California Water Commission: SGMA Implementation – Summary of Comments on Basin Boundary Regulation; Update on State Water Project Issues

CommissionPresentation includes summary of comments received and planned revisions, as well as a new online tool; brief update on SWP projects and issues

Click here for more from the California Water Commission.At the September meeting of the California Water Commission, commission members were briefed on the progress on the development of the basin boundary regulation, the first regulation that will be implemented as part of the Sustainable Groundwater Management Act.  The meeting also included an update on issues regarding the State Water Project.

Sustainable Groundwater Management Act Implementation: Summary of Comments on the Basin Boundary Regulation

Steve SpringhornWith public comment period now closed on the draft basin boundary regulation, Department of Water Resources Steven Springhorn updated the California Water Commission on the regulation, summarizing the public comments received and highlighting the planned revisions.

Basin Boundary_Page_04He started by presenting a slide of the phased process for implementation of the regulations, noting that they are currently in the third phase. Each phase has had a lot of public outreach and engagement which has been very beneficial, he said. The third phase has been especially important because it included public meetings and received detailed input on the draft regulations, he said. “It was very useful for us moving forward in how we incorporate those into the final regulation and our final phase of adoption of these emergency regulations,” he said.

Basin Boundary_Page_05He then presented the timeline for the process. “Today the goal is to summarize those comments, identify the highlights of where we’re going to make changes and get feedback,” he said.

We have had our three public meetings throughout the state that were required by SGMA, and we’ve used that information and we’re going to summarize that information today,” he said. “Then in the next month, we’ll get a draft final version early in October for the commission to consider, and our goal is to bring the whole package of information up for your consideration and adoption at the October 21st meeting. One of the key points of that is that we feel that if adopted in October, it will give local agencies and interested parties in this process ample time to understand the final rules well in advance of the January 1st 2016 opening of the window for revision requests to the Department.”

Summary of public comments

Mr. Springhorn then summarized the public comments received. The public comment period lasted 49 days; there were three public meetings held throughout the state. They received 38 comments from stakeholders and entities; many were very detailed.

Basin Boundary_Page_09We had a good diverse group of stakeholder comments from tribal governments, regional and local government agencies, non-governmental organizations and advocacy groups, public water systems and private water companies and the public,” he said, noting that the orange bars on the timeline represent when the comments were received. All comments that were received have been posted online.

He noted that the circles on the map represent where the comments were received and reflected a good distribution statewide. “This is important because there’s unique scenarios with basin boundaries statewide, so the comments reflected that variability and that’s helpful for us,” he said.

Basin Boundary_Page_10He then presented a distribution of comments by regulation article, explaining that the regulation is organized into seven articles, with the bars representing the number of comments that came in on that part of the regulation. “The majority of comments came in on Articles 4 and 5, the process and the supporting information, the requirements to justify a change, and then the criteria.”

Basin Boundary_Page_11He then presented a slide with more details on the comments by regulation section. “We used this to identify the key places to refine the regulations, so where the regulations are working or where we need to refine the regulation to reflect the comments at the local levels,” he said.

Mr. Springhorn then summarized the common themes in the comments and the planned refinements to the regulation in response.

1. Definitions

Basin Boundary_Page_13There were comments on the definitions, many of them on the definition of basin, sub-basin, and aquifer. “These really are the fundamental definitions relating to this regulation and really SGMA in general because the basins, sub-basins and aquifers are going to be the ones subject to sustainable management,” he said.

Some of the comments received asked for more clarification on basin and sub-basin in the text. “The way that SGMA defines a basin, it’s a basin or sub-basin and it led to confusion, because in the text as it is written, we didn’t always say basin or sub-basin,” he said. “We left it fairly general and led to that some confusion, so we plan to clarify for each type of change that we mean it can be a basin or sub-basin.”

Basin Boundary_Page_14Other comments addressed the existing Bulletin 118 characterizations. “A lot of what we tried to do with these definitions is point back to Bulletin 118, and we heard that that might not be that clear, so what we want to do is take those key definitions and put them in the regulation so people know exactly what we mean, and those are the basin, sub-basin, and aquifer.”

Our recommendation is to add basin to the definitions and a clear understanding of what we mean by a basin, sub-basin, and then aquifer,” he said. “Aquifer is important because in Bulletin 118, it referred to aquifer as an alluvial aquifer. Comments came in that said this might be too narrow of a definition because it might limit sustainable management, because if you’re only managing the alluvial portion of the aquifer, it could be only the upper portion – you are not managing the entire aquifer that is going to be potentially used, so we wanted to broaden that definition a bit within the context of the legislation or the act.”

