SGMA IMPLEMENTATION: Groundwater Sustainability Plan evaluation and State Water Board intervention

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A joint workshop hosted by the Department of Water Resources and the State Water Board provides details on how incoming plans will be evaluated and what State Water Board intervention might look like

It has been over 1950 days since the Sustainable Groundwater Management Act was signed into law, and since that time, the Department of Water Resources, the State Water Resources Control Board, and the myriad of Groundwater Sustainability Agencies across the state have been working diligently to create a new paradigm for groundwater management for California.

On January 31, 2020, Groundwater Sustainability Agencies overseeing groundwater basins designated as critically-overdrafted are required to submit their adopted Groundwater Sustainability Plans to the Department of Water Resources.  Failure to submit a plan or submitting a plan that is deemed inadequate by the Department of Water Resources could result in intervention by the State Water Resources Control Board.  The remaining high and medium priority basins that are subject to SGMA will be submitting their plans in just two years’ time, so how these first GSPs will be evaluated is of interest for the remaining basins who are responsible for developing, adopting, and submitting their plans to DWR by January 31, 2022.

With the deadline of January 31st fast approaching, the Department of Water Resources and the State Water Resources Control Board held joint workshops in Paso Robles and in Clovis earlier this month to give groundwater managers and stakeholders a better understanding of how the Department will approach evaluation of the groundwater sustainability plans and the triggers and process for intervention by the State Water Board.

THE ROLE OF THE DEPARTMENT OF WATER RESOURCES

Craig Altare is an Engineering Geologist with the Department of Water Resources.  His presentation focused how submitted groundwater sustainability plans would be posted and evaluated.

A groundwater sustainability plan (GSP) is developed by a groundwater sustainability agency (GSA) for the purpose of achieving a locally defined sustainability goal.  A GSP is either a single plan or multiple plans that are coordinated by a required coordination agreement that covers the entire groundwater basin.

The slide lists some of the key requirements of a groundwater sustainability plan.   The GSP is required to have administrative information such as the agencies, water uses, and water users are in the basin, and how beneficial users have been engaged during the development of the GSP and how they will continue to be engaged moving forward.  The administrative information also includes the land uses as well as the land use planning agencies and authorities in the basin.

The GSP must also describe the basin setting, which includes the hydrogeological conceptual model that describes how the basin works, the principal aquifers and principal aquitards if they exist, and how the groundwater flows in the basin.  It includes the groundwater conditions in the basin, both historical and current, and other information such as groundwater levels, groundwater in storage, water quality conditions, seawater intrusion, subsidence, and interactions between groundwater and interconnected streams.  The basin setting also includes the historical, current, and projected water budget that considers factors such as climate change and the implementation of projects and management actions that are proposed in the GSP.

The GSP will include information on the sustainable management criteria which are the required metrics used by the GSA to show to the state and to themselves what the goals for the basin are and how the GSP will accomplish those goals.   These are basically the criteria for success that are defined by the local agencies.  GSPs must include information on the monitoring network as a lot of monitoring is associated with SGMA compliance, so the GSP has to describe how that data is going to be monitored and the frequency and timing of that monitoring.

Finally, a GSP will describe the projects and management actions they’ll be taking to achieve their sustainability goals.  The projects and management actions should be commensurate with the understanding of the basin and the issues in the basin that need to be resolved.  Mr. Altare noted that they don’t need to be shovel-ready projects, but they do need to be well-defined enough so the Department can see in their review that implementing those projects and management actions will likely lead to achieving the sustainability goal for the basin.

The GSPs for the critically overdrafted basins are due by January 31, 2020; GSPs in all the other high and medium priority basins in the state are due by January 31, 2022 and failure to submit a GSP by the statutory timelines is one trigger for State Board intervention.

DWR’S EVALUATION OF GROUNDWATER SUSTAINABILITY PLANS (GSPs)

The role of the Department in evaluating groundwater sustainability plans (GSPs) is outlined in Chapter 10 of the legislation.  In a nutshell, the Department is required to and did so adopt regulations for the contents of the GSP and how those will be submitted and reviewed, as well as how GSPs can be amended.  The Department is required to post the submitted GSPs on their website and have a public comment period; the Department then has two years to evaluate the GSP and issue a written assessment.

