The new regulation outlines the procedure for requesting groundwater basin boundary changes, as well as the methodology and criteria for reviewing requests
Implementation of the Sustainable Groundwater Management Act reached a milestone this week as the California Water Commission unanimously adopted a regulation to modify groundwater basin boundaries, the first of the historic groundwater legislation to be completed. 
The regulation outlines the process for local agencies to request the Department of Water Resources to modify groundwater basin boundaries, which are currently defined in 2003 update of Bulletin 118. The regulation also outlines the methodology and criteria for the Department’s review of basin boundary revision requests, and specifies multiple points for stakeholder involvement. The regulation has been submitted to the Office of Administrative Law for processing. The Department of Water Resources will begin accepting applications for basin boundary revisions on January 1, 2016.
At Wednesday’s meeting of the California Water Commission, Dave Gutierrez and Steven Springhorn with the Department of Water Resources Sustainable Groundwater Management Program presented the final regulation to the Commission.
Dave Gutierrez, Executive Program Manager of the Sustainable Groundwater Management Program, led off the presentation with a summary of the emergency regulation and its development.
He began with a timeline for implementation of the Sustainable Groundwater Management Act that shows the roles and responsibilities of the Department of Water Resources, the State Water Resources Control Board, and the local agencies, noting that the basin boundaries are highlighted. “It’s one of the most important ones we have up front, and the reason why it’s so important is that it’s really going to set the unit of how the Groundwater Sustainability Agencies are going to work in the future. They are going to have to manage around a particular unit and that unit is the basin boundaries, so this gives folks an opportunity to make sure those basin boundaries are in the most efficient way possible.”
The next regulations to be developed are the groundwater sustainability plan regulations, which are much more complex and a bit controversial, he said. “So we want to start showing you right away what we’re doing on the groundwater sustainability plans,” he said. “We’d like to telegraph the approach we’re taking to you as we start figuring it out, so we’ll come back next month and start getting into the detail … it’s so complex, I think we have to start having that discussion right now.”
Mr. Gutierrez presented a slide of the process at the Office of Administrative Law and noted that these regulations are outlined in statue to as emergency regulations. “That means there is very little OAL involvement or requirements along with emergency regulations,” he noted. “In the future, if we have to modify the basin boundary regulations, it’s going to stay in an emergency rule making process in perpetuity.”
The new regulation for basin boundaries is applicable to all 515 groundwater basins throughout the state of California, he said. “The focus of the Sustainable Groundwater Management Act and the requirements of the act are really on those high and medium priority basins with the low and very-low on more of a voluntary basis, and as a result, we expect that most of the changes requested by the local agencies this round will most likely be from the medium and high priority basins.”
He then presented a slide depicting both a basin and a sub-basin. “I think of a basin as a three-dimensional bowl that over geologic times has been filled up with sediments, and along with these sediments is water,” he said. “It’s a three dimensional effect, it’s just not the edges of a bowl but it’s also the bottom of the bowl … that’s really the scientific basis of a basin.”
Sub-basins can be divided on a scientific basis, but oftentimes it’s a jurisdictional boundary. “I think of the entire Central Valley as one gigantic basin that probably can’t be managed effectively with it being so big, so the Department over the years has broken these up into sub-basins,” he said.
He then showed a chart depicting the Department’s outreach efforts, noting that it reflects on the key principle of the act which is that groundwater is best managed at the local level.
“The Department of Water Resources bought into that right away,” he said. “So we developed a very robust communication and outreach plan and we’ve been all over the state meeting all types of groups. The intention was never to come to a consensus on regulations, but what we wanted to do was have a common understanding of what the issues are. We wanted to telegraph our approach to the different groups. We wanted to be as transparent as we possibly can throughout the entire process.”
Their outreach efforts included about a dozen advisory groups, their partners such as the Commission and the water board; they met with federal agencies and held public meetings. “This approach was intended to get that common understanding which we thought was extremely important to have successful regulations, and that’s all on that key principle and the fact that the locals are going to be hopefully locally sustainably managing basins in the future,” he said.
The Department first met with different stakeholder groups and the public to develop a common understanding of what the issues were. They took that information and drafted key principles and discussion papers. They then met again with the various groups and the public and used that information to draft the initial regulations. After the draft regulations were circulated for input, the language of the regulation was finalized.
He then presented a timeline of the development of the basin boundary regulation, noting the presentations made to the Water Commission, as well as the public listening sessions and public meetings that were held; the green dots on the bottom indicate the meetings with various advisory groups.
Mr. Gutierrez said it was important to garner input and information on a geographical basis as well, so they did extensive stakeholder outreach throughout the state; their efforts included listening sessions and public meetings held in different locations across the state, as well as regional advisory groups.
The public comment period was open for 49 days, with comments received from 38 different groups or individuals representing tribal groups, regional and local government agencies, the NGOs, the public water systems, and the public. “We received input geographically throughout the state, so we think we have a great common understanding of the issues on basin boundaries, and as a result, I think we’ve got a pretty good regulation that we’re putting here in front of you,” he said.
