Department of Water Resources staff review all the comments received on the draft Groundwater Sustainability Plan regulations, and discuss possible revisions in response to those comments
At the April meeting of the California Water Commission, the staff from the Department of Water Resources Sustainable Groundwater Management Program discussed the comments received on the draft Groundwater Sustainability Plan regulation during the public comment period which closed April 1st, and possible changes in response to those comments. The legislative deadline for adoption of the regulation is June 1st, 2016.
David Gutierrez began the presentation by reminding that the regulation revolves around the key principle that groundwater is best managed at the local level. “It’s difficult in the sense that we’re trying to set up a regulation that’s both flexible, yet we need to figure out a measuring stick in order to evaluate those particular future GSPs,” he said. “It’s difficult because we don’t want to set up specific metrics because it’s going to be impossible or difficult to do that with such a complex and varying geology and various conditions throughout the state.”
He said they had hoped for good comments, and there were some outstanding comments and as a result of those comments, they fully anticipate changing those regulations on the basis of those comments. “The good thing is that because of some of the work we did up front, there were actually no comments that really surprised us,” he said. “We need to acknowledge and thank the various groups and the various individuals that actually commented, in the sense that they’ve given us some really outstanding comments that are going to provide much more needed clarity on the regulations and so we’re going to adjust the regulations as a result of that.”
Mr. Gutierrez noted that they also get comments to change the direction of the regulations altogether. “We are not here to appease the various stakeholders; we’re here to make regulations that are going to work and that are going to achieve our goal, so we’re going to take every one of those comments and we’re going to consider then very carefully, with the ultimate goal to make regulations that are going to work and get to that goal,” he said.
The presentation today will present an overview, article by article, describe the comments received and talk about possible revisions. “We want to hear Commission comments, we want to hear public comments, and we’re going to take all that into consideration, and the Department of Water Resources and our staff will make the final decisions. We will come to you in May with a final package of the regulation.”
Trevor Joseph, Supervising Engineering Geologist, then began the main presentation , noting that they will be going through the regulation article by article by first giving a brief overview of the article, then a description of the nature of comments received, and then possible revisions.
Mr. Joseph said there have been four phases to the project, and they are nearing the end of the third phase of drafting the regulation, with the fourth and final phase, adoption of the regulation, not too far off in the future. The legislative deadline for adoption of the regulation in June 1, 2016.
He noted that the Department has presented at ten meetings of the California Water Commission, and three public meetings as it relates to discussing the draft public comments which were mandated by the Sustainable Groundwater Management Act. There were also public meetings early in the process which focused on discussion papers, as well as meetings with advisory groups and with stakeholders. “We have had more than 60 meetings, just with the advisory groups alone on this project,” he said.
The comment period opened on February 18th and closed on April 1st. There were three public meetings held in Sacramento, Visalia, and Santa Ana. The Department received 153 formal comments from a diverse set of interests from across the state, as well as more than 4100 form letters, specifically from the Sierra Club. The 153 comments generated more than 2000 text edits or specific comments, he said. Most comments were received at the end of the public comment period and all the comments received are posted on the website, http://www.water.ca.gov/groundwater/sgm/gsp.cfm.
In terms of comments by regulation article, he presented a graph showing the relative distribution of comments by article, noting there’s a lot of interest in plan content, coordinating agreements, and the technical and reporting standards. “We weren’t really surprised by the nature of the comments,” he said. “That goes to the advisory group meetings, as we had some meetings during the process after the regulations were released and we had a good understanding of where the folks were coming from.”
The guiding principle in developing the regulations is that groundwater management is best achieved at the local level, Mr. Joseph said. “There are some elements of the regulations that require more standardization, such as the technical and reporting standards, some of the plan evaluation, and some of the procedures, and the reason for that is that our responsibility is to do these plan evaluations and we’re going to need to look at multiple plans in the same basin or plans adjacent to each basin and so we need some standardization of that information in order to do our work. At the same time, we did design other sections of the regulation for flexibility and that includes the plan content. The nature of developing that information is so that it provides that local flexibility in terms of how undesirable results are measured.”
“Our goal is to develop regulations that result in sustainable groundwater management; however, we also want it to be a workable regulation for local agencies and stakeholders, and we definitely see a path to get there,” he said. “Based on the nature of the comments we’ve received, we definitely feel we will have a revised draft next month that will accomplish that goal.”