Mr. Altare then went into greater detail on the GSP submittal and evaluation process.

Phase 1 is the presubmittal phase where the GSAs have been developing GSPs and will load their adopted GSPs into the portal.  The Department is expecting approximately 45 GSPs to be submitted for the critically overdrafted basins; there are also some non-critically overdrafted basins that have GSPs ready to submit in January or February.

After GSPs are submitted to the Department through the online portal, the Department has 20 days by statute to post those GSPs to the website.  Although the GSP submittal tool has a lot of internal checks built in, the Department will still need to verify that all the required documents have been submitted, that files can be opened, and such.   It’s not an adequacy review, it is just to verify that everything is there.

“Internally we call that our acceptance review,” said Mr. Altare.  “In other words, we’re accepting that to post for the public comment period so we’re performing the checks to make sure that once the GSPs are posted that the public is able to view the correct information, so they won’t have to come back and get corrected documents.  We want to make sure as much as we can that the public is seeing the correct documents on Day 1 once the public comment periods are open.”

The system will notify the GSAs once their GSPs have been submitted and then once the GSP has been posted.  The Department will use their email listserv to announce periodically which GSPs have been posted.  (Note: these will be posted on Maven’s Notebook and the Groundwater Exchange as they are issued.)

The posting of the GSP opens a public comment period of no less than 60 days that provides an opportunity for folks to submit comments directly to the Department.  Any member of the public can submit a comment to the Department without creating an account on the portal.  The Department is required to consider those public comments received, but won’t be developing written responses to each comment.

“I do expect some basins will receive substantial public comments,” said Mr. Altare.  “I’m aware during the public comment periods for GSPs, some have received substantial amounts of public comments.”

He acknowledged he’s received a lot of questions from GSAs about what to do with the comments that the Department receives.  “I would say that it’s up to you; there is not a defined pathway for what you do with those public comments.  It’s up to you how you want to respond.  It can be a formal letter back to the Department, you could provide information in your annual report, and if you have questions or concerns about any of the comments, you are welcome to reach out to the Department and we’ll find a way to make sure the responses happen in a way that they are transparent and available to the public.”

Once the public comment period is closed, the Department then transitions to phase 3, which starts upon posting of the GSP and the Department is performing a technical review of the plans.  Mr. Altare said there are teams of scientists and engineers, both in Sacramento as well as the four regional offices who are geared up and ready to review each of the plans.

The focus of the technical review is outlined in the GSP regulations.  “What we’re looking for at the highest level is for plans to comply with the objectives of SGMA, and to substantially comply with the GSP regulations,” he said.  “Substantial compliance means that descriptions are reasonably thorough and the analyses are sufficiently thorough and reasonable to show the basins will achieve their sustainability goal.  What that means practically is that basins are operated within their sustainable yield and that undesirable results that are identified in SGMA are absent from those basins.  That’s really in essence what operating at a sustainable yield is.”

Mr. Altare said that the Department is not looking for sustainability to be achieved and undesirable results are avoided on Day 1.  Agencies in statute are given a period of 20 years to reach sustainability and it will take work to get there in some cases, he noted.

“We’re not expecting perfection on Day 1,” he said.  “An important component of the GSPs is the identification of data gaps.  We understand that despite having 1900 days to prepare, there’s a lot of information that still needs to be acquired and understood in basins throughout the state.  And so we’ll be looking to see that data gaps have been identified and that reasonable and appropriate schedules have been identified to fill those data gaps.”

The GSP will be evaluated per the criteria outlined in the regulations, which includes whether best available science and best available information was used in the development of the plan, a demonstration that the beneficial uses and users of water of groundwater in the basin have been engaged, the identification of data gaps, and whether those projects and management actions proposed are reasonable and feasible and likely to achieve the sustainability goal.

