At the March meeting of the California Water Commission, David Gutierrez, Trevor Joseph, and Steven Springhorn from DWR’s Sustainable Groundwater Management team were on hand to present more details on the draft regulations, as well as review some of the comments received thus far.
Dave Gutierrez began by saying they give an update on GSA formation, go into the details of the draft regulation, answer some questions raised by Commission members last month, and review some of the stakeholder comments received so far during the public comment period. He acknowledged the contribution of the advisory groups, calling their input ‘outstanding.’ “As a result of that feedback, I think we’re really going to come up with a very successful regulation in the end, which we’ll be presenting that to you in the next couple of months,” he said.
The regulations were drafted around the key principle that groundwater is best managed at the local level. “I believe that as a result of these particular regulations, there’s going to be enough flexibility to allow success at that local level, and that there’s going to be enough detail for the Department to be able to evaluate those plans and make sure in fact that we achieve those sustainability goals on a statewide basis,” he said.
In terms of plan content and the evaluations, there’s a key component of that evaluation called ‘substantial compliance, he said. “You’ve already heard comments that these draft regulations are either too prescriptive or either not prescriptive enough. The issue of ‘substantial compliance’ and understanding really what that means is going to be absolutely critical, so we’ll have to make sure that the regulations are very clear on that item and our outreach and our messaging on that item is also going to have to be very clear. I think once we get that message across of what substantial compliance really means, I think we’ll hear less and less discussion about whether this is too prescriptive or not prescriptive enough, but we’ve got a long way to go in clarifying that issue.”
Finally, they will also discuss coordination between basins in the presentation today. “Another key principle is we believe it is extremely important within a basin that managers coordinate and work collectively together and so this theme continues on with these draft regulations. You’re going to hear about how we are having requirements for coordination within basins to make sure that they in fact work together and have a coordinated plan forward so that we can be successful on a basin-wide level.”
Update on GSA formation
Trevor Joseph, Project Manager for the regulations, then took over the presentation, giving an update on the formation of Groundwater Sustainability Agencies (GSAs). He noted that the role of the Department in this is rather limited which is simply to evaluate the completeness of the local agency submittals and to post that information on the website.
“To date, we’ve had 69 separate GSA formation notices provided to the Department,” he said. “A little more than 44 are overlapping, shown on the map in darker purple. What that means is that essentially that overlap notifications need to be reconciled or addressed before June 30, 2017 or there is potential State Board intervention. So there are a lot of challenges with local agencies in submitting formation notices where this overlap is occurring.”
Mr. Joseph said that it may be a good sign that there aren’t any GSA formations in some areas yet, as that may mean that a lot of local agencies are still communicating with other agencies in terms of how to manage those basins. “Even though all 127 high and medium priority basins need to be covered by either a GSA or an alternative, just because there’s not a large percent of these 127 basins covered today does not necessarily mean a bad thing,” he pointed out.
Even though the Department’s role in GSA formation is limited, they still have an interest in making it a success. “For this reason, we’ve provided a lot of facilitation support for different local agencies to use to help them work with other local agencies to figure out the best way to approach GSA formation in their area,” he said. “In addition, we’ve developed frequently asked questions, we have some guidelines on GSA formation, we’ve given a webinar that’s available on our website, we are logging GSA formations that we’re receiving on our website, and we created the interactive map as a tool for agencies to use to look at how they want to manage basins.”
Summary of public comments received to date
Mr. Joseph then gave a summary of the public comments they’ve received to date, noting that it’s only about midway through the public comment period, which closes on April 1st. Since the draft regulations were released and the public comment period opened back on February 18th, they have been fairly active in meeting with advisory groups and local agencies, as well as a Senate and Assembly committee hearing.
To date they’ve only received five written public comments, but they are anticipating a lot more as they move closer to the end of the comment period. Three public meetings and a webinar are scheduled next week to hear comments on our draft regulations.
“Both verbal comments and written comments are highly encouraged,” he said. “The verbal comments have given us a jump start in terms of how to think through some of the potential regulations, and those written comments will be incredibly valuable.”
In April, they will be summarizing proposed revisions to the regulations and in May, hopefully bringing in a draft final for the Commission to consider.
