DWR’s David Gutierrez and the State Water Board’s Michael Lauffer discuss the carrot and stick role of the state in implementing sustainable groundwater management
The Sustainable Groundwater Management Act became effective on January 1, 2015, creating a framework for managing the state’s groundwater resources on a local or regional basis. But while the new groundwater legislation contemplates a bottom-up governance, planning and regulatory structure for California’s groundwater resources, the State of California nonetheless has a significant role through the California Department of Water Resources and the State Water Resources Control Board. The California Water Policy Seminar Series continued with David Gutierrez, Program Manager for the Groundwater Sustainability Program within the California Department of Water Resources, and Michael Lauffer, Chief Counsel of the State Water Resources Control Board, who discussed their respective roles.
Professor Richard Frank opened the lecture by characterizing the state’s involvement and potential intervention in the groundwater planning, governance and regulatory structure as a ‘carrot and stick’ approach. “From my admittedly subjective point of view, I think it is the Department of Water Resources that offers most of the carrots in the incentives and the technical assistance under the legislation, while it is the State Water Board that provides the stick in the form of backup authority to plan, regulate and manage the State’s groundwater basins under certain circumstances,” he said. “Today with us really the two best people from those two agencies to describe in more detail what the nature, scope and key features of that state carrot-and-stick role are.”
DAVID GUTIERREZ, Department of Water Resources
First at the podium was David Gutierrez. Acknowledging that a lot of background information had previous been given on the groundwater legislation in previous lectures in the series, he said he would give a bit of background to set the stage before he discussed the role of the Department of Water Resources (DWR).
“Of course, groundwater is absolutely critical to California’s water resources as a whole,” he said. “When you look at groundwater and the availability of storage within groundwater, it’s much, much, much greater than the availability of storage in surface water is. 
When you look at the usage of groundwater around the state, it’s equally as important and in times of the normal years; it’s on order of about a third of water resource use is by groundwater, and in times of drought, when we run out of surface water, we rely much more heavily on groundwater, upwards of 40% or greater. And in some areas, it’s even greater than that.”
The recent drought has highlighted some issues associated with groundwater, but the state has been having groundwater problems for decades, he said.
He pointed out on the map that most everywhere in the Central Valley, groundwater is at historical levels, which likely precipitated the discussion around groundwater. “Like most issues, when we don’t necessarily deal with it right away, we wait until we’re in a really bad situation and then we deal with it, and I think that’s what we see here,” he said. “We’ve had a drop, we’ve had this groundwater problem forever, but we really can’t avoid it any more, and we need to take care of it.”
There are a number of significant adverse impacts that occur as a result of lowering groundwater, such as wells going dry, land subsidence, sea water intrusion, and creeks and waterways going dry. “These adverse impacts have been around; they’ve just been highlighted as a result of the drought,” he said. “It’s something we obviously need to discuss and take care of, which is I think a result of the Sustainable Groundwater Program.”
In simplest terms, it’s basically water balance that has to be addressed he said. “You really can’t separate the issues,” he said. “Surface water and groundwater – they go together. You can’t really deal with one without dealing with the other. So what we need to do is a complex water balance understanding of the separate basins that we’re going to be talking about in particular. But we also have to understand this as a whole in the State of California. So water balance is really the key that I think we have to address. We have to understand the water balance and it’s a simple equation in terms of demand and supply. We have got to get more supply or we have to cut down demand and we have to get the equation more balanced out.”
The California Water Action Plan set the stage for all the issues associated with water and water resources, and groundwater is just a piece of that, said Mr. Gutierriez. Action 6 of the action plan is to expand water storage and improve groundwater management, he noted. “This was the beginning. This happened over a year ago or about a year ago when we were trying to set the stage on water policy in the State of California recognizing some of the issue and groundwater is a piece of the puzzle … But again, you can’t get away from all the other water resources issues. They actually go absolutely hand-in-hand and we have to understand that.”
The Sustainable Groundwater Management Act is the framework to get started; it sets up some ground rules and defines the roles for the locals and for the state, he said. “It took us well over 100 years to get into this situation so we’re not going to solve the problem in a year and I think we need to all recognize that,” he said. “It’s going to be a phased approach, and it’s going to happen over decades. We’re not going to turn this around overnight.”
