Groundwater managers across the state are looking to groundwater recharge as a potential solution to their community’s water challenges. However, there are concerns about how groundwater recharge in the age of SGMA actually works and how to ensure sufficient instream flows to protect those beneficial uses.
Stacey Sullivan is the Policy Director at Sustainable Conservation, a conservation organization that works collaboratively with a range of partners in order to solve difficult environmental problems. Sustainable Conservation has been working on groundwater recharge in the field and primarily with on-farm recharge since 2011, as well as in the policy area.
Mr. Sullivan noted that although there is a DWR logo on the slides, he is not representing DWR. He has been participating in the Flood MAR Research Advisory Committee, his presentation will give an overview of what Flood MAR is and it has accomplished thus far.
Flood MAR is defined as using high flows for managed aquifer recharge on ag lands, working landscapes, and natural managed lands. Mr. Sullivan first explained what Flood Mar is not:
First, Flood MAR is not SGMA. Obviously there’s a relationship between Flood MAR’s goals and SGMA, but Flood MAR looks to have a much wider scope of activity that covers the entire state and deals with recharge for multiple benefits, including flood management and habitat as well as water supply itself.
Flood MAR is not nor is it intended to be a DWR program. DWR has been the organizing force so far, but the intention is that FloodMAR will become a multi-stakeholder enterprise that provides a range of information for stakeholders on research data and tools that will make individual recharge projects more successful.
Flood MAR is not about creating and implementing individual projects; that’s going to be up to others, he said. Flood MAR’s goal is to provide guidance and tools to the people who are going to be doing those projects to be able to do them successfully.
Flood MAR is not is a one-size-fits-all approach to recharge. The idea is to realize the full potential of recharge while protecting water rights and environmental efforts. Mr. Sullivan said it’s going to take a lot of efforts in a lot of places at a wide range of scales, from single fields to watersheds.
Flood MAR can take many forms: setback levees, recharging on active farmland, large-scale projects on fallowed or converted ag lands, and urban projects. It can include reservoir reoperation, headwaters restoration, and a number of other projects.
The initial impetus for Flood MAR came from DWR, who coordinated a Research Advisory Committee consisting of people with various ranges of technical knowledge about groundwater recharge and policy. The idea was to develop decision support information, identify gaps in knowledge and data, and to recommend tools and strategies that can be pursued in order to fill those gaps.
There have been some pilot projects led by local property owners and agencies that are providing information and allowing strategies developed by the Research Advisory Committee to be tested in the field.
They began by breaking down the subject into implementation factors, which were the basic questions that someone wanting to do a recharge project should be asking themselves and seeking answers from the appropriate authorities. Underneath each implementation factor are the different aspects that were identified as things that should be investigated in order to thoroughly answer the questions. The list has changed and will continue to evolve as the process continues.
“Recently, at the last meeting of the Research Advisory Committee, it was recognized that political support was an important thing to add to this list as well,” said Mr. Sullivan. “We’re talking about political support, not just from Sacramento in terms of the budget or the legislature or the administration, but local government support as well. In some ways, that’s actually going to be more important in a lot of these contexts.”
He acknowledged that it’s not a sequential list and not all of these subject areas or questions are going to be applicable to every project that comes along, but it helps identify the areas that the Research Advisory Committee will be looking into. From that, 13 subcommittees were created to break the range of issues into smaller pieces to focus the experience and the knowledge of the participants in the Research Advisory Committee.
The subcommittees were co-chaired by a DWR staff member and another co-chair from outside of DWR. The role of the subcommittees was to look within their particular subject area and identify the gaps in research, data, and tool needs. That process resulted in each subcommittee identifying ten gaps which were considered to be the most important. The subcommittee further refined that by identifying three priority actions. That gave a total of 130 gaps identified and 39 priority actions.
Mr. Sullivan was a co-chair of the Policy and Legal Subcommittee. “The priorities we identified were basically ascertaining what water is actually available for recharge after water rights and environmental needs are accounted for. That is knowledge that we don’t really have right now and we feel it’s a priority in terms of obtaining.”