In terms of general comments on the draft regulations, they’ve heard that the regulation is both clear and not clear. They’ve heard that it is logically constructed, and have heard support that the regulation is generally clear and somewhat easy to read, but also heard comments that there are some specific sections that aren’t very clear or could be a lot clearer, he said. They’ve also heard that the regulation is not clear in terms of how the ‘ramping up’ of requirements should be accomplished over the 20 year implementation timeline; some folks do not see that as being clear in the regulations that that’s allowable. There is also some concern that the minimum requirements in the regulation may be too onerous, he said.
In terms of plan content, one area of particular interest to stakeholders is the section on undesirable results, minimum thresholds, and measurable objectives, and they’ve heard that some additional detail may be warranted here. “We acknowledge this is one of the hardest sections to write in the regulation and so we’re going to need to look at this a little closer in our revision,” Mr. Joseph said.
For the evaluation of the groundwater sustainability plans, the Department is considering the substantial compliance approach. “We’ve heard from many stakeholders that they support that approach, but there are still some stakeholders that feel that maybe some specific statewide criteria would be valuable,” he said. “We think that’s frankly impossible, but the comments we’re hearing on the substantial compliance is that the definition that we’re using isn’t very clear, and how we’ll implement substantial compliance may not be very clear, so there’s definitely some room for improvement in terms of how we’ve constructed that section.”
Mr. Joseph noted they’ve heard comments on the coordination agreements and the term coordination agency.
Mr. Joseph then turned to the sustainability timeline and the ramping up process, first presenting a graph from the USGS showing the cumulative change in groundwater storage over approximately 50 years. “The redline shows that there’s been approximately 80 MAF of groundwater storage that’s been lost due to groundwater pumping over the last 50 years,” he said. “That coincides with the blue bars of where there’s a lack of surface water availability – in the late 70s and again in the 90s. That lack of surface water availability has logically then resulted in additional groundwater pumping and a loss of storage.”
That groundwater pumping has resulted in these undesirable results that are defined in the Sustainable Groundwater Management Act: the lowering of groundwater levels, the reduction of storage, land subsidence, sea water intrusion, water quality degradation, and depletion of interconnected streams.
“Those are the outcomes we want to see avoided when it’s a significant or reasonable level in terms of the groundwater sustainability plans,” he said.
With each passage of a groundwater management law, there’s been an increase in the requirements on local agencies that manage the groundwater, shown on the bottom of the graphic, he said. “With SGMA, there’s recognition that local agencies are not required to essentially flatten out that red line in the graph instantaneously,” he said. “So where we perhaps need to revise the regulations is to make it more clear that the regulations allow for this ramping up as shown on the bottom bar chart, the ramping of sustainability over time. Because again I think a lot of stakeholders are reading that regulation and not seeing that that is allowable as it’s allowed in the SGMA.”
A commissioner pointed out that one thing he hears folks saying is that they don’t have to be sustainable until 2040. “My concern is that while I understand that you just can’t flatten out a line now, it feels to me like we really need to get a message out there that the trend has to start going up and when it can happen, because my concern is that we’re going to need to see a real effort at recharge and management of recharge soon and not waiting until 2040,” he says.
Mr. Joseph agreed. “There are those impacts that need to be addressed more immediately and not allowed to be addressed at the end of the implementation horizon.”
Another commissioner notes that measurable objectives are part of this. “The intent is not that somebody goes from 2015 to 2040 with a continued down and then miraculously shows that in 2040 that they are going to get back up to 2015 levels; there’s got to be a strategic plan with measurable objectives that are quantifiable and verifiable in order to demonstrate progress, and failure to do that is going to create issues.”
Mr. Joseph noted this has been discussed with advisory groups. “We don’t’ want to see all the progress in 2039 and that’s your proposed path to sustainability; that doesn’t seem very feasible and it could be creating a lot of impacts along the way,” he said. “At the same time, we can’t prescribe that path statewide, so we need to hear what locally makes sense to reach sustainability over that 20 year period and that needs to be documented on the measurable objectives and at those interim milestones. What is that path? We need to see that in the plan.”
The roles of the state and local agencies
Unlike other states that have more of a top-down or state driven process, the Sustainable Groundwater Management Act is clearly a locally driven law that encourages local control of groundwater management, he said. “It certainly was in the governor’s message at the signing, so the default position for success is that local control. The locals have an opportunity to develop plans and implement those plans tailored to those basins. However, if that doesn’t work, the failure that state backstop is there at which point the state would intervene and then it kind of flips that role as the State Board would be providing the specifics to the local agencies in terms of how to manage the groundwater.”
