Groundwater problems and prospects #3: Sharing groundwater: Legal issues and challenges
Attorney David Aladjem and Professor Richard Frank explain the substantive provisions of the Sustainable Groundwater Management Act
California Water Policy Seminar Series, presented by the UC Davis School of Law and the Center for Watershed Sciences, dove deep into groundwater in lecture series this year, focusing on the issues and challenges surrounding implementation of the Sustainable Groundwater Management Act. In this third lecture in the series, attorney David Aladjem and Professor Richard Frank discuss the provisions of the Act.
Professor Richard Frank began by reminding that at the previous seminar, Principal Consultant to the Assembly Tina Cannon Leahy, Association of California Water Agencies’ Cindy Tuck, and the California Water Foundation’s Kate Williams discussed the in the negotiations, drafting, and other efforts that culminated in the enactment of the three-bill package of groundwater reform laws that were signed into law by Governor Brown last fall and which took effect on January 1, he said. This week, David Aladjem, a partner at the Sacramento-based law firm of Downey Brand, one of Northern California’s most prominent natural resources and water law firms, and he specializes in water and environmental law.
“What I want to do this afternoon is to start with political,” began David Aladjem. “To start with, why is it that we had what I believe to be one of the major pieces of legislation in California water ever? … The very most important pieces of legislation in California history are the 1914 Water Commission Act, 1960 Burns-Porter, and arguably the 2009 legislative package which created the Delta Reform Act, and now the 2014 groundwater legislation, the Sustainable Groundwater Management Act.”
In groundwater law, the first big water law case for groundwater was Katz vs. Walkinshaw, he said. “What it did was to create a system whereby overlying water users had priority over others, and the others were largely cities,” he said. “If you think about Southern California, first what you had was agriculture; then you gradually had cities developing, and they needed water. And the farmers said, “No, no, no, no, no.” So you largely had farmers first with overlying rights, and then appropriators: Cities. The situation that developed, particularly in Southern California was, very quickly, the urban growth was so large that we could not sustain the demands for both agriculture and urban uses with the existing resources. So, what we did, and this is a pattern up and down the state of California. It’s a pattern, in fact, across the west. We said, ‘We don’t have enough local water, therefore, we will bring it in.’”
Metropolitan Water District was formed back in 1929 as a way for urban Los Angeles to obtain Colorado River water, Mr.Aladjem said. “The city of Los Angeles had already tapped the other ones out and they needed more. The Colorado River was the place they decided to get it, and that was the reason they formed the Metropolitan Water District of Southern California.”
In 1963, President Kennedy went to Los Banos and dedicated the San Luis unit of the Central Valley Project, Mr. Aladjem said. “What he was doing there is a second very big instance of importation of water,” he said. “The west side of the San Joaquin Valley was a barren wasteland; in fact, on some of the old maps, it says the Great California Desert or something to that effect. The farmers in that area were wise enough to say, “With water, this could be really productive,” and that was the genesis for that part of the San Luis unit of the CVP. It was bringing water from northern California to there.” In 1960, the voters of California authorized the Burns-Porter Act which authorized $1.7 billion of bonds to build the State Water Project, which built Lake Oroville reservoir and brings that water largely to Southern California, he added.
“This history is important context,” Mr. Adajem said. “California, for most of the last 100 years, has solved its groundwater problems by bringing in additional surface water from somewhere else.”
“That solution, which we’ve used, has failed,” he said. “Since 2000, over the last 15 years, there have been two above normal or wet years, there have been three sort of medium years, but ten years out of the last fifteen have been dry or critically dry. So, we have an extended drought and a drought of this sort we have not seen since California has been populated. That’s problem one.”
“Problem two, we have increased water demands in the Delta to protect threatened and endangered species beginning with the Central Valley Project Improvement Act of 1992, which reallocated 800,000 acre feet from agriculture to environmental needs,” said Mr. Aladjem. “That was continued with Water Right Decision 1641 by the State Water Resources Control Board in 2000, and continuing, most recently, with a pair of biological opinions.”