MORE INFO: 

OUTCOMES OF DWR’S EVALUATION

At the end of the review period, the Department will issue a written assessment.  There are three outcomes for a GSP:

The GSP is approved:  For the plan to be approved, it needs to satisfy the objectives of SGMA and comply substantially with the GSP regulations.  Once the GSP is approved, the GSAs will then work on implementing the plan.  There is a statutory requirement for the GSAs to report annually to the Department, and at least every 5 years, the GSAs are required to update their plan and describe progress towards achieving the sustainability goal.

“There is a lot of continuing documentation required to show that not only has the plan been approved initially, but that it’s being implemented successfully to achieve the sustainability goal for the basin,” Mr. Altare said.

The plan can be determined to be incomplete.  A plan will be determined to be incomplete means there is some deficiency or deficiencies that preclude the plan being approved, but in the judgment of the Department, the inadequacy can be remedied within a period of no more than 180 days or about six months.  When the Department does find a plan to be incomplete, they will document the deficiencies that we found and then coordinate with the local agency to determine an appropriate time frame to address those deficiencies; by regulation that cannot exceed a 180-day period.

The plan can be determined to be inadequate.  For the Department to review the plan, the threshold requirements are that the plan must be complete, it covers the entire basin, and it was submitted on time.  If those three things don’t happen, the plan is going to be found to be inadequate.  If the plan satisfies those three criteria, it is reviewed and the Department finds significant deficiencies, the plan can be determined to be inadequate.  If the agency wasn’t able to or chose not to address those within the 180 day period, then the plan would be inadequate.

“We want to be as communicative as we can during this process and my commitment as the chief of our GSP review section is that we will do everything we can to be as open and transparent throughout this process as we can within our regulatory framework,” said Mr. Altare.  “So I would encourage you as you have questions about your GSP, concerns about your GSP, or plan to update your GSP, communicate those to the Department, to our headquarters office and also to your region office point of contact.  The Department has points of contact for each basin.  That engagement is going to continue while you are implementing your GSP.  Reach out to those folks.”

He also said that although the Department has two years  to review the plans, itwill be working to get the GSPs reviewed as quickly as possible.  However, he acknowledged that some of the GSPs, such as multiple GSPs in a basin prepared pursuant to a coordination agreement, are more complicated to review and will take time.   Not all assessments will be released at the same time (such as the alternatives were), but will be released as they are completed.

“The GSP review is the highest priority for us in terms of the Sustainable Groundwater Management Office, getting those reviews done in 2 years or less and getting the information back out to those GSAs, to the public,” Mr. Altare said.

STATE BOARD ROLE IN SGMA IMPLEMENTATION

Next, Natalie Stork, Chief of the Groundwater Management Program at State Water Resources Control Board discussed the state intervention process.

“If the local efforts fail, our role is to protect groundwater resources and get the basin back on track so that local management can be successful in the long run,” she said.  “The Board can only step in with local efforts fail; that means we can’t step in whenever we feel like it.  We temporarily protect the basin until locals come back up to speed.  That means that our process is meant to be temporary; it doesn’t replace a GSP.  And the backstop is triggered by SGMA deadlines which is partially why everyone is focused on deadlines right now.”

Ms. Stork then reviewed those deadlines.

  • By June 30, 2017, all of the medium and high priority basins had to have full coverage by groundwater sustainability agencies. This was largely a successful effort with 99% compliance.
  • By January 31st, 2020 all of the critically overdrafted basins have to adopt groundwater sustainability plans for the entire basin and submit them to the Department.
  • By January 31st, 2022 all of the remaining medium and high priority basins must have adopted and submitted groundwater sustainability plans to the Department.
  • 2025 is the earliest the Board can use its SGMA authorities to address surface water depletions.

HOW TO AVOID STATE BOARD INTERVENTION

There are three options to stay out of the state intervention process for the 2020/2022 deadlines:

  • The basin is covered entirely by one GSA and one plan.
  • The basin has multiple GSAs submitting one plan for the basin.
  • The basin has a collection of GSAs and a collection of plans with a coordination agreement between them.

Additionally, if the groundwater sustainability plan is deemed to be inadequate by the Department of Water Resources, that can trigger state intervention.