The 130 identified gaps were then sorted into the eight implementation factors, and the result is the Flood MAR Research and Data plan. The plan is currently under internal review by the subcommittees and is scheduled to be posted at the end of September with a formal roll out at an event scheduled for October 28 and 29. The first day will be devoted to the scientific questions and the second day to larger policy questions and further actions that need to be taken.
After that meeting, the next step is anticipated to be the formation of a large committee to prioritize the priorities. “With thirty-nine priorities and eight implementation factors, as we try to figure a strategy for moving forward in making recharge a valuable tool in water supply, flood management, habitat, and even water quality in some cases, what out of those should we be paying the most attention to?,” said Mr. Sullivan. “Water management practitioners will be involved, members of the community including we hope a wide range of representatives from disadvantaged or impacted communities would be part of that, and advocates, and we hope that really turns into a robust discussion of how to actually move forward, once these technical tools and gap filling efforts have been put in place.”
Mr. Sullivan closed by noting that in the course of reviewing this material, both he and his colleagues were struck by the fact that communities had not been engaged up to this point. “One of the explanations for that, I believe, has been that the focus has been on dealing with these more technical aspects of the questions raised for the Research Advisory Committee,” he said. “That being said, I individually in our group feel that has been a weakness and we’re very definitely looking forward to the committee process as a place to redress that and to bring that dimension of the issue into full engagement with Flood MAR.”
Jennifer Clary asked if the research had been funded, and if there was a timeline for conducting it. Mr. Sullivan said that there has been funding available for the Research Advisory Committee process, but no funding for the research at this time. “The funding is not just coming from DWR. We’re hoping that it comes from other agencies, but also entities outside of government who have an interest in achieving successful groundwater recharge. The hope is that at least some of that funding will be identifiable and in place by the time of the roll out in October. Certainly in 2020. But it is all at a formative point right now.”
He began by pointing out that the Environmental Flows Workgroup and the underground storage water rights are two distinctive efforts that the Division of Water Rights are working on; they have different objectives and different staff working on them. However, they are all working under Erik Ekdahl so they are coordinating and discussing different thoughts and different pieces of the relative programs, but they are definitely not the same.
The Environmental Flows Workgroup was recently formed with the mission to ‘advance the science of environmental flows assessment and its application for supporting management decisions aimed at balancing natural resource needs with community water uses.’ The Workgroup members include the State Water Board’s Division of Water Quality and Division of Water Rights, Department of Water Resources, Department of Fish and Wildlife, US Forest Service, the Fish and Wildlife Service, and USGS, as well as others.
One objective of the group is to develop a clearinghouse for tools and data related to environmental flows, such as datasets where environmental flows have been established, the different types of data that may be used to develop new environmental flows, and other types of information that can be used to plug in into a consistent and defensible framework.
Mr. Boland-Brien noted that the Workgroup is not establishing environmental flows or prescriptive guidelines as part of the effort, nor are they developing policy recommendations. Rather, it is more of a forum so that the different agencies working on this topic can combine their thinking and make sure they are on the same page as they proceed in their individual efforts. “It’s really the forum for these different agencies to have a nexus to the question of environmental flows and to gather, share notes, and try to come up with a consistent and defensible framework for developing environmental flows,” he said.
The Environmental Flows Workgroup meets quarterly and the meetings are open to the public; the next meeting is scheduled for November 12. The group is included under the umbrella of the Water Quality Monitoring Council and has two co-chairs, Dan Schultz with the Division of Water Rights and Robert Holmes with Department of Fish and Wildlife.
Underground storage water rights permitting
If you are diverting water from a surface water body to recharge groundwater, you will need a water right. In the parlance of the State Water Board, the term for this is ‘underground storage’ because that’s the framework provided by California water rights law. Other Western states call it conjunctive use, some call it recharge, but the framework from the water rights side is underground storage.