Stakeholders have commented that the regulation looks onerous in certain sections, he said. “We have more a prescriptive process or standardized process and we need this; we need some standardization of data and information provided to the Department because we have a role of looking at all these plans and we need to be able to have an apples to apples comparison in terms of how different information was prepared and submitted to the Department. We need to make a determination as to whether one plan adversely impacts the ability of another plan to meet their sustainability goals, so there is a need for standardization in terms of process, and you can see that in the technical standards, the procedures, and the plan content. It is a little more prescriptive and more detailed in terms of what we need to see to do our job to evaluate plans. We may receive up to 250 groundwater sustainability plans or more to evaluate, and we can’t have them all using completely different methods and standards of data collection.”
Mr. Joseph acknowledged that the standardized process does read a lot more prescriptive in the regulations. “But at the same time, we are writing other portions of the regulations for maximum local flexibility, and this is a requirement because there’s varied land use, varied geology, water supply and demand, stakeholder concerns, and the way folks want to manage groundwater, so the regulations need to be broad enough to encapsulate all those different variable conditions. They are locally driven plans so the regulation articles that we feel are more flexible are the sustainability criteria, the monitoring projects and actions, and the substantial evaluation criteria.”
One example would be monitoring, he said. “We’re not prescribing a certain level of distribution of monitoring; that needs to be locally driven where these agencies identify those undesirable results and what the impacts are in their basin – that should be locally driven through a stakeholder process.”
Sustainable management criteria
Steven Springhorn then reviewed the sustainable management criteria. “The sustainable management criteria is really important part of the regulation because this is where sustainability is defined and tracked through time,” he said. “There are key new terms in SGMA as well as in the regulations: sustainability goal, undesirable results, minimum thresholds, and measurable objectives.”
This section is complex, he said. “We’re hearing that from our advisory groups. They acknowledge that it’s complex and there’s a feeling of a need for clarification in this section to really meet the intent of what we’re talking about to make it more workable on the ground.”
The sustainable management criteria section of the regulation is built upon the previous sections which require a description of the geology, the historical and current conditions, and the water budget.
“You really have to have that body of knowledge as you arrive at this section and you are establishing these criteria,” he said. “You need to know where you’ve been and where you are in order to move forward.”
He then briefly defined the key terms:
The sustainability goal is the basin-wide goal; this is the lens the Department and the State Board will be looking at as far as overall performance in each one of these basins.
The undesirable results are basin wide; they are looking at the groundwater conditions throughout the basin, and how these undesirable results are occurring in the basin.
Minimum thresholds are site specific impacts, such as how you know where significant and unreasonable conditions are occurring at individual wells throughout the basin.
Measurable objectives are what your whole plan is geared towards, your goals that are quantifiable, and how you are going to reach your ultimate goal of sustainability by 2040 or 2042.
The sustainability goal is a single goal for the whole basin that has to be achieved within 20 years. “It can’t be achieved all at once in the last few years; it needs to be a steady progress from where they start today and where they want to be by 2040 or 2042,” he said.
Mr. Springhorn pointed out that there is a hierarchy and a linkage between these key terms. “The foundation is the undesirable results. These are the compliance points that are set out in the regulations and in SGMA that need to be monitored and managed. If management is occurring in the basin that’s avoiding these undesirable results, then by definition, you are managing to the sustainable yield, you’re conducting sustainable groundwater management, and you are achieving your sustainability goal. These are linked by definition in SGMA and by practice in the regulations, and we are trying to keep that link and hierarchy.”
Measurable objectives and minimum thresholds are how you know when there is an undesirable result in the basin, he said. “A minimum threshold is a numeric value; it’s a way to quantify where you are at each well or each monitoring point in your basin. Below the minimum threshold, impacts are occurring.”
Another new term is ‘critical parameter’. “Input that we’re getting from advisory groups is that this isn’t a universally-loved term; there’s a need for more education on what it means, but it’s an important term because it really captures the collective performance indicators that are conditions that locals will need to look at,” he said. “They’ll need to look at groundwater levels, groundwater storage, and the remaining six conditions. We didn’t want to use undesirable results, because that is prejudging that those groundwater levels are already significant and unreasonable, and impacts are occurring, so they aren’t undesirable result because it’s what you’re monitoring – the conditions that you are looking at to see if they are undesirable.”