“The first phase is actually realigning the governance,” he said. “We have to govern a little bit differently than what we have in the past. We’ve managed water resources on the surface level fairly well, at least relative compared to groundwater where we haven’t really done a good job, so we have to realign our governance on the area. Then we’re going to have to develop and adopt groundwater sustainability plans. The plans are essentially to meet the goals for the groundwater basins throughout the state. Then we’re going to start managing our groundwater just like we manage our surface water and then over the decades, hopefully that leads to sustainable groundwater throughout the state.”
Fortunately, we’re not starting from ground zero, Mr.Gutierrez said. “This Act is absolutely critical and it’s certainly unique and important. Fortunately, we have a little bit of information that we’ve previously worked on over the last couple of decades,” he said, noting that AB3030 required local agencies to begin development groundwater sustainability plans, Bulletin 118 has some data on groundwater, and the CASGEM program which is developing data and data programs to start gathering some information about groundwater. “But a lot of that previous work and legislation really didn’t have a lot of teeth to it. It’s a good start. There’s great information there, but we really needed the Act to give the teeth, the authority, and the responsibility to really get to where we need to go. So it’s been a kind of a progressive haul up to now, and we’re going to use that information before but we’re going a lot farther down the line now with the groundwater legislation.”
With the previous legislation, although it was a requirement to have groundwater sustainability plans, there wasn’t necessarily good funding for the state or the Department of Water Resources to review and comment on those plans, he said. “When we look at those plans some of them are pretty good, but a lot of them actually don’t even meet the requirements of the original legislation, because there’s not necessarily any teeth in that particular piece of legislation,” he said.
Now it’s a lot different, Mr. Gutierrez said. “Now we’re going to manage groundwater for the local level … it’s certainly something the DWR buys into, and we have to operate that way,” he said. “The way we’re going to measure our success is by the success of the locals. It’s not going to work if the department tries to manage the groundwater; although we have a backstop, I don’t think it would work if the state comes in and tries to manage groundwater state-wide. For this to be effective, we have to get the tools and the financial assistance to the local agencies to make sure they actually do it because things are so regional and different basin to basin.”
He presented the timeline showing the requirements DWR has, and noted that the orange box indicates the issues that DWR has to deal with, and the purple boxes are for the State Water Resources Control Board, whose role comes later in the implementation of the legislation.
Communication and outreach is absolutely critical for achieving success, Mr. Gutierrez said. “It has to work at a local level and regional level,” he said. “And so the Department of Water Resources is going to be developing guides and regulations, we’re required to provide assistance with technical and planning tools, and we’re also there to help with some regional issues, as well as provide financial support. … the Sustainable Groundwater Management Act is new to a lot of people so we have to get out there, communicate and educate folks about it.”
The Department of Water Resources will be working with people to understand the issues as they develop the regulations, he said. “The department will in fact make all of the decisions, but it’s important that we interact with the communities to ensure that we have a good common understanding the issues. We have developed a communication plan and we’re talking to folks, trying to teach them about the Sustainable Groundwater Management Act and the roles of various organizations and agencies.”
The communications plan includes numerous speaking engagements, brochures, and technical fact sheets, he said. “I look at outreach a little bit different,” he said. “Communication is more of an education approach, and outreach is more of an interactive process. In the interactive process, I’m trying to understand the issues, I’m trying to work with you and I’m trying to discuss things with you. So we’ve developed a layered approach to this and when we identify the various organizations, we have to work with them and outreach them differently.”
DWR is developing regulations, some of which the State Water Board will have to implement, so work teams with water board staff have been established to aid in the process, he said. The Water Commission’s role is to approve the regulations that DWR eventually develops, so they’ve established subcommittees to the Commission to keep them informed of the process. “When we come to the end, there should be no surprises,” said Mr. Gutierrez. “They should know exactly what we’re trying to approve, and that should work a lot better if we get them on early.”
DWR has established a Technical Advisory Panel of managers, practitioners, and groundwater experts to look at specific technical issues and advise them as they develop the tools and the regulations.