Temporary or standard water rights permits
Currently, there are two ways to get authorization to divert water: a temporary permit or a standard water rights permit.
The temporary permit lasts for 180 days. There are specific findings that the water code and the statute lay out: The Board has to find there’s no unreasonable effect on fish or injury to other legal users of water, the applicant is demonstrating an urgent need, and the process is subject to the California Environmental Quality Act. There is a noticing process and parties have an opportunity to submit objections to the temporary permit. Because it’s based on an urgent need and lasts for 180 days, a temporary permit doesn’t have the same criteria as for standard water rights and so the processing is typically faster, he said.
The more traditional process for obtaining the authorization for a permanent project to divert water is to get a standard water right which is permanent. With a standard water right, the filing secures a priority date for the project. If you have an permit for appropriation of water, the priority date secures your spot in line for when there’s isn’t enough water for everyone; the priority date determines who gets shutoff and who does not. So when you file for a standard water right, it’s permanent and you secure a priority date that you can use relative to others.
For a standard water right, the Board has to make a finding that there’s unappropriated water available. A standard water right is subject to CEQA. It’s also subject to noticing and protests which have to be resolved before a permanent water right can be issued. Typically processing of water rights is slower, usually on the order of years.
Streamlined process for diverting high flows
The Division of Water Rights has been working on developing a streamlined water right process for diverting high flows. It’s a subset of the standard water right process so it would be a permanent water right and would be subject to the same statutory and regulatory requirements as normal permit processing.
“We’re not changing the law or anything on this,” said Mr. Boland-Brien. “What we are doing is clarifying how to expedite these applications, how we’re going to prioritize our efforts, and what could help us prioritize our efforts when processing these applications.”
The concept of streamlined permitting can be broken down into a few different pieces: Applicability or eligibility, simplified water availability analysis, some accounting concepts, and possibly doing some umbrella permitting to facilitate a bit of scalability in Flood MAR efforts. He discussed each of these areas in turn.
If the project is located in a Bulletin 118 basin, the applicant is a local agency or a groundwater sustainability agency, if the applicant uses a simplified methodology for the water availability analysis, if they’ve completed the environmental documentation, and they are only proposing to divert flows during the winter months where flows are typically higher, this can help speed up some of the processes as it addresses some of the typical delays in the processing time on our side, said Mr. Boland-Brien.
Streamlined water availability analysis
The USGS calculates hydrographs for their stream gauges based on 30 years of data. So in addition to criteria and thresholds for showing high flows are present, the applicant would propose to only divert flows that are above the 90th percentile flows and only proposes to divert 20% of the flows during this period.
“What that means is when there are high flows, the project will still bypass 80% of the flow,” said Mr. Boland-Brien.
He explained that the 80%/20% comes from a paper written by Brian Richter, formerly with The Nature Conservancy and who has been involved in fisheries issues for a long time. “He came out with a presumptive standard for environmental flow protection,” said Mr. Boland-Brien. “It’s a paper from 2011 and it’s still something he stands by. We need some sort of simplified approaches for developing environmental protections, and within that paper is where we got the 20% from. If you’re diverting 20% of the flows, you may see some changes in structure but minimal changes in ecosystem functions.”
The applicant would do still have to do the analysis to compare the 90th percentile number from the USGS against the existing demands and the environmental needs in the watershed, so if there’s any instream flows that have been established or any other decisions or orders that the Board has done, they’d compare those against the 90th percentile just to make sure that the 90th percentile threshold is much higher, he said.
An alternate pathway would be to show that water’s available and that the project will only divert when there are flood conditions threatening health and safety.
Mr. Boland-Brien presented some graphs to demonstrate how this would work. The gray shows the 0-th percentiles as calculated by the USGS; the blue bars are the flows that would have to be bypassed by the project, and the orange are the flows that could be diverted in this instance.
