The draft regulation covers the preparation, contents, and reporting requirements for groundwater sustainability plans, as well as how those plans will be implemented
‘On February 18th, the Department of Water Resources released the draft regulation for groundwater sustainability plans and alternatives, the second of the two regulations called for in the Sustainable Groundwater Management Act. The release of the draft regulation starts a public comment period that will end on March 25th.
The Sustainable Groundwater Management Act (or SGMA) requires the formation of Groundwater Sustainability Agencies (or GSAs) for all 127 high and medium groundwater basins, and that these GSAs then prepare Groundwater Sustainability Plans for those basins. The draft regulations just released detail the preparation and contents of the groundwater sustainability plans, and how those plans and the implementation of them will be evaluated.
At the February meeting of the California Water Commission, Department of Water Resources staff outlined the draft regulation for commission members.
Here's what they had to say.
David Gutierrez, Sustainable Groundwater Management Program Director for the Department of Water Resources, began by saying the release of the draft regulations for groundwater sustainability plans hasn’t come without a lot of hard work of the advisory groups, stakeholders, and the public that has occurred over the last year. “The intention was never to come to a consensus over groundwater sustainability plans and a consensus of what should or should not be in that plan,” he said. “However, we wanted to get a common understanding of what the issues are, even prior to drafting those particular regulations and I think we’ve done that.”
Mr. Gutierrez acknowledged the regulations were complex, as was the legislation, but so is the problem. “When you look at the variation of groundwater basins up and down the state and you look at the variations of the management structures that could be expected, you should in fact need to have a complex set of legislation and regulations that are in place in order to push this Sustainable Groundwater Management Act to a goal of sustainability,” he said.
He also acknowledged the regulations would be hard to understand for those who haven’t been following the implementation process for the Sustainable Groundwater Management Act, so they will be producing a 10-15 page layman’s guide to the draft regulations to explain what they are about and what they are actually trying to achieve. He also noted that the draft regulations are just that – draft, and they will be working with the advisory groups and stakeholders to clarify and make changes to the regulations if necessary.
They’ve tried to develop the regulations to withstand the test of time, but they are also aware we’re all in an introductory phase here of groundwater management in the state of California, he said. “We need to understand the fact that there are going to be changes in the future, we’re going to learn some new things, so we’re going to have to adapt in the future, and therefore there may be a time when we’re going to come back to the Commission after we finalize these regulations to make some changes to these regulations in the future as we learn things.”
Mr. Gutierrrez said that they’ve heard that the regulations can’t be too prescriptive, and conversely that the regulations need to be very prescriptive. “What you’re going to find in these regulations is that we cannot be prescriptive of how you are going to actually manage a basin,” he said. “It’s impossible, and the reason I believe that’s impossible is the diversity of our state, the diversity of the groundwater basins throughout the state, and the diversity of the management structures. So instead what we’ve put together is a set of regulations that is a prescriptive process. It’s going to be a step by step process on how you’re going to get to sustainability in the future. The statute certainly recognizes this, and we’ve followed suit with this with the regulations.”
It took decades to get into this groundwater situation and we’re not going to get out of it overnight, he said. “We need to recognize that we’re talking about a 20 year timeline for us to achieve the goals as part of the groundwater sustainability plans which you’re going to see in the regulations,” he said. “You’re going to see the fact that we’re trying to design out to 50 years, though.”
The regulations also need be adaptable, he said. “We don’t have all the answers up front. There’s going to be some uncertainties in certain parts of the state. We have to be adaptable, we have to identify data gaps in the front, so we’re going to have a goal to shoot for, but that goal is going to be somewhat fuzzy out there in year 2040. As we work through it and as we close those gaps, that goal will be more and more refined and we’ll be able to hit that target a lot more closely in the future.”
The regulations force transparency, both for DWR and the GSAs. “That means all the information the Department gets is going to be shared with the public so that they understand how the GSAs put together those GSPs,” he said.
The regulations require a communications plan be developed as part of a groundwater sustainability plan, he said. “Communication at the local level is the only way we’re going to be successful here. It’s going to take great stakeholder input to figure out what’s actually an undesirable result and at what point does something become significant and unreasonable. I can’t tell you what’s significant and unreasonable is in each and every basin and I can’t tell you what that is collectively in all the basins, because they are so unique. Therefore communication and understanding of the stakeholder’s impacts and the needs of the stakeholders is going to be absolutely critical.”