Mr. Gutierrez then recognized the efforts of the advisory groups and individuals as well as the Water Commission that spent a lot of time with the Department developing the regulation over the last several months. “Obviously we’re not done; we’ve got a lot of work to do behind this, so we’re very thankful that we started out with these basin boundary regulations,” he said. “I’m certainly not saying they were easy; however the next set is going to be extremely complex. We’ve actually already started attacking that problem, so we’re ready to come back and start going over that with you … “
He then turned the presentation over to Program Manager Steven Springhorn, who presented an overview of the regulation.
Steven Springhorn began by presenting a slide of the fundamental requirements for the regulations as specified in the Sustainable Groundwater Management Act. “This is really the foundation that we built these regulations from,” he said. “There are four key components or instructions that local agencies need to provide the technical information to justify these changes that is centered around information to demonstrate sustainability in these proposed basins: The technical information of the new boundaries, the conditions in those basins, and then consultation with those interested local agencies and public water systems that are affected by these changes.”
The regulation also establishes the methodology and criteria of how the Department will assess that information using the three key criteria laid out in the act: the likelihood that the proposed basin can be sustainably managed; whether the proposed basin would limit sustainable management in adjacent basins; and whether there’s a history of sustainable management of groundwater levels in the proposed basin. “Those were the rules that we’re set in SGMA for us to follow and we followed them and built the regulation off of them,” he said.
Mr. Springhorn said that the overall approach and the process established by these regulations stems off the existing authority that the Department has. Through decades, the Department has defined and delineated groundwater basin boundaries starting back in the 50s and through subsequent updates of Bulletin 118, last updated in 2003. The enactment of SGMA has elevated the importance of the basin boundaries, as now sustainable groundwater management is required for high and medium priority basins. “The Department wants to collect the information at the local level from these agencies and from interested stakeholders to make the best or most informed decision on approving these boundary revisions,” he said.
Communication and collaboration at the local level is important for all aspects of SGMA, and particularly for these regulations, Mr. Springhorn said. “We feel that in order to get that understanding of how these boundaries could affect the locals, we want to have that stakeholder input, and we feel that these three components will result in sustainable groundwater management moving forward.”
The process starts with existing basins as they are described in Bulletin 118, and if a local agency does not request a boundary modification, then the current basins and boundaries will be carried through to the next version of Bulletin 118 which is estimated to be published in the first quarter of 2017, he said. He explained that there will be multiple opportunities to revise basin boundaries in the future; the initial window was established to create a process that would provide for local agencies to have their boundary revisions in place before the deadline for forming groundwater sustainability agencies.
He also said that the boundary revisions have to be batched is that there are subsequent actions that are triggered when the boundaries are changed. They have to evaluate the requests and come up with a list of approved changed; those changed boundaries must be presented to the Commission for hearing and comment; and the basins must be re-prioritized. “So the regulation is written in a way to be flexible to respond to the demand at the local level for boundary modifications, but we also have to balance that with the actions that are triggered by changing basin boundaries,” he said. “So in the future we can have, if there’s demand at the local level, we could have additional windows opening up in between Bulletin 118 updates. Our target is linking into the future with Bulletin 118 updates, or more frequent as needed.”
Commissioner Joe Byrne asks about the reprioritization process.
“The current prioritization process has a series of data that they use to determine the priority,” Mr. Springhorn said. “Any time a boundary is changed, all basins have to be reprioritized as they are all relative to each other. A lot of that prioritization is based on the area of the basin and so if the area of that basin changes which would most likely affect adjacent basins, the whole set is reprioritized.”
Mr. Springhorn agreed with Commissioner Byrne’s clarifying statement that absent significant changes in boundaries, it’s unlikely that the vast majority of many basins would be changed, but added a caveat that SGMA, added additional components to the prioritization process, and those new components will be rolled into the next prioritization that occurs.
If a local agency wants to make a request, they first make an initial notification to DWR. “We feel this is important to promote coordination of these boundary requests at the local level as well as giving the Department a heads up on what might be coming to us so we can resource and staff up if needed to evaluate these requests in a timely fashion,” he said.
There are two main categories of revisions: scientific and jurisdictional. Scientific revisions are based on the geologic or hydrologic conditions that define the basins; information to support scientific revisions might be geologic maps that delineate the eternal boundary of the basin, or identification of flow barriers.
Jurisdictional revisions promote sustainable groundwater management. There are three types: internal, which are minor changes between adjacent basins; basin consolidation; and basin subdivision. The Department feels that basin consolidation is a potential advantage in that it is increasing the management area along with the potential tools and solutions. However, basin subdivision is seen by the Department as a potential disadvantage, so therefore there is a high bar for both local support as well as a high bar for the technical merits on whether it would promote sustainable management, Mr. Springhorn said.
The required technical information to justify boundary modifications has three components:
The first component is local information. “Only local agencies can request a boundary change through this process and there’s a board resolution that initiates those at the local level,” he said. “What that does is it requires at least one public meeting at the local level for each boundary modification. There is also additional notification and consultation pieces, and again this is where stakeholders can enter into this process and voice their support or opposition.”