DWR will also hold public stakeholder meetings, starting first with listening sessions. “We want to develop some guiding principles, we’re going to present that to the public and we’re going to hear from them and get some feedback from them … and then we’re going to come back with draft regulations. So there should be kind of no surprises along the way.”
“The Department of Water Resources is the one that has to make the decisions,” Mr. Gutierrez said. “But first we need to understand the issues, so it’s important to outreach and communicate and effectively discuss some of these issues. It’s also to make sure everybody kind of understands the direction we’re going and the decisions that we’re making along the way. So, at the end, when we come up with the final regulations, we’re not necessarily there to make everybody happy – this isn’t a consensus-based approach – but on the same token we’re hoping that no one is going to be surprised. They’re going to see the direction that we’re going all the way along the road.”
DWR is also leveraging organizations such as ACWA by communicating through and meeting regularly with members through committees, he added. “They can then go outreach to their community to make sure that we’re getting the message clearly across as best as we can,” he said.
“Outreach is absolutely critical for the success of this program, and we’re spending a lot of resources on doing that,” he said.
The Department’s Strategic Plan for implementing the groundwater legislation has five objectives they will be working to achieve over the next several years:
1-Develop a framework for sustainable groundwater management. DWR will support locally developed groundwater sustainability plans by developing comprehensive water budgets, updating basin prioritization, publishing best management practices, developing and adopting regulations for basin boundary revisions and for assessment of groundwater sustainability plans, identifying groundwater basins subject to overdraft, and evaluate adequacy of groundwater sustainability plans. “Our success is measured on the success of those local agencies, so the first objective is to develop those rules and guidelines,” Mr. Gutierrez said.
2-Provide statewide technical assistance by collecting groundwater quality, elevation, and subsidence data; developing a groundwater management information system; establishing well standards; and implementing the CASGEM program. “We’re going to continue with the CASGEM program, but in some basins we’re going to have to go above and beyond the CASGEM, which is a data collection system,” he said. “You could only develop a plan based on the data that you have, so if you don’t have good data you’re not going to get a good plan. In some instances even CASGEM level of data is not good enough, and so we’ll be looking for the different groundwater sustainability agencies to more effectively up the ante on data collection.” The Department will also be assisting the agencies with looking at the local supply and the demand part of the equation, he added.
3-Provide statewide planning assistance by issuing an interim update to Bulletin 118 by 2017 and a full update by 2020; and to integrate more groundwater information into Bulletin 160, the California Water Plan.
4-Assist state and GSA alignment, and provide financial assistance: “It’s the locals that are going to be running the show, and a Groundwater Sustainability Agency is any public agency that deals with water or land use,” he said. “So these folks have to figure out within each one of their own basins and amongst themselves who they are and who is going to lead the effort. It’s their decision to do it. The Department of Water Resource really has no authority or responsibility to do that and neither does the State Water Resources Control Board.”
“But we also realize they need some assistance,” he continued. “So we’re going to be doing a couple of things for them. We’re going to be providing financial assistance – there’s a Proposition 1 with $100 million in it and that funding will help those local agencies get to a groundwater sustainability plan. We’re also going to be helping things like facilitation services. So we need those folks to start talking right now. They can’t wait. They need to start figuring out their governance structure and we want to encourage that.”
5-Provide inter-regional assistance by assisting in the implementation of storage and conveyance projects, providing information on surface water reliability, advancing studies on surface and groundwater interaction, and providing information on water availability for replenishment. “They’re all individual basins, and we need solve those individual basins and their problems, but you need to look at the bigger picture too. So, a basin and its water supply, the supply may not come from the basin itself, there’s water supply coming from other sources. And so we need to help them understand what that water supply is, and we might need to help them in the future look for additional storage facilities to supplement the supply side of the equation.”
In terms of immediate actions, Mr. Gutierrez said the Department first will be working to develop regulations to change the basin boundaries. He explained that the boundaries were set back in 2003 and were based on the knowledge they had at the time, and acknowledged that there may be reasons to adjust those boundaries. “So we’ll be working with local agencies who will be requesting changes, but we have to figure out the regulations and the rules of the game,” he said. “It can’t just be a free for all. You can’t just have basin boundary change for any reason. In order to make groundwater sustainable we have to balance the governance with the state water problems. So when you talk about governance, the simplest way to do this is to break this up into smallest pieces as possible. … But when you start working with others it gets a little bit more difficult, but we need to do that. We need to actually work with others to get to a sustainable groundwater situation.”