The regulations also require water budgets. “Water budgets are absolutely a critical component, but we also have to understand the uncertainties associated with water budgets and the uncertainties associated with calculating that,” he said. “Water budgets can’t necessarily be used to actually regulate and determine whether you pass or fail; instead, water budgets should be used to project the future, to design your future projects and your future management structure around.”
“We’ve also recognized that even within a basin, there are differences within a basin, and even within a basin, one size does not fit all, and therefore within the regulations, we’ve designed the ability to have management areas,” he said. “We don’t want to be wasting our locals resources on areas of a basin that really don’t matter or really are not that used, and therefore we’re going to give the locals the flexibility to use management areas where they see fit.”
Key to the regulation are the terms undesirable results and measurable objectives, along with a new term, minimum thresholds. “In these regulations, you’re going to see how they all tie together,” he said. “Undesirable results is the point where these issues become significant and unreasonable, so at what point does subsidence become significant and unreasonable? At what point does water level become significant and unreasonable? It’s going to be up to the locals to figure that out. Once they figure that out, we need to tie that to a measurement of some sort, so that’s going to be the minimum threshold; think of the minimum threshold as the point of failure that we’re actually going to measure.”
Engineering structures are never designed to a point of failure, they are designed using a factor of safety of some sort, so that’s where the measurable objective comes in, Mr. Gutierrez explained. “Think of the measurable objective as a point above the minimum threshold; it’s also a measurement. It’s a measurement above the minimum threshold, and that’s actually the point we’re going to design around, as you don’t want to be developing projects and management structures to get you to the point of failure; you actually want to give yourself a cushion with some flexibility in there. You need this flexibility because of the nature that we’re working with in groundwater. Remember, there’s cycles, seasonal cycles, there’s also drought cycles, etc. This all has to be accounted for in those measurable objectives and those are three important terms you’re going to hear us discuss today.”
Contingency plans will also be required. “We’re going to be designing projects to meet those measurable objectives, sometimes we’re not going to make it, and that could be because of our uncertainties that we’re so far off, or it’s possibly because a project didn’t come online that we actually had planned, so we’re going to require some emergency contingency plans in these regulations,” Mr. Gutierrez said. “We can’t allow you to go through those minimum thresholds, and once you pass through your measurable objectives and you’re on the way to your minimum thresholds, there’s going to have to be some triggers in place. We need to actually solve some of those problems today and not wait until the point of the emergency; it’s better to talk those through now.”
The criteria for evaluating the plans is somewhat difficult, he acknowledged. “The criteria that the Department is going to instill in evaluating the plan starts with some strict liability: did you have all these particular components, did you meet the deadlines, and if you didn’t, you’re automatically inadequate, but if you did, you’d go on to the next step, which is a little bit more difficult, and that is evaluation based on more of a judgement call on DWR’s part. When you start trying to apply metrics on how you are actually going to evaluate a plan, it quickly becomes extremely difficult to do because of the variations that we have in the basins, and therefore it’s going to rely on some expertise and some professional judgment, and this is not too different than a lot of other regulatory programs.”
There are a lot of technical issues that tend to change quickly over time, so rather than include these things in the regulations, instead they will be included with the best management practices. “We fully intend to be updating these regularly as we learn and as our local agencies learn what’s the best way to get towards sustainability in the future.”
“And so with that … “
Trevor Joseph, Supervising Engineering Geologist, then began the main portion of the presentation with a brief background by noting that the implementation of the Sustainable Groundwater Management Act defines three roles: “The Department plays a role in developing regulations and providing technical assistance. The Board is the enforcement agency as it relates to the GSPs, and then there’s the Groundwater Sustainability Agencies and those are the local agencies that are responsible for implementing SGMA and both the planning and implementation of the GSPs; they by far have the hardest job ultimately in adhering to the act. Stakeholders are involved and engaged with all of these entities throughout the process.”
Before the Sustainable Groundwater Management Act was passed, it was a voluntary requirement for groundwater management largely throughout the state, but post-SGMA we’ve moved to a required groundwater management planning process statewide, he said.
The regulations are due by June 1, 2016. The groundwater sustainability plans, these alternatives, or an adjudication need to cover all 127 high and medium priority basins which are shown on the map in orange and yellow.
Mr. Joseph then turned to the regulations themselves, noting that a central feature as quoted by the Governor is that these bills recognize that groundwater management is best accomplished locally. “This really is a guiding principle in terms of how we’ve looked at developing these regulations,” he said.
