The importance of governance and institutional design for achieving groundwater sustainability in California

Groundwater pump

Dr. Michael Kiparsky briefs the California Water Commission on a new report on designing effective groundwater sustainability agencies

Designing institutions for sustainable groundwater management is one of the most pressing challenges for SGMA implementation.  With the recent passage of the Groundwater Sustainability Plan regulations, the task of successful implementation of those plans rests in these now-forming Groundwater Sustainability Agencies.  These agencies must be effective if sustainable groundwater management is to be achieved.

Report Cover Designing Effective GSAsDr. Michael Kiparsky is the director of the Wheeler Institute for Water Law and Policy and co-director of the UC Water Security and Sustainability Research Initiative, and is a co-author along with a number of other national experts on the report, Designing Effective Groundwater Sustainability Agencies:  Criteria for evaluation of local governance options, that addresses the importance of governance and institutional design for achieving groundwater sustainability in California.  At the May meeting of the California Water Commission, Dr. Kiparsky presented some of the findings of the report, and shared his thoughts.

Here’s what he had to say.

The Commission is well aware that California’s groundwater is threatened and that unsustainable use is causing impacts in groundwater basins around the state,” began Dr. Kiparisky.  “The Sustainable Groundwater Management Act represents a beacon of hope with the potential to effect profound change in how California manages its water.  But the law leaves crucial questions unanswered.”

CWC Michael KiparskyHe then gave his major takeaways:

First and foremost, governance and institutional design will be crucial elements for achieving groundwater sustainability in practice.  “In spite of the technical focus for the regulations, this first phase of SGMA implementation is heavily dependent on the formation of new institutions.  If GSAs do not have the ability to function effectively, they cannot possibly accomplish the substance of their work.”

Second, the opportunity exists to make sure that the experience of the early years of SGMA is not conducted in a vacuum, but instead that it’s captured and shared appropriately to foster joint learning and more rapid progress on institutional design throughout the state.  “As stewards for California’s water, the Commission along with the Department would do well to take a leadership role in tracking and evaluating how GSAs are forming as well as in providing information to help GSAs do so in ways that are both effective and fair.”

Third, the Commission and the Department can also look forward to opportunities to revisit the regulations with some governance principles in the future.

With flexibility comes risk,” he noted.  “Dozens of new GSAs will have the unenviable task for achieving groundwater sustainability locally by 2040.  The law does not specify how these agencies should be structured, what exactly they must do, or how they must do it.  As we know, SGMA’s authors wanted to leave room for creativity, and for adjustment to local context.  One result is that local entities face questions about governance and institutional design.”

The same flexibility that holds the promise of local optimization and efficiency also introduces risk,” he continued.  “To put it directly, from a governance perspective, the potential exists to create paper tigers that go through the motions but ultimately fail to achieve the goals of SGMA.

The governance decisions being made today by the local entities forming GSAs will have long-term consequences and thus are vitally important to the success of SGMA, he said.  “Our research developed a framework for good governance by drawing on extensive scholarly work on common pool resource management, on experience and resource management in groundwater and other natural resources and of course, on legal analysis.  The bottom line is that if GSAs are to succeed, they will need to be both effective and fair in their operation.”

GOVERNANCE CRITERIA

The framework developed by their research describes nine inter-related and mutually-supporting criteria for governance to support these goals.

Authority, capacity, and funding

Even the best plan will not be worth the paper it’s printed on if the agency is not capable of actually implementing it,” he said.  “Indeed, unimplemented plans litter the natural resources management landscape.  GSAs need to develop expertise, including from modeling and data analysis but not limited to those, or obtain outside assistance.  Developing this capacity will be expensive and challenging.  Further, many GSAs will need to impose restrictions on groundwater pumping – that will not be universally popular among stakeholders in those basins.  At the same time, GSAs will need to generate funding to support their activities, so in sum, success will require strong agencies with adequate technical legal and financing tools, coupled with sufficient authority to make and enforce the difficult decisions that await them.”

Gray Lodge Wildlife Area in Gridley has groundwater wells that are pumping water to flood fields and supply water for waterfowl.