Another immediate action for DWR is to update the basin prioritization. “When we look at basin prioritization it’s not necessarily the basin that’s in the biggest trouble that’s the high priority – it’s the basins that actually use water the most,” he said. “So when you look at the high and medium priority basins throughout the state, there’s 127 I believe, out of those, it’s over 90% of the water is groundwater coming from those basins, so they’re the important basins of the State of California.”
DWR will also be identifying basins subject to critical conditions of overdraft, he said. “The reason we have to do that is that if we do have a basin in trouble, they are required to have a plan in 2020, whereas if they’re not a basin in trouble under critical conditions of overdraft, they have an extra couple of years and 2022 is the deadline to actually have a groundwater sustainability plan.”
DWR will be developing regulations around the groundwater sustainability plans themselves. “The Act itself does give some guidelines of what’s going to be a groundwater sustainability plan, but it’s the Department’s job to actually develop more specific guidance on what is going to be a groundwater sustainability plan to make sure we achieve sustainability state-wide,” he said.
The Groundwater Sustainability Agencies (or GSAs) are the ones who will actually regulate groundwater within a basin, he said, noting that various organizations and water agencies within a basin could potentially become the Groundwater Sustainability Agency. “These folks within a basin can get together and decide to have one big Groundwater Sustainability Agency … or these folks can choose to have individual Groundwater Sustainability Agencies,” he said. “There’s various ways that these local agencies and the law allows them to work together, but they have to get going right away. There are quite a few issues with this and this isn’t necessarily something that’s been done before, so we have a lot of work to do and give them some guidance.”
The initial priorities were established in June of 2014, Mr. Gutierrez said. “We need to compile habitat and stream flow data which are two new aspects of the law that previously weren’t in our basin prioritization, so we have to figure out how are we going to apply that. It could change basin priorities throughout the state.”
He then presented a timeline for establishing basin boundary regulations. “What we’ve been doing right now over the last couple of months is just scoping the problem,” he said. “We’ve met with dozens of agencies and organizations throughout the state to make sure there’s common ground in sharing and understanding of what the issues are. We’re going to use that information to develop guiding principles. We’re going to go back to those organizations, we’re going to have public meetings and we’re going to present that information, and get feedback on the guiding principles before we finalize that. Then we’re going to use that guiding principles to help us develop the regulations. That’s what we’re going to be doing from April to June. We then have to work with the California Water Commission and hold additional public meetings to get additional information. We’ll be doing that over the summer, and the idea is by the end of the year, we’re going to actually be adopting the regulations.” Mr. Gutierrez noted that it was a similar process for developing the regulations for groundwater sustainability plans, which will follow about six months afterwards.
Mr. Gutierrez recommended the following websites for more information:
- State: http://www.water.ca.gov/cagroundwater/
- DWR: http://www.water.ca.gov/groundwater/
- SWRCB: http://www.waterboards.ca.gov/water_issues/programs/gmp/
MICHAEL LAUFFER, State Water Resources Control Board
Michael Lauffer began by saying he would talk about the State Water Board’s responsibilities and its activities that it’s doing generally with respect to groundwater supply, but not just solely in context of the Sustainable Groundwater Management Act. “I’m talking about water supply and water rights in groundwater and not the entire other side of the house,” he clarified. “The State Water Board has some fairly broad, almost primary powers with respect to in California and that’s the water quality side. There are small components where I’ll be very clear about the interaction between our groundwater responsibilities and the Sustainable Groundwater Management Act and some of the other authorities related to supply. But I am not talking about the entire body of law that the board is used to implementing that gives it very robust powers with respect to groundwater quality.”
Mr. Lauffer also noted that he will be talking about the State Water Resources Control Board’s role and not the Department of Water Resources, which is a separate agency with different responsibilities. “In California, we have fractured up on a lot of our authorities, but generally, if it’s water and it’s regulatory, it’s the State Water Resources Control Board. Bad cop, State Water Resources Control Board; Good cop generally tends to be Department of Water Resources,” he said.
