California’s new historic groundwater legislation, the Sustainable Groundwater Management Act, requires local agencies and stakeholders to come together to from Groundwater Sustainability Agencies and to develop plans to manage their groundwater basins in a sustainable fashion – no easy task.
The fifth lecture in the California Water Policy Seminar Series, presented by the UC Davis School of Law and the Center for Watershed Sciences, featured David Orth, General Manager for the Kings River Conservation District, who discussed the challenges he sees ahead for implementing the legislation he helped to create.
Thomas Harter introduced David Orth, noting that he has worked on a lot of different water issues. “He’s inserted himself and has shown leadership across the board with Irrigated Lands Regulatory Program, a representative for the Tulare Lake Basin, and really one of the key leaders working on the groundwater vision for the Association of California Water Agencies (ACWA), where he also serves on the board,” he said. “In the last two years he’s been appointed to the California Water Commission, which is the agency that’s going to make a decision on how to spend $2.7 billion of Prop 1 bond money for storage. With that said, thank you, David, for being here, and we look forward to your talk.”
David Orth began by saying that he’s had 20 years of experience in groundwater management through various roles, as well as serving as the chair of ACWA’s groundwater committee for multiple terms.
“A couple of years ago, it became very apparent that the legislature was poised to enact the legislation that we’re all aware of now, the Sustainable Groundwater Management Act,” he said. “I sat endless hours in the Governor’s Horseshoe, negotiating with the authors of the act, representing California water agencies, and then shuttling back home and finding out just how far out on that branch I had gotten, and then trying to figure out how to wriggle myself back in.”
A lot of what is written in the Act is language that made sense to him at the time, he said. “I still think it makes a lot of sense, although a lot of my peers and a lot of the stakeholders that I represent who are, again, predominantly agricultural stakeholders, are very worried about where this is going to go.” He said he’s been spending a lot of time trying to help the public and the various local agencies understand the requirements of the new legislation, and preparing to have those very difficult conversations that are in store with some of the ag pumpers in urban and small urban areas in his district.
Mr. Orth presented a map of the Kings Groundwater Basin, noting that it is one of two groundwater basins that the Kings River Conservation District overlies. “It is an area defined by, DWR’s Bulletin 118 that covers 976,000 acres,” he said. “There are 12 incorporated cities, including the cities of Fresno and Clovis on the north end. With the exception of Fresno and Clovis, every one of those other communities is solely dependent upon groundwater out of the basin.”
He noted that up until just five years ago, Fresno and Clovis were also 100% groundwater dependent, but more recently have entered into programs to allow the exchange of Kings River surface water, and Fresno is also working to obtain water from the Friant water system.
In 2002, DWR estimated 93 million acre-feet of groundwater to a depth of 1000 feet in this area, he said. “But not everybody pumps to 1,000 feet,” he said. “In fact, up on the east side of the basin, depths to groundwater are commonly shallower than 100 feet. You move out to the west side and depths to ground water can be several hundred feet, and in the Tulare Basin, we’re seeing wells being drilled up to 2,800 feet deep down.”
“This is the Kings River Conservation District in its entirety,” he said. “It’s a bit unique in California in the sense that the legislature created our entity in the ’50s to manage the flood project on the Kings River system and to be a regional water resource manager to assist in the water rights holders on the Kings River system. One of our very first tasks was to negotiate storage rights for the water rights holders with the US Bureau of Reclamation. The primary flood project now is the Pine Flat Dam on the Kings River, a million acre-foot surface storage facility that provides both flood and irrigation benefits.”
The District overlies two groundwater basins, the Kings Basin and the Tulare Lake groundwater sub-basin; the south end of the District lines up against the Westside groundwater basin, which happens to be virtually continuous with the boundaries of Westlands Water District. “If you know groundwater, groundwater doesn’t stop at that black line,” he said. “Groundwater doesn’t stop at the basin boundaries. These were boundaries that DWR created years ago with some geopolitical influences, but they are what we have today to manage from.”