The regulations require plans to provide some degree of information about governance and they focus on funding and legal authority.  “This is important beyond the surface level of allowing DWR to evaluate GSAs as institutions; it provides an opportunity for some self-reflection if you will, by GSAs or prospective GSAs,” he said.  “Some might determine through the process of collecting this information and thinking through these questions that they might be unable to muster the resources to carry out the tasks that will be required of GSAs.  Some may realize that their interests might be better served by a different approach or even by consolidation.  This kind of learning and acting accordingly could save a lot of pain if it’s done earlier rather than later.”

This work needs to start happening now, Dr. Kiparsky said.  “Think of it this way.  SGMA implementation is like a sailing race.  In a sailing race, there’s a starting line, and the boats try to sail towards the line such that they are heading full speed across it at the moment that the race starts.  For SGMA, the starting line is the time of GSA formation.  The run-up in this analogy is the pre-work of developing the institutions.  Local entities that don’t get this running start – and some are and some are not – will be hamstrung by lack of capacity when the implementation period truly begins.”

Many of the local entities realize this – you can tell by how hard some of them working to put GSAs in place, he said.  “The commission can recognize and support broadening these kinds of efforts in tangible ways.  Looking forward, information on governance has great value to the extent that it can enable local entities to learn from each other’s experiences.  The Commission may find it wise to consider requesting a study to track, digest, and share information on GSA formation during those first crucial years.  The goals of the study would be to allow the Department, the State Water Board, and the public to evaluate institutional capacity as it develops around the state, but also to enable information sharing about creative ideas and what is or is not working in various contexts.”

We have a lot to learn in this short time, and done well, information sharing could foster collective learning and help avoid a situation where multiple GSAs simultaneously try to reinvent the wheel in isolation,” he said.

2-Scale and the need for transparency

Ideally, in a common pool resource management situation like groundwater, decision making entities would match their jurisdictional areas to the scale of the resource being managed.  This would help to avoid conflict, reduce transaction costs, and increase effectiveness,” he said.  “This does not seem to be how things are shaking out in many areas of the state.  For groundwater, transparency is particularly important because the full effects of near-term decisions may not be readily apparent for some time, but the decisions still require information and analysis now.  This tension is particularly acute, given the need for effective coordination, including for technical consistency between multiple GSAs in a single basin.”

The regulations allow the Department to request data input and output files for models from the GSAs, but it is unclear whether the data will be made available to the public under the regulations, he said.  “In effect, the regulations give the Department significant discretion over data transparency.  With due respect to the great work the Department is doing in this administration, the reason for cementing discretion about transparency for this and future administrations is not clear, particularly given the importance of transparency over the long run. The Commission and the Department should reconsider and address this particular deficiency in the regulations.”

3-Accountability

Accountability is being answerable for decisions and for their impacts,” Dr. Kiparsky said.  “In a multi-layered governance system like that what is envisioned under SGMA, accountability needs to run in multiple directions.  GSAs should be accountable to the Department; this is the piece that the regulations do address.  However, GSAs should also be accountable to stakeholders in the basins they manage, as well as to stakeholders in related basins and ultimately, to the State Water Resources Control Board as well.”

Kern Water Bank Groundwater Pump smallerThe Department should also be accountable to the people of the state for how it carries out it the work of SGMA implementation in some way, he said.  “One concrete opportunity for increased accountability can be found in the periodic updates to GSPs that are enabled by the regulations.  High priority basins will need to put their governance structures in place quickly and that’s understandable; however, they will have the opportunity at any time for adjustments, which may be potentially major ones through planned amendments; in addition, self evaluation is required at least every 5 years.

While the Department will accept public comments on plans submitted for initial approval, Dr. Kiparksy said in his reading of the act, they do not indicate the opportunity for public comments on amendments to plans.  “I recognize that no plan would be the worst kind of plan, so we’re glad to see the SGMA implementation process moving forward and doing so quickly.  But since everyone is new at this, it will be important to reevaluate individual plans and also the process by which they are approved as time goes on and experience develops.  In addition, there will be opportunities to clarify the understanding of what is meant by substantial compliance and other elements of the regulations.  So comments and as warranted periodic revisiting of the regulations will be an important part of enabling institutional adaptation, and doing so in a way that respects the need for both consistency and accountability in institutional change.”