Mr. Lauffer said he would talk first about the implementation of the Sustainable Groundwater Management Act and how the State Water Board functions as the state’s credible backstop to ensure that locals are actually implementing the legislation, but he noted they aren’t the only authorities the State Water Board has. Later on in his discussion, he will focus on the largely untested authorities with regard to water supply and groundwater from the State Water Board’s perspective.
There are two key break points with respect to implementation of the Sustainable Groundwater Management Act or SGMA, he said. “The locals need to develop a plan and the Department of Water Resources is going to be providing the foundation and the regulations to which the locals will attempt to define and develop their plans,” he said. “The State Water Board’s role as DWR is going through developing regulations is incredibly important because ultimately the State Water Board is going to be exercising a backstop responsibility. Our staff have been working closely with DWR staff to identify what the parameters are, what the frameworks are, and what can result in regulations that are clear for locals to follow, but also for the State Water Board as it is looking at exercising it’s backstop responsibility to be able to actually enforce it and determine, ‘Did the locals comply with what the Act says? And can the State Water Board make necessary findings in order for it to carry out its responsibility?’”
Mr. Lauffer noted that at the same time that DWR is undertaking its efforts to reach out to the local agencies, the State Water Resources Control Board is going through a similar process, meeting with locals as well. “A lot of what of what’s going on right now is because groundwater has historically been unregulated in California, and a lot of people are happy to maintain the status quo,” he said. “A lot of the genius in the architecture behind the Sustainable Groundwater Management Act is giving locals not only the tools so they could act, but letting them know that there’s a consequence if they do not act, and the Water Board is that consequence. So at this point in time, our staff are getting out there with a message of ‘Here are the parts of the state that we’re concerned about and here’s what the DWR’s doing, but also ‘here’s what we’re going to be doing down the road.’ By the way, the basins that we’re visiting are those that are critically over-drafted, that are really the likely first targets of a potential State Water Board action if locals don’t step up in the first instance.”
The other reason is to ensure that the State Water Board staff understands how the Act is being implemented so they can actually hit the ground running, he said. “Our staff want to be prepared to move if people start missing the deadlines.”
The first deadline is July of 2017, which is when all groundwater basins in the state designated as high or medium priority must have formed a Groundwater Sustainability Agency or an amalgam of agencies that will oversee their entire basin, he said. “If there is not an agency that has stepped forward by that magic date of July 1, 2017, the State Water Board’s first power under the Act comes into existence,” he said. “That actually doesn’t require the board to do anything formally at that point in time, but what it does is for those parts of the state that are not covered by a plan, the local groundwater pumpers will have to start reporting to the State Water Resources Control Board the amount of water that they’re extracting.”
It’s part of the overall architecture of the plan, Mr. Lauffer said. “Californians, when it comes to groundwater hate to do is tell anybody what they’re doing,” he said. “We have not collected data. You cannot manage what you do not measure. And California, the lack of measurement and recording at the state-wide level has been the norm; that has been the way California has approached groundwater. And so, the first kind of chink in the armour is to say that “Once you hit this point in time, if you don’t have a local agency that’s stepping up, starting to collect this information and starting to manage, you’re going to start telling the State Water Resources Control Board.”
There’s a funding component as well, Mr. Lauffer said. “We don’t expect the citizens of California, even though water is an incredibly important resource for the entire state, we don’t expect the state generally to pay for the problems in a specific area. And so, at the same time that people have to start reporting to the State Water Resources Control Board their extractions, they also have to pay a fee. So you can see two strong incentives to ensure that people who are pumping up groundwater support the development of a local plan.”
“If they don’t want to pay fees and if they don’t want the State receiving their usage information and posting it up on a public website, then they need to get behind their local efforts, and that is a lot of what is going on here,” he said. “There are some incredibly talented and resourceful people at the local level who want to solve their district problems. But a lot of times, and with groundwater, it’s been a particularly challenging issue for local governments to actually mobilize for local action because there’s no consequence, or at least no near-term consequence, if there’s a failure to act.”
“In 2017, there will begin to be immediate consequences to inaction, and so it’s designed to not only provide the state information so that it can step in if it has to, but it’s also designed to empower local agencies, because there will be a consequence if they do not step forward and if local electeds or local groundwater pumpers do not support those local efforts,” Mr. Lauffer said.