“In a wet year, there would be opportunities to divert flows and then in a dry year, you can see all of the flows are lower than the 90th percentile and so the project wouldn’t be able to divert anything,” Mr. Boland-Brien. “It wouldn’t be something that’s used every year, but only when there are wet periods that you’d be able to take the tops of the peak flows.”
Use and storage accounting
Water rights have to have a beneficial use, so Mr. Boland-Brien then gave some suggestions on how to show beneficial use. “It can be integrated with the SGMA effort a bit, and so it’s accounting for how much water is left underground, how much is withdrawn – that type of information that a groundwater sustainability plan would be collecting and is something that could be relied on for this part of the annual accounting and reporting requirements that come along with having a water right.”
The SGMA statute states that Groundwater Sustainability Agencies (GSAs) can acquire surface water rights, so if a GSA were to obtain one of these permits, they could have many points of diversions and administer the landowner process of who is diverting water on their fields on any given day, he said. He noted that the GSA would still be responsible for meeting the protections and terms and conditions of the water rights that was issued by the State Water Board.
Timeline for rollout
Mr. Boland-Brien said they are working on finalizing the materials and getting the website ready, so rollout is expected in November. “This process is not a change in regulation, it’s a change in how we’re prioritizing our workloads and so it is going to be a case by case and it’s going to be something that we’re going to be working with people along the way,” he said. “No one’s filed for this yet under this streamlined water right process, and so it is going to evolve a bit as we go along and learn how well it works for everyone.”
Jennifer Clary asks how many California streams and waterways have the necessary data. Mr. Boland-Brien acknowledged that it’s not all of them. “As part of this package of materials, we’re going to have a guidance document on the water availability analysis specifically and so there are options for combining different gauges or looking at a nearby gauge if your water source doesn’t have a USGS gauge on it with 30 years of data.”
The last speaker was Pablo Garza, California Political Director for the Environmental Defense Fund, a non-profit whose work in California is focused on implementation of the Sustainable Groundwater Management Act, among other things.
One policy issue has been defining groundwater recharge as a beneficial use. Mr. Garza presented a slide with Water Code Section 1242 which is the current law dealing with diversion of water for underground storage, noting that it allows you to divert water for recharge or storage if you designate a beneficial use for how that water would be used when it’s pumped back up; it does not recognize leaving recharged water in the aquifer as a beneficial use.
There have been a number of legislative proposals that have come forward over the years to try to address the issue; so far, none have passed.
“I’ve heard the past few years from different stakeholders that if we make this small tweak in the law that has broad implications and allows underground storage or recharge to be a beneficial use, these projects will start happening and it will be very easy,” he said. “I take issue with that. I think this issue is more of a red herring than a real barrier to giving more groundwater recharge done. There have been a number of reports; when you look at these efforts, there are a lot of issues from accounting to infrastructure to water availability that really I think constitute more important barriers. My bias obvious is to not mess with this section of the law because of the potential for perverse incentive with that.”
Groundwater recharge permitting is another policy issue that has been discussed. Acquiring a new water right is a costly and lengthy process. Currently, there are only temporary 180-day permits and the standard water right permit which is permanent. In the recent legislative session, the legislature passed AB 658 which is awaiting the Governor’s signature. The bill would create a five-year temporary urgency permit to divert water during times of high flow events; the permit includes protections for downstream water right holders to make sure water quality objectives are met and to protect fish and wildlife and other beneficial uses. The permit will have to go through CEQA and also has a provision requiring that the diversion permit is consistent with the local groundwater sustainability plan.
During the drought, Governor Brown signed Executive Order B 39 17 in April of 2017 which required a number of things, one of them bring prioritizing temporary groundwater permits and directing the State Water Board and other agencies to try and get these projects done. It also exempted temporary permits from CEQA. The order was first issued in 2015 and reissued in 2017 and is currently still in effect for temporary permits. So far, nine permits have been issued, four of those to the Yolo County Flood Control and Water Conservation District.