He then explained what a biological opinion is. “A biological opinion is a decision by either the National Marine Fishery Service or the US Fish and Wildlife Service that says, ‘We are going to tell our fellow federal government agency, the Bureau of Reclamation, in order not to jeopardize the continued existence of a threatened or endangered species, you have to act in the following way.’ It’s a legally binding commitment by the federal government that says this is what we have to do to protect endangered species.”
That put a lot of pressure on the two water projects, the Central Valley Project and the State Water Project, he said. “Their reliability, or how much water they deliver based upon their contracts has gone from 80 to 90% prior to 1987, to – you could argue about which the number is, but I’ve heard estimates on average from 40 to 50%. So, think about that. Half the water that these guys are relying on has gone away that had been the basis for balancing groundwater basins throughout the state.”
Faced with this, a lot of agencies and organizations said, ‘We have to do something, because we cannot continue on with bringing in water because we don’t have it anymore,’ Mr. Aladjem said. “That, in my mind, was the real genesis of the groundwater legislation.”
The Association of California Water Agencies and the California Water Foundation both convened groups in late fall of 2013, and both released reports by February or March of 2013, he said. “Those reports very clearly articulated several things, and this is what informs the legislation,” he said. “First, because of the variety of groundwater basins in California, there is no simple one-size-fits-all. Two, you’re going to have to manage these groundwater basins without the ability to bring in substantial amounts of water, either from the Central Valley Project, State Water Project, or anywhere else. Third, with this highly differentiated system of groundwater basins we have in California, it’s better that the State give the first opportunity to manage to locals. But the State has an overriding responsibility to make sure that the groundwater basins in California are managed not only to protect to provide water right now, but also to provide water into the future.”
Over the last few years, NASA has estimated that approximately one trillion cubic meters of groundwater have been extracted without replenishment, Mr. Aladjem said. “You begin to think about the magnitude of that number, and you can see why the administration said, ‘We’re going to allow local organizations, local public agencies, to take the first crack at this. But if they don’t, we need to step in because we have an obligation to all the people of the state, as well as to generations yet unborn, to manage and to steward these resources,’” he said. “So, big picture, those are the policies behind the Act.”
The general provisions of the Act are codified in Water Code Section 113. “It basically captures this notion that local public agencies need to control this resource, and as long as they do, the state is going to defer to them,” he said. “You can see the basic premise: let’s let local public agencies figure it out; they have the incentive and they have the expertise in most cases.”
Mr. Aladjem said that in a testy meeting with the State Water Resources Control Board, the staff person said to his client that he didn’t believe they would manage the resources well. “And my client said, “Why wouldn’t we? It’s our drinking water.” And that is the ultimate reason that I think the State said, “We’ll let the locals manage it for the first bill.”
The first step in the process of groundwater management is to form a Groundwater Sustainability Agency or GSA, Mr. Aladjem said. “Is there a local public agency, whether it is as a special water district, in the county, a city – anything like that, and do they want to get into the act and manage groundwater?”, he said. “Threshold question. If they do, any of those local agencies can actually serve as a GSA. … As you are going through the process, you have to provide notice not only to the public but to other potential GSAs. The intent there is to not compel, but encourage local public agencies to work together, or as we said a lot during the deliberations on the bills, ‘We want to encourage people to play well in the sandbox.’”
“As part of this process, not only represent to DWR, the Department of Water Resources, but also to put into your notices here that you are going to take account of all the interests in the basin,” he said. “When I say all the interests, there is a lengthy list in the statute, but it means local community groups, environmental groups, environmental justice groups, and business groups. You can see that the legislation intended for this not to be the providence solely of a local public agency; they wanted someone who’d be accountable. They really wanted this to be a community-based process that really reflects the will of the community. It makes good sense.”
If there are multiple GSAs in a groundwater basin – an exception rather than a rule – how do they coordinate their efforts? “The statute is, I think, quite vague on this and having sat in the room when that piece of the statute was written, the reason is that no one could come up with a simple way to describe the process,” Mr. Aladjem said. “What we wanted was for everybody, all these public agencies, to figure out how best they can work together. But the ways in which agencies can work together up in Glenn County are going to be different than down in Livermore, down in Monterey, in Kern County, or in Southern California. So there is no simple answer and the statute is intentionally vague.”