Mr. Joseph noted that based on the 153 comments, there are more than 2000 different text edits to be made. “When the stakeholders and the public see this regulation, they shouldn’t be surprised we have red line strikeouts on every page,” he said. “We’ve been very busy looking at these comments, and we think there’s a lot of really good stakeholder input in terms of revising the text that really doesn’t change the intent, it just states it a lot better.” Mr. Joseph than began stepping through the regulation, noting the major comments received on each article.
Article 1. Introductory Provisions
Article 1, the introductory provisions, provides the regulation intent, authority, and methods and criteria used by the Department to evaluate those plans, alternatives, and coordination agreements, and the information required by the Department to facilitate that evaluation.
The major comments on the general principles were that a lot of folks liked the idea of laying out the bullet list of items of the important elements of the act, he said. “One comment we received is really the obligation for a local agency to address uncertainty, to recognize uncertainty, and to allow for a certain level of uncertainty in a plan, and the requirement to fill data gaps should be recognized in the general principles.”
In addition, the evaluation process relies upon the term, ‘substantial compliance’, which is an item a lot of folks said DWR should strengthen and identify up front so it’s clear when reading the regulation the importance of that concept, he said. Another item not clear to many folks is that when reading the word plan, it can mean multiple plans, and when reading the word, ‘agency,’ it can mean multiple agencies, he said.
As for possible revisions, Mr. Joseph said they can certainly address the items on the previous slide, as well as expand some of those general principles to include the obligation for monitoring. “The state’s obligation to evaluate human right to water was a surprise that was in the evaluation criteria for many; we could move that up front so it’s more of a state agency obligation,” he said.
Article 2. Definitions
This article defines the key terms in the regulations. “The nature of comments that were received is that we should add a lot of the SGMA definitions to the regulations,” said Mr. Joseph. “There was a lot of interest that we have a groundwater dependent ecosystem definition in the regulations because it’s mentioned in the Sustainable Groundwater Management Act, and there were a lot of comments that we should remove the coordinating agency definition. I’ll talk about what that means in a later article.”
In terms of revisions, Mr. Joseph said they could add a groundwater dependent ecosystem definition, they could add definition of uncertainty and data gaps, and they could remove the coordinating agency definition. He said they could revise the definition of a management area. “There was a lot of support for management areas, which is looking at your plan area and recognizing that there’s different objectives even within your own plan area, and there were suggestions that we should clarify that.”
Article 3. Technical and reporting standards
This article describes use of best management practices and minimum standards for monitoring sites and other technical matters appropriate to develop or monitor the implementation of a Plan. “The purpose of this article really is some standardization in terms of process so that the Department can do its work to evaluate these plans and make our technical evaluations of sustainability,” he said. “So we have items such as best management practices and other data and reporting standards in this article.”
“We received a lot of comments on this,” he said. “A lot of comments said that best management practices appear to be outside of the intent of SGMA or authorization as it relates to the regulations. A lot of comments said that it’s too onerous for local agencies to prepare BMPs that apply to the entire plan. Others said it’s really confusing because the Department has this obligation to prepare best management practices by the end of the calendar year, and we have currently in the draft regs that they could use ours, or they could use theirs, so there’s a lot of confusion. There’s also other standards in this article that folks that were too onerous.”
As for possible revisions, they could replace BMPs with the monitoring protocols, he said. “The reason for that is that the monitoring protocols are what is listed in the Sustainable Groundwater Management Act, so it would tie it more closely to the Act and still meet the intent that there’s some standardization in terms of how local agencies handle monitoring.”
Commissioner Orth asks about the notion that BMPs are outside of SGMA. “Section 10729(d)(1) talks specifically about the Department publishing best management practices and I think the intent was to provide some guidance or framework for local agencies to reach to, much like we’ve used BMPs in other water management arenas,” he said.
“My comment here is that 10729 is technically outside of Chapter 6, which are the actual requirements for the regulations,” he said. “10729 is the obligation for the Department to develop BMPs, and to your point, absolutely. Those should be used as guidance to help these agencies and stakeholders reach sustainable groundwater management, but the comments from the public is that is really outside of the scope of the actual plan.”
Article 4. Procedures
Article 4 describes procedural and notification requirements related to the submission of Plans and public comment to those Plans. “The nature of the major comments here is that we have a statement in the draft regulations that we suggest that public comments rely on similar scientific information in terms of addressing the content of the plan, and that we were asking that public comments be formed in that manner,” Mr. Joseph said. “Many people interpreted that language as that we were requiring them to provide that information in that format, and we still believe that if we read it carefully, it was a recommendation. However, it’s obviously confusing to many, so it’s spot where we could potentially improve upon.”