When we have a really wet year or a wet winter and high flow events and atmospheric rivers coming at us, we want to be prepared to divert water, put it on fields or in recharge facilities so we can recharge our aquifers and save that water for a later date when its dry or address subsidence issues. However, Mr. Garza noted that during the very wet year of 2017, there were only two of these temporary permits in place.
“It just suggests to me that we weren’t taking advantage of the opportunity,” he said. “We need to do better going forward, particularly given the hydrology of our future – wetter winters, less snowmelt, drier droughts, longer droughts, so we’re going to have to use this recharge as a tool to take water when its available while we’re protecting all these uses and store it for later use when we’re approaching scarcity.”
Question: Regarding the streamlined water availability analysis and the health and safety option, what does it mean to threaten health and safety and who decides when that point is reached?
“We’re trying to create the space there for the option of a health and safety trigger, but here in the Division of Water Rights, we are not experts in flood control, so we’ll be looking to flood control agencies to give us input on that,” said Amanda Montgomery, State Water Board. “Even the Flood MAR people might have some thoughts focused on flood actions. The Water Board is not involved in flood control actions is because taking water out of a channel simply for flood control is not a beneficial use, so they don’t receive water rights permitting. When they are taking it out for flood control and then they also put it to underground storage and use it for groundwater recharge, then suddenly we’re triggered. We have a fact sheet that we developed about six months ago on that.”
“For this, we’re thinking of situations where a diverter decides that they are going to be diverting out of a channel basically at the time downstream there is a health and safety event happening, we would be looking to the local flood control agencies to make that call, so it would be on a real-time basis … They would have some sort of written documentation ahead of time that they would provide to us but really on a case by case basis, we’ll see how this work. We’re creating a space for it in our proposal, but that’s the idea behind it.”
Question: How does this work in conjunction with large-scale hydrologic measures, like the CDEC flows, Delta outflow, 8 river index, and balanced Delta conditions? Is this restricted to those groundwater sustainability agency boundaries?
“For all water rights permitting actions, we have to consider the downstream flowpath and the impact to the existing senior diverters and to instream needs that are along those flowpath,” said Amanda Montgomery (State Water Board). “If these are happening in the Sacramento-San Joaquin watershed, then obviously the projects are at the bottom and there are senior diverters and instream needs along the way, so they’ll have to be looking at that. Generally, there’s a couple of ways to address it. One is that the 20% of the 90th percentile approach is generally very protective, so we’re really talking about the very top of the hydrograph anyway when there’s very little chance for injury, but there are also the other procedures where they are going to look and see how much senior demand is occurring during that window and what do we have on the books at the Board for instream flow needs.”
Sam Boland-Brien added, “There’s a potential for effects between wherever the project and the diversions are and in the Delta, so that’s where the 20 percent number is coming in to ensure that we’re not causing any damage to the environment or ecosystem functions of these high flows. What’s likely to occur is that within each of these water rights, they have terms and conditions, and some of the conditions may be if the project is in the Sacramento-San Joaquin watershed, that there would be some kind of bar in addition to the flows being above the 90th percentile that the Delta outflow is sufficient to demonstrate that all of the demand from Delta water users is being met, and so there are simple metrics like that that may need to be layered on just to make sure there’s no injury occurring.”
“If you look at our temporary permits that we’ve issued, those that are in the Sacramento-San Joaquin watershed have already included conditions like those, we coordinated with the projects, DWR and USBR, before we developed those terms,” said Amanda Montgomery.
Question: Another concern that’s been expressed is that flood flows are an important part of maintaining a watershed and stream flows. How does the method you described address the need for flood flows?
“The way it is being addressed is through this concept of only developing 20% of the available flow, and so that kind of goes back to the 2011 Richter paper,” said Sam Boland-Brien. “Part of the framework of the presumptive standard that he put forth with the sustainability boundaries where not altering the natural flow as a percentage too far what it would normally would be, and within that, he recommends up to 20% change is going to have minimal effects on the ecosystem functions of these flows. So whether it’s high flows or low flows or any part of the hydrograph, if you’re not changing it any more than 20%, you’re probably ok. I have talked with Brian Richter about it … he developed a lot of methodology around indicators of hydrologic alteration and those types of metrics to evaluate changes in streamflow and so I laid out the proposal of what we’re thinking to him and he said it sounded like a great idea. Just the approach of relying on presumptive standard and not letting perfect be the enemy of the good in this process allows us to proceed pragmatically. So that’s how we’re thinking of protecting the ecosystem functions and services of the high flows is the 20% number.”