During negotiations, there were those who felt the entire Bulletin 118 delineation should be thrown out and start again from scratch identifying groundwater basins. “The challenge there is that it would throw out decades of work, some of which we would argue has been good work, and we’d probably spend another decade trying to figure out what the new management unit is, instead of really focusing on solutions,” he said. “So we were pretty quick to get rid of the idea that we should start from scratch.”
To further complicate things, Fresno County covers a portion of the District. “The role of counties in this act is that they have a responsibility to serve as the default entity if other local agencies choose not to adopt or create Groundwater Sustainability Agencies,” he said. “So Fresno County has the challenge of dealing with parts of five different sub-basins: the Kings, the Westside, a little sliver of Madera, the Delta Mendota and half of Pleasant Valley. All but one of those are high-priority basins due to overdraft and due to dependency on groundwater and have the earliest obligations to apply the provisions in the Act.”
Mr. Orth said they have already done a lot of work in the Kings Basin. “I would define one of the key management practices is to know your basin,” he said. “That includes using a lot of different ways to understand what’s happening to storage and to water quality and where some site mix vulnerability exists, what the movement of groundwater within and among your neighboring basin actually is. So one of the things that we’ve done is created both an elevation monitoring system that then tracks back to changes in storage. We’re also using a model to quantify, with very good accuracy, what’s happening to that storage.”
He then presented a graph of groundwater levels in the southern San Joaquin Valley Groundwater Subbasin. “We gain a little bit back when it’s wet, and when it’s dry we deplete, but overall we’re dropping at the wrong angle,” he said. “Six-and-a-half million acre-feet lost in about 49 years of tracking on this chart. That’s 93 million acre-feet.”
This is the sort of thing that was put in front of the legislature two years ago as demonstration of unsustainable management of groundwater, he said. “Maybe this is a little bit gratuitous, but this is one of the better managed groundwater subbasins in the San Joaquin Valley but it is still suffering with these kinds of symptoms.”
Through their integrated groundwater-surface water model that was developed through the integrated planning process, they’ve been able to identify and quantify a net change in storage of the negative 150,000 acre-feet a year, Mr. Orth said. “I like this, because when I can put my arms around what the shortfall is and then we can start developing plans to deal with that shortfall,” he said.
The other interesting thing is that the basin loses, on average, outflow of about 820,000 acre-feet per year, he said. “So, if I just develop part of that, I can make up that, and that’s kind of the foundation of our strategy,” he said. “It’s why our basin is a little bit more unique than some of the other basins in the Valley that are much more dependent upon imported water from the state federal projects. This is a basin that I can see success; I can see the objective being reached somewhere in the near future. And in fact, our integrated planning process has said that we want to create sustainable groundwater levels by the year 2032, which is actually eight years sooner than the deadline that was contained in the Sustainable Groundwater Management Act.”
Mr. Orth presented a slide of Kings River groundwater flow patterns. “With groundwater flows, we do a lot of tracking of elevations, we do contours semi-annually, and we put them out in publications for our growers in our communities,” he said. “You can see that groundwater is moving into a hole. … this area of the Kings River service area does not have any surface water; and folks here are using solely groundwater to support predominately ag use and they’ve created a very large cone of depression. So the more and more that we recharge up here where the recharge rates are very good and we have surface and groundwater fairly well-balanced here, the water continues to move out into this hole.” He noted that this is something that was part of the discussions in the development of the groundwater legislation.
“The districts on the northeast part of the map say, ‘We have everything in control. We don’t need any further control. We probably don’t even need to be a GSA. Exempt us. Go focus on those bad guys, the have-nots down in the area where they’ve created the cone of depression,’” Mr. Orth said. “My response to that is this: Historically in California, we’ve allowed groundwater to be managed at a district level, so when I got to KRCD 13 years ago, we had 34 groundwater management plans covering two different groundwater basins. … Every individual district had their own groundwater management plan and then in some cases, the cities adopted their procedure. They were only relative to that entity; there was no integration, no coordination with them. California tried to survive on that model for decades and what you had was that declining groundwater storage graph that I showed you earlier.”