Another item within this article requires there be language that ‘certification under penalty of law’ terminology be used and signed off by the submitting agency when preparing a plan. “Many stakeholders feel that that’s unnecessary, the plan itself is a legal document, why do we have some specific legal language requiring they sign they life away in the regulations,” he said.
“As for possible revisions, we could replace or remove that suggestion that public comments rely on similar scientific information; it’s obviously confusing to many and I think there is room for improvement there,” he said. “As for the certification of penalty of law language, we received a lot of comments on this and since the document itself is a legal document, there is opportunity to remove that language.”
Article 5. Plan content
Steven Springhorn, Senior Engineering Geologist, then presented Article 5. “This is a big portion of the regulation,” he said. “It comprises the majority of the requirements of the regulation; it’s really the building blocks of what a plan is. We received the majority of comments on this section.”
Article 5 consists of five sub articles: Subarticle 1 is the administrative information, a shorthand way of the requirements in the section are, who are the agencies that are going to be managing these basin, who are the individuals or stakeholders that they will be communicating with; subarticle 2 is basin setting, which are the characteristics and current conditions of the basin; subarticle 3 contains the sustainable management criteria which is how groundwater is going to be managed and the setting of sustainability goals and other metrics; subarticle 4 addresses monitoring networks and how agencies will monitor success and track progress; and subarticle 5 are projects and actions that are taken by the local agencies to achieve their goals.
Article 5, Subarticle 1. Administrative information
This subarticle addresses who is going to be managing the basin, a description of the plan area, and how communication and notification is going to happen. Mr. Springhorn said the comments on this subarticle fell into three topic areas. “The first topic was on the requirement to demonstrate financial ability of the agency to implement the plan,” he said. “There is a series of information requirements that we’re requesting the agency provide, and there were a range of comments received on this subject, from these requirements are too onerous or speculative to this is a necessary requirement that’s very useful to understand but needs clarification.”
The second topic that received a lot of comments is regarding the coordination with land use planning agencies. “There are a number of requirements to promote that coordination between the GSAs and the local land use planning entities,” he said. “One particular requirement that got a lot of comment was on the evaluation of land use plans outside the basin, and these comments centered on the fact that this a large ask or potentially too onerous, or there is an understanding on the scope of how far to look outside your basin. Is it the next basin or many basins from the basin that’s being managed.”
The third topic is more into the technical nature and addresses what type of information we’re asking for. “The comments were centered on the requirement of producing a map of the general distribution of all wells in the basin and that would be too onerous, not practical, or the cost would outweigh the benefit,” he said. “We also heard comments that this would be a potentially useful tool to understand where groundwater pumping is occurring.”
Mr. Springhorn also noted that there was some global comment on the regulation regarding the use of the words such as ‘all’ or ‘any’. “The comments centered on the fact that taken literally, it’s a very high bar to achieve to find every single well in the basin and that would be hard to fulfill that requirement,” he said. “So based on those comments, we’re considering possible revisions such as keeping the requirement for financial ability to demonstrate that financial ability, but reducing or refining the information that the local agency needs to provide. On the topic of land use, we’re considering retaining this requirement but revising it to this evaluation to be optional, as far as looking outside the basin, if it’s applicable. Then on the use of the word ‘all’, we’re considering removing many of the uses of the word all to make it more consistent with information that the local agency can feasibly collect in these basins.”
Commissioner Paula Daniels asks what they are thinking of replacing it with.
“Just leaving it out, so essentially when it says a map of all wells in the basin, it would be a map of wells in the basin,” responded Mr. Springhorn. “It’s more of a nuance but it’s an understanding that they are going to provide the best available information that’s in the basin, not every single well in the basin.”
Commissioner Daniels counters, “Are we okay with not being able to get at some well information, and make the best effort is made to track it … ?”
“That would be part of the best available information and then our evaluation of the information they provide us, so we’ll still be evaluating the information they provide, and if they feel that isn’t a reasonable amount or they haven’t gone out and actually found the best available information, we can definitely send that back and have them look further,” said Mr. Springhorn.
Commissioner Herrera asks, “You said there is a requirement now that they show that they have the financial ability to implement the plan and that looks like, based on comments received, the Department is considering reducing some of the financial information that’s going to be required. Can you give an example of what the Department was expecting to receive in the way that it’s written now and how that would change if you made the revision?”
