water or purify water. "We came up with a very sound structure where the court was going to maintain jurisdiction ... to help call balls and strikes on some of these contested issues going forward."

In July, the court approved what the law calls a "physical solution" for the basin and appointed a sort of special master, called a "water master," to assist.

Kline said he hopes the Las Posas adjudication can serve as a sort of model for other such groundwater adjudications around the state.

"There shouldn't be big winners and losers" in these disputes, he said. "We were looking for what's the reasonable clear path forward that everyone can live with that's sustainable."

-- Don DeBenedictis