The Act challenges us to manage groundwater at the sub-basin level, he said. “We now have to create a plan that says we’re going to manage this entire area in a coordinated and collaborative way such that the basin is sustainable,” he said. “So those guys up here [in the well managed area] who have a vested interest in this area need to fix that area [the cone of depression] because we all want to see the entire basin sustainably managed and consistent with the law, given the alternatives.”
He presented a map showing the large number of different types of areas and entities within the basin. “We have started to integrate them and their groundwater management plans and we’ve created a kind of coordinated groundwater management plan several years ago under the previous statutes,” he said. “So far we have not had the county involved in those efforts. With the Act, the counties have the responsibility to manage the portions where there is no local water agency that overlies that land. So we’ve had to bring the counties into a discussion and get them really engaged, while at the same time still negotiating with the county over who should be the lead in the county. It’s a bit of a different idea from county to county as to what role they want to play in groundwater management.”
Mr. Orth then turned to the formation of Groundwater Sustainability Agencies (GSAs). “When the act was being negotiated and the concept was that we wanted to start managing at the basin level, I for one was thinking that we need to create one entity and one plan for each sub-basin. Ideally, I think that is the model. In fact the act and the policy papers that preceded it had said that ideally groundwater is managed at the subbasin level. We have a singular plan and a singular entity.”
“But as the negotiations of the legislation continued to its passage, there were a lot of discussions about alternatives,” he continued. “So folks are now thinking about different methods where we create one GSA for the entire subbasin, and instead of one groundwater sustainability plans, we have multiple groundwater sustainability plans that would be adopted by individual entities within that master agency through perhaps a joint powers agreement, a contractual arrangement, or memorandum of understanding.”
“There was also some consideration of allowing multiple GSAs, individual entities within a basin to maintain their own structure, but then implement a plan, their part of a plan,” he said. “And then kind of what I think folks in the legislature refer to as “food bite option” where that you have multiple GSAs and multiple GSPs within a subbasin; the challenge there is that the statute requires that they enter into some type of coordination agreement that shows to the satisfaction of the Department of Water Resources, how that collection of agencies and plans can meet the sustainability objective under the Act.”
Mr. Orth then considered how it might be implemented in his own region. “We could have every one of these colored areas and then the white areas, each have their own GSA and then adopt their own GSP,” he said. “The challenge would be for us to create some type of coordinating agreement, such that you rely on the same objectives, the same data, and agree to cooperatively implement our individual plans to achieve basin sustainability. The other extreme of that is that we allow some entity to form either through a Joint Powers Agreement, perhaps the county or even possibly, in our case, the Kings River Conservation District – we could form a single GSA and then work with these individual entities to either adopt a single plan or some sub-plans within that region that would knit together get us to sustainability. We’re struggling with this and having lots of discussions with a lot of the local agencies about how best to do this.”
Mr. Orth said that they have an Integrated Regional Water Management Planning entity for the Kings Basin. “Admittedly, it was done because the state said, ‘If you want public funds, you have to have an Integrated Regional Water Management Plan to be eligible for those public funds that are authorized under various water programs.’ So, we coordinated a group of those same entities on the map, engaged a broader stakeholder community through a memorandum of understanding that then morphed over years into the adoption of a plan. The plan’s objective was to eliminate average or eliminate overdraft, reach sustainability in the groundwater basin, and deal with water quality issues, and ecosystem protection, as well as public access and recreation to the Kings River system by 2032.”
They’ve developed a fairly robust system for vetting project proposals, he pointed out. “The City of Clovis brings to us a purple pipe system, the City of Fresno brings to us a metering system, and the Consolidated Irrigation District brings to us a proposed groundwater recharge bank or recharge basin,” he said. “We put that all into an internal process and have internal peer review and chalk out of it those plans that we think contribute to our sustainability objective, long before the Groundwater Act was passed.”