“We required a financial plan and the identification of contracts and a number of very specific information up front in the plan,” replied Mr. Springhorn. “We’re considering reducing that to more outcome based. They have to show the financial ability of the agency based on the level of management in the basin, so it would be where they have to show that they have the financial ability to implement the plans or the actions in the plan. It wouldn’t be as specific, because those types of specific elements might not apply statewide, such as contracts or others, and I would need to look at the specific language of the reg, but the intent is to keep the intent of that requirement but refine it to just the critical elements.”
“I too am concerned about the removal of the word ‘all’,” said Commissioner Ball. “My concern is that we have adequate monitoring, that there isn’t a loophole in this, and that we’re not missing something in trying to identify the amount of water coming out of these basins and aquifers. I’d like you to consider maybe a modifier to all, such as all known or all functioning, and certainly in regards to best effort, so you modify that gotcha mentality, but I think there’s a better way than just getting rid of ‘all’, because I think it should be all.”
“I’m going to be the minority view on this,” said Commissioner Orth. “I think ‘all’ is a significant bar. I think it’s important for all of us to keep our eyes on the primary objective of enabling the local agencies to establish the level of information that they need to demonstrate to the stakeholders and the users in that groundwater basin and clearly to DWR that they have sufficient data that they can demonstrate to you that they can manage groundwater sustainably. I don’t think all may be necessary in a lot of sub basins. I liked best available information standard; I think that’s a better standard then establishing this somewhat arbitrary, ‘if we don’t have all the data, then we’re deficient’ standard.”
Article 5, Subarticle 2. Basin setting
Subarticle 2 address what the physical characteristics of the basin and the current conditions are. “The individual requirements are the hydrogeologic conceptual model which are the physical conditions and characteristics of the basin,” said Mr. Springhorn. “Basin conditions are the historical and current conditions in the basin. Water budget is the inflows and outflows and change in storage of the basin, and then management areas are an option for local agencies to divide the management up into certain areas of the basin to optimize management and to address the variability across the basin and across the state.”
Comments on this subarticle addressed four key topics. “The first was clarifying the responsibility to identify, prioritize, and reduce significant uncertainty and data gaps on a broad level, on a plan-wide level, and then on a detailed level in the basin setting,” he said. “With water budget, identifying the uncertainty in the water budget, and the basin setting, knowing that 3D picture of the basin and understanding where there’s lack of understanding of that.”
The second topic dealt with water quality. “The nature of these comments was that the GSP requirements related to water quality are potentially in conflict with existing state, federal, and local standards and programs and laws that are already in place for water quality, and that’s a common theme in the basin setting, the minimum thresholds, and the monitoring network.”
The third topic the comments addressed was water budget. “There were a lot of comments on water budget, many in support and many opposed to the water budget or to refine or reduce the requirements of the water budget,” he said. “And finally management areas, this was almost universally liked. It’s the idea that you can develop management areas in the basin. There were some variations of comments on providing a little bit more flexibility to define these management areas by the locals; based on those comments we’re considering strengthening language requiring the reduction of uncertainty in data gaps at a plan level as well as very detailed parts of the article 5. We’ll look at that in our evaluation of the plans as well.”
“Related to water quality, we’re considering some reduction to the water quality requirements to make sure they are not duplicative or conflicting with existing water quality programs that are already on the books,” he said. “Related to water budget, we’re considering retaining the water budget requirement, although clarifying or editing some of these terms. There is a lot of use of the word ‘all’ in the water budget section, and then clarifying our intent of the information the Department plans to provide and that local agencies will need to use as they are developing their water budget. And then finally, the management area language, we are considering providing a little bit more flexibility in establishing the management areas with the caveat that the sum of the parts have to equal the whole, so we’re still looking for basin-wide sustainability, but if locals are able to optimize management and achieve their sustainability goal, that’s a good thing. We support that.”
Article 5, Sub article 3. Sustainable groundwater management criteria
Mr. Springhorn noted that this is a very important part of the regulation. “It’s complex, and a lot of the complexity has come from the statute where a lot of these terms, such as sustainability goal, undesirable results, minimum thresholds, and measurable objectives, are defined in the Act,” he said. “These are complex in statute and we have tried to develop a regulation that defines the relationship between these key terms.”