“The GSP or the alternative must achieve the sustainability goal for the entire basin by year 2040 or 2042, it cannot adversely affect an adjacent basin and there’s a timeline in the regulations for prioritizing or filling data gaps,” he said. “They must meet a substantial compliance standard, in terms of our evaluation, and that’s a really critical component.”
In the interest of making it easier to understand, Mr. Joseph said they would be using a four phase process to walk through the process of groundwater sustainability plan development and implementation, rather than presenting the articles of the regulation in order.
He then presented a diagram of the four-phase process, explaining that the top row is the process flow chart, the middle row is where the applicable articles of the regulations fit within that process, and the bottom is a timeline that describes all the major milestones in terms of the GSP regulations and implementing the groundwater sustainability plans and groundwater sustainability agency requirements.
Phase 1. GSA formation and coordination
“It really starts with the local agency,” Mr. Joseph said. “Even before you start a groundwater sustainability plan, a local agency has to determine whether or not they want to be a groundwater sustainability agency and how they want to form with other local agencies to manage the basin, so there’s a governance discussion that needs to happen early on after GSA formation. Then it gets into how those GSAs will manage the basin, will it be one GSA? Will it be multiple GSAs with a single plan, or will there be multiple GSAs with multiple plans? That’s where Article 8, the coordination agreements in the regulations fits into this first phase.”
Mr. Joseph said that as of February 10, 61 GSAs have been formed, and are shown on the map. “All of those high and medium priority basins need to be covered by GSAs, an alternative, or an adjudication no later than June 30, 2017 to avoid potential State Board intervention, so that’s the due date for the GSA formation. So there has been some progress, but there’s still a long ways to go in terms of covering all those high and medium basins.”
In terms of managing the basins, there are several options: there can be one GSA with one groundwater sustainability plan, there can be multiple GSAs with a single groundwater sustainability plan, and then there can be multiple GSAs with multiple groundwater sustainability plans. “For the latter two, there is a requirement in the regulations that in a coordination agency is identified that leads the development of that single GSP or coordinates multiple GSPs in the basin,” he said.
There are two types of coordination agreements: “There’s interbasin coordination which is coordination across basin boundaries, and as it relates to the regulations, this is an optional requirement. It is a mandatory requirement for when there’s multiple GSAs preparing multiple GSPs within the same basin or subbasin, and that’s called interbasin coordination.”
Commissioner Orth asks about the ‘coordinating agency’.
“’Coordinating agency’ is a new term,” said Mr. Joseph. “The idea is that we need to have a single point of contact that can coordinate these plans and that can tell the whole story for the basin. The Department doesn’t want to be in the position where we’re getting multiple plans that don’t essentially add up for the basin. Perhaps they have water budgets that don’t work together, so we feel it’s pretty important that a single entity is ultimately compiling that information and reporting on it for the entire basin.”
Phase 2: Groundwater Sustainability Plan preparation and submission
Article 3: Technical and reporting standards
Steven Springhorn then picked up the presentation with Phase 2, starting with the technical and reporting standards. “This is all about statewide consistency in the information that we receive from the local agencies,” he said. “The regulations are outcome-based, but we need to be more detailed in the types of information that we’re getting so we can have comparable detail that’s available at the local level but also at the statewide level, and so we can compare apples to apples.”
The Department is required to develop the Best Management Practices by the end of 2016. “Local agencies can either use the BMPs that we develop or BMPs that they’ve developed or have existing BMPs as long as they meet or are consistent with the methods and protocols that we have in our BMPs,” he said. “We plan to have the BMPs as updating through time as we want to incorporate the changing state of the practice.”
The graphic shows the connection between the key pieces: the SGMA is the law, the regulations are the minimum standards or requirements needed to evaluate GSPs, and the Best Management Practices are the guidance documents that help local agencies create these plans statewide, he said.
Technical and reporting standards are all about consistency in the data coming from the locals. “All of the information needs to be consistent so we have a consistent story at the local level as well as putting together at a state level,” he said. “Data management is about having the data being accessible at the local level.”
A commissioner asks if there are any significant infrastructure for this increased data collection.
“Essentially this is for compiling existing data that’s out there,” said Steven Springhorn. “There is part of the regulation that allows for monitoring infrastructure that doesn’t meet the minimum standard as long as there’s a good reason for it and there’s a plan to eventually get to where it meets the standard.”
Article 4: Procedures
The Department of Water Resources will have a dedicated website that will be a one-stop shop for information on developing GSPs. There will be forms and instructions as well as datasets. “The Department has a long history of technical assistance and we plan to increase that level of technical assistance in this critical ramp up time when GSAs are forming and developing their GSPs,” he said.
