Groundwater Management Workshop, Part 4: The state backstop ~ MAVEN'S NOTEBOOK

On March 24, the California Natural Resources Agency, the California Department of Food and Agriculture, and the California Environmental Protection Agency held a workshop to gather ideas, proposals and feedback on sustainable groundwater management actions.

The fourth and last panel discussed what the state’s role should be in ensuring effective and sustainable groundwater management. On this panel, Sarge Green, Program Director for the California Water Institute; Dave Bolland, Regulatory Advocate for the Association of California Water Agencies; Art Kidman, General Counsel for the San Gabriel Basin Water Quality Authority, Omar Carrillo from the Community Water Center; and Frank Mecham, San Luis Obispo County Supervisor.

Sarge Green, California Water Institute

“First of all, we have to map out the groundwater issues in each individual area in terms of an analysis of both their institutional arrangements and their technical capabilities, develop a report on that, do a gap analysis to see what is missing, and then if that area does not get itself organized, develop the necessary management techniques,” began Sarge Green. “That is the end point then when I believe that the state should come in, so you have to take them through a progression and get them to a point that it’s clear that they’re not going to be able to get to the point of adequately managing the groundwater in that particular area.”

One of the possible tools is complete integration between land use authorities and the special districts that have water supplies, water management and/or groundwater management authorities and integrated regional water management plans, he said. “If we aren’t all sitting down at the table together, we’re not going to get very far.”

Mr. Green said he had been facilitating that process is Stanislaus County, where they are working on developing the tools to do a better job. He noted that the County had adopted a groundwater ordinance, with the intent to stop exporting groundwater. “However, there is enough internal tension in Stanislaus County that many of the water representatives that were part of the workgroup that developed the ordinance said that we also have to take good hard look at ourselves and look at overdraft in our County. There’s mining going on and we need to manage it, so they actually have a prohibition of mining in their ordinance and now they are working on the next steps.”

“The well permit is the very first gate you have to go through to be able to extract groundwater and that presents an opportunity,” he said. “It’s guided by the water code, Section 13801, and the model ordinance is developed by the DWR, but then Porter Cologne says the SWRCB charges each permitting type agency, usually counties, cities, or in some cases special districts, it charges them with developing an adequate ordinance. One of the things that we’re proposing to discuss in Stanislaus County is that additions to the permit conditions for monitoring and measurement.”

“Perhaps we need to take a look at allowing the Counties to expand that permit condition to require that people volunteer for their wells to be monitored and measured,” he said. “If they cannot get that information, ultimately the backstop is that the state could legislate additions to that model ordinance that says the gatekeepers should add monitoring and measurement as an option.” He noted that this doesn’t necessarily mean monitoring and measurement of every well. “It also has to be subject to reasonableness … the groundwater management authority may need certain information in certain areas, and so they would use technical advisory capabilities to select where those kinds of monitoring and measurement needs to be done. Whether it’s elevation, quality, or in some cases volume, volume may meaning for aquifer characteristics but ultimately it could also be for demand management, so there’s a backstop. Amendment of the water code to add a section to 13801 that adds additional capabilities in the permitting of wells.”

Institutions can range from raw to mature, so it’s also important to consider that where we apply new backstops or capabilities, as raw institutions may need an investment in facilitation to get them further along, he said. “There’s also groundwater sensitivity,” he said. “There may be some groundwater basins that really don’t need much in the way of management, so you would leave them alone, but high supply and quality issues or other priorities in certain groundwater conditions may also require an investment in facilitation and ultimately then development of the necessary tools, so that’s what I believe is the guide that we should use for how we target our investments in terms of improving groundwater management in various areas.”

The integration of land use authorities and water managers is crucial, with collaboration first, and then synchronization, he said. “In the San Joaquin Valley, we have we call white spots – areas where there is no authority right now, and those seem to be a source of some of the issues because there has been development in those areas and new wells installed and it’s impacting some of the other organizations that are trying to manage their groundwater effectively,” he said. “That is one of the reasons why I believe that the land use agencies have some responsibility; a lot of them cover the white spots, especially counties.”

Section 21000 adjudication is another option, he said. “It has been used as more of an enticement in coastal areas with sea water intrusion, but in other water quality problem areas, it has not necessarily been employed, and I have a suggestion that if the water quality problems are significant enough, in some groundwater areas, there may be a way to apply that tool in a way that organizes the area and gets all of the players at the table to develop effective physical solutions in that particular area.”