Mr. Springhorn then reviewed the key terms. “Sustainability goal is the basin wide goal that these local agencies will set and manage to. Undesirable results are those six elements that need to be tracked, if it’s sea water intrusion, water quality issues, and the rest. Minimum thresholds are the site specific quantification of where you stand in relationship to the undesirable results, and then measurable objectives are site specific goals or objectives that your plan is based on.”
The comments received range from general comments or overarching comments to very detailed comments. “There were a number of comments that were in support of the concepts and the structure of this section, although many comments came in on the need for clarification in language and understanding the relationship between these key terms, such as sustainability goal, undesirable results, minimum thresholds, etc. The comments on the structure were there was support for the local flexibility within the statewide framework that is defined in these regulations.”
A number of comments addressed water quality. “There were a number of comments that suggested rolling back the sustainable groundwater management criteria, especially with thresholds for minimum water quality requirements, but we need to keep that in the regulation as far as a minimum threshold for water quality, because it is one of the undesirable results,” he said. “Then finally, there were comments dealing with the depletions of interconnected surface water. In the current draft of the regulation, there’s a option to have a five year lag time before setting a minimum threshold for establishing depletions of interconnected surface water. The comments on this topic were that that could be problematic when you’re setting minimum thresholds for all the rest of the undesirable results, and you don’t have an idea of what the depletions of interconnected surface water are, and that it would be tough to develop a comprehensive plan.”
“Based on those comments, we plan to maintain the minimum threshold requirements, including water quality, but add some flexibility on what water quality indicators are used; there is the potential to add requirements that minimum thresholds do not infringe on other water quality requirements,” he said. “And we’re considering removing the five year time lag to establish a minimum threshold for depletions of interconnected surface water with the acknowledgement that this is a complex topic and there’s potentially going to be a lot of uncertainty with this undesirable result in particular, and that uncertainty needs to be driven down over time.”
Article 5, Subarticle 4. Monitoring networks
Subarticle 4, monitoring networks, addresses how surface water and groundwater will be monitored in the basin. “This is very closely linked to the sustainable water management criteria because this is how the local agencies will set these speedometers and track progress and how the Department will evaluate progress through time,” said Mr. Springhorn. “This article states the requirements for setting up the monitoring network, the option to use representative monitoring, and then a requirement to assess and improve the monitoring network over time, which gets into the uncertainty and data gaps discussion. Then finally reporting that monitoring data to the Department.”
“The monitoring requirements that are in the current draft of the GSP regulation are potentially duplicative of the monitoring requirements of these existing water quality programs, so based on those comments, we are considering revising the water quality monitoring requirements to make sure they are consistent with these existing water quality programs, and the ability for local agencies to incorporate that existing monitoring network as part of their GSP.”
Article 5, Subarticle 5. Projects and management actions
Subarticle 5 addresses projects and management actions that the locals are going to use to achieve their sustainability goal, to achieve their measurable objectives and to avoid undesirable results, said Mr. Springhorn. “The requirements are to list and explain the projects and the spectrum of progressive actions that the agencies will take based on basin conditions. As part of these projects and actions, there’s a requirement to develop contingency projects and actions which is a part of this spectrum of projects and actions; it’s not a separate plan per se. Because there’s such large uncertainty with even the best plans moving forward, the idea or intent was there’d be some contingency projects and actions that have been discussed and could be relied on when there’s a drought or other emergencies or if lowering of groundwater levels is occurring in the basin.”
A lot of comments were received on this section. “Many people supported the idea of contingency projects and actions with the idea that the discussion of these potentially controversial issues is needed up front while the plan is being developed so they can be pulled off the shelf quickly in the event of an emergency or deteriorating basin conditions,” he said. “There was also a lot of opposition to contingency projects and actions and the nature of those comments were that this is a potentially politically challenging topic – to sit around the table and discuss failure right up front in the plan development when just developing the initial plan is going to be very challenging. Because of the diversity of comments this, we’re still considering how to move forward on this topic.”
Article 6. Evaluation and assessment
Trevor Joseph then returned to the podium to discuss Article 6, which describes methodology and criteria for the evaluation and assessment of a Plan. Mr. Joseph gave a brief overview of the evaluation process. “A local agency will submit a GSP or an alternative, and the first step is what we‘ve set up is a series of pass/fail criteria,” he said. “We call this strict liability criteria, and examples of this criteria are items such as the basin is not covered by a plan or multiple plans, or we didn’t receive the plan based on the statutory deadline. These are strictly pass/fail. If we didn’t receive that information or it doesn’t meet that criteria, it will not be an adequate plan and subject to State Board intervention.”