The role of the State Water Board is in Chapter 11 of the legislation, which is just four of the 50 pages of the legislation. “That really is a reflection that we wanted to handle groundwater locally; we wanted the state’s role to be important, and it’s going to be prepared to come in with a heavy hand but there aren’t going to be a lot of tools that the State Water Board is going to have.” Chapter 11 lays out a multi-step process, but ultimately the most powerful tool will be the ability to curtail demand – to place limitations on groundwater extractions, he said.
The regulations for developing groundwater sustainability plans will provide a mixture of carrots and sticks that the local agencies will be able to pursue, Mr. Lauffer said. “They will be able to look at Surface Water Augmentation, conjunctive use projects and a whole range of alternatives, that there are sweeteners in there to help ensure that groundwater can be sustainably managed. When the State Water Board comes down, it’s a very different perspective. It’s going to be a demand-driven exercise and by doing that, again, it’s designed to reinforce that drive for locals to solve their problems themselves.”
“When the State Water Board comes in, it’s going to be responsible for ensuring that the number of deadlines in the Act are actually implemented,” he said. “The first, July of 2017, is a very clear case of black and white. Do you have a local agency in place? If that’s not done after two-and-a-half, three years, there are no special findings the State Water Board has to make other than you’re a high and medium priority basin and there’s no agency in place. But after that it starts to become a mixed role between the Department of Water Resources and the State Water Resources Control Board.”
Mr. Lauffer said that if by 2022, you’re a basin that is critically over-drafted and identified by the Department, and you do not yet have a plan, you will then be subjected to the State Water Board’s action; if you are in a basin that is not critically over-drafted you will have seven years.
The next threshold is the adequacy of the plan, he said. “Ultimately the way that this has ended up is that the State Water Board is not the sole determiner, in fact it’s not even the determiner at all as to whether or not the plans at the local levels are being implemented adequately or even are adequate plans that comply with DWR – that’s DWR’s role,” he said. “But when the Department of Water Resources makes those determinations, the State Water Board essentially has to validate them through a subsequent process. So the inadequate implementation of those plans in a critically over-drafted basin is determined by the Department of Water Resources and if you’re in one of those basins, the State Water Board can begin acting after five years – in 2022.”
The next State Board action comes in conjunction with determination from the State Water Board and the Department of Water Resources makes a determination as to whether or not the plans are adequate, or being adequately implemented, Mr. Lauffer said. “The State Water Board has to make two separate findings to open up a basin to what we call ‘probationary status.’ First is the basin has to also be in long-term overdraft, which is a term defined within the Act, which basically says that the net water coming into the basin over a 10-year period is exceeded by the water being extracted from the groundwater basin. There was a lot of creative lobbying going on in the legislature, and a lot of folks were concerned that the crisis precipitated by the current drought would be used to trigger new authorities by the State Water Board and the Department of Water Resources so that definition of long-term overdraft specifically excludes periods of short-term drought. So there are several different ways that you can trigger the State Board paying you a visit in your basin.”
“What the State Board does is is first go through a process to designate a probationary basin. That’s a basin that has run afoul, if you will, of one of these criteria, and that goes back to the psychology of this legislation,” he said. “The State Water Board is not coming in and trying to solve the problems in the groundwater basin. These are probationary basins. They have a problem. Locals haven’t stepped up to fix them. And so, the State Water Board puts them on notice. If it’s one of the simple things at the beginning, for example, there’s no local agency, the State Water Board says, “Hey, you haven’t met the deadline for the Act.” The locals get 180 days to finally get their act together before the State Water Board can actually begin exercising the authority. Likewise, if the basin has a problem, it’s not adequately implementing its plan, or the plan is inadequate from the outset, as determined by the Department of Water Resources, the State Water Board puts the basin on notice. Department of Water Resources has 90 days to prepare a report identifying the problems and what actions could be used to remedy the deficiencies. And only after that opportunity to cure can the State Water Board complete the process of identifying the probationary basin as a basin that the State Water Board should move to the next step of its brotherly love.”