There are already people threatening to go to court, he said. “I’m actually relatively hopeful that after this initial few months when people get accustomed to what’s happening, and they’re going to settle down and figure it out.”
The deadline for indentifying who will be the GSA is the June 30, 2017. “If not, the State Water Resource Control Board can come in and start what’s called state intervention,” he said. “The reason that that date was chosen is that the two authors of the bill both agreed that the process of developing plans probably should take about five years, to be realistic. They thought that if by the middle of that period, you haven’t even figured out who’s going to be sitting at the table, you’re so far behind the curve, forget it; the state’s going to come in and take it over.”
This does not apply to all groundwater basins, he said. “There are literally, I think, thousands of groundwater basins in California, as identified in DWR’s Bulletin 118, but there are only several hundred basins which have been identified as being really important in terms of providing water either for cities or for farms and that are in the condition of overdraft,” he said. “What the statute says is that any basin can be managed, we’re going to require planning for what are known as medium or high priority basins in the CASGEM system, which is based on a complicated mix of population, water use, agriculture, and other factors.”
So what is the groundwater basin? “Lester Snow (California Water Foundation) was very clear about this, and I think a lot of people agreed with him that it’s important to use the DWR Bulletin 118 basis, at least as a presumptive place to start,” he said. “Otherwise, what will happen is people will argue about the basin boundaries from now until the cows come home and we won’t actually get the management that we need. So, the statute sets up is a process whereby the basin and the boundaries are presumptive in Bulletin 118.”
The Department of Water Resources is going to adopt regulations before January 1st of 2016 that will give the technical basis for adjusting basin boundaries, he said. Those regulations will require that the GSA show that the new basin can be managed sustainably, is technically sound, and the agency proposing the change has consulted with others in the area. “The last one might not seem very difficult, but in my view it is, because agency X is going to say, “Hey, why don’t we change this boundary?” Agency Y will say, “Well, maybe not entirely but we’re going to do this.” And you’re going to get into this long and involved discussion in many groundwater basins about what the basin boundaries should be.”
The Department of Water Resources produced Bulletin 118 back in 1980 using the best hydrology they had, a lot of it based on work done in the 1950s, eh said. “For those of you who are grad students in hydrology and engineering, you understand how much work has been done since then,” he said. “I can tell you that with some of the cases we’re working on, there’s a lot more and a lot better data. But if you get into that rabbit hole of really arguing about the details of basin boundary, it can take a very long time, be very expensive and really divert everybody from the goal of sustainable groundwater management.”
Mr. Aladjem was asked if there were provisions for interstate boundaries like for the Tahoe Basin. “The question of interstate groundwater basins is a really interesting one,” he said. “Bulletin 118 actually has some provisions as does the California Water Code. But I don’t believe that interstate groundwater basins were discussed ever in this legislation. The reason is that the issues about the Tahoe Basin or some of the basins down in Southern California really weren’t what was driving this legislation.”
“What was driving the legislation was the condition of groundwater basins in the Central Valley, and virtually every discussion about how would these basins function focused on the San Joaquin Valley,” he said. He pointed out that the San Joaquin Valley from Stockton to a little south of Fresno essentially is one groundwater basin. “It is divided in Bulletin 118 by county lines,” he said. “Even I know that groundwater flows don’t respect county lines. So the question here is what are we as a state going to do with that? That was what was paramount. The interstate basins really weren’t discussed.”
The centerpiece of the Act is the development of Groundwater Sustainability Plans, which are simply management plans for groundwater basins, he said. “They’re going to function very much likely a general plan to guide growth and development in the use of this resource to make sure that the basin is managed to achieve sustainability,” he said. “As a general rule, the authorities are in addition to any authority that a local public agency might already have.”
“Counties and cities are vested with what’s known as the ‘police power’, because they really have any power that the legislature might have unless the legislature had said, “No, you can’t have it,” he said. “On the other hand, most water agencies in California are what are known as ‘special districts’ and they only have very specific authorities. What this legislation does is to augment those authorities in a dramatic fashion.”