“Step 2 is the substantial compliance or what we’re calling the substantial compliance evaluation criteria, and this is more of an adequacy criteria,” he said. “There are currently eleven items or eleven criteria within what we’re calling the substantial compliance adequacy criteria. Examples include whether or not the minimum thresholds and measurable objectives are reasonable; other examples include whether or not the plan uses best available information, those types of items.”
“The approach to the substantial approach criteria is critical to understanding how again we’re approaching the regulations,” he continued. “What we meant with the substantial compliance criteria approach is that we recognize that there will not be perfect plans. Plans will not in all likelihood have maybe 100% perfect score, and that there might be some deviations in terms of some of the specific requirements that local agencies provide or approach in terms of plan development, and that might be okay if we look at those evaluation criteria, and even if there are some deviations to some of the requirements, if the plan still results in sustainable groundwater management, that’s the intent.”
Mr. Joseph gave an example, using the hydrogeologic conceptual model. “Right now, we require two cross sections roughly perpendicular to each other. It’s possible that an agency has a different approach that characterizes the hydrogeologic conceptual model, maybe they have advanced geophysics, maybe they have something that we haven’t even seen yet that meets the intent of that requirement, and we wouldn’t want to fail that plan if it doesn’t conflict with that outcome.”
“What’s substantial compliance is not is substantial completeness,” he said. “This doesn’t mean that agencies can omit sections or articles of the regulations and hope that we’re going to deem it an adequate plan. I also want to mention that the Department reserves the right to determine what is substantially compliant, not the local agency.”
Regarding comments on this section, Mr. Joseph said they received strong support and a lot of suggestions for expanding the flexibility of substantial compliance. “We received a lot of comments from folks that acknowledged that they liked this approach generally. We’ve also received some comments that we should remove it; there are concerns in terms of how we’d actually apply it and some are concerned about the flexibility and latitude that that might provide local agencies. There are also comments that we should revise or delete some of those eleven substantial compliance criteria.”
Other comments received on article 6 include comments on the section addressing resolution of conflicts by the Department. “The comments here are that this really is not the Department’s role; that it’s really up to the agencies or potentially the State Board to resolve those conflicts, and that the Department’s role should strictly be more technical in nature in terms of plan evaluation,” he said. “There are comments that we should not be essentially allowed to review plans more frequently than every five years or those interim milestones; that we should not be able to evaluate a plan on a yearly basis or whatever frequency we think is appropriate.”
As for possible revisions, Mr. Joseph said they could maintain the substantial compliance term but refine it for clarity. “There are comments that there’s a lot of qualifying descriptors elsewhere in the regulation, and when you look at those with substantial compliance, it is potentially confusing. There are qualifiers in other sections of the regulations, such as this should be adequate or reasonable or acceptable or significant or all or any, and the thought here is perhaps we strip out a lot of those qualifiers because substantial compliance by its nature allows us to look at some flexibility in terms of the specific requirements of the local agencies.”
He said they could revise the eleven criteria. “There are other items that we could clean up in that evaluation criteria to make it a little more clear, which would support the intent of substantial compliance. We could remove the resolution of conflicts by the Department. I think that from the agency’s perspective, that’s not our role.”
Mr. Joseph said they would probably retain the authority to evaluate plans more frequently than every five years. “I think we could leave that as it is because we don’t know exactly how this is going to play out over time, and the plan evaluation is critical to the success of SGMA,” he said.
The Commissioners then discussed substantial compliance. Commissioner Quintero said, “It seems to me that ‘substantial’ is a qualifying word, and I think it can create some confusion, so I ask that we consider just using ‘compliance’.” Commissioner Daniels agrees with removing the word substantial.
Commissioner Orth says it’s a semantic problem that needs to be clarified. “When you describe what you intend it to be, when I hear ‘substantial compliance’, my brain gets back to the ‘mostly complete’ place. I think we have to figure out how to provide different words, although I appreciate the challenge that presents for you,” he said. “The other observation I would make in terms of compliance is that SGMA sets forth a process for local agencies with robust stakeholder engagement to develop a plan that they locally believe avoids significant and undesirable results in these six categories, so there’s a lot of process that when you determine compliance, you want to make sure the processes have been dealt with. The substance in my mind is more an ability to demonstrate that the process developed the information necessary to demonstrate to you that they are going to operate within my colleagues ‘speed limit’ analogy, so as you think about compliance, I wouldn’t want to stretch to far beyond those two concepts because then you start describing specifically things that the local agencies may be mandated to do, which locally they may decide they don’t have to do and still achieve the goal.”