“But really the focus was to create a mechanism where we could coordinate and then position ourselves to be a very strong advocate for state funding,” he admitted. “We’ve been pretty successful. About $53 million of state funds have come into that Kings Basin region to make investments in infrastructure and water sufficiency activities. We’ve also leveraged that in with some private foundation money and even some local match to do about $85 million worth of projects. We have added 20,000 or 30,000 acre-feet of recharge capacity and another 100,000 feet of reduced demand that really lowered that 150,000 negative number from a much higher number 10 years ago.”
Even though it’s been very successful, the people in his district still have concerns, he noted. ‘When I got back home from the negotiations of the act, I said, “Alright, we now have to form an entity. Let’s put our IRWM into the blender and figure out if it works.’ Most of the individual members said, ‘Wait a minute. We like the IRWM for what it is. It’s a funding mechanism. It’s a credit bank. It’s a way that we can get money.’ But we’re not sure we want to empower the IRWM to tell us, the local agency, the customers that we serve, the land owners who elected us to be on their boards … We’re not sure we want that IRWM to tell us that we’re going to implement a fee or we’re going to implement pumping restrictions, so let’s not presume that the IRWM is the starting point.”
“I think everybody agrees the IRWM can very much be a tool in the future of funding and supporting programs and projects and activities that contribute to GSA and GSP sustainability, but right now, at least on our area, we’re thinking about a few separate approaches,” he said.
The IRWM has developed a great deal of data and we have created an organizational structure that has been very positive for us, through a Joint Powers Agency provision, he said. “We’ve adopted a plan and a plan update and developed very strong relationships with entities and stakeholders within the basin and even with neighboring subareas and sub-basins, such that we meet with a number IRWMs and are forming IRWMs in San Joaquin Valley,” he said. “Even now, we started looking at Upper Watershed collaborative opportunities that contribute to our regional goals. So it’s a good foundation. Whether it becomes the GSA or it becomes a tool for the GSA is something we will continue to work on into the upcoming year so.”
The IRWM is a diverse group made up of 41 interested parties and 16 members as well as participation from state agencies and others. “What we’ve done with IRWM is really engage the non-governmental organizations,” he said. “Members are public agencies eligible to be on a JPA or Joint Powers Agency. They pay dues. They sit on the governing body. Interested parties is anybody else who can demonstrate to the satisfaction of the IRWM Board that they have an interest in regional water or resource issues within our planning area; we’re not terribly exclusive. You can make your case, you can participate. There are no mandatory dos to be an interested party; you also don’t get a vote on the governing board but we’ve had a very collaborative and interactive process in developing first that plan and then vetting projects that contribute to our goals. I think it’s a good foundation for where we need to go.”
Mr. Orth then turned to best management practices. “One of the directions in the Act is that the Department of Water Resources should create a list of best management practices by late 2016, early 2017 to inform groundwater sustainability agencies in what it should be considered as you develop your plans,” he said. “We’re waiting for that list and I think there will be a lot of effort to provide suggestions into that list.”
Mr. Orth said his best management practices fall into three areas: Data, supply side practices, and demand side practices. “There are things that we can do within our GSP to meet the sustainability objective of the act,” he said.
“It’s remarkable that in 2015, we still have sub-basins in the Southern San Joaquin Valley that don’t know what their annual average overdraft is,” he said. “They’re not monitoring at sufficient enough density to really understand how groundwater is flowing within the basin. So data is the first thing.”
“But data potentially means measurement of extractions, and this was a hot button discussion,” he said. “During the negotiation at one point, there was a proposal put out by the administration that we make mandatory extraction reporting a condition for anybody who’s in an overdrafted groundwater basin. That’s easy to say, it’s hard to implement. The cost of metering an extraction can be pretty significant even for a piece of that Kings Basin service area. In fact, Fresno Irrigation District just submitted a project proposal to us today to do measurement for the surface water deliveries in their system, and the budget estimate is $40 million. That’s for about 15% of the service area, so think about the cost and magnitude of the historical, traditional measurement of putting a meter on a well, having somebody go out and maintain it, report data and create data systems out of it.”