Timing here is key. “The deadline for you to complete your plan is 2020,” he said. “If you have a basin that is known as a medium basin under the CASGEM system that is not in a condition of overdraft, it’s 2022. The legislation really tries to focus on those basins that have the most difficult problems first. It makes good sense. It means that things are gonna get very interesting, very quickly. You can have an advisory committee and you have to do annual reporting.”
There is a CEQA exemption for plan development only, explaining that CEQA is an acronym for the California Environmental Quality Act. “Back in 1970, under Governor Reagan’s administration, the legislature said that when any public agency wants to make a decision that is discretionary meaning they’re not mandated to do it, they have to think about the potential consequences of that decision on the environment,” noting these are things such as traffic, water use, air quality and other things. “If you find that there will be adverse effects on the environment from this action that you want to take as a public agency, you need to mitigate those effects. You need to take actions to limit the adverse effects on the environment.”
“One of the things that has happened in California in the last 45 years with CEQA is that CEQA is a very, very effective tool to stop public agencies from doing things because you sue under CEQA and then it takes several years to go through the courts,” he said. “It’s a very slow process and the legislature is aware of that problem. … The legislature said, ‘Look. We want these plans to be developed, pronto. We want them in place by 2020 or 2022. We do not want them tied up in litigation.’ So what the legislature did is to exempt the development of the plans from the requirements of CEQA.”
“What the legislature didn’t do is to exempt the implementation of those plans from CEQA,” he said. “So, you develop a plan, and now you have a long list of things that you want to do. Those actions are subject to CEQA. So now if, for example, you want to cut back certain people’s pumping, or you want to develop a new reservoir, or you want to do whatever, you have to go through the CEQA process on all of those activities.”
“That is going to be something that is going to be really interesting to watch because then people will try to implement their plans, and suddenly we’ll go into slow gear,” he said. “That is going to be probably one of the biggest obstacles, probably in the five to 10-year range. There’s going to be a huge amount of CEQA litigation, so that’s a growth industry.”
He then turned to the substantive requirements of a Groundwater Sustainability Plan. “They must have measurable objectives to obtain sustainability,” he said. “I don’t think that anybody really understood what the term ‘sustainability meant,’ nor do I think we really have a good sense of it yet. I can tell you from a lawyer’s perspective what I think it means, but this is going to be one of those areas where there is going to be an amazing amount of discussion and litigation over the next 10 to 15 years, at least, because this is the core management objective that we came up with.”
Intuitively, sustainability means something that can be done for a long period of time without creating an adverse result, Mr. Aladhem said. “In fact, that really is what the California Supreme Court has said was the previous standard for managing a groundwater basin,” he said. “The legal term the California Supreme Court used in its San Fernando decision back in the 1970s is that the groundwater basin needs to be managed for its safe yield. This legislation changes that term to ‘sustainable yield,’ but it’s basically the same concept.”
“Managing a groundwater basin that is consistent with a sustainable yield means you’re not going to have an undesirable result, which begs the question, what’s an undesirable result?,” he said. “Here’s what the statute says: ‘A chronic lowering of groundwater levels indicating a significant and unreasonable depletion of supply if continued over the planning and implementation horizon.’ Now you could unpack each of those terms, and you can see how people are going to argue over each and every one of them.”
“It continues, ‘overdraft during a period of drought is not sufficient to establish a chronic lowering of groundwater levels.’ It makes perfect sense, but now how do you know when you’re in a drought? How do you know that that’s not the new normal? These are really difficult questions,” he pointed out.
Other criteria are significant and unreasonable reduction of groundwater storage, significant and unreasonable seawater intrusion, significant and unreasonable degraded water quality, and significant and unreasonable land subsidence, he said. “These are all undesirable, and that really was all of those things that were articulated by the Supreme Court back in the ’70s,” he said.
One criterion that has received a fair amount of attention and rightfully so is ‘depletions of interconnected surface water that have significant and unreasonable adverse impacts on the beneficial uses of surface water,’ he said. “Many of my colleagues in the Bar have being saying, ‘Oh my gosh, the sky is falling’ and others would say, ‘Oh, how wonderful. We’re finally going to see that groundwater and surface water are connected,’ and in my view is neither is accurate.”