It also gives an opportunity to organize around programmatic issues, he said. “If you have an area that’s organized based on water quality in total, you can encompass such programs as operated by the SWRCB as the irrigated lands program, septic tanks, municipal and industrial discharges, all in one big package in one area, and develop the necessary management plan,” he said. “The backstop is somewhat complicated, but if the area does not go through the logical progression that you have to allow every local area to go through, then the physical solutions and/or some of the activities necessary to ultimately improve that area could end up with programmatic implementation to promote replacement supplies for the affected users with the costs borne by entire area – the costs to replace wells or water supplies or whatever it happens to be in that particular area.”

Another tool would be having a water element in the general plan, he said. “It’s already in the guidelines for general plan development, but I think in some instances, it probably should be a necessity rather than an option; it’s currently an option,” he said. “This creates an atmosphere and an opportunity for all of the players to work together because the water element could describe the relationships with the other local agencies and with the undistricted or white spot areas and the landowners in those areas, and give them the tools necessary to sit at the table and engage everyone in trying to solve the problems in that particular area. So the backstop is that if the local areas do not adopt a water element and it does become mandatory, the state adopt the water element for that particular area.”

Another issue brought out in the previous panels is that groundwater management is very data intensive, and information required to make good decisions is still a significant problem, particularly in the white spots that exist in many parts of the state, he said.

Most of the groundwater management ideas center around alluvial basins, but the hard rock counties have just as many problems, he said. “I guarantee you there will be disadvantaged communities this year in the mountain and foothill areas that will run out of water, and we will be faced with an issue in those particular areas. So having a water element and having structure in place for mountain counties that describes minimum standards for wells and for performance criteria for operating in those particular areas … They should be reusing the water. Graywater should be part of the discussion in the mountain counties, so if you have that framework where you can describe water as an element of the general plan, I think it would people understand what it is that they are getting into.”

Dave Bolland, Association of California Water Agencies

“The issue of backstop has got to be talked about in the context of the entire planning process,” began Dave Bolland. “If we’re going to work at a local level and empower local agencies to do the kind of planning they need to do and provide funding, but even under those circumstances, there could be situations where the state does need to step in,” he said, noting that he will be discussing some of the recommendations that will be coming out in ACWA’s upcoming groundwater paper.

“We will find some basins or subbasins where there are no agencies or any kind of governance, and there won’t be local entities willing to step and fill that gap,” he said, noting that oftentimes the threat of falling into a backstop situation alone is enough to get folks motivated and organized. If that doesn’t happen, a triage approach focusing first on the high and medium priority basins would be suggested, he said. “There would be these orphan basins that don’t this governance structure and that have not done anything for a certain period of time, and so it has to be determined how much time you give these folks, but again a planning process does take a little time, but on the other hand, no action is fairly obvious fairly soon. Folks that have done a plan but are not implementing and are failing to meet their own management objectives, or situations where there’s a lack of compliance in deadlines and submitting plans. … We think that the local agency then should be given an opportunity for a hearing at the State Water Board; the Board would ask for evidence from those locals as to what they are up to, and evaluate the significance of the problem and just how deficient the local agencies are. They would make a decision as to what to do next.”

“One possibility would be to assign responsibility to another local entity that’s willing to step up, and of course empowering that local entity to raise the fees necessary to do the planning process,” he said. “The other possibility that we’ve talked about is the idea of doing a third party planning entity and having the water board potentially commission or hire a third party entity to step in to help this entity establish a plan and then start to implement that plan. This would be essentially a state effort but it would be funded again by an imposition of fees on the locals. The other thing that we would be hoping to be built in to this backstop role would be an empowerment and equipping role by the state so that a local entity could be developed that could then step back in and take responsibility and local management of their basin.”

Given the positive incentives as well as some of the negative incentives that would be built in, the state backstop role would be probably fairly rare, but it would stand as a motivation to get a little more concrete action, he said. There would have to be timelines, performance standards, and a deference to local conditions, he said. “This would have to be a cooperative relationship between the locals and the state in terms of doing the planning and establishing the indicators for sustainability and establishing the specific mix of methods for implementation and the specific management requirements that would be in place.”

Art Kidman, San Gabriel Water Quality Authority

“First of all, I will say in bold letters, sound public policy in California supports efforts to address critical long term overdraft of groundwater resources in this state,” began Art Kidman. “For far too long, the state of California has been mesmerized, crippled, unable to act because of the mantra of local control. Now, don’t’ get me wrong – there hasn’t been anybody that’s said anything different today. Local control is really important when it comes to groundwater because no two groundwater basins are alike; and they are different not only hydrologically but because of different cultural settings, different legal settings – everything’s different about every single one of them and so one size doesn’t fit all, the point’s been made. But all too often, local control really has meant in this state another way of saying mind your own business, and leave us alone. I feel based on what you’ve heard today, maybe there’s been a sea change, or maybe we’re just not hearing from others.”