REVISITING THE REGULATIONS

In terms of revisiting the regulations, we understand that there are concerns among all parties about how these regulations will play out in practice,” Dr. Kiparisky said. “SGMA directs the Department to develop regulations that shall address evaluating the implementation of groundwater sustainability plans and shall identify other information that will assist local agencies in developing and implementing GSPs and coordination agreements.  We noted that the current regulations focus on evaluating GSPs and identifying necessary plan components, but they place much less emphasis on implementation and the other information that may be necessary, which could include elements of governance that would help GSAs to actually do what they need to do.”

The legislature exempted these emergency regulations from the usual sunset provision; however, SGMA suggests that convenient timing for a near-term potential update, he said.  “The law specifically draws the Department’s attention to the possibility of incorporating the best management practices we heard about earlier by January 1st, 2017.  If the Department does so, it would provide an opportunity to update the GSP regulations early in that year.”

Dr. Kiparsky noted that the Commission has the power to advise the Department to revisit the regulations and to make recommendations for areas that need specific attention.  “While we celebrate your milestone of these new regulations, we can also begin to look forward to the potential to adjust and improve some of the elements related to governance for the benefit of GSAs and for the state as a whole,” he said.

IN CONCLUSION

To conclude, we are in an exciting and transitional moment for California,” Dr. Kiparksy said.  “The state has the opportunity to move from the position of national laggard in groundwater to take its rightful place as a leader in this area.  The challenge will be to actualize the promise of SGMA and governance will be a crucial determinant of whether the law succeeds or fails. If you come away with one thing from my remarks today, I would ask that it be this: Governance and institutional design of GSAs is crucial for realizing the potential of SGMA; without effective governance, even the best plans will have limited value.”

Accordingly, I hope the Commission will track and evaluate and share lessons learned about the development of GSAs during the crucial months ahead so they can cross the starting line with their institutional sails full.  I commend the Department and the Commission alike for your leadership as you strive to tailor groundwater management to California’s unique circumstances and so doing, set a new standard for others around the country to follow.”

Thanks for the opportunity to engage with you,” he concluded.

CWC OrthCommissioner David Orth then gave his comments.  “I would agree that governance is crucial; there’s a tremendous amount of activity in the 127 basins in trying to get their arms around some of the issues. … There is not by statute a role for the water commission in overseeing the formation of GSAs in my opinion, but that doesn’t mean that we shouldn’t take an interest in it.”

You talked about risk of paper tigers and failure to implement, and I think that conveniently ignores the reality that the local agencies have a choice,” Commissioner Orth continued.  “They either implement locally or the State Water Resources Control Board implements for them, and that’s the bigger risk.  The bigger risk is not that that we’re not going to achieve sustainable groundwater management; the risk is that it’s going to be attained by a regulator, rather than a group of local interests that figure out what is important to them and their objectives.”

The other thing is that I don’t believe that BMPs have to be incorporated into the regulations,” Commissioner Orth said.  “I don’t believe that’s what the statute says.  I’ve asked that point of DWR.  Now DWR may very well come back and propose that and then we’ll have to make that decision, but let’s recognize that’s not a requirement of SGMA.  SGMA just says that they publish BMPs on a website and they become tools that the local agencies use in achieving groundwater sustainability.  Thank you; those were good comments and they do identify a number of areas of concern that local agencies that are struggling with and I think this can be helpful as they work forward.”

CWC Kiparksy 2Dr. Kiparsky said, “I agree and I’ll point a couple of things in statute.  Cal Water Code 163.5 states that the Department shall furnish to the Commission at its request such assistance including technical, legal, and clerical services as is required to the extent funds are made available therefore so that could be interpreted rather easily to be a door for the Commission to request studies of various kinds, should the Commission take the initiative.  You’re absolutely right that the statute doesn’t give Commission any power to ask for the reopening and reconsideration of the regulations in any formal way, but nothing precluding you from asking.”

As far as the State Board’s backstop, that can be considered a risk if you are a local entity who wants to maintain control.  The fact is that we don’t’ know and to my knowledge, the State Board has not signaled clearly how it will interpret or carry out or even decide when and whether to invoke that responsibility as backstop, so that’s an uncertain thing that I would argue is more uncertain as to how and when that would start as to how that would play out.  That in and of itself might be an argument to pay attention not only to the GSAs and there are many of them who are getting that running start with their sails full, but to ask whether there are others that might not be.”

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