“This brings up the understandable impression that these GSAs are going to be onerously overseen,” said Commissioner Quintero. “I think that we’re all embarking on a steep learning curve here. And I really hope that we’re able to create the atmosphere of being on a steep learning curve, and that this sort of overview is really about helping to improve and correct operation, rather than to step in and takeaway power.”
“I do think that’s the fundamental concern by the regulated public that these terms are going to be at some point rigidly enforced or rigidly interpreted, and so the idea of substantial compliance may create some confusion but it also may create some comfort that a 100% effort is what’s needed to get there,” said Commissioner Curtin. “I do think that’s the driving factor – that people are concerned that they are going to be regulated to the point that they can’t get there and then somebody’s going to step in.”
Commissioner Herrera agrees that ‘compliance’ is more clear. “I think there is a need to work with the agencies to make sure that they are developing plans that will meet compliance, but in terms of the regulations, that’s the intent. It is a high bar, but I think that was the purpose of passing SGMA was to set a high bar and to create the space for locals to come together to meet this objective.”
“I do like the idea of saying you have to be in compliance, but I understand a bit of the quandary of how do you account for some of the variabilities and flexibilities and not having something where there’s a feeling that there’s a gotcha mentality with the regulators,” said Commissioner Byrne. “I would tend to probably say compliant, and then provide the flexibility within the provisions that are not procedural.”
Article 7. Reports, assessments and amendments
Article 7 describes procedural and substantive requirements for annual reports, periodic evaluation of the plan, and plan amendments.
Mr. Joseph noted there weren’t many comments on this article. “The biggest comment that we received is the definition of the water year should be up to the agency’s determination or discretion as a lot of agency’s use a calendar year or another frequency,” he said. “What we set up in the regulations was a water year, and this gets to some of that standardization so that we have that information provided in these annual reports on the same frequency. Our possible revision is retaining but clarifying why we are requesting that information on the water year.”
Article 8. Coordination agreements
Article 8 describes requirements for coordination agreements between agencies in different basins and between agencies within a basin. Mr. Joseph noted that there are two types of coordination agreements: interbasin agreements which are voluntary agreements between adjacent basins, and intrabasin agreements, which are mandatory agreements between multiple plans within a basin or subbasin.
“What’s in the regulations right now is the requirements for the coordinating agency as well as a coordinating agreement, and that agreement is the document that provides the technical and managerial components and explains how all those plans work together within that basin or subbasin,” he said. “In the draft regulations right now, the coordinating agency is the point of contact, but is also responsible for synthesizing these multiple plans as part of a mandatory intrabasin coordination agreement, if there’s multiple plans in a basin or subbasin.”
For interbasin coordination agreements, which are voluntary, the draft regulation contains a number of items that must be included. “The comment was that we shouldn’t have to do all of those items, we should pick and choose what items are important to us in terms of reaching that agreement. That’s just for interbasin.”
Some of the comments received on this article were that the creation of a coordinating agency is not supported in SGMA and that it creates an unnecessary hierarchical governance structure that’s challenging and unnecessary to create. Other comments addressed the coordination agreements, with some saying it was overly prescriptive, and others saying it was the appropriate level of coordination as intended in SGMA.
As for possible revisions, Mr. Joseph said they can make it clear that for interbasin coordination agreements, any component of the items listed is voluntary and optional. He also said that they could remove the coordinating agency requirement for intrabasin coordination agreements. “We’re less interested in mandating a specific entity to lead that effort. We do think a point of contact should be established with the Department so if there are multiple plans, we can certainly talk to all those individuals in the context of their own plan, but we still think a point of contact is an important component.”
As for the requirements for intrabasin coordinating agreements, the recommendation or the possible action is retaining that, Mr. Joseph said. “We need to have some understanding of how these plans will work together in a basin or subbasin so we can evaluate basin or subbasin-wide sustainability, so that the possible recommendation is retaining but clarifying that back to SGMA a little bit more clearly.”
Article 9. Alternatives and adjudicated areas
Article 9 describes methodology and criteria for the submission and evaluation of alternatives to a Plan and for adjudicated areas.