“Now there are differences between urban Southern California and the more rural agricultural regions of our state when it comes to groundwater issues which is incredibly important,” he said. “One of the differences tend to be more mature institutions and governance in the urban areas. And very, a great deal of resistance of imposition of control in the agricultural regions.”

How do can we get demand management in a state where we do not regulate groundwater at all, said Mr. Kidman. “Everybody looks at the situation and says well we regulate surface water, SWRCB has authority over surface water, but not over groundwater, and that doesn’t make sense, and so that particular dichotomy needs to disappear, but that’s not the problem. The problem in California is that we have recognized two different types of water rights. Both in surface and in groundwater, and these rights relate to land ownership. … Under one of our earliest water rights cases, we have a dual system of water rights for land ownership and another one for taking water for use on distant land.”

“There was a case just after the turn of the last century called Katz vs. Wackinshaw which adopted the same regime for groundwater,” he said. “Overlying users have the right to take all of the water they need for use on their overlying land. That right is prior and paramount to the right of anyone to take water from the same sources of supply and use it on distant land, or no overlying land, or for municipal or industrial purposes. That right is not subject to first in time, first in right priority, that right is not subject to use it or lose it. … A riparian or an overlying owner can take water one year and not take it another year; the right is not dependent upon use.”

“These rights are very strong in property ownership, and when you’re in an agricultural area where your land has only so much value as the reliability of your water supply, believe me, people are going to be willing to fight over that water, and we’re not talking about institutions – water districts, groundwater management agencies, counties, any of those – but the people who actually own the land are the ones that claim the water rights. I would suggest that whatever issues that the SWRCB may have relative to the unregulated riparians who are able to take water off the streams without prior leave from the SWRCB, whatever those problems may be, the problems in groundwater 10,000 times greater at least.”

“I think it’s a good idea. I want to see it happen,” he said. “I’m not saying that things should be imposed upon these people, all I’m saying is that it is a Herculean task, it won’t be easy and demand management is part of the equation. If you’re going to do it, don’t send a boy. That’s going to require really careful planning and implementation.”

He then presented a slide with the area of the San Gabriel Water Quality Authority, noting that it is located east of downtown Los Angeles and encompasses several suburban communities, freeways, and the San Gabriel River as well as several other tributary creeks.

In 1973, there was an adjudication judgment that resulted in a seven person watermaster panel comprised of three public representatives and four groundwater producer representatives, he said, noting that some of the groundwater producers were private water companies, which serve about half of the basin’s population of roughly one million people, he said. In 1979, contamination was discovered, and by 1985, five areas were put on the list to become Superfund sites, with the San Gabriel Superfund site being the largest groundwater site in America, he said.

“There are five different areas: Baldwin Park, El Monte, So El Monte, Puente Valley, and Whittier Narrows,” he said. “All of them are different, just like all the groundwater basins in CA are different from each other. Each one of these has its own characteristics. Notably, most of them do not have a big apparent guilty party that created the contamination. There is some exception to that in Baldwin Park, but the others are mostly small businesses.”

By 1985, we had a Remedial Investigation Feasibility Study, and the mantra, the polluter should pay, was heard everywhere, he said. “But we had certain NGOs that were saying the water producers are part of the problem here because their groundwater production is causing the pollution to migrate around within the basin, and for one reason or another, the investor-owned utilities that were singled out for being the bad guys in that regard,” he said.

From the watermaster’s standpoint, the big concern was that somebody was going to tell them where they could put their wells and whether they could take a well out of production because it was contaminated and whether they had to keep producing even though they couldn’t use the water, and so that loss of local control in the watermaster that had these adjudicated water rights they were administering was very, a big motivating factor, he said.

“However, while the groundwater producers may well have been part of the problem, they were also a big part of the solution,” he said. “The idea of putting in a brand new well in order to extract water to run it through a treatment plant and then put the water back in the ground after it gets cleaned up, that didn’t make sense when you already have wells that are existing and you have the ability once you clean up that water to put it to reasonable and beneficial use through the municipal water supply systems that existed.”