And once the State Water Board identifies a basin as probationary, it then goes into a step where it begins extraction reporting, coupled with the requirement of filing fees to file the reports of extraction, he said. “That bill will be coming from the State Water Resources Control Board, and with the data being submitted as well, it’s a constant reminder to the local pumpers that they really should support the local efforts to develop sustainable groundwater management.”
“The next step is an interim plan,” Mr. Lauffer said. “Again, going to the psychology of the Act, the State Water Board does not want to be grabbing a hold of these basins and trying to manage them for years and years. It wants to come in on an interim basis, really, once again, to incentivise the locals to step forward and solve their problems. They really know their basins better. They are more in tune to the local problems. So, all of this, again, going into that psychology of the legislation.”
“The interim plans can include limitations on groundwater extraction; they can include what we call under California Water Rights Law, a ‘physical solution’, which is basically an equitable way of apportioning responsibility for meeting some of the state’s sustainability requirements of the Act,” he said. “The board can identify principles and guidelines for how the groundwater extraction and the groundwater limitation requirements in the interim plan should interface with the surface water elements that the State Water Board oversees in its traditional water rights authority. But, the State Water Board is not responsible, and will not be developing a plan that is a sustainability plan. It is not going to be identifying all of the undesirable results. It is not going to be responsible for developing a sustainable, long-term fee structure, a conjunctive use structure. It really is just going to be reinforcing to those locals to step up.”
There were concerns about areas in basins, referred to as ‘white spots’, that would not be governed by any Groundwater Sustainability Agency, he said. “There was concern that some of the locals would not be masters of their own destiny because there would be somebody that would be a naysayer elsewhere in the basin and the State Water Board would step in, so the Act requires the State Water Board to build on the local plans, developed by local Groundwater Sustainability Agencies for whatever portion of the basin that they cover. So, it’s very possible that an interim plan adopted by the State Water Board will include pieces of a local Groundwater Sustainability Plan. For those portions of the basin that are covered by a local agency, they will not have to report to the State Water Board. It will only be those portions that are not covered by a local Sustainable Groundwater Agency. “
“What should be clear from all of this is that state has made a fundamental change in how it approaches groundwater management,” said Mr. Lauffer. “But fundamentally, it is still going to be a locals first approach. The State Water Resources Control Board and the Department of Water Resources have been given important tools that are essentially designed to scare local agencies and groundwater pumpers into embracing local sustainable groundwater management.”
Mr. Lauffer then briefly discussed some of the other State Water Board activities that they have been proceeding with, besides the new groundwater legislation. “Last year, building off the California Water Action Plan, the Governor’s proposed budget that was passed in late February of last year included 10 positions with the State Water Resources Control Board to begin investigating groundwater conditions around the state,” he said, noting that this was before the new groundwater legislation had become low. “The authorities that those staff would have been exercising would have been authorities under Article 10, Section 2 of California’s Constitution, which is the Waste and Unreasonable Use provisions of the Constitution. While the State Water Board has historically only used its authorities under Article 10, Section 2, in the context of Surface Water Diversions, California courts have held that Article 10, Section 2 applies to groundwater as well.”
“Now, I will say waste and unreasonable use is a very unwieldy context when you’re looking across a basin,” he said. “You can build a very simple case for how overdraft and excessive groundwater extractions are unreasonable and wasteful, especially because they can begin to diminish storage capacity and those basins where you actually lose floor space as the basin collapses … But it’s also tough to pull out individual instances of waste and unreasonable use. And the State Board has established precedent through some of its surface water regulations of saying ‘the uncoordinated activity of drawing water from streams’; in this context we’d be looking at the uncoordinated extraction of groundwater from a basin would provide a basis for a waste and unreasonable use proceeding. And so the State Water Board retains that authority and if there’s somewhere where we see that SGMA is not being implemented in a way that is sufficient to protect resources, the State Water Board may still evaluate whether or not that is an appropriate tool to use. For now those 10 staff have pivoted more towards assisting DWR in the implementation of the Sustainable Groundwater Management Act.”