2. Combination of requests

Basin Boundary_Page_16The goal is to increase local flexibility with the refinements, Mr. Springhorn noted. “Some of these groundwater basins are large,” he said “The way it’s written in the draft regulations is that the requesting agency shall combine all requests for the entire basin, but that might be too restrictive because local agencies have different timelines they are working on and there are different local objectives. So we decided a good solution for this is where practical, the requesting agency should definitely coordinate, but they don’t have to come in all in one package. They can come into the process, and they will still be evaluated using all the requirements and the conditions that will result in sustainable management, so we’ll still evaluate them on their merits, but they can come into the process not all in one package.”

3. Protest Provision

Basin Boundary_Page_18He said they received a lot of comments on both sides of this section. The goal is to clarify this section. “We received a wide variety from the high bar for the protesting entities to the protest provision should be rolled back or excluded from these regulations,” he said. “Although the protest provision is not required by statute, we feel it’s a very effective avenue for any local entity to voice their concern or protest to a potential boundary revision, and that technical information for that protest can come to us for our evaluation.”

Another common theme was about the same level of technical information. “As it’s written right now, the protest must rely on the same type of scientific or technical information,” he said. “We wanted to refine that a bit to say it’s a similar type of information, so it doesn’t have to be the same exact information. Our goal is that a protesting agency or entity doesn’t have the same groundwater flow model or technical study as we realize that in 30 days, it would be hard to pull that together. This would be a similar level of scientific information from existing data that’s out there.”

4. Local Support

This was definitely a common theme throughout the comments,” he said. “Our planned revision here is to potentially allow more requests to come in to the Department while maintaining our regulatory intent that any revision or request that comes to us has the likelihood to result in sustainable management,” he said. “That’s a high bar and we plan to keep that bar high with the requirements that are in the regulation, but the comments said we might be restricting some requests that can’t even get to us for us to evaluate by having the local support bar high.”

As the regulation is written now, it’s an elevating bar, depending on the type of jurisdictional change. “For internal changes, you have to get affirmative support from the local agencies and public water systems in that changed area; for consolidation, it’s a majority of those affected agencies and systems; and then subdivision, it’s all of the local agencies and public water systems in the affected basins,” he said.

Basin Boundary_Page_22This local support was seen by some as unnecessarily burdensome, and in order to get that support in that short time frame would be challenging as existing local agencies, boards, and publicly elected officials have processes and responsibilities that allow for an open and transparent process, he said, although he noted that they also did receive some comments that said the support bar was fine where it was.

However, the regulations provide a methodology and criteria to assess likelihood of sustainable management, so even if a request comes to the department, there still all the requirements and conditions that it has to meet to even be approved that we’ll be evaluating for sustainability and sustainable management of that proposed basin,” he said.

So our recommendation is that for all requests, we would increase elements in the notification, so we make sure that everyone is notified at the local level that these revision requests are happening,” he said. “Then the requesting agency would need to collect statements of support or opposition of that, and then they could rebut any of the arguments. All of that comes to the Department for our evaluation, so that gives us a good understanding of the support, the opposition, and then the requesting agency’s response to the opposition.”

Mr. Springhorn said that with subdivision, the bar is going to remain high. “We’ve been messaging all along that fragmentation of these basins might not be an advantage and could be a potential disadvantage moving forward, so we are recommending changing the bar from unanimous support at the local level to three-quarters support because we got comments that if all but one local agency agrees, then it would never come to us. Local agencies could be leveraging each other to get that unanimous support, so we feel by having still have three-quarters support bar, it’s still very high, and it’s still encourages that coordination and support at the local level for these types of pretty severe changes to basin boundaries.”

Basin Boundary_Page_23The revisions are intended to strengthen the notification by making sure that notification happens with documentation that affected agencies and systems were notified and either they support or oppose the revision. “We’ll be able to evaluate both support and opposition; however with subdivision, it will be lowered from unanimous to 75% to get away from one or two local agencies being able to stop a revision request that is broadly supported at the local level from getting to the Department. If it does get to the Department, we’ll be evaluating its merits for local sustainability. And the protest provision will remain the same for all requests.”

5. Grounds for denial

Basin Boundary_Page_25The intent with the revisions is to clarify the Department’s intent to look at the whole package of information that is submitted. “Just because one of these grounds for denial is triggered, it doesn’t mean it’s an automatic rejection,” Mr. Springhorn said. “We’ll be looking at the whole package and if the whole plan of this boundary revision will result in the likelihood of sustainable management, it could be approved. And there is an addition of a grounds for denial for some exclusive agencies.”

In the draft regulation, there are many conditions and grounds for denial to deny a request; the comments received ranged from appropriate to too restrictive. “If it’s too restrictive, it may preclude requests from even coming to us that may result in sustainable management, so our planned revision to the introductory provision for grounds for denial is to really highlight the fact that we’re looking at the whole package – all lines of evidence, not just one piece in isolation. And hopefully that clarifies our intent there.”