Another key element is initial notification and public comment. “This is stressing how critical communication is,” he said. “Initial notification is when a plan is first started, the local has to identify or notify the Department that that is occurring and provide information on how stakeholders can get involved, so that’s important for coordination within the basin, and important for the state to know and track the activity of GSPs in the state.”
“Public comments are all about local entities talking to us and getting a sense of what’s happening at the local level, and we really welcome public comments because that’s going to be our window to what’s happening on the local level, and we’re going to use that information as we evaluate these plans,” he said.
Article 5: Plan content
The who is, who is going to be managing these basins, who is going to be involved in that management from a stakeholder perspective and what are the physical characteristics of the basin, he said.
The how is how is groundwater going to be managed sustainably and that’s the sustainable management criteria. “The key terms are sustainability goal, undesirable results, and measurable objectives; it’s also how is groundwater going to be monitored to achieve those objectives and the projects and actions that are necessary to achieve those objectives,” he said.
“It really all hinges on these undesirable results,” he said. “We’ve developed a regulation that is outcome based, within a framework developed by us, and the undesirable results are when these six key are significant and unreasonable. That will be a key theme that will keep coming up through the rest of the presentation. These plans are really centered around the undesirable results as a compliance point.”
There is a requirement to have an executive summary. “The intent behind this is communication and providing access to these detailed documents. We feel that it’s important that an executive summary is there for coordination between GSAs and land use entities, or GSAs and boards and supervisors, so it provides a quick, high level understanding of these complex plans.”
Agency information. “This is who the GSAs are that are going to be managing, their management structure, legal authority, some revenue and cost, description of plan implementation, and how are these GSAs structured. That’s important because they are going to have to work together to this common sustainability goal for the basin.”
Description of plan area. “This is all about what is happening in the basin currently; it’s describing what’s out there. The jurisdictional boundaries, who is in the basin, delineation of land uses, well distribution, existing monitoring and management programs, and then a summary of land use plans. SGMA was pretty clear that there needs to be an elevated level of coordination between land use entities and the GSAs, so we’ve tried to put in requirements that will promote that coordination, so people are understanding the connections between land use planning and groundwater management.”
Noticing communication. “This is about stakeholder engagement, and notification and communicating, and there are two components to this. The first is identification and summary of how stakeholders have been involved in the initial planning and developing of the initial plan, so description or identification of the beneficial uses and users of groundwater, summary of public meetings that occurred; this is all starting a conversation between the agency, the GSA, and the stakeholders. The second component is the communication plan which is really a continuation of that dialog into the implementation of the plan and how stakeholders can continue to be involved in the decision making and the critical elements of sustainable groundwater management.”
Basin setting. This is about the subsurface, what really makes up your basin, he said. “This is critically important because what you to have to work with and an understanding of your basin is directly reflected in how you’re going to manage and how management actions will affect or the aquifer will respond to those actions. The first point is the hydrogeologic conceptual model. This is very similar to the requirements in the basin boundary regulations, and this was well received and acknowledged that this is a fundamental component and that a foundational understanding of what you have to work with is important.”
“Maps are required to identify what’s going on as far as recharge and discharge areas, surface water features, all the tools and knowledge that GSAs will need to have effective programs and management actions moving forward. It’s also a narrative description, accompanying with cross sections and maps of your understanding of the basin,” he continued.
Mr. Springhorn noted that a lot of this information in this administrative information and the basin setting exists in existing groundwater management plans, so a lot of this information will be pulled directly from existing plans and built off of, so people are not starting from scratch. “There’s a lot of information available in some of the documents the Department and other state and federal agencies have that go right at this that can be used, and we plan to compile that information as much as possible as part of our technical assistance.”
There needs to be an understanding of historical and current conditions, he said. “You have to know where you’ve been and where you are currently in order to effectively move forward from where you are going into the future,” he said. “All these requirements are really centered around the undesirable results in these categories of things that need to be measured or monitored:
Groundwater elevation data: “It’s standard contour maps, identification of where groundwater is flowing, hydrograph to see the seasonal fluctuations so how your basin has responded historically and where you are currently. A lot of this information is in existing GSPs and there’s a lot of new information in the California Water Plan that was just put out, and there will be a continuation of this type of information developed by the Department that can be used by locals.”
Groundwater storage: “This is tied with groundwater levels – understanding the change in storage cumulatively and annually, seawater intrusion if this is applicable to your basin, and looking at the historical and current extent of sea water intrusion in the basin.”