THE STATE INTERVENTION PROCESS

After state intervention is triggered in a basin, the next step is a determination of the probationary status of the basin which is done by the Board in a public process with a hearing.  There will be time to address the issues that caused the basin to go into probation and if they are not addressed, the next phase is for the State Water Board to develop and implement an interim plan for the basin.

During the probationary determination period, there will be time to fix the issues, but at the same time, the Board will start to collect the data so they can write an appropriate interim plan.  The Board can require meters to acquire the data and may start issuing information orders to get the information that is needed.

The Board will also require extraction reports.  The Board will contact landowners to notify them of the requirement to report annually; the reports require where the well is located, how much it can pump, how much is pumped on a monthly basis, where the water is used, and what it is used for.  The reports have to be filed online.

Fees are required with every report.  The legislation directs the State Water Board to recover the costs of its program, so the Board developed and adopted an emergency regulation in 2017 that set the fees based on the predicted costs of the program.  The fees may change in the future, scaling up or down as appropriate.

The base filing fee is $300 per well, plus an additional volumetric rate depending on where the basin is in the state intervention process.  Ms. Stork noted that special studies are extra, so if the Board needs to perform special investigations to get additional information, those costs will be passed on.  There is an automatic late fee of 25%.

“Once the basin is in probation, there’s some time to fix the issues, and if the issues aren’t fixed, then we move on to interim plan,” she said.

THE STATE BOARD’S INTERIM PLAN

There are four main components of the interim plan: Corrective actions, monitoring to measure how those actions are working, a schedule for the actions, and enforcement to ensure that the plan is being implemented across the basin.

The statute gives the Water Board several options for corrective actions; however, Ms. Stork noted that the plan is meant to be temporarily so they won’t likely be trying to do stormwater capture or build desal plants in the basins where the Board is intervening.

“Really the most likely option is going to be demand management, so that’s cutting back pumping in the basin,” she said.

The way to avoid state intervention is to submit a plan or plans to the basin that are deemed adequate by the Department, and to successfully implement that plan.

TIMELINES IF STATE INTERVENTION IS TRIGGERED

Ms. Stork then turned to the specifics if state intervention is triggered in any of the basins.  She noted there are two different sets of timelines, depending on whether there is no plan submitted or if the plan is deemed inadequate by the Department.

If a plan is not submitted to the Department by the end of the month, the first step is there will be a 90 day noticing requirement for a probationary hearing.  During this time, there will be close coordination between the board and the Department of Water Resources.  After a probationary determination, the will be 180 days for local agencies to remedy the deficiencies that caused the basin to have that probationary determination.  If the deficiencies are not corrected during the 180 day period, then the Board can start developing its interim plan for the basin.

If the plan is determined to be inadequate, there will be 180 days after DWR’s determination of inadequacy to fix the issues in the plan.  At the end of the 180 day period, there will then be the 90 day noticing requirement for probationary hearing.  Once there is a probationary determination, there is extra time to remedy those deficiencies before the Water Board starts developing that interim plan; however, during this time, the Board can still require meters and issue information orders in case they need to write the plan.

FACT SHEETS AVAILABLE

Over the last few years, the State Water Board has been preparing for SGMA implementation by releasing a series of fact sheets:

“Groundwater management in California is best accomplished locally and we’re hoping everyone gets their plans in and is successful,” said Ms. Stork.

QUESTIONS AND ANSWERS

Several questions focused around the situation of multiple GSAs in one basin, each with their own GSP.  If four of them are considered inadequate and one wasn’t, is the whole basin on probation?

Natalie Stork said that probation is at the basin scale; however, the statute is clear that if there are plans are on track to achieving the sustainability goal or that will help us achieve the sustainability goal in an interim plan, that the Board is to use the parts of those plans that will help us achieve those goals.  She said they would have to take a look at the basin and that it would be assessed on a case by case basis.

