Last month, the Brown Administration held the second of two workshops to gather input on possible groundwater legislation to heard proposals from organizations for the key elements and statutory changes needed for sustainable groundwater management.
Karen Ross, Secretary of the Department of Food and Agriculture opened the workshop with some introductory remarks. “In some regions, groundwater is sustainably managed and in other regions, there are still struggles to manage it effectively, and some have not addressed the issue,” she said. “The reasons for this vary from technical to financial to institutional to political issues, yet at 38% of the state’s water supply and the only source of water for some areas, effective groundwater management is and will continue to be necessary to insure that our water needs are met. As the Secretary of the Department of Food and Ag, I cannot tell you how important this issue is for the continued viability of an economic sector that has contributed so much to the past of California and is a crucial part of the global food supply chain and will be, that water is obviously a key ingredient to that continued success.”
The California Water Action Plan, released in January, identifies actions that if implemented over the next five years would make a sustainable and substantial improvement in groundwater management, she said. “These actions are collecting and sharing additional groundwater data; updating California’s groundwater plan, Bulletin 118; increasing groundwater recharge and storage; accelerating groundwater cleanup; and empowering local agencies to manage groundwater sustainably,” she said. “It is this last action and it’s two key elements that we are here specifically to discuss today.”
First, local and regional agencies must have the resources they need to sustainably manage groundwater, including the necessary authority, better technical information, and financial resources, she said. Second, the state will ensure sustainable management of groundwater resources when local agencies can’t or won’t. “When groundwater resources are not being managed sustainably, and local agencies are unable to address the problems effectively, then and only then will the state step in to protect groundwater basins and it’s users temporarily until an adequate local program is established,” she said.
These are core principles that will be shaped by your input and the many stakeholder processes:
Groundwater should be managed at the local or regional level. “We recognize that every basin is different and solutions must be tailored to the basin and its users,” she said.
Groundwater should be managed sustainably. “We are all here because of what others did before us, and we are all obligated and take it as a privilege to plan for and implement actions for future generations as well. California is a special place; we owe it to pay it forward,” she said.
The state’s role should complement the goal of local sustainable groundwater management.
Ms. Ross said that they have been meeting with stakeholders and held workshops; they have been soliciting comments and will continue to do so. She said that based on the input received, the administration will develop a proposal for sustainable groundwater management.
Review of previous workshop
Karen Turkovich then reviewed the outcome of the previous workshop. We heard resounding agreement on two general principles, she said:
The approach needs to be an effective package of local authorities to achieve sustainable groundwater management,
In the event that locals are unable or unwilling to address those challenges, the state should have a mechanism to step in temporarily until local authorities can take back that responsibility.
Other concepts that were brought forward:
White spots: A lot of discussion on “white spots”, those areas that are not represented in groundwater management planning or by any other institutional framework.
Demand management fees: There was discussion about the ability to be able to, if the situation warrants, establish some sort of system of demand management fees.
Education: It was said that there’s no way to achieve sustainable groundwater management unless the local residents, government, and individuals are supporting it. Folks need to understand what’s going on and what it is that’s being asked of them in order to be able to achieve support, she said.
Funding for needed projects, the establishment of needed institutional frameworks, and technical assistance
Many of the specific concepts that came forward fit with the five elements in the water board’s groundwater paper: thresholds, monitoring and assessment, governance, funding, and enforcement. “For example, we heard about the need for locals to be able, if the situation warrants, to establish objectives to maintain sustainable groundwater levels,” said Ms. Turkovich. “We heard about the need for the ability to monitor and establish a universe of parameters that would be reported on as well as the need to examine our existing reporting infrastructure and eliminate unnecessary reports, as well as reporting that is not needed at the state level but only needed at the local level. We heard about authorities that were needed to establish governance structures for unrepresented rural and agricultural folks, and we also heard about the need to provide for interbasin management, so where we have basins where there are overlapping jurisdictions and we need to be able to ensure that the overlap is addressed through our governance frameworks.”
Avoid penalizing jurisdictions trying to do the right thing and understand there may be some delay in achieving success, but do not penalize them because they are not there yet.
Various authorities that are needed by local entities such as demand management fees, groundwater metering, and tying local well construction permits to their land use planning and groundwater management planning processes.