“The one last piece of authority that the State Water Board is prepared to explore with respect to groundwater is the application of the Public Trust Doctrine to groundwater resources,” he said. “Essentially, the State Water Resources Control Board has taken the position that extractions of groundwater that have an undesirable effect on public trust resources in an interconnected surface water give rise to the board’s responsibility and authority under the Public Trust Doctrine as enunciated by the California Supreme Court and National Audubon v. Superior Court, to protect those public trust resources. This is an area that has been the subject of litigation… that would be an area of further development and the Groundwater Sustainability Act was very careful to articulate that that authority was reserved for the State Water Resources Control Board and nothing within the Act limits that authority.”
“So, at this point in time, the State Water Board is primarily focused on working with DWR getting up to speed so that we can continue to scare locals into ensuring that they will step forward in the first instance and safely manage their basins, but also ensuring that we have other tools available to us beyond the Sustainable Groundwater Management Act to protect California’s groundwater resources,” concluded Mr. Lauffer.
Questions and answers
Question: How do you know when the locals have not stepped up and the State Water Board is going to step in? “Are you going to have groundwater cops or how are you going to have DWR telling State Water Resources Control Board, ‘The locals have failed … How do the citizens know that that action is going to go into place? Is it public? … “
“There are many elements of the sustainability reports that are public or the sustainability plans themselves will be public,” responded Michael Lauffer. “Under the Act, the locals will have to report to the Department of Water Resources and provide a copy of their plan and their report. DWR has to do an evaluation and then publicly report on the status of that evaluation and then we’ll do that on a cycle. It was intentionally crafted into the legislation that the State Water Board or the Department of Water Resources can at anytime essentially initiate a review of the plan … Although there’s not a formal petition process built in for a concerned citizen to petition the State Water Board or to ask DWR to look at a plan to make sure that it’s being implemented but the assumption is they will contact either one of the departments that can initiate a new review … ”
Question: Will this information be posted on the web?
“The first thing out of the gates is that folks are deciding who is the Groundwater Sustainability Agency is, and we are actually required by law to post who that is,” responded Mr. Gutierrez. “Now when you get into groundwater sustainability plan, that’s actually the trick. What’s adequate? That’s the whole purpose of developing the regulations in groundwater sustainability plans. So we’re going to develop regulations that will define what is in an adequate groundwater sustainability plan. We should be able to look at a regulation, look at the plan that comes in and there should be able to be a clear judgement on whether that plan is adequate or not. … “
Question: What happens if a groundwater pumper under SGMA is required to submit pumping data to the state and doesn’t do it?
“A couple different things,” replied Michael Lauffer. “First of all, the fees will continue to be assessed. … The State Water Board’s authorities under Division 2 of the Water Code have been amended. So, the State Water Board can issue a cease and desist order, saying that the individual has an obligation to report and is not reporting extraction information …It will go through a traditional adjudicate hearing process at the board, they can be held liable up to $1,000 a day for penalties. And if it happens to be in a time of drought, the number goes up to $10,000 per day. So, there are significant hammers to ensure that there is actual reporting that will go on.”
Question: Is the State Water Board planning on changing or expanding the definition of methods used for groundwater recharge, as it’s my understanding it’s not current.
“That’s actually going to be more of a legislative call because there’s already within the water code, a definition that’s a sausage in the process of legislation,” said Mr. Gutierrez. “There is a definition of recharge and groundwater recharge within Division 2 of the Water Code that’s sort of mess. It means all things to all people. Some have argued that it has been used to restrict and essentially divide and say, not to recharge. Others think that it’s too permissive and encourages activities like flood irrigation in the name of groundwater recharge. So there have been ongoing discussions, in fact, I actually am surprised it didn’t make it into SGMA. The largest water interest in the state actually had a role in pulling out a recharge definition that would have made its way into SGMA and would have I think addressed a lot of the concerns really promote appropriate groundwater recharge without providing an inappropriate incentive for people to just flood irrigate and recharge the basins.”
For more information …
To watch the lecture, click here.
For more from the California Water Policy Seminar Series …
This is the third year that Maven’s Notebook will be covering the series at UC Davis. Previous speakers have included John Laird, Mark Cowin, Felicia Marcus, Tim Quinn, Jay Ziegler, Ellen Hanak, Michael Lauffer, Ronald Robie, Harrison ‘Hap’ Dunning, Michael Rosenzweig and many more. You can access all coverage from all years in the archive here: California Water Policy Seminar Series Archive
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