The second component is local agency input for the scientific, internal, and consolidation changes. “It’s a function of the requesting agency notifying those affected by the change and providing an opportunity to support or oppose,” he said. “The subdivision has a special requirement, it has to be supported by 75% of all of the local agencies and public water systems in the affected basins. It’s a high bar but it’s not unanimous for a few reasons: we don’t want one or two local agencies being able to leverage all the others. Again this is just to start the process; the Department will evaluate those based on their technical merits on whether they will promote sustainable management.”
The third component is technical information. “There is a tiered approach to what is required for technical information,” he said. “This is more of an exercise of gathering existing information. We know this is a tight time frame for multiple reasons, and that’s why we feel these requirements could be complied with by gathering the existing information that’s on the ground in these basins.”
Once a requesting agency submits their request to the Department, there will be a 30-day window where any person can comment in support or opposition to these boundary requests and the Department will consider that information in the evaluation, Mr. Springhorn said.
The Department will evaluate the requests and come up with an approved list of boundary revisions; they will hold at least one public meeting to solicit public comments, and then the Department will present boundary changes to the Commission for hearing and comment. “We plan to have a briefing sheet for each boundary request that provides a background of the technical rationale of why we approved it and all comments that came in on it, so the Commission should have a good understanding of each request that you’re hearing and commenting on,” he said. “The Department will then approve the final boundary requests and publish them in Bulletin 118.”
“We recognize that SGMA and implementation of SGMA is going to be a heavy lift for local agencies and interested entities and that’s why the Department is going to strive to provide as much technical assistance as we can,” Mr. Springhorn said. “In particular for these regulations, we have a number of supporting documents and tools for locals to help them navigate and understand this process. … The two components of a clearinghouse approach is our website and an interactive map tool that will allow people to visualize where these requests are coming in and understand the connection between the geology, other relevant boundaries, and other relevant information.”
“Once adopted or finalized, we plan to hold a public workshop in the remaining months to help the locals understand the final rules of this process to help them navigate the regulation,” he said.
“We are here today for your consideration of adoption of these regulations,” said Mr. Springhorn. “The role of the Commission is to adopt these regulations, and then if adopted, the Department will submit that package to the Office of Administrative Law to be finalized in the October-November time frame, which we then can start to open up the window for these revisions requests. The Department’s responsibility is to approve the boundaries, taking into consideration your comments from the Commission and the public comments. Once we’ve finally approved the boundaries, we’ll publish them in Bulletin 118. If in the future any revisions to these regulations need to occur, the responsibility of the Commission is to readopt if necessary.”
Mr. Springhorn then closed by thanking the Water Commission and staff for their continued attention and valuable feedback. “This feedback, along with the public input we’ve got from the advisory groups was very helpful for us, and helped us craft we feel a workable regulation that works at the local level as well as for the Department,” he said. “A few reasons we feel it’s ready for adoption are that it complies with the requirements of the Act, it’s consistent with the intent of the Act to promote basin-wide and statewide sustainable groundwater management, and it has been an open process. We’ve considered the input from the Commission and a broad group of stakeholders that we’ve been receiving comment letters of support from, so we feel we’re well positioned, and we are asking you for your adoption.”
Commissioner David Orth notes that as groundwater sustainability agencies are formed and new data collected, they will likely collect data that suggest subsequent adjustments. “When do you think the next window will be open? I’m also assuming every time you do a proposed adjustment to boundaries, that the Commission will have an obligation to hear and comment on any subsequent changes.”
Mr. Springhorn replies, “On the first question, the regulations are flexible so we can open these submission and evaluation periods when necessary and to manage that demand on the ground. We could potentially open one in the 2018 time frame if necessary. This first window, if we realize that we’re overwhelmed with these, there’s a lot of demand on the ground, and there’s still demand left over, we could entertain that intermediate window opening, but again we’re trying to balance having enough windows open and the ability to change boundaries with the effects of changing boundaries. To your second question, any time the Department opens any of these windows, the final step will be bringing a draft list to the Commission for your hearing and comment on. We’ll consider those comments before the boundaries are finalized.”
Commissioner Orth compliments DWR on the stakeholder engagement process in developing the regulation. “Overall, I think you’ve done a tremendous job and it sets the tone very favorably for the next level of work.” Commissioner Daniels, Commissioner Herrera, Commissioner Quintero, Commissioner Byrne echo positive comments. Supportive comments by stakeholder groups continued through public comment period.
Commission members then unanimously voted to adopt the emergency regulations for basin boundary modifications under the Sustainable Groundwater Management Act. The emergency regulation now heads to the Office of Administrative Law. The Department of Water Resources will begin accepting applications for basin boundary revisions on January 1, 2016.
For more information …
- Basin Boundary Regulation – final language
- Basin Boundary Emergency Regulation Factsheet
- Draft Basin Boundary Regulations Showing Edits
- Basin Boundary Regulations Comment Memo
- Notice to Office of Administrative Law
- Finding of Emergency
- Agenda and meeting materials for the October 21 meeting
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