Mr. Aladjem said that there are a series of cases nearly a hundred years old where the California Supreme Court has said on repeated occasion, ‘Where you have interconnected surface groundwater and surface water, and where the use of one adversely effects the other, an injunction will lie.’ “We all know that groundwater and surface water are interconnected together; it’s a given, but where there is an appreciable connection, and the use of one adversely effects the other, then the legal system will step in,” he said. “What I liked about this language in the statue is that it makes it very clear that we’re going to manage groundwater basins in that way as it hasn’t always happened. But this is the heart of the act and what’s going to be discussed, and it really intersects the world of hydrology, engineering, and law.”
“One of the key things is that there is no formal determination of water rights. On the other hand, any sort of plan is going to have to try to figure out who has what rights and what can they do, so there is a tension there,” he said. “The plan must be consistent with general plan. It needs to describe the physical setting of the basin and its characteristics.”
Groundwater management plans must also have measurable objectives, he said. “I was on the phone this morning with a client that’s trying to do this, and the question of measurable objectives came up and the client said, ‘Well, what does that mean?’ I said, ‘Well, you get to decide, how are you going to track your progress from where you are today to where you need to be, and you get to define what those are, but then you’re going to have to live by them. You’re going to have to figure that out. I don’t know whether it is water level measurement, whether it is a pumpage, what the right number is and what the right metric is, but that’s what you get to figure out, and that needs to be put into the plan,” he explained.
“Lastly, you’re going to have to monitor and make sure that things are happening, and if there are adverse effects on the environment, you’re going to have to mitigate,” he said.
He presented a slide with a list of different monitoring reports that some of the basins he’s familiar with down in Southern California put out in a regular basis. “For a well-run basin, this sort of mitigation and monitoring ability is just standard operating procedure,” he said. “But there are a lot of basins still today where we don’t have the information, and that’s going to be the challenge over the next 20 years.”
The special districts are going to have authorities to do investigations, augment supplies, determine well-spacing, and limit extractions, one of the most controversial authorities given, he said.
“Everyone who I talked to about this legislation agreed that the ultimate solution is that we need to use our surface water when it’s available and use groundwater when it’s not,” Mr. Aladjem said. “Yet there are a number of different water agency acts that really don’t allow them to do that. What the legislation did was to plug that up.”
“Lastly, there are some areas where Agency X can say to agency Y, “you can have my surface water; I’ll use my groundwater, and I can use that as a management tool,’” he said. “Again, some of these acts don’t allow for that or it’s ambiguous or people have been sued, but the act now plugs that hole.”
The new Act allows agencies to impose a number of different types of fees. “The new act allows agencies to impose a number of different types of fees which are going to be basically under the constitutional rubric of either Proposition 218 or Proposition 13,” he said. “There are the various voter approval requirements, but nonetheless there is provision for new monies to come in. That’s going to be essential because the technical work that’s going to have to get done is huge.”
There are also new enforcement authorities as many of these agencies, whether it’s cities, counties, or special districts do not have a quasi judicial enforcement authority, he said. “The administrative penalties are $500 an acre foot which is similar to surface water, and $1,000/$100 a day for violations and certain penalties. One of the challenges for implementing the Act is going to be that there simply are not enough good groundwater hydrologists in the state, period.”
“So those of you who are graduate students there, you got a job well into the future,” he said. “We do not understand a lot about our groundwater basins, we do not have the modeling capabilities, we really don’t have the ability to manage in a state with already 40 million people or thereabouts, it’s going to be 50 million very soon. DWR is supposed to provide technical assistance, but they don’t have the ability, the staff, or the money to be able to do this, so it’s going to be a real problem.”
Mr. Aladjem said that the folks at DWR were caught somewhat by surprise because a lot of things happened at the end of the legislative process, and now they have a lot to do. “They are going to have a number of different regulations to issue, the most important one I think are the Best Management Practices by January 2017,” he said. “And, of course, there is $100 million dollars in Proposition 1 for groundwater management. I believe when DWR starts distributing that, there will be a line of people.”