Reporting: We need to make sure that the reporting that comes out of that is not continued duplicative reporting and that the information that we’re asking for be useful and simply not reporting just for reporting purposes.
It was then time for the presentations to begin. The presentations of the proposals will be covered in three parts:
Part 1: Lester Snow, Executive Director of the California Water Foundation
Part 2: Tim Quinn, Executive Director of the ACWA, and Dave Orth, General Manager of the Kings River Conservation District and vice-chair of ACWA Groundwater Sustainability Task Force, posting tomorrow
Part 3: Robert Reeb, executive director of the Valley Ag Water Coalition;
Jonas Minton, water policy advisor for Planning and Conservation League, posting on Friday
Lester Snow, California Water Foundation
“The California Water Foundation is a nonprofit whose focus is exclusively sustainable water management in California, and is based on the assumption that our water supplies are not resilient, not reliable, and not sustainable, and action needs to be taken across the board,” began Lester Snow. “Conservation, wastewater recycling, stormwater capture – but I think probably the single most critical element in achieving sustainability in California is groundwater. Effectively managed, it is the single biggest mechanism that gives us the flexibility to deal with the vagaries of our water system in California and if we cannot get our hands around that, we will not have a sustainable water supply.”
He then gave some background information to put groundwater in context. “We are now using the numbers 40% in an average year and 60% in a dry year. As recently as two years ago, we were still using 30% and 40%, so much is changing in terms of our dependence on groundwater. It is a critical part of integrated water management, or to use a different term, conjunctive management.”
“There are some areas of the state that are 100% dependent on groundwater, but by and large, where we use groundwater, they are using surface water and in some places using wastewater, so it’s an integral part of the system and how we have to manage the system,” he said.
“Groundwater in my opinion has the distinction of providing the greatest flexibility, both in terms of a source of supply as well as storage, and we see the storage flexibility in action in places like the Kern Water Bank or Semitropic where they are able to put water away for multiple years,” he said. “This year just highlights the flexibility in use, where we’re seeing in some areas, they are pumping four to five times what you’d call the safe yield of the basin. That would mean pumping or diverting five times the flow of the river. Well, you can’t, but in groundwater, you have that flexibility.”
Groundwater pumping has increased for a number of reasons, with many of the people he’s talked to citing the reduction in surface supplies from both climate change and environmental protections that has changed the amount of available water. “In almost all of those cases, those reductions in surface supplies have been offset by increasing pumping,” said Mr. Snow.
“We’re very well aware of a dramatic increase in landowner conflicts over groundwater, and we’re going to see that continue,” said Mr. Snow. “I would add the editorial comment that if we don’t address it, we’re going to see more and more adjudications, more and more court cases, and more and more rich water attorneys.”
“The interconnectedness of the system is important,” he said, presenting a slide depicting the overall land, surface water and groundwater system. “Every time we fix a problem by looking at the silo, we make a mistake. And we have to look at groundwater in the broader context. Pumping groundwater will divert surface water, reducing surface water deliveries will increase groundwater pumping, some of our land use activities contaminate groundwater and we have to manage in the entire system. This groundwater management situation that we’re dealing with now is a piece of that, but we have to keep the broader situation in mind.”
In developing their recommendations, Mr. Snow said that the California Water Foundation formed a stakeholder steering committee of 13 members from diverse backgrounds, who met three times to review ideas and provide input to the process. The Foundation also held five large group meetings with counties, environmental and environmental justice organizations, agriculture, water managers, specific and informal outreach groups, as well as met individually with stakeholders and interests, he said.
Mr. Snow said there was a universal understanding among all of the stakeholders that groundwater is essential to the economy, environment, and public health and safety, as well as a drinking water supply. He said there was also a universal understanding that the current trends are not sustainable.
“Subsidiarity,” said Mr. Snow. “It’s been pointed out to me that it’s been in a number of the Governor’s speeches lately, which basically means don’t manage centrally what is better managed at a local level, and that could not be more true in terms of groundwater. Local groundwater management entities do not have the tools and authorities that they need. It’s almost by design that we’ve not provided those tools.”
“I think there’s a broad agreement that the state needs to have a clear and meaningful role, but there is also great concern about the state having too much authority to be able to just step in whenever they want to, so there’s an idea of a state backstop, but with limited use,” he said.
“There is the recognition that it took us 100 years to get here, and it’s going to take some time to fix the problem that we have, and unanimous agreement that broad-based funding is needed to change the dynamic on this,” he said.