“My argument is there has to be a better way; we know that there are some folks looking at different technologies based on ET and other techniques,” he said. “The flip side of that coin is that if we’re going to establish a fee or we’re going to establish a limit on how much you can pump, whatever you use to measure the price is going to have to be something that a farmer is comfortable with, and I think that’s where pricing and meters on wells start to crash. If I’m going to tell Thomas he can only pump so much groundwater, he’s going to want to know that I’m metering him pretty darn accurately to limit what he can use. So, my argument to the administration was, ‘Let’s let the metering discussion take place at the local level. Let’s let the local GSAs and GSPs figure out the form of measurement that they need rather than creating a statewide mandate.’”
We also need better tools to assess the data we are getting, he said. “I don’t know that we can ever learn enough about what’s happening to our groundwater in terms of quality, in terms of movement, and in terms of subsidence influences,” he said. “A lot of effort has to go into place here in the next five years to develop good assessment systems so that we can translate that to the grower. When I go back to that grower community in that place where all the red arrows went, I need to have the information translated to a language that they can understand and willingly invest in. If we can’t get there, then, unfortunately, I think we’re into arguments and lawsuits and ultimately, adjudication of groundwater basins.”
Supply side practices:
There are several options for the supply side, such as improving operational efficiency, transfers, and flood management. He reminded how there was a large amount of stream outflow from his district. “A lot of what we’re focused on is trying to capture that through either expansion of dedicated recharge basins, filling the flood channels up more readily and allowing the water to percolate rather than shove it out of the basin quickly, and working with some growers and some private foundations on assessing what’s called ‘on farm flood water utilization.‘”
Mr. Orth pointed out that before California built flood projects, the water spread across the valley floor and recharged the groundwater basins. “But then with the implementation of flood protection and the increased focus on water use efficiency, drip and micro system irrigation, we’ve changed the way surface water interacts with groundwater. So we’ve gone to some of our farmers and said, ‘What if we tried to create incentives for you where the geology works to park flood water and use it to recharge the groundwater basin or groundwater underneath your own property?’”
Mr. Orth said this is being tried on a test basis. One of those tests was at Terranova Farms in his district; they were able to take a significant amount of floodwater onto their fields and let it percolate into the basin. “I think he got about 3,500 acre-feet of water into the ground in something less than a 90-day period by being very innovative and aggressive and managing that floodwater differently,” he said. “I think that’s something we’re going to see more of in the future.”
They are also looking at recycled water through the local communities, he said. “City of Fresno certainly has a very large recycled water component they can contribute to our groundwater basin sustainability.”
Demand side practices:
They’ve already invested in water use efficiency and will continue to do so, he said. “Fees are the big monster,” he said. “Really none of the agencies that I’m aware of in the South Valley have implemented any type of groundwater management fee. They’ve adopted plans. They’ve tried to implement planning components. We’ve adopted an IRWM and used other people’s money for plan components, but we have not yet faced the fee question.”
“Part of that is because of Prop 218, and the cost and burden that it creates in the political dynamic of trying to get a majority rate for approval of an increase in water rates, whether it’s to cover a surface water investment program or a ground water investment program,” he said. “Prop 218 elections are very difficult for local agencies to manage through. And unfortunately in this economic dynamic that we’re in, and the drought conditions that we’re experiencing, we’ve actually seen a recent attempt by one of the districts fail. After spending a significant amount of time and money in a campaign, they didn’t get to the majority approval threshold.”
The Sustainable Groundwater Management Act created a couple of alternatives for local agencies in addition to the Prop 218 process, Mr. Orth said. “There’s a second alternative where you can use a majority protest provision. The act attempts to identify the conditions upon which a groundwater fee would be eligible for the majority protest provisions to your Section 406,” he said. “Obviously it’s a lot easier to avoid a majority protest than it is to achieve majority approval. And so there is a mechanisms that says, ‘If you structure your rate as a property-related service fee, you can use the majority protest provisions and maybe make it easier to adopt a fee for your groundwater management.’”
A third alternative is a ‘regulatory fee’. “You don’t have any Prop 218 election or protest hearing; you make some findings as the local agency through ordinances that you are adopting a fee for purposes of implementing your regulatory program, and the statute attempts to connect that fee authority to the provisions of the Sustainable Groundwater Management Act.”