So the State Water Board, US EPA, and the Regional Water Quality Board held hearings and issued a white paper in April of 1990, trying to figure out what should be the governance of the groundwater cleanup in the Basin, he said, presenting a slide of the results of the white paper. “The idea was to try to figure out of all the candidates for who should be in charge of groundwater cleanup in the San Gabriel Basin (listed across the top) because nobody had all the authorities that were considered to be ideal. But most notably, right down the middle is the watermaster, and it has the most no’s of anybody, and particularly, question number 5, respond to public interests, it’s the only one that has a no. It was thought that the water producing community that was represented by the watermaster didn’t represent the public interest in trying to clean up the contamination in the groundwater supply.” He also noted the unanimous negative response to the first item, ‘Regulate basin usage for water quality purposes,’ – or in other words, say which wells can be pumped and which wells cannot be pumped in order to try to deal with the question of migration of the contaminated plume.

Shortly after the white paper was issued, a JPA was created among the three municipal water districts that overlie different parts of the basin, all of which are there for the purposes of importing water for municipal supply. In December of that year, three bills were introduced in the legislature that made all of the water producers very, very uncomfortable, and all of 1991 was spent trying to defeat those three bills that would have really impinged on the local authorities, he said.

“One of the most telling moments was once that was done and we knew we were safe – at least until the next session started – was the realization that we better agree on something we can live with before somebody does something to us that we can’t live with,” said Mr. Kidman. “And so the following January, SB 1679 was introduced. I had the privilege of doing most of the initial drafting on that, of course, nothing comes out of the legislature same as it goes in, but by and large, it had the structure that we had local agreement developed around. … We really needed to get local agreement because it was already demonstrated with respect to the three bills in the prior year where there was discord among the locals. The legislature had difficulty going forward, and so having a bill that people united around was real important. … Local consensus, if not unanimity, practically which is very difficult to achieve in agricultural areas.” He noted that the bill passed at the beginning of the next year, and the Water Quality Authority came into existence and took over for the JPA that had existed previously.

Since it was created, the Water Quality Authority has eliminated 140,000 pounds of contaminants and cleaned up 1.4 MAF that has been served to the public as a result, he said. The estimate to clean up the aquifers is almost $1.4 billion, and so far, 35% of that has been polluter pays; the federal government has contributed a fair amount, partly in recognition that defense contractors are responsible for some of the contamination, and then local shares have contributed another 6%, he said. “The state’s put in a little less than 2%. We do nudge the state about that whenever we can. California’s been lagging, but California has a lot of problems too.”

Omar Carrillo, Community Water Center

“Thousands of public water systems rely on a single well for their drinking water supply,” began Omar Carrillo. “Millions of Californians are relying on a single household well. Hundreds of schools rely solely on their well, and are not connected to a larger public water supply. And already, we’ve seen communities without water, and many more that have been without good water for a very long time. We work with communities who have not had a safe source of drinking water for years. The human right to water which because law last year should be the standard that we use and that the state uses, and it becomes even more urgent to look towards this law for safe, affordable, accessible drinking water during this drought.”

“In order to have effective and sustainable local groundwater management, groundwater management reform is necessary,” he said. “It needs to address massive groundwater quality challenges that we’re currently facing in the state, which disproportionally impacts disadvantaged communities, particularly those low income communities and communities of color.”

“If we’re going to double down on our regional management, we need to make sure that the regions are politically equipped to do so,” said Mr. Carrillo. “If not, efforts at solutions will exacerbate existing disparate impacts that leave hundreds of communities without access to safe and affordable drinking water.”

There needs to be meaningful representation and meaningful governing boards, which means having a clear mandate in the jurisdiction of the entity, seats on the governing body, and adequate ability to access decision making processes for all those impacted by groundwater, including under-represented and disadvantaged communities, he said. “That is what we do – the Community Water Center works with dozens upon dozens of communities who some, for nearly a decade, have not been able to have clean water, have access to their governing boards, or have access to the decision making process.”

There need to be clear standards and guidelines as well as clear oversight and enforcement, as well as meaningful data gathering, management, and evaluation, he said.

“In terms of the state’s role in this, we need to be able to protect and target the resources towards addressing those most vulnerable,” he said. “Above all, the floor has to be safe, clean, affordable drinking water sufficient for basic human needs. That is the human right to water for future generations, for a healthy, viable state. The State Board has not only the authority but the mandate to do so and through the public trust doctrine.”

“The state needs to consider specifically drilling down on the human right to water, because we spent a lot of time looking at how the human right to water actually applies to even the water action plan and other documents that are being developed, so it sets standards that protects disadvantaged communities downstream, and it specifically speaks to the decision making processes, the lack of action, and it speaks to some of the dominant political powers and power structures that sometimes don’t allow us to get to this real issue that a lot of times doesn’t even come up. Further, on the human right to water, it provides assistance to support development and implementation of solutions, specifically disadvantaged communities, such as technical assistance, financial assistance, regulatory assistance, and streamlining projects,” he said.