Question: Lots of people feel that AB 658 is so whittled down and heavily conditioned that there are questions about how helpful it will be. The efficacy and reach of the board’s streamlined permitting process also appears quite limited. … Vague fears of hoarding or of insufficient water analysis of flood events for the ecosystem, the Delta, or downstream diverters including the projects seem very reactive. With such microsteps, it’s questionable whether we are really creating the legal structures necessary for that to occur.
Pablo Garza acknowledged he has heard the critique of AB 658. “I’m not suggesting it’s a panacea but I’m convinced that this focus on beneficial use and changing that section a lot is a distraction, and even if we got that change, I don’t think it’s going to accelerate our groundwater recharge efforts dramatically. Folks will still have to get a permit. I think what you might see is an uptick in existing water right holders doing change of use petitions so they can designate recharge as one of their uses, and that potentially sets up a big war with downstream water users – it’s not even environmental groups, but it’s the downstream lower priority junior folks who would be concerned about it. So I don’t think that’s the way to go … A lot of different things need to be done here. Water availability I think is a big barrier, accounting is a big barrier, even if you could get a permit as a landowner to recharge or you did get a permit to recharge very easily, I think there’s a disincentive right now because there’s no certainty that that waters going to be there and another pumper right now could take that out. Now SGMA comes online, I think that changes that dynamic where you have an accounting system of the baseline. I think there’s a lot of difficult issues that need to be addressed here and I think 658 is a step in the right direction.”
Question to Stacy regarding Flood MAR: How much are you going to be able to refine these numbers and how long is it going to take to get to that.
“I’m certainly encouraged to hear about the work that’s begun with the environmental flows working group, but one of the things that’s important and that we’re advocating and hoping we can get through the Governor’s water resilience portfolio is a significant investment in moving these things forward,” said Stacey Sullivan. “What we’re thinking about is there are issues you cannot avoid thinking about environmental impacts, you can’t avoid the fact that there are existing water rights, but are there ways to front load the process so that. A big part of what the recommendations in Flood MAR is how do we bring the information together as quickly as we can in order to create a programmatic approach to these events where we have an understanding of, at least within a watershed, what are the things that are common, various things in terms of CEQA, and other things. Can we develop programmatic approaches to these so when these transitory events occur, we’ll be able to act in a prompt and efficient way.”
“The kind of commitments that come out of the resilience portfolio – it’s quite frankly one of our big hopes for Flood MAR is that,” Mr. Sullivan continued. “It’s a long shot as these things always are, but the idea of addressing issues dealing with groundwater and groundwater recharge on a broad front and moving all of those issues forward together so that you really can come up with a more comprehensive approach that can get maybe closer to a reorientation of the way we think of groundwater and the way we see the use of groundwater in a multi-benefit context. I’m agreeing, we do need to do it, and we at Sustainable Conservation are looking at various ways of moving that forward so that things actually happen.”
Question: What about lateral movement of water banks? Any concern about retrieving banked water if it moves within an aquifer?
“There really needs to be some kind of accounting framework for the underground storage project,” said Sam Boland-Brien. “Whether it’s specific to the water right or if it just dovetails nicely with what SGMA will develop through a groundwater sustainability plan. There needs to be some way to structure how much they put in the ground and how much is coming out of the system. In terms of water that’s put into underground storage, it’s not like the exact same molecules of water has to be withdrawn, so you don’t have to trace down fugitive water molecules … so as long as you are doing the accounting properly, it can still work out to an overall balanced budget.”
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