“Certainly, two of those three are going to be litigated in some shape or form if the local agency chooses not to, or attempts to try to implement a fee without a great deal of stakeholder support,” he said. “There’s likely going to be legal challenges, and that’s concern, frankly, in the formation of GSAs.”
The act provides for a link between the land-use planning agencies and the groundwater sustainability agencies, and understanding the water impact of planning decisions, and the water availability to support planning decisions, he said. “Unfortunately the act did not go far enough, in my opinion. … the Act basically says that the planning agency doesn’t have to consider or is not bound by anything that the Groundwater Sustainability Agency provides it, so it’s just purely a notification process. The counties were pretty clear from very early on that they didn’t want their authorities diluted or taken away from them, so we didn’t get much in terms of land use other than just the information exchange.”
The big issue is the pumping limits, Mr. Orth said. “How do you do that? How do you do it absent good solid data to support those types of decisions? The challenge is, for some of the local agencies thinking about GSAs, they’re okay with collecting information; they’re not so much okay with implementing fees for implementing pumping limits, and yet, in some basins, again that’s only way they’re going to achieve sustainability.”
GSAs have a number of responsibilities, including coordination with neighbor districts or basins, stakeholder engagement, data, boundary adjustments, reporting, fees, regulations, investigations, and enforcement. “All these pieces of GSA responsibilities that are influencing right now the discussion of who wants to be the GSA – who wants to do these things,” he said. “Some agencies are so afraid of pieces of these that they’re thinking about creating brand new special act agencies formed solely for the purposes of managing groundwater. And some stake holders are so frightened of what the GSA might do, the local irrigation district or the county, that they’re thinking through their local farm bureaus about trying to create some new entity. So it’s a fascinating discussion, subbasin by subbasin, or even parts of subbasins right now as to how best to unite these local agency interests and get to sustainability.”
“My encouragement to people who are struggling with this right now is don’t struggle too long, because the first opportunity for the state to intervene and adopt interim groundwater management plans is June 30, 2017. That would be in an instance where a GSA has not been formed, or GSAs have not been formed and demonstrated coordination such that a basin is on a pathway to sustainable management,” he said. “I think it’s interesting in the Act that the state carved out for them a different threshold for an interim groundwater management plan than they mandated for the sustainable groundwater management plan.”
Mr. Orth said the state more than likely would establish or propose interim pumping thresholds based on whatever data they can get their arms around on a sustainable or safe yield calculation and then hand it back to their local agencies and say, “If you don’t like this, then get your act together and figure out how to do it better.” And that needs to continue to be our motivation is to keep them out of this.”
The Act set some requirements for the state in the form of regulations and reports that must happen concurrently with the efforts of local agencies to form GSAs and develop GSPs:
Basin classification: “The first report was a reclassification of the subbasins in the State of California as either high, medium or low priority. The Act told DWR to go out and look at one more component, the interaction of pumping on surface water flows and habitat, and determine whether or not any of the low priority basins needed to be reclassified to high as a result of adding that criteria in classification. DWR almost immediately put a letter out that said, “We don’t have any new information at point so we’re going to hold the current high and medium vulnerability map in play until we get better data to move forward.” So they’ve already handled the basin classification objective.”
Basin boundary regulations: “They now, by January 1 of 2016 have to implement rules and regulations that tell the local agencies the criteria upon which boundary adjustments will be considered and approved. Boundary adjustments are critical because they can involve tweaks to portions of your basin … Remember that little blue spot I showed you in the Madera Basin falling over in the Fresno County side? It would make more sense to just have that spot be part of the Kings Basin than have one more sub-basin in Fresno County to try to manage and then coordinate with the larger portion of the basin on the outside. … and we have some entities thinking, “Well I’ll just propose that the boundary adjustment be my irrigation district’s boundaries.” So again, there’s a lot of people looking to DWR in this next 10-month period to identify the criteria for boundary adjustments, and those criteria are very much going to define and influence how GSAs are formed. And yet I don’t if we can wait for that to get done because the clock continues to tick for GSA formation.”