“Current law requires that detailed analysis of physical, economic and social impacts are reported on for our degradation of groundwater, so there is currently a law that we need to be able to look towards to make sure it provides us more protections over our groundwater. We don’t want to reinvent the wheel here.”

The state needs to be able to step in and show it has the ability and the will to hold locals and regions accountable, and so for that, there needs to be a clear process, he said. The State Water Board could appoint a water master or establishing a receivership, but there needs to be an ability for the state to step in, he said.

Frank Mecham, San Luis Obispo County Supervisor

“We’ve evolved to a perfect storm,” began Frank Mecham. “We’ve evolved to the point where we have increased population, we have increased irrigated agriculture in our area in particular, and we have a drought, so now we’re confronted with this. I know that one of the things that was suggested earlier that we don’t need to move too quickly. I disagree with that. I think that we’ve waited too long. … We’re talking about the same things again and again and again. And I have to commend the governor’s office and I have to commend the state for taking this on as the highest priority because I believe it really is.”

It could almost be considered a kiss of death when they designated the Paso Robles area as the #1 wine region of the world, because now everybody wants to grow more grapes, so consequently, over the past several years, we’ve seen an increase in irrigated agriculture and we’ve started seeing declining wells, he said. The Board held an 11-hour meeting to determine whether an urgency ordinance should be put in place for two years that would preclude any expansion of irrigated agriculture unless they had the vested right to do so, he said. Over a hundred people spoke during public comment, he noted. “They asked for more data, they said it was too soon, they said you need to do more studies – well we’ve done studies and we’ve done studies and we’ve done studies. I think that the time had come to take a time out to try and figure out what do we have, what are we going to do about it, and how are we going to get there.”

Water rights are an issue, but at the same time, there are also responsibilities, and I think that we all have that responsibility to help share that resource when it’s necessary, he said. Economic impacts are also a concern, but what about the economic impact of doing nothing, he said. “I take a different perspective on this. Wouldn’t you think that someone who wanted to invest in an area would be more willing to do so if they were taking on the issue and trying to fix it as opposed to doing nothing about it? So I think that’s important that we do.”

“When we decided to go forward with this urgency ordinance, we had three choices: We’ll either form a water district of those that overlie the basin to try to manage this, the County will improve on the AB 3030 that we’ve already adopted, or the state will step in,” he said. “So we have a proposal at the state level right now to have legislation introduced to establish a water district, and it’s the first of its kind in terms of its hybrid. It’s trying to get together with rural residential folks, small landowners and large landowners and we have got them to come together for the most part, although we’ve had some that have filed lawsuits and my fear is that this will go to adjudication. “

The other issue is that any kind of a water storage project that you want to do is going to be a length process to go through CEQA, he said. “I’m not saying CEQA should be eliminated, but is there going to be flexibility in that environmental process so that you can actually get something accomplished within a reasonable time frame.”

“There needs to be a long term focus,” he said. “We are not going to fix this drought that we’re in, but by looking at this in the long term, and remembering things that we were told before … we’re supposed to leave this place in a better place than where we found it, and we’re not doing that. The long term focus and what the state is right now doing by placing this as the number one priority … I think we need to stay the course with that.”

Discussion highlights …

Art Kidman: “The SWRCB along with the courts has authority under Article 10 Section 2 of the constitution to deal with the unreasonable use of water, and the unreasonable method of use of water, and so from a backstop standpoint, it does seem to me …. The idea that if a groundwater basin is overdrafted, it may be an unreasonable method of use of water to continue to overdraft it, because it harms the resource, so I think the Board does have authority, even though these water rights are pretty king of the hill kind of water rights, but there is authority. We did learn in the City of Barstow vs. Mojave Water Agency, the Supreme Court told us that you can’t just make a legislative or judicial fiat and take people’s water rights away from them. You’re going to have to be able to prove what the real capacity of the groundwater basin is, what the safe yield is, how much everybody’s using, and then people’s water rights have to be dealt with accordingly. The other thing about these overlying rights is that if you really do have an overdrafted supply, than the nature of those rights is correlative, they all take a reduction, so there is that capability, but remember, before all of the overlying rights take a reduction, all the appropriative rights are gone, they are out of the picture, so there are authorities to deal with, to backstop the question of these rights that seem to be beyond the law.”