Basin Boundary_Page_26One particular ground for denial that generated a lot of comment was: ‘The requesting agency is unable to demonstrate a history of sustainable management of groundwater levels in the existing or proposed basin.’

This was seen as limiting almost all revision requests coming into the Department because that’s the reason why SGMA is enacted – there are a lot of basins in need of sustainable management,” he said. “We plan to keep this in, because it is in Chapter 3 of SGMA and it’s a requirement for the regulation, however again, we’re going to be looking at if the requesting agency has to provide the information for that history to us so we can evaluate the history and see that from that historical perspective and their plans for the future, if they have a pathway to sustainability. Then we’ll evaluate that in the context of all the information that comes into justify the change.

Basin Boundary_Page_27Other comments received on the grounds for denial suggested adding a ground for denial for objections and protest on modifications raised by three special status entities: special act districts, an exclusive GSA, or a county. “The boundaries of these special act districts are typically defined by statute, so a revision to a boundary that affects these special act districts could be hard to implement on the ground if it’s defined by statute,” he said. “The county is there because the county has special roles and responsibilities within SGMA; they are the default groundwater sustainability agency if no one steps in and then they also have important land use and well permitting responsibilities.”

Fiscal cost analysis

A fiscal cost analysis is one of the components required for submitting the regulation to the Office of Administrative Law. “We’re required to comply with the APA or the Administrative Procedures Act for SGMA on these regulations and it requires us to do this analysis,” Mr. Springhorn said.

Basin Boundary_Page_31He noted that this is a voluntary process – local agencies do not have to request a boundary revision. The fiscal impact to a local agency if they do nothing is zero; it’s only if they opt in to the process, he said.

Under a standard rulemaking procedure or process, it would have to be a complete economic and fiscal impact analysis that is reviewed by Department of Finance, but because these are emergency regulations, it’s a streamlined approach and process where we only are looking at fiscal impacts to state and local governments and costs associated with federal funding or state programs,” he said.

Basin Boundary_Page_32There is significant uncertainty in the data and assumptions that led to a range of cost estimate, he said. “We expect a low estimate of 85 revision requests to a high of 285 to estimate the costs,” he said “Then we looked at costs for locals to prepare and submit applications, and then DWR costs to review applications, adjust those boundaries, and reprioritize basins, so there’s a matrix in this document that lines out the potential costs. This will be finalized before it’s submitted to the Office of Administrative Law.”

The Department costs are relatively fixed because we are required through SGMA to develop this process, so these are the costs the Department will incur; however, local agency costs are highly variable, because again it’s an opt-in process, so it’s $0 if they don’t submit a request, or it’s a statewide cost of about this range of costs if 85 to 285 requests come in to the Department,” he said.

New groundwater basin boundary assessment online tool
Basin Boundary_Page_34

Click to visit the Basin Boundary Adjustment Tool.

Throughout of the SGMA activities, the Department is very aware that at the local level, this is a heavy lift for everyone to comply with this new Act, so we’re trying to develop tools and resources for those local entities to help them comply with the Act, and one of these tools we’re launching today that is available online is the Groundwater Basin Boundary Assessment Tool,” Mr. Springhorn said. “This allows any member from the public or local agency to overlay the existing basins in a number of different data layers, local agencies, disadvantaged communities, county boundaries – all of that information as well as the geologic maps that were used to define the basins in the first place. We’ll also be posting all of the revisions that come to us on this interactive map so everyone can see where these revision requests are coming in statewide.”

Mr. Springhorn said they have also cleaned up the dataset, which hadn’t been updated since 2003. They are trying to get the boundary lines as accurate as possible so that local agencies will have a good dataset to start with. “We feel this is important because this reduces uncertainty of where the line is, and where is should be and down the road this is important for SGMA, because if there’s unmanaged areas in a basin that aren’t picked up by a local agency, that’s an entry point for state intervention, so we feel that this is an important step to clean up the lines and hopefully we’ll help local agencies with this process.”

Next steps

The remainder of this month and early October, we’re going to refine the regulations as based on the feedback we get today and from the comments we received, and develop a draft final version that we plan to get out in early October for your review,” he said. “We’ll bring that up for formal adoption at the October meeting, and then if approved or adopted, we’ll submit that to the Office of Administrative Law with the goal of opening up the revision request window for local agencies January 1, 2016 and then we’d be back before the Commission with a draft list of approved boundaries in the fall 2016 time frame.”

And with that, the floor was opened up for questions.

Discussion period …

Commissioner Del Bosque asked about the stacked aquifers. “I’m trying to understand how they come into play in basin boundaries. That does mean that stacked aquifers can be in different boundaries? Is it possible that some boundaries overlap?