In terms of providing guidance in setting minimum thresholds, the Department has developed a comprehensive statewide framework that these local agencies have to comply with when they are setting these minimum thresholds, Mr. Springhorn said, noting that there is that flexibility on actually where they set the minimum thresholds.
Critical parameters are the yardsticks that are used to monitor conditions in the basins; there are metrics assigned to each one for monitoring; for example, groundwater level is measured in feet/mean sea level, he said. “This is important to provide statewide consistency and uniformity; we don’t want different groups in the same basin monitoring groundwater levels with elevation and another group monitoring with satellite or remote sensing technology, so we want to have it standardized so we can clearly evaluate these metrics across the state.”
The minimum threshold (MT) and measurable objective (MO) are the points the locals determine within the defined metric or yardstick. “It’s where you are on the yardstick and each basin will be different,” he said. “Each basin will have a minimum threshold that is set in a different spot, but they still have to go through the same framework and so it will be consistent and there will be some standardization statewide.”
Mr. Springhorn then gave a specific example using groundwater levels. “The first step is to compile existing information; these are requirements in the first part of the regulation: the geology of the basin, the historical and current trends of the groundwater levels, and your water budget, and where you are projecting these water levels to fluctuate in the future based on new stresses,” he said.
“You use that to set your minimum thresholds, and when you set your minimum thresholds, there’s a framework to comply with. They have to describe the information and criteria used to set this minimum threshold, they have to describe the effects of the beneficial uses and users, … and how the minimum threshold will be monitored and tracked through time.”
“These are the general requirements for each of the six minimum thresholds that have to be set,” he continued. “The measurable objectives are what you are shooting for, so hopefully no one will ever cross through their minimum thresholds and everyone’s going to be managing and developing projects to hit their measurable objectives. That’s the goal; that’s what the whole plan is set up for.”
Commissioner Del Bosque asks about reduction of storage and surface water depletion. What they are and how they are measured?
“Reduction in storage would be measured by total volume,” replied Mr. Springhorn. “It’s the total volume that the local agency would define as below that volume, it’s significant and unreasonable and impacts are occurring through a hydrologic cycle. For surface water depletion, it’s the volume of surface water depletions and of that volume, what volume is significant and unreasonable and impacts to beneficial uses of surface water.”
“What does that mean, surface water depletion?,” asks Commissioner Del Bosque.
“When there’s pumping, there are potential impacts to surface water, and surface water and groundwater are connected in certain basins,” said Mr. Springhorn. “It would be the volume of water that is depleted based on pumping in that basin. The impact is really the impact on beneficial uses of surface water, and that’s how it’s described in SGMA.”
“This is an area that we probably have the least amount of clarity on how to describe that range for the parties who are preparing GSPs,” added Commissioner Orth. “So any assistance, either through regs, through technical assistance or the BMPs about what types of information a GSA or GSP should be developing so that they understand the interrelationship between their surface and their groundwater, and where pumping is affecting surface flows. … There’s not a lot of good science or understanding of how best to develop that information right now.”
Mr. Springhorn acknowledged the complexity of the topic and agreed more education is needed. “This is probably the most complex of the undesirable results. We do plan to have a lot of guidance and data in the BMPs as part of our technical assistance. We’re planning to have an interactive map showing interconnected surface waters and groundwater dependent ecosystems, and then in the BMPs, guidance on a menu of potential options of how to address this issue and how to manage it, as well as case studies of how other states and other local agencies are managing this particular topic.”
There are general requirements for how to set minimum thresholds, and specific requirements for each of the critical parameters, he said. “For groundwater levels, the metric needs to be measured in elevation, but it has to be supported by additional information. As you’re setting the measurable objective, there are certain components related to each of these critical parameters. For groundwater levels, it’s looking at the rate of elevation of groundwater decline based on historical trends and projected use in the basin; this gets to the hydrologic cycle, you want to see how your basin has responded in prior droughts and how it might respond to future droughts when you are setting your minimum threshold. You also have to look at the effects to other critical parameters, as where you set your minimum threshold for water levels could be very important on how that affects land subsidence in your basin, or some of the other undesirable results.”
Regarding management of extractions and recharge, Mr. Springhorn noted there is a provision in SGMA that the groundwater levels can be drawn down during periods of drought as long as they are brought back up during periods of normal or wet conditions.
