O'Melveny Insights 2023

24 Climate Change Heating Up Water Wars Shortages have prompted other kinds of litigation as well. As climate change reduces surface supplies, users often turn to groundwater. Overpumping can result in falling groundwater tables and various associated problems, including surface subsidence. So, not surprisingly, groundwater adjudications, in which courts resolve disputes over groundwater withdrawals, are also on the rise. California hoped to avoid such lawsuits by passing a law in 2014 that requires local agencies to sustainably manage the state’s groundwater basins, but the administration of that law has already led to six new groundwater lawsuits, and far more are likely. Water shortages have also led Indian tribes to file claims to water as a matter of treaty rights and federal law. The Supreme Court recently agreed to hear a case involving the Navajo Nation’s claim to Colorado River water. Finally, environmental organizations and governmental agencies are bringing lawsuits to ensure that water users leave sufficient water in rivers and streams to protect freshwater ecosystems in the face of climate change. In short, climate change is driving severe drought in more and more parts of the United States. In response, water users and environmental advocates are turning to the courts to claim whatever they can of the shrinking supplies. The disputes—some of which involve hundreds of parties—are complex enough to make even negotiating voluntary settlements a long and expensive process. Parties who get out ahead of these issues and focus on problemsolving can better control their fate and reach favorable resolutions. O’Melveny is one of the few major law firms with a dedicated water practice, drawing on 100+ years of experience advising industry clients. In 2022, 85% of the US suffered abnormally dry or drought conditions.