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California Groundwater Legislation Open for Interpretation

The Problems with California's Drought LegislationPeople usually want to know what a new law is going to do before it get passed. Laws passed with a “just trust us” mentality, have never been popular.

 This desire for certainty in legislation is not just common sense, it is based loosely on a legal right. The Due Process Clause  requires that laws be written in such a way that a reasonably competent person would know what the law requires, and so that reasonably competent government agent would know how to enforce the law. Laws that are written vaguely leave the door open to government abuse, special favors for government cronies, and arbitrary enforcement against those that the government disfavors. This is precisely the problem with Governor Brown’s recent California groundwater legislation.

In September of 2014, Governor Brown signed AB 1739, SB 1168, and SB 1319  into law. Together, these three California groundwater laws require local governments to create or designate groundwater management agencies to deal with ground water consumption in their respective groundwater basins.  These local groundwater agencies must develop plans to ensure that groundwater consumption is “sustainable” by a certain date. The legislation also sets milestones that must be reached in route to “sustainability.” If the local agency fails to create a sustainability plan that meets these goals, the state can craft its own groundwater consumption plan for the locality. The deadline and milestones for sustainability are determined by the nature of the groundwater basin at issue. However, all basins must achieve “sustainability” by 2040.

The largest problem with the California groundwater legislation is that it is unclear what “sustainability” means. Notably, the word is not defined in the original legislation. Ultimately, there is no question that the state has the authority to regulate groundwater consumption under the police power. However, when the state chooses to regulate or chooses to delegate its authority to regulate to other agencies, the terms of the regulation must be reasonably clear. Here, by requiring local agencies achieve “sustainability” without defining the term, the legislation leaves itself open to a challenge for vagueness as well as for violating the non-delegation doctrine.

It is a “cardinal principle” of California law that “the legislature cannot delegate the power to make laws to any other authority or body.” Board of Harbor Comm’rs v. Excelsior Redwood Co., 88 Cal. 491,493 (1891). Delegation is only permissible if the legislature “clearly establishes ‘the ends’ of legislation.”  Kugler v. Yocum, 69 Cal. 2d 371, 376 (1968).

Here, it appears that the California groundwater legislation at issue does not meet this standard. They ask that the local agencies achieve sustainability, but they do not say what sustainability is. Not only does this place an unfair burden on these local agencies, but it opens the door to wide array of special favors and arbitrary enforcement of groundwater regulation under the guise of “sustainability.” Without a clear standard, there is nothing to prevent a local agency from granting a sweetheart deal to Nestle to pump groundwater for bottles that will be shipped out of state, while simultaneously crafting regulations that shut off the spigot to farmer John’s crops…all in the name of “sustainability”. Californians deserve better.

The Constitutional property rights attorneys at Kassouni Law recognize property values can be affected by new groundwater laws. If this legislation impacts the value, enjoyment, or profitability of your property you may have legal remedy.  Consider calling our lawyers who have set legal precedents litigating in the defense of clients’ Constitutional property rights  877-770-7379. Lead  property attorney Tim Kassouni will speak with you personally to provide a fair and honest assessment of your matter and to develop a legal strategy based on the assessment.