Once the agency finishes its groundwater sustainability plan, it submits it to DWR for evaluation. “One of the common misconceptions here is that DWR is going to approve it,” he said. “Not quite true. It’s going to evaluate and provide comments back. Now, you may say, ‘Well, that really means approval.’ Again, I hearken back to what I started with, which is that local public agencies are going to be primary and the state is going to be secondary, unless and until it has to step in.’ And this is how that got clippy with legislation – to review is whether that plan is likely to achieve the sustainability.”
Mr. Aladjem said that the alternative proposal is one of the more interesting pieces of the legislation. “DWR, to their credit, said during some of the discussion, “we don’t want to put everybody into a straitjacket; if somebody has a different way to actually achieve the purpose of a sustainability plan, we want to hear from them,’” he said. “I think that that is another under-recognized piece of the act, but one that could be very, very important as we go forward.”
If there is a water district or a city that is simply saying that they don’t want to do anything, then the consensus very early on between Tim Quinn, the head of ACWA, and Lester Snow, the head of the California Water Foundation, that if you had people or agencies that did not want to address the problem, the state needed to come in, he said. “The administration made it very, very clear that there had to be what was initially called the state backstop,” he said. “It is now called the Chapter 11 State Intervention.”
He then went over the triggers for state intervention: No Groundwater Sustainability Agency by 2017, no Groundwater Sustainability Plan by 2020 or 2022, and if the Groundwater Sustainability Plan is inadequate or not being implemented, additional triggers kick in. “The basic idea is if you are not willing to develop a plan, if you are not willing to implement the plan and make sure it’s effective, the state is going to intervene. There is very little criticism of that from anybody.”
If the State Water Board steps in, they can impose what’s known as an interim plan, he said. “Essentially, they can have one hearing, and they can say, “We are going to put in place something that’s kind of a do-no-harm,” or as the old adage says, “When you’re at the bottom of a hole, stop digging.” That’s what they’re trying to do,” he said. “The chair of the State Water Board Felicia Marcus has said publicly, “We don’t want to be running groundwater basins, but we are going to make sure that your inability to get with the program and develop a Groundwater Sustainability Plan and implement it so it isn’t going to harm the state long-term.”
The interim plans can limit extraction and any interim plan has to be consistent with water right priorities and Article X Section 2 of the California Constitution, which forbids waste and unreasonable use of water, Mr. Aladjem said.
Professor Richard Frank
Professor Richard Frank then offered some supplemental comments and context from his perspective. “From a political dynamic, this was an enormous development, and the passage of this legislation is very consequential,” he said. “It surprised a lot of cynics and skeptics who thought that California would never adopt comprehensive groundwater legislation at the state level.”
“First, as State Water Board Chair Felicia Marcus said at a water symposium in San Francisco on Saturday, this legislation is not intended to do anything to address, and it will have precisely zero affect on the current drought,” he said. “And the drought that we’ve been experiencing for several years continues to get more critical and more dire.”
“Given the timelines involved, this legislation is not a panacea; it is not any kind of short-term fix,” he said. “It’s basically irrelevant. I think David has done an excellent job of addressing some of the key positive features.”
“I want to echo one thing he said,” continued Professor Frank. “At various points littered throughout the legislation are references to the connection between surface water and groundwater supplies. For many years, our legal system has been ignoring a truth of science and engineering that there is a direct relationship correlation and interrelationship between surface water and groundwater flow. On a programmatic basis, this legislation is the first time that has been recognized. … it represents real progress because the legal system for far too long has ignored that interconnectivity and treated groundwater and surface water supply from a legal perspective, in terms of legal rights and obligations, as two distinct resources so, the fact that we’ve gotten past that or starting to get past it is important.”
David Aladjem was absolutely correct that the state role is very much secondary, Professor Frank said. “The primary focus and primary authority in this legislation is delegated to as yet undefined local governments or groups of governmental entities, who will self form into these Groundwater Sustainability Agencies through a process which, in my view, is fairly vague and amorphous as to how politically they’re going to do that. Whether that is going to be a county, an irrigation district, a water district or some collective organization, it’s not clear. But under the legislation, it is the local government that needs to be defined and created; the Groundwater Sustainability Agencies up and down the state will have the primary role. The state role has very much a backstop role, but I would further parse it out to kind of the carrot and the stick.”