Groundwater quality: “An identification of the contaminated sites out there so the agencies are well aware of what they have to work with moving forward and making sure their future management actions don’t exacerbate existing problems.”
Land subsidence: “The extent of subsidence and rates of subsidence. This is a great example of where the Department is looking at expanding our technical assistance. There’s new satellite technology that’s available where we can get statewide coverage very quickly and it can be economy of scale essentially for the Department to provide that, so instead of a bunch of local agencies having to individually go and get that information, the Department can provide a consistent, statewide dataset that can be readily available for locals to use.”
Interconnected surface water systems: “This is an identification of the interconnected streams in the basin and identification of groundwater dependent ecosystems in the basin, and this is related to the undesirable result of surface water depletions.”
Water budget. An accounting of the total groundwater and surface water entering and leaving a basin including the changes in the amount of water stored. “The regulations do require a water budget, which is an accounting of the inflows and outflows, so you have to know what’s coming into your checking account and what’s going out in order to eventually balance that account,” Mr. Springhorn said.
“There’s a lot of uncertainty in water budgets. The compliance point isn’t the water budget, the compliance point is the undesirable results, so it’s outcome. But the water budget is important because you have to know what your inflows and outflows are. It gets into the future projections, how is your water budget going to change based on your current level of supplies and demands, and then future constrictions in those supplies and demands moving forward with climate change, future population growth – that’s where the water budget is key. It’s a predictive tool to help you effectively manage your basin moving into the future over this 50 year planning horizon.”
Management areas: “We are looking for entire basin coverage. We also know that the basins are varied, and we have to have some flexibility there, so we’ve given an option for a GSA to create management areas within a basin to target specific areas of that basin that need either increased monitoring, different minimum thresholds, measurable objectives, or maybe a lesser amount of monitoring in areas that aren’t used. This provides some local flexibility to really fine tune the sustainable management that’s occurring. As long as the sum of the parts equals the whole; it has to roll back together at the end of the day.”
Sustainable management criteria: Mr. Springhorn reminded that this is new territory for everyone. “A lot of these terms came from the enactment of SGMA: sustainability goal, undesirable results, and measurable objectives; this is all new territory for us so collectively we have to work together to understand what this means, because these terms have real implications on the ground.” He then explained the terms:
- The sustainability goal is a basin-wide goal; it’s essentially how you are going to get from today to sustainability or maintain sustainability by 2040 or 2042.
- Undesirable results are basin-wide impacts or conditions in the basin that result in undesirable results; that’s triggering the significant and unreasonable definition of what an undesirable result is.
- Minimum threshold helps you define at a site-specific location, such as at a particular well, what’s a significant and unreasonable impact at that well.
- Measurable objectives are the measures taken to achieve that goal, so how are you managing from today forward; not for the failure point but how are you going to reach your goal, the projects and actions you’re going to take to get there, and where are you going to be along the way.
The sustainability goal is a single goal for the basin that has to be achieved in 20 years; the GSA has to demonstrate they can maintain that the rest of the planning implementation horizon which is another 30 years beyond that, he said.
The definition of the terms are complex and come from the Sustainable Groundwater Management Act, but it all boils down to this: “If you’re avoiding undesirable results in your basin, you’re managing to a sustainable yield, you are doing sustainable groundwater management, and you are achieving your sustainability goal, so really the key is outcome based – avoiding the undesirable results,” Mr. Springhorn said.
Critical parameter: Refers to any of the elements identified in Water Code Section 10721(x) that may lead to undesirable results. “So instead of saying undesirable results or groundwater levels, all the six, every time in the regulation, think of those as the critical parameters: that’s what you have to manage, those are the things that you’ll be monitoring for and setting goals for,” he said.
Minimum threshold: refers to the point at which conditions for a given critical parameter are significant and unreasonable. “This is the failure point, essentially. So below the minimum threshold, that’s where significant and unreasonable conditions occur, and that’s locally defined within the framework that the regulations establish.”
Measurable objective: Refers to specific, quantifiable goals for the maintenance or improvement of specified groundwater conditions that have been included in an adopted Plan to achieve the sustainability goal in a basin. “This is where you are shooting for, and giving yourself enough room above the minimum threshold to have your operational range. For example, so groundwater levels are going to fluctuate between the measurable objectives and the minimum threshold, so that’s where you’re going to be operating your basin.”