“Groundwater management needs to be inclusive and transparent in terms of access to data and access to different non-traditional parties to this,” said Mr. Snow, noting that the underserved communities and the independent pumpers (the white spaces) are the two that came up the most in the discussions. “Nobody is representing them, so how are they involved in this.”
“In regards to the property rights issue of respecting and protecting property rights, we believe that effective, sustainable management is the way that you protect people’s property rights,” he said.
Mr. Snow said there are eight basic recommendations:
Definition of sustainable groundwater management: There needs to be a solid statutory definition of sustainable groundwater management, he said. “Our definition is that sustainable groundwater management means management of groundwater subbasins to provide for multiple long-term benefits without resulting in or aggravating conditions that cause significant economic, social, or environmental impacts, such as long-term overdraft, land subsidence, ecosystem degradation, depletion of surface water bodies, or water quality degradation.”’
Geographic scope and priorities: The program needs to apply statewide, he said. “There needs to be a single program, but it’s based on the sub-basins as identified in Bulletin 118. We should prioritize those sub-basins using the CASGEM analysis that was published in December to focus on high and medium basins,” he said. Low and very low priority basins should be evaluated by DWR and Department of Fish and Wildlife to be sure they are not near tipping points, he said. The existing definition of boundaries is not correct in all cases, so DWR needs to develop formal criteria or a formal process for amending those boundaries, he said. Mr. Snow also recommends a phased approach: “What we are recommending is that the law, when it passes, applies immediately to the high and medium basins, and not the rest of the state. That the low and very low would come along subsequently,” he said. He added that this does not apply to the fractured rock areas, as those areas have a different geology and are not classic aquifers as described here.
Establish local groundwater management entities: Each sub-basin should be within the jurisdiction of a single, local groundwater management entity, but that local groundwater management entity could be an existing entity tied together by a JPA, MOUs or some other mechanism, so that each of the existing entities could maintain their jurisdiction and their identity but also provide the option under this legislation to create a new entity. “It would be a generic formulation of a special act district,” said Mr. Snow. New authorities would be available upon formation of the local entity, and he proposes a two year time frame after passage of the legislation to establish the local groundwater management entity.
Groundwater management authorities: These should include requiring measurement and reporting of groundwater conditions; allocate groundwater and manage pumping to achieve the objective of sustainability consistent with property rights; the ability to assess reasonable fees; allowing and approving groundwater transfers in the basin and sub-basin; and land use coordination with the counties. Mr. Snow noted that land use coordination is a big deal. “All land use decisions have water implications to them; we have to make that connection in some fashion.”
Groundwater management plans: Each sub-basin would prepare one plan to achieve achieve the definition of sustainable management as in recommendation 1. These plans should include all the requirements of AB 3030 as well as SB 1938, plus additional requirements. “One would be the actual development of a specific water budget: water in, water out, and how does that have to change in order to achieve sustainability, and development of interim milestones – five year milestones with very specific enforceable targets,” he said, noting that this should happen within two to three years after the groundwater management entity is formed, with a much less urgent schedule for lower priority basins.
The state’s role: Everybody agrees on the basic framework, but disagrees on the details, he said. There is a strong agreement on the need for technical assistance from DWR and program oversight from the State Water Board and DWR over plans and milestones. “When it comes to enforcement and intervention, I don’t think there’s any question that the State Board needs to have clear and precise authorities to step in and articulate under what conditions and how they will step in,” said Mr. Snow. The criteria and the process for state intervention is particularly important, he said. “It’s one thing to clearly articulate when the state has an interest or it needs to step in, it’s another thing to have the real criteria there and the precise process.” The nature of intervention can range from a watermaster to forcing an adjudication to putting them under some order and potential fines, he said. Regulatory relief is important, such as consolidation of reporting, and making it easier to permit projects as part of implementing their groundwater management plans. “There needs to be some way of reducing the transaction costs associated with actually implementing sustainability,” said Mr. Snow.
Administrative groundwater adjudication: If a sub-basin has proceeded and formed a jurisdiction, but there are still disputes, to provide an administrative adjudication, using administrative law judges pre-approved by the State Board and qualified in the area of groundwater. “This is a concept we are still working on and consulting with a number of water attorneys, because I think the attraction to this is if you really can cut the time and costs associated with adjudication, it can become a meaningful tool where you still have disputes.”