Future water supply forecast: “DWR also has an obligation to do a future water supply forecast. This is in response to observations from some of the subbasins in the Southern San Joaquin Valley who are heavily dependent upon imported water supplies from the Delta that have lost their reliability of that surface supply, so they’ve made up for that loss by continuing to increase their use of groundwater to very dangerous, unsustainable levels. So the request was to DWR and the Governor, that “Now that we’ve passed Proposition 1 and you, the Governor, have created the California Water Action Plan, which is supposed to map out this future for California, quantify for us, as local agencies, what you think that improved surface water supply expectation we should have.” It’ll be an interesting report. The DWR says don’t expect any improvements for the next 20 years … I think a lot of agencies are hoping that we see something better than just status quo.”
There is a lot of discussion about improving definitions, Mr. Orth said. “I’ve heard a lot of criticism about the new and arguably unclear definition of what groundwater sustainability is. It’s the avoidance of undesirable results, and those undesirable results are further defined as significant and unreasonable impacts on groundwater and storage, in groundwater overdraft rates, subsidence, ecosystem impacts, there’s a couple of others. But I think a lot of people are looking to DWR to tell us what’s an undesirable result.”
The floor was then opened up for questions.
Question: With respect to this definition of what is sustainable, one of the possible criteria is an undesirable change in storage. Do you see the goal as being arresting declines in storage, or actually recovering storage?
Answer: “The Act says clearly that agencies are not responsible to address pre-January 1, 2015 conditions. So I think it’s fairly clear that we are not going to be held accountable to recover, although in some basins I think that may become a role that is adopted. But there’s also a discussion, one of those points of clarification that could potentially come from regulation, as to whether or not sustainability is measured at January 1, 2015 which is defined in the statute, or it’s defined at January 1, 2040. Because the act says we have five years to adopt the plan. So if we adopt the plan by January 2020 then we have 20 years to reach sustainability. And I’ve heard some people who were in the negotiation room suggest that sustainability is reaching equilibrium with whatever you got left at the end of your 20-year planning horizon, 2040.”
“I have difficulty with that, for obvious reasons. I think the statute intended that we look at 2015 as the baseline and then given them the 20-year planning or the sustainability objective. There’s also a 50-year planning horizon that GSAs can use, that we ought to be able to look at, for the next 20 and 50-year period, actions that are necessary to maintain a January 2015 level. It’s going to be up to DWR to decide how to interpret the Act.”
Question: You mentioned that pumping limits may have to be enacted. How do you foresee that affecting permanent crops?
Answer: “It’ll affect it significantly if there aren’t adequate alternative supplies. I think in areas of the South Valley, the safe yield of the basin, is probably closer to an acre-foot per acre and yet permanent plantings take three and a half to four acre-foot for an adequate yield on all the crop. … Absolutely there’s going to be a significant impact unless we can figure out how to bring supplemental surface water supplies or other techniques to offset the limitation that that creates. Fortunately, within our basin, I think again we have water supply that we can develop to make up for that deficit but there are other basins in South Valley that are going to struggle with that.”
“I know a little bit about Westlands Water District because I managed them for a while,” he continued. “If you consider their safe yield is somewhere around 200,000 to 250,000 acre-feet of groundwater per year and you look at their current permanent planting footprint and soon a fairly low surface water level around the federal project, they’re overextended and unless they can find alternative water supplies to make that up, and invest in very robust water markets for them, the only other alternative is to stop irrigating.”
Question: In regards to the outflow down the King’s River … if you’re limiting the outflow, then is there any concern for reduced habitat or downstream water users?