Nicole Kuenzi, attorney for the State Water Board, noted that there are a couple of steps in the process.  “First of all, if there is a situation where there’s one area that doesn’t have a plan or there’s not complete plan coverage of the basin, we are going to initiate the probationary process.  Now that’s a process, and so through that process, there’s a comment period and plenty of opportunities for engagement that culminates in a hearing before our Board so there’s a lot of transparency in that. During that process, we would be evaluating whether or not it makes sense to take the entire basin (or subbasin) probationary or whether or not there are certain areas that have developed plans that seem to be adequate, and we’ll be working with our partners at DWR in assessing and looking at those plans, so there would be a lot of process involved.  We are looking at sustainability on the basin scale, so as a basin, you’re all in it together, but there’s room for tailoring to particular situations because every basin is going to be different.”

Question: “I’ve been hearing for quite some time at different meetings that that’s not necessarily going to put the entire subbasin at the mercy of the State Board.  Can I get a yes or no?”

“It’s not a yes or no answer; it’s a maybe,” said Ms. Kuenzi.  “The State Water Board has the authority to take the entire basin probationary, but there would be a public process in which the Board would take a look at the particular situation and decide whether or not that’s appropriate.”

Follow up:  “Are there scenarios then where four of them would be left alone and the one will be concentrated on?  Is that possible?”

“Yes, that is legally possible for the Board to determine that certain areas would be excluded from probation so that a smaller portion of the subbasin is probationary and another portion is not probationary,” said Ms. Kuenzi.  “Those would have to work together to achieve sustainability so whatever the Board’s actions are in the probationary area, we’d want it all to mesh up.  But is that a legal possibility?  Yes, absolutely, and I think will see that in some cases.”

Question: Is there some framework that’s going to be acceptable to DWR that would conclude that water can be exported from these critically overdrafted basins?

Craig Altare from DWR noted that there’s not an explicit reference to exportation of water from basins in terms of criteria for their review.  “We’d have to review that plan and see what the situation is on a case by case basis to determine if the plan is adequate or not and whether any State Water Board triggers are met.”

Follow up: “I’m saying, if you’re going to export water from a critically overdrafted basin, is that acceptable?”

Craig Altare from DWR said it’s difficult to say whether these situations are acceptable or not as they would need to review the entire plan to make their decision.  “It’s hard to make these situational calls where there isn’t a specific criteria in our regulations that say if this happens, then the plan fails.”

Question: If a basin is subjected to state intervention and fees are collected, where does that money go?  Does come back to the locals to help get them in compliance or does it go into the big enforcement pot, never to be seen again by the locals?

Ms. Stork said the Board is required to recover the costs of their program, but it has to be tied directly to the costs of the program.  She noted that when there is a probationary determination, the fees can be adjusted so it’s tailored directly to that basin.

Question:  A lot of our constituents have expressed concerns with litigation.  So let’s assume you have plans approved and ready for implementation, but a lawsuit comes forth but does not allow implementation.  How will you deal with that in terms of not being able to meet the requirements under the plan, the schedule, and potential fees?

Answer (attributed to Nicole Kuenzi): “If there’s a lawsuit going forward, that in and of itself doesn’t alter the timelines under SGMA.  Absent an injunction from the court, so I suppose it’s possible you could have a direction from the court to halt what you’re doing GSA, and that of course is a different story and we would react accordingly and adapt those timelines, but so long as the lawsuit and SGMA proceed on parallel tracks – if for example, in the situation of a comprehensive adjudication, that statute explicitly requires the courts to keep everything on track and manage the litigation in a way that won’t interfere with achieving those sustainability goals on time.  And so we expect that in most cases that although there will be litigation, and I think that’s unfortunately inevitable, that at the same time, the GSAs will be proceeding and moving forward.”

Question: One of the concerns with litigation is if it’s precedent setting, it could be something that would affect all GSPs.  If it’s of that nature, it’s really attacking the law itself.  What involvement would the state have to fund that or protect the GSAs in that regard, whether than leaving them hanging individually?

“We’ve had internal discussions about the role of the State Board and possibly other state agencies in that type of litigation that really does affect SGMA as a whole that is setting standards,” said Nicole Kuenzi.  “One of my concerns is not leaving GSAs out to dry on this type and not funding the full bill of litigation that really will affect SGMA statewide, so if that comes up in your basin, come contact me.  I can initiate those conversations and we can go forward from there, but I think the State Water Board is interested in being involved in that litigation and providing litigation support.”

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