Funding: Everybody needs funding, he said. “The State Board needs funding, DWR needs funding, the local entities need funding, so we would want the legislation to provide funding authority to the local entities to do withdrawal fees and raise funds in that fashion.” Other mechanisms need to be considered, including Prop 218 and the water bond.
He presented a slide of the framework and said, “The locals in this scenario would have two years to figure out how they are going to meet the needs for covering an entire basin. Once they do that, they receive all the new authorities, and they proceed with development of the sustainable groundwater management plan in a four to five year range that includes five year milestones with specific objectives and quantifiable targets. That would form the review that the state would perform to see if progress is being made, and then, as we discussed with a lot of different people, there’s a sense that a 20 year time frame is reasonable to start from a basin in critical conditions to move to sustainable groundwater management.”
“We have to have the landowner rights and the property rights in front of us all the time,” he said. “If it looks like we’re doing a takings on this, we’re in trouble. It will draw national attention. Achieving sustainable water management is a way to protect people’s property rights.”
They are still working on the linkage between groundwater management and water quality, he said.
“Inclusiveness and transparency – You can’t manage something if you don’t know how much is being used, that’s just a basic principle,” he said. “And we still have this concern that people shouldn’t know how much I pump. It becomes a very divisive issue and yet you can’t manage what you don’t know, so it’s an issue we’re going to have to address in this legislation.”
“Land use coordination and collaboration is going to have to be addressed squarely on,” he said. “It has the appearance that this could become a divisive issue, and yet no one denies that land use decisions need to be informed by water availability, and the water availability needs to play a role.”
“The final point may seem like an odd one, but it’s prevention versus reaction,” he said. “We’re here because we’re reacting to crisis in our groundwater basins, but there are basins who are not experiencing severe overdraft or subsidence, but they could be basins where the next small increment in groundwater pumping could result in dewatering critical habitat for an endangered species, or dewatering a stream that is somebody else’s surface supplies. It’s the tipping point issue and how you deal with that issue, and that’s a critical issue for us.”
“It has taken us 100 years to get here,” he said. “In 1914, we made a decision to not include groundwater in our allocation system. It was a conscious decision – it was not an accident. In doing so, we didn’t provide any tools to local entities to do this, so where we see good groundwater management today, it typically is because they had a terrible crisis and massive litigation. … we have to stop that cycle. We have to get our arms around this and get out in front of it.”
“We’ve made conscious decisions about reallocated water from using out of the system back to the environment and that was a conscious decision and it had an immediate impact of increasing groundwater pumping,” Mr. Snow pointed out. “So we didn’t stumble into this and it’s not an issue of good versus evil – we made all these conscious decisions and provided all of these incentives to be where we are today. And we ran into a lot of finger pointing on this, but at the end of the day, this is our problem, we all own it.”
“We have to avoid a slow moving disaster,” said Mr. Snow. “It’s accelerating, and accelerating big time this year, and I don’t think we have the time to be circumspect about this. I don’t think we have time to avoid some of the political difficulties that we will experience. We need to act now, and if we don’t act in the legislature in a coherent way, then we’re going to act in the courts very quickly in an incoherent way, in my opinion.”
During the discussion period, Mr. Snow was asked for more details on administrative adjudications: “There are two thoughts on the administrative adjudications. One more to the shortening issue is if you form the jurisdiction, you go through the process, you’ve characterized your basin, and somebody doesn’t like what you’re doing, the thought is you would access an administrative law judge and you would set up an adjudication, but you’ve already developed the technical record, and the technical record is probably what takes the most time and money in a court adjudication. This would be a tool used largely at the local level when you have a dispute and someone would have to avail themselves of this before they went to court. There’s a thought that that could save time and money.”
“The other thought is identifying a very discrete or very specific adjudication process that the court or the state would use as one of its intervention techniques. You didn’t do your plan, you’re missing all your targets, so we’re going to initiate an adjudication.”
Coming up next: Coverage of ACWA’s presentation will be posted tomorrow. The Valley Ag Coalition and the Planning and Conservation League wrap it up on Friday.
For more information …
At the time of the workshop, the California Water Foundation was in the process of finalizing the report of their recommendations. You can find the finalized report here: Click here for the full report.