“The Department of Water Resources really has the easier and more rewarding job because they’re the carrot,” he said. “They are there to provide technical assistance, and to provide review and reactions as to the adequacy of groundwater sustainability plans. …They have already pre-designated what the boundaries of the groundwater basins are. And most importantly, they also have the money. They are going to have $100 million to dole out under the water bond to local agencies to help them with this process of implementing this legislation. That’s very important. So they are the carrot. They are going to be perceived warmly and fuzzily by these Groundwater Sustainability Agencies, local governments and groundwater users in general.”
“The State Water Resources Control Board has the less enviable job of being the stick,” he said. “They are the enforcers and the ones under the legislation to step in, if and when local governments through these Groundwater Sustainability Agencies don’t meet their deadlines and don’t comply with the spirit and letter of the law on a timely basis. The legislation is drafted in such a way as to make it extremely difficult and unlikely that the Water Board will, in fact, step in. I think the bias built into the legislation is to create a system where that is the very, very much the exception and to encourage at any number of points for local government to self-form and to take on the responsibility contemplated for under the legislation.”
Professor Frank then gave three areas where he has concerns about the legislation, acknowledging that it’s easy to talk about this from his academic perch. “One of my concerns is the effort to self-organize leads me to wonder who and which entities will wind up as Groundwater Sustainability Agencies. In some parts of the state, you have some of these local agencies that have been part of the problem who are now being asked to self-form in this part of the solution, and I don’t think there would be a vested interest for some of these organizations that have benefited from the lack of regulation before to step in and say, ‘We will become the Groundwater Sustainability Agency.’ I worry about the problem of the fox guarding the hen house and that the same entities that helped cause serious problems with non-sustainability and groundwater overdraft are going to put themselves in position to implement the law. That would require a great deal of scrutiny.”
Professor Frank said his second concern is the ‘rather languid’ implementation period prescribed under the legislation. “Two and a half years to self-form as groundwater sustainability agencies, five to seven years depending on the nature of the problems affecting the particular groundwater basin to adopt a groundwater sustainability plan, and the Department of Water Resources is given two years to review and provide comments on a particular groundwater sustainability plan. Enforcement is not available to address a non-filer or to proceed against deficient groundwater sustainability plans for 10 years from the effective date of the legislation. Beyond that, it’s not contemplated or required that these groundwater sustainability plans achieve sustainability goals mandated under the legislation for 20 years following the enactment and adoption of a groundwater sustainability plan.”
“It occurs to me that the languid schedule may work with respect to some of our groundwater basins of the state that are not currently or projected to be in crisis, but that’s an awful long time for a number of groundwater basins in the Salinas Valley and in the San Joaquin Valley where they’re suffering major problems,” he said.
“For me, the single biggest defect in the legislation, is that with the exception of interim plans that are adopted by the State Water Resources Control Board in that rare set of circumstances where the board actually is required to step in,” he said, “the law does not require as an explicit requirement that for each groundwater basin, there is a reporting by individual extractors of groundwater of how much water they’re extracting from a given well over a given period of time.”
“I’m not an engineer; I’m not a hydrologist, but it strikes me as a layperson for this that it’s going to be very difficult for Groundwater Sustainability Agencies to develop viable and effective groundwater sustainability plans in the first instance and to actually implement them successfully without that exceedingly basic information,” he said. “There’s the old adage that politics is the art of the possible, and it may just not have been possible to include that explicit requirement for groundwater extraction data to be recorded, in much the same way as under our 100-year old system of regulating surface water diversions that those surface diversions are reported.”
“That’s not to say that the individual groundwater sustainability agencies are not empowered to make that a requirement; they certainly have the authority and discretion to require that,” he said. “My question is that in some of the areas in the state that are in most serious overdraft and where groundwater basins are mostly packed, whether those Groundwater Sustainability Agencies will have the political will to include a requirement from the extractors for that, and if they don’t, whether the Department of Water Resources will be willing to exercise the fortitude to say that, ‘We don’t believe this is an effective and adequate groundwater sustainability plan in the absence of such a requirement.’”
“To end on a happy and positive note, I absolutely agree with Dave Aladjem that everybody in this room, whether you’re an engineering student or an ecology student or a law student, if this is an area in which you choose to work after you leave here with your degree, this is the full and poignant act for all of you,” he said. “You’re well served, I think, to learn about this law and be ready to play a key role in helping to implement this landmark legislation.”