That was a common comment – that there’s a little uncertainty in Bulletin 118 as it is written now,” he said. “It said ‘alluvial’ aquifer, so if you look at the two dimensional footprint of that alluvial aquifer on the ground, it’s one thing, but you have to think of the third dimension, so that’s the stacked series of aquifers. So what we didn’t want sustainable management just in the first upper aquifer but considering all the subsequent deeper aquifers that are hydrologically connected, so I would say that the external boundary, the two dimensional extent or spatial extent, but then the third dimension, that’s the stacked series of aquifers. We tried to clear that up with some of the proposed revisions, but ideally we want the whole aquifer managed and not compartmentalized vertically because it is one aquifer system that responds to stresses in different parts of that aquifer and will be needed to manage that whole aquifer to become sustainable.”

For more information …

Update on State Water Project issues

Torgerson 1At the September meeting of the California Water Commission, State Water Project Deputy Director Carl Torgerson updated the Commissioners on the status of several State Water Project issues.

Recruitment and Retention

Carl Torgerson began with recruitment and retention, noting that they are currently in negotiations with Unit 9 – the engineers, unit 10 – the environmental scientists, and bargaining unit 12 – trades and crafts, so he is limited as to what he can talk about at this time. An SWP Update_Page_02We heard that both the engineers and environmental scientists have reached a tentative agreement and it’s in the ratification process right now,” he said. “The members will have to ratify and then the legislature will have to approve. Unit 12 which is trades and crafts is still in the bargaining process. The other units that we have, their contracts do not expire until the end of this fiscal year or June of 2016.”

With respect to Unit 12, the trades and crafts, he said they have had success in both recruitment and retention. They haven’t seen a mass exodus of folks retiring since the changes to the retirement system, but they will continue making plans for succession. “We don’t want to get complacent and think everything is wonderful because in three to five years from now, someone will be back here saying, ‘we got this problem.’”

Major Projects

An SWP Update_Page_04Dam Seismic Remediation: Changing seismic requirements indicated that work was needed to bolster the dam to protect against a maximum credible earthquake in the area; the work should be completed in September of 2017.

An SWP Update_Page_05Asset Management Program: The project deals with refurbishment of the project in general, as everything is approaching 50 years old. “We’ve developed a comprehensive investment program to be able to manage the investments we have to make, assess risks associated with the entire project, and not get surprised by failures, if you will,” he said. “That program is well on its way.”

An SWP Update_Page_06Ronald Robie Thermalito Pumping-Generating Plant: The post fire clean-up has been completed and they are currently working on refurbishing the plant and the systems that were damaged, as well as performing mechanical and electrical upgrades. “When we’re finally done in December 2018, we’ll effectively have a new plant there,” he said.

An SWP Update_Page_07River Valve Outlet System: There was an accident involving the river valves in 2009; subsequently, they said they would not operate them until they were completely refurbished or replaced. They became concerned in January of 2014 that if the drought continues, they will have to rely on the river valves, so they accelerated the program to refurbish them.

It took us about five months to get them to a point where the agencies we had settled with were happy, staff were happy, independent safety engineers were happy, and so since August of 14, we’ve had these operational,” he said. “We are using them as we speak right now for cold water management, but again if the drought were to continue, we may at a point where that would be the only thing we have to actually release water to the river.”

FERC Relicensing

An SWP Update_Page_08Mr. Torgerson said they were still working with the regulatory agencies to complete the FERC relicensing for the Oroville facilities. The other FERC license is for the southern hydropower facilities on the west branch, which includes the Warren plant and Castaic, and then the east branch which includes Devil Canyon. The license expires in January 31st of 2022, but there are some deadlines before then, such as a pre-application between 2016 & 2017. Staff was able to obtain conduit exemptions for the Alamo and Mojave power plants, which are ‘run of the river’, which for all intents and purposes, takes them out of the license, he said.

Biological opinion compliance

I don’t have a whole lot to say other than this has become an extremely complicated issue,” he said. “It’s again becoming more and more of a difficult thing to accomplish. It’s very expensive, it’s very complicated, and kudos to staff to be able to continue to meet our requirements for the various agencies.”

Renewable energy

An SWP Update_Page_11The Department has embarked on a course of action in conjunction with the Governor’s wishes to ultimately get to a point where at least 50% of our load is served by renewable energy. “Basically one of the biggest opportunities of the SWP has is to provide support to the grid during times of renewable intermittency,” he said. “When it gets cloudy, we are the biggest load in California, and we have quite a bit of generation that we can adjust, so as things change and the wind dies down unexpectedly, the sun goes away, we can adjust our load within certain reason, to help the grid in California maintain stability, so that will be an opportunity that continues to increase as we move forward.”

For more information …

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