Answer: “There potentially could be. Today, most of that water comes out in very high peak flood releases and essentially, historically it’s been water that we try to move out of either the Kings Basin into the San Joaquin River system and then north into the overall system or south into the Tulare Lake water. When the Kings River is running at those kind of flows, the San Joaquin River system is usually run up and above those kind of flows and we end up with kind of a pulsing management of the two river systems because there isn’t enough capacity to let both systems run at the flood capacity that they need so we have the Bureau of Reclamation engineers calling each other saying, “I’m going to run so much today off the Kings, you scale back San Joaquin,” and vice versa. That’s been the way we manage systems. So in the flood release criteria, there typically isn’t that kind of concern. Now, who knows where San Joaquin River restoration takes us. We don’t typically see irrigation flows come down to Kings River that leave the basin we manage, or irrigation flows to keep them in and use them for irrigation so I don’t see a lot of challenge there. But I think as things tighten up in the system, and we see less of that water moving, people are going to start to see it differently.”
Question: If you are not in favor of metering every well, then how do you achieve that sustainability in a local or in a larger area?
Answer: “In real simple form, I think there are really two easy models to sustainability. One is that you just focus on reducing demand. That’s your typical adjudication process where you identify the safe yield of the basin and then you say, “Alright, we’re going to allocate that safe yield to the land owners in this fashion.” The courts have dealt with that in a bunch of different and interesting ways, but it’s really a demand restriction based system. And in doing that, I would agree, you probably need to measure so that you know how much groundwater is actually being used by the individual that the land owners are compliant with whatever the demand limitation is.”
“The model that I’d like to see us succeed because I think that our 150,000 acre-foot deficit can be addressed in this fashion, and that is to create market mechanisms. With a fee structure, and it doesn’t necessarily have to be a usage fee – it could an acreage fee, subject to wherever the 218 and Prop 26 pathway takes us. But let’s say that you figure out how to structure and you implement a fee, you could then use that fee to control the usage by tiered pricing, charge higher for the more you use. Use the revenue of that fee structure to either buy down demand through land retirement, water use efficiency investment, create more supply through expansion of your recharge capabilities or even buy excess surface water supplies and import them into your basin.”
“I would argue that the latter market-based approach doesn’t necessarily take a meter to achieve. Now, the grower might not like the basis of the fee structure and might want a usage tax rather than a land based charge applied to him, and if you’re going to do tiered pricing, you have to have some way of knowing what’s being delivered in order to tier the price. But there are efforts underway that are looking at crop ET information and trying to utilize that to determine the usage of groundwater, and if it’s done with sufficient enough accuracy, then we don’t need to invest in the meter if the growers are supportive of the alternative methodology.
Question: On the demand management concerning land use, is there a way that the GSA can have a coordination with the land authority to limit crops that require water, like walnuts or almonds. Do you think that is possible?
Answer: “I don’t think the act prohibits a local county in its land use planning role of implementing some type of cropping or water supply determination for permanent crop. Those are clearly within the police powers of the counties to do now. Nobody’s bold enough to do it yet. And it very well could lead to litigation like we’ve seen happen in Paso Robles, as Paso Robles tried to deal with that in a different way by putting moratoriums out on new well application, new well construction, but I think the act intends to allow that to be a tool that the land use agency can use.”
“Policy papers have recommended that we do a water supply availability determination for permanent crops and a lower threshold for residential developments. … Our recommendation was that we can’t reach groundwater sustainability in some basins if we continue to do all this supply and demand and market-based stuff while at the same time the growers are incentivized by market conditions to plant more almonds and the counties are incentivized by tax base to plant more houses. So, let’s look at better connection and controls between the two. The act didn’t give us those as a mandate. It didn’t take them away as an option, so it will be up to the local agencies to decide that in our area that’s an important thing for us to do.”
“It’s a hard political discussion locally for the counties. … Fresno County has come to us and said, “Our number one criteria is no land fallow.” And yet, they won’t put land use controls on anything because they want to maintain their land use planning authority. And we have an overdraft of groundwater basin that does not have enough water supply to support the crops that are in the ground today, much less the crops and houses that they’re going to plant. So there’s a crash that’s going to happen here. We’ve suggested to them that they need to back off the fallowing or restriction or moratorium, because how else can we balance. In some cases that’s the only way, whether it be voluntary or involuntary.”
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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