Professor Frank then gave David Aladjem a chance to respond before they opened the floor up for questions.
“I’m too much of a lawyer to not have the last word here,” replied David Aladjem. “I would agree that Professor Frank identified three really good concerns about the legislation. In terms of the self-organization point, I think everybody is still trying to feel their way, but what’s really interesting, and the State Water Resource Control Board Chair, Felicia Marcus has said this on repeated occasions – she has no problem being the 800-pound gorilla. And in talking to a number of water managers up and down the state, they see the State Water Resources Control Board as the 800-pound gorilla, and one of the provisions to the act that was near the end is if you have multiple agencies that overlie a basin, and let’s say you have five agencies, and one of them is saying, “I’m not going to do anything,” the other four can move forward, and the boom is not going to get lowered on them What I anticipate is going to happen is that you are going to see that scenario in a lot of the Central Valley. There are going to be some folks that are saying, ‘Forget it. Everybody else is going to move forward, and we’ll see what happens.’”
“The ‘languid’ implementation period, well, that’s what the legislature decided on,” Mr. Aladjem continued. “Then lastly, I think that he pointed out that politics is the art of possible and in terms of actually monitoring extractions, my own sense from being in a lot of those meetings was there was a wink, wink, nod, nod. We as a state are not going to mandate it, but we also understand that the only way to effectively achieve the sustainability goal is to monitor. We’re going to let the locals take the political heat. And that was a way to get this thing through. And I actually think that was probably the correct call.”
The question was asked that if we understand the act to have a baseline date of January 1, 2015, are people going to try to game the system and engage in the classic race to the pump house to put themselves in a better position down the road?
“The act actually takes care of that, because it says, “Any pumping that you have after January 1, 2015 doesn’t count,” said David Aldajem. “If you are going to get into a situation, where you have competing prescriptive rights under the Pasadena versus Alhambra Decision doesn’t count, and for that very reason. That actually came up pretty early in the discussion. Good point.”
The question was asked that since ACWA represents 90% of the water distribution and had such an instrumental position in forming the legislation, are those agencies likely to be the ones to become the GSAs?
“For the record here, ACWA was instrumental in developing the legislation,” said Mr. Aladjem. “Will ACWA members be the ones who implement the legislation by becoming GSAs? Probably. ACWA’s membership is about 90% of the water agencies in California, and those are the folks who are presumptive other than cities and counties, and that’s where there’s gonna be a real interesting discussion to be GSAs. So, the answer is yes.”
Professor Frank said he was talking at the water conference recently with some people about the role of ACWA, and his personal view was that the leadership of ACWA was more progressive and more open to this than many of its members. “How in the world Tim Quinn and Kate Williams were able to pull their very diverse, and sometimes fractious group of water agencies from up and down the state into a position of support for this legislation is a marvel to behold.”
Mr. Aladjem then added that the failure of our previous system was that we managed it on essentially on a credit card. “You have to bring in more water. People began through this current drought to recognize that’s not going to work … So ACWA began a process, and the Water Foundation followed very shortly with its own process to say, “What should we do? How should we manage groundwater in California?” And what Tim Quinn, the executive director of ACWA,did was to get a group of people who were seen in the ACWA world as pretty heavy hitters, mostly water district managers, and they put together the report that sort of laid out a lot of this.”
“I remember seeing some drafts early on,” continued Mr. Aladjem. “That is what allowed the ACWA leadership to not only coalesce around a proposal that was pretty close to what the main outlines of the legislation was, but to everybody’s surprise, it was pretty close to what the Water Foundation was coming up with in an independent process, and pretty close to what the administration had been circulating as an internal draft, and it was sort of about off on the the April timeframe last year when all these things came to, and everyone sort of looked around and said, “This isn’t that far off.” And to answer your question, Rick, that’s when people began to say, “Maybe there’s actually a chance of something happening.”
For more information …
Coming next week …
Tim O’Halloran with the Yolo County Flood control and Water Conservation District will talk about groundwater planning in an agro-urban basin.
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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