Undesirable results exist when significant and unreasonable effects occur throughout the basin for any of the critical parameters. “Significant and unreasonable is a locally defined term,” Mr. Springhorn said. “Step 1 is you define the conditions that are significant and unreasonable, so an example is you set your threshold at a certain site, for instance, you set it there and say anything below this is going to be significant and unreasonable and it’s going to lead to impacts in our basin. Step 2 is you describe the number of exceedances that will constitute undesirable results in your basin.”
There are two scenarios here, he said. “The first scenario is if this one exceedance, you are below your minimum threshold but it’s right along the California Aqueduct and there’s 2 or 3 feet of subsidence, that’s a significant and unreasonable effect. However, you could have minimum threshold exceedances that are very little in a more widespread area of the basin, so what it comes down to is it’s locally defined within a framework of what is significant and unreasonable in your basin. We want the locals to tell us what is significant and unreasonable.”
The minimum threshold, shown as the green line on the chart, is the failure point. “It needs to be numeric, and it needs to be a value that the locals know where they stand. They are either above or below it and the Department knows whether they are above or below it,” he said.
“When a minimum threshold is set, there’s some key elements that needs to be considered, so we need to see that these minimum thresholds were set using technical information, identifying the effects of where you set that minimum threshold on beneficial uses and users of groundwater, if those minimum thresholds would affect your adjacent basin, and how that minimum threshold is going to be monitored through time.”
Mr. Springhorn noted that there are some specific requirements for each critical parameter, so there will be some standardization across the state. “For example, for groundwater levels it’s groundwater elevation. The locals can define where the elevation is that is significant and unreasonable, but we want all the agencies to use groundwater elevation, so we can compare within the basin or between basins.”
Measurable objectives need to be measured quantitatively on the same units as the minimum threshold. “We need to see where you are in between where you want to be and where you don’t want to be, so that’s the implementation of the plan. There are also interim milestones, so every five years, there’s a check in of where you are in relationship to where you thought you would be if you are meeting your goals.”
Monitoring is the cornerstone of sustainable groundwater management, because it’s hard to manage what you don’t monitor or what you don’t measure, he said. “That’s where the monitoring network is set up to be flexible to where as long as it’s sufficient data to demonstrate the seasonal and long-term trends and to evaluate the effects and effectiveness of the implementation of the plan.”
Mr. Springhorn pointed out that there is already a lot of existing data that can be used from CASGEM and State Board program monitoring sites. “The density and frequency is contingent on the aquifer characteristics and the groundwater use, so it can be tailored to the basin and the way the basin is going to be managed.”
“This is a learning process. There’s going to be data gaps early in the process and what the plan requires is that you identify data gaps and have a plan to fill them on a time table. The monitoring frequency and density can be elevated if new issues arise, so it’s adaptive monitoring – going from where you are now to where you need to be.”
Commissioner Orth said, “I hear you talking about monitoring being adaptively developed over time based on identification of gaps and recognizing the specific characteristics of the basin or the management area within the basin, but then you also have this last bullet on this slide that talks about minimum standards. Help me reconcile those two.”
“There is flexibility on the distribution and frequency, but there has to be some lower bound,” replied Mr. Springhorn. “For instance, for groundwater levels, it’s semi-annual measurements, so for each of the critical parameters, like water levels, groundwater quality, and the rest, we have some bounds on what we need to see as a minimum standard for monitoring. What it does is it provides statewide consistency, so we’re able to see what’s happening on the state level with sustainable management, not just within the basin. It’s a sufficient density of wells, it’s more of a reasonableness on what type or where the wells are, but you have to at least measure them semi-annually.”
Projects and management actions: “We’re requiring in the regulations that there is a description of projects and management actions that are available to achieve the goals,” he said. “A lot of the GMPs have great projects already going so they can use those or build off of that momentum, but there is a contingency project and action requirement that if things don’t’ go according to plan, there needs to be a contingency plan, so you go to those projects and actions if you’re at your minimum threshold or in a drought. All projects and actions need to be supported by scientific data and other supporting information.”
Phase 3: Groundwater Sustainability Plan Review and Evaluation
Trevor Joseph then returned to the podium to talk about groundwater sustainability plan review and evaluation. “There are some procedural requirements in that 60 day public comment period that start with ‘S’ and is noted on other process diagrams, that’s opportunity for stakeholder input. Then we move into the very important evaluation and assessment, and potential corrective actions that come out of that. After that, we are either going to call a plan adequate, inadequate, or ‘conditionally adequate,’” he said.