There are existing management practices occurring now through existing groundwater management plans, he pointed out. “Local agencies are using a lot of these concepts; they are not quite named the same thing, but they are using these same concepts in their effective groundwater management right now. One example are basin management objectives; throughout the state there are thresholds and triggers set for when certain conditions go below those thresholds, actions are taken. Similar concepts, just new terminology.”
Trevor Joseph then returned to the podium to talk about substantial compliance. The comments they are receiving are that the definition is not exactly clear. “Substantial compliance is the second step in the evaluation process,” he said. “When a GSP or an alternative is submitted to the Department, we have a series of initial pass/fail criteria in step 1. Examples of these pass/fail criteria are if the plans are not submitted by the legislative due date, 2020 or 2022, or if plans don’t cover the entire basin or subbasin. Those would lead to an immediate inadequate determination by the Department and then potential State Board intervention.”
If the plan passes the first step, the second step would be substantial compliance criteria. “It’s an adequacy criteria. There are 11 criteria in the draft regulations currently, and it really allows DWR to make a subjective evaluation of the plan as to whether or not, looking at it as a whole, whether or not that plan will achieve sustainable groundwater management, and after implementation has started, whether it’s on course to meet sustainable groundwater management.”
“The idea here is that a statewide specific criteria is too complex in the amount of time we have to develop these regulations and even with almost unlimited time, I’d think it be almost impossible to develop specific statewide criteria by plan or by area so there needs to be some sort of evaluation criteria that looks at adequacy and that’s how we’ve approached this,” he said.
Mr. Joseph pointed out that substantial compliance is not substantial completeness. “Agencies cannot avoid submitting portions of the regulation requirements and hope to have a compliant plan,” he said. “An example of that would be forgoing water budget information, or not working through the sustainable groundwater management criteria. That would not be what we’re calling substantial compliance. That would be pass/fail in terms of that they did not adequately address each component of the regulation.”
“What it is also not is the majority of that criteria,” he said. “It’s not 10 out of the 11 or 9 out of the 11 criteria, any one of those criteria we could use to frankly fail a plan and deem it inadequate. Perhaps that’s what we need to message more clearly in the regulations.”
Mr. Joseph said they have received a number of comments on coordination agreements. He reminded that there can be three options to cover a basin or subbasin utilizing groundwater sustainability plans: One plan and one GSA in a basin, multiple GSAs completing one plan, and multiple GSAs completing multiple plans with a coordination agreement that links them together so the Department can understand how they are all going to work together to reach sustainable groundwater management in a basin or subbasin. In the case of multiple GSAs and a coordination agreement, there is also a requirement in the draft regulations that a coordinating agency be named.
He said they’ve received a lot of comments about the coordinating agency. “If there’s multiple GSPs developed by multiple GSAs, that there’s a requirement that they determine which GSA is going to provide all the agreement and coordination of all those plans to the Department and we want to have a single point of contact. If there are many GSAs and GSPs in a basin, we want to know who is providing this information, who is linking these plans together, and who is going to submit the agreement. It’s really a procedural requirement.”
“The comments we’re receiving is that is creates an unnecessary hierarchy; local agencies are concerned about potentially elevating one GSA to a higher level and the potential, political and feasibility concerns associated with that,” he said. “The other issue that we’re hearing from local agencies is that is does go a little bit beyond the point of contact in that this coordinating agency is responsible for synthesizing and pulling together how all these plans would work in an existing basin or subbasin, and so there’s a lot of concerns about the liability and the responsibility of that single agency.”
There are three public meetings and a webinar being held the week of March 21st; the public comment period closes April 1st. The regulations need to be adopted by June.
DWR plans to provide technical assistance by continuation of facilitation, the best management practices, Prop 1 funding, and providing statewide data sets, as well as individual regional office assistance to help with the implementation of these plans.
“It’s too early for us to opine on how we would want to address these comments because we want to see all the written comments collectively and all this information before we make some of those determinations,” Mr. Joseph said. “We’re not looking for consensus – that’s impossible with this draft emergency regulation; however, we will be looking to make adjustments. We want to make this a workable regulation. Taking all this information, we’re going to work diligently to propose revisions and refinements as long as its supported by the SGMA and will result in sustainable groundwater management. The work is coming soon after the public comment period to synthesize this information, and we look forward to being back in front of the Commission with some proposed revisions.”