Some of the comments here centered around the term ‘functional equivalency.’ “There are different forms that a local agency can use to submit an alternative, it can be an existing groundwater management plan, it could be a new adjudication, or it could be an analysis that the basin is sustainable for a period of ten years,” explained Mr. Joseph. “This all has to be done within six months of the adoption of the regulations, so it’s a short time frame. The functional equivalency allows these local agencies to explain how that alternative fits and is equivalent to the requirements in the regulations. There were comments on the terms and how that’s actually going to work for these local agencies, and if they can actually complete that by the January 1, 2017 deadline is unclear.”
There were also comments that the alternatives should really only be evaluated based on SGMA and not the regulations. “SGMA doesn’t have evaluation criteria for alternatives, but the comments are that the alternatives should just be evaluated based on what’s provided in the SGMA,” he said. “What we currently have in the regulations is that it will be evaluated based on the act and the regulation criteria.”
Other comments addressed the option of the ten years analysis of sustainability. “In the regulations we constrain that to 2005-2015,” he said. “The point here is that those were some drought years obviously in that time period, and that’s a pretty difficult time period to show sustainability for these local agencies.”
Mr. Joseph than ran down the list of possible revisions. “We can add some clarity on that functional equivalency language, as we do think that’s a good approach to enabling these entities that are interested in alternative to provide information by this time period. We could maintain the evaluation criteria that these alternatives are evaluated based on both SGMA and what’s in the regulations, those 11 criteria and the pass fail criteria. And on the ten year period, we could allow some flexibility here, and leave it a little bit more to the agencies discretion as to what ten year period they would like to choose, do they have data to substantiate that ten year period, but it has to be presented with current conditions, so we can see what’s happening currently for the purposes of our evaluation.”
General or non-regulatory comments
“We did receive many letters stating appreciation for the numerous stakeholder meetings and the transparent process in developing the regulations,” he said. “There are a lot of general concerns that the regulations are too prescriptive and will create challenges for the development and then implementation of these plans, and then there are concerns about the cost to implement these groundwater sustainability plans.”
“We recognize the plans will improve with time,” Mr. Joseph said. “I think that’s something that we’re trying to reflect in the regulations, also in the general principles. It gets to substantial compliance. We’re not looking for approving plans that are omitting information, but we do recognize that this will evolve and plans should improve with time. We’re committed to providing technical assistance, and financial assistance; there’s $100 million in Prop 1 to get some of these plans partially funded. I know that’s not enough and there will be costs to implement them, but the Department is obviously committed to aligning our technical assistance and some of our funding programs to aid in this effort.”
Mr. Joseph concluded by reminding stakeholders that there will be a lot of edits in this document. “In terms of next steps, we hope to be back in front of the Commission next month with a draft final document. We hope to have that document in the early May time frame, because we still need to try to complete all this work, but we hope to have that document out. And then there’s the June 1st legislative deadline.”
“And with that … “
After hearing public comment, David Gutierrez returned to the podium to give some concluding remarks. “I think you got a good flavor of what we’ve been through over the last six months to a year. You have very intelligent people with very well thought-out comments and we have to continue to appreciate those kind of comments that has really helped us along the way,” said David Gutierrez.
He then addressed the substantial compliance issue: “First of all, some of the statements you’ve heard today is ‘we need to be flexible’, ‘don’t over burden’, ‘one size doesn’t fit all’, ‘rigid regulations will be an overburden’, ‘results are what we need’, ‘be as efficient as possible’, ‘limited resources’ and the list goes on and on and on. This gets to substantial compliance or compliance, however you want to look at it. It is kind of a semantics type of an issue here. But it’s an important one. It’s important for us to be very clear on what we’re trying to achieve here, so we’re certainly going to listen to what the Commission had to say, as well as what the public has to say, and we’re going to be very close in how we define this very important term.”
“We need to keep in mind that what we don’t want to get into is a strict liability issue,” Mr. Gutierrez continued. “We have a very complex system here and we’re going to have to rely on DWR’s professional judgement as well as the local agencies professional judgment as we work together towards and keeping an eye on the ball, and the ball is sustainability. Of course we have to balance that; we have a crisis in certain areas, so we definitely have to be as transparent as possible, make sure that everybody, not just DWR and the local agencies, understand the direction that we’re going. At DWR, our vision is to immediately start working with local agencies as soon as those GSAs are formed. We’re going to start working with the GSAs immediately so that there are no secrets, so that they understand the grading policy up front. Our goal is that when we get to 2020, we have 100% successful plans. Maybe we won’t get to 100%, but that’s what we’re going to strive for, and the way we strive for that is we work with local agencies up front and often and all the way along the road.”
New Groundwater Sustainability Regulations released …