Article 6 of the regulation is the methodology and criteria for DWR will evaluate and prepare assessments of these GSPs. The Department’s responsible for preparing an evaluation and an assessment within 2 years of submission of a plan to the Department. There is a 60-day public comment period, and then we can define deficiencies in that plan and corrective actions if there are deficiencies, he said.
The pass/fail criteria, or strict liability: “There are items that we think it’s very clear in statute that it’s pass/fail. If we didn’t receive a plan within the submitted time frame, if it’s not complete, if it doesn’t cover the entire basin or a combination of plans don’t cover the entire basin, or if corrective are identified, based on our evaluation after we identify deficiencies, and those corrective actions aren’t address within a certain amount of time, again we feel that constitutes a pass/fail criteria.”
Substantial compliance criteria: means that the Agency (i.e. GSA or local Agency) has attempted to comply with these regulations in good faith, the supporting information is sufficiently detailed, thorough, and reasonable enough to evaluate the Plan, and that any discrepancy would not materially affect the ability of the Agency to achieve the sustainability goal for the basin. “There’s such variability in terms of the complexity of these basins. Some basins are close to meeting their sustainability goals, others have a longer road ahead of them, and they are certainly not a ‘one size fits all’ in terms of prescriptive criteria for evaluating or constituting what is undesirable results or a minimum threshold. There are a series of 11 more specific sub items under that substantial compliance, but at its heart, what we’re really getting at with the overarching criteria is will their plan achieve sustainable groundwater management, does it comply with SGMA, and is it in compliance with the regulations?”
Periodic review: “We’re going to review the plans every 5 years,” he said. “The consideration of the review of are the GSAs, is the plan meeting milestones, are they implementing actions, are they compliant with reporting requirements, and again it gets back to substantial compliance. Is this plan being implemented in such a manner that it’s achieving the sustainability goal and not adversely impacting an adjacent basin.”
Phase 4: Implementation and reporting
Article 7 deals with reports, assessments, and amendments. There’s an annual reporting requirement to report data such as groundwater elevation data, annual aggregated data identifying groundwater extraction for the preceding water year, surface water supply used or available for use, for groundwater recharge, total water use, and change in groundwater storage as well as a description of progress toward implementing the GSP, achieve interim milestones and the implementation of any contingency measures.
“We don’t feel the annual reports are too different than what a lot of existing groundwater managers are doing with their groundwater management plan reports,” he said. “GSAs are required to assess their GSP every five years. There are some specific requirements; one is reviewing the conditions relative to the last five years, when they do the evaluation, and we are asking that the evaluation be objective, that they are honest with that evaluation and that it’s done properly.”
Alternatives and adjudicated areas
Mr. Joseph then turned to alternatives, covered in Article 9. Alternatives can be submitted by a local agency or a GSA, whereas a GSP can only be submitted by a GSA. Alternatives must apply to the entire basin, and must be submitted to the Department of Water Resources by January 1st, 2017, with the exception of future adjudications. They have to be CASGEM compliant.
There are three options: GWMP or law authorizing groundwater management, an adjudication, or an analysis of 10 years of operation at sustainable yield. “If they don’t cover the entire basin, there needs to be a cooperative agreement that their assessment does cover the entire basin and that other water managers outside of their jurisdictional boundaries are in support of that analysis,” he said.
Timeline and next steps
At the Commission meeting in March, they will provide an overview of comments received to date, but as the comment period will not have closed by then, it won’t be a full list. In April, they will provide an overview of comments received and potentially some changes to the regulation at that time. In May, the Commission could potentially consider adoption of these draft final emergency regulations, which need to be submitted to OAL for final processing all before June 1, 2016 mandated deadline.
“The public is encouraged to send us written comments in email form. We’ll post comments on our website, and we’ll have a series of three mandated public meetings that will occur in late March. We will be in Visalia, Orange County, and Sacramento,” said Mr. Joseph.
“And with that … “
Regarding evaluation of plans and the use of ‘professional judgment’, Commissioner Orth asks if that will come from within the Department or are they are anticipating retaining consultants to review these plans.
“In my experience, I think we need the Department to have the expertise in-house, so we’re starting to build that expertise and make sure we have that expertise when we evaluate those plans,” said David Gutierrez. “Typically when you evaluate something as complex as this, you can’t necessarily just read it, and in some cases, we’re going to have to do some independent evaluations and calculations ourselves, so what I anticipate the Department will increase its expertise even beyond what it is now so that we can have those arguments and debates with the locals in the future to make sure we have a good understanding of what they are trying to achieve.”
Commissioner Daniels ask about the critical parameters and definitions and establishing the thresholds. “I understand what was said about leaving to the locals, but I need you to walk it through with me a little more. I think it’s going to be helpful to provide as much direction as possible within that realm, so I want to understand what the plan is … “
“Let me start off first with trying to explain a little more about what these terms means,” Mr. Gutierrez said. “Why did we come up with a new term, and the reason why is an undesirable result. The definition of an undesirable result is when it becomes significant and unreasonable, so prior to becoming a significant and unreasonable undesirable result, it’s just an element, so at what point is a groundwater level undesirable, significant, and unreasonable? At what point is subsidence too much, where we now are going to call it significant and unreasonable and an unreasonable result? Prior to that, we are just defining that as these are the critical parameters, so groundwater elevation, subsidence, seawater intrusion – are critical parameters. Individually each one of those is a critical parameter, and then when they cross that threshold, they cross over into an actual undesirable result, and so that’s really the clarity between critical parameter and undesirable result and it’s an important distinction.”
“Now minimum threshold,” he continued. “What we’ve defined that seawater intrusion of so much coming in from the ocean is too much, now what we have to do is we have to figure out how are we going to measure that. We’re going to have to measure that with some kind of an instrument, and we’re going to have to assign a value to that instrument, and that’s where the minimum threshold comes in, so minimum threshold, critical parameter, and undesirable result are all related. So think of the minimum threshold as now we have a point defined by an instrument that x feet away from the ocean is too much, and that is now an undesirable result. We are not going to let that happen, because we’ve studied that the impacts are too great beyond that point. That’s the locals telling the Department the line in the sand.”
“Now we’re going to look at that, and we’re going to evaluate that and we’re going to see and understand that the impacts and how do they do and work with their community to figure out how did you judge how you’re impacting your folks, and then we come to an agreement, and once we come to an agreement, now we all know that’s the measurement we’re going to use.”
Commissioner Daniels asked, “What I’m trying to get a sense of is how much direction is the state going to give on these critical parameters and minimum thresholds, because I do understand that this should come from the locals, but I also wonder if there would be some value giving guidance … wouldn’t it be better if this were an iterative process?”
“It will definitely be an iterative process and we plan to iteratively work with the locals while they are developing their GSPs to try to address this,” responded Mr. Gutierrez. “It’s going to be difficult and the reason I say that is what I can’t tell you today and I’ll use subsidence as the example, I can’t tell you if 1” of subsidence per year or six inches of subsidence per year is the right number. And the reason I can’t tell you that is because in certain parts of the state, 1” per year is maybe too much, it may be damaging infrastructure at 1” per year, whereas we can go somewhere else in the middle of nowhere where no one is being affected and 3” per year may be adequate, so it’s going to be difficult for us to assign metrics already up front to tell you whether or not what’s the right answer. That’s going to be a tough discussion.”
“Do we as a Commission get a change to weigh in on that?”
“Right now what you get is you get to adopt or not adopt but hopefully adopt our regulations of how we do that,” responded Mr. Gutierrez.
“But the criteria aren’t in the regulations … “
“What we’re going to need to hear from you is, can you put some kind of a metric on that … We’ve been trying to figure that out, but so far to be honest, I’m having a hard time figuring out what that metric is,” said Mr. Gutierrez. “We’re certainly going to work with our advisory groups and others because I’m sure they are going to have some input on this very difficult question.”
“When it comes to approving the plans, this is where it gets difficult and this is where I am telling you that professional judgment is going to come into play here but telling you whether you’re in the white, black, or gray, it’s difficult to do without talking about a precise situation more closely. I’ll be asking you questions, like when you picked 1” of subsidence per year, the first question I’ll ask is what we’re the impacts of that, and once you tell me the impacts of that, then we’re going to be able to have the discussion. Once you tell me the impacts of drawing the water level down so much in a particular cycle, I’ll ask you how many wells did you dry out and how did you mitigate that? If the answer is we’re only going to dry one well and we’re going to be able to mitigate that situation, then that’s probably acceptable whereas if you come back and tell us we’re going to dry out 5000 wells throughout the valley and they’re on their own, obviously that’s not going to be acceptable.”
For more information …
- More details in the power point presentation. Click here to view the full power point.
- Click here for the draft regulations for groundwater sustainability plans and alternatives.
- For agenda, meeting materials, and eventually the webcast link, click here.
- Legal alert: DWR Releases Draft Emergency Regulations for Groundwater Sustainability Plans, from Downey Brand
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