As groundwater sustainability agencies prepare their plans to meet the requirements of the Sustainable Groundwater Management Act (SGMA), they will likely utilize a variety of tools to achieve sustainability. For groundwater basins in overdraft, groundwater production allocations may be a vital tool; however, SGMA explicitly states that it does not alter water rights, which means groundwater sustainability agencies have to carefully navigate between the confines of water rights and SGMA requirements in developing and implementing their groundwater sustainability plans.
At ACWA’s fall conference, a panel discussed the legal framework, different types of groundwater rights, lessons learned from existing groundwater production allocation programs, and potential pitfalls and practical approaches to developing a groundwater sustainability plans with production allocations as a component to reaching sustainability goals.
WENDY WANG: The legal framework for setting groundwater production allocations
Wendy Wang is an environmental and water law attorney with Best Best and Krieger, focusing on water rights and the Sustainable Groundwater Management Act. She began with some background on groundwater production allocations and SGMA requirements.
The term production allocation typically means the amount of groundwater that may be extracted from the basin. Production allocations are usually considered when the groundwater basin is in overdraft and continued pumping at historical levels would result in depletion of the basin.
There are approximately 500 groundwater basins in California, 21 of which have been designated by the Department of Water Resources as being critically overdrafted. Ms. Wang noted that it doesn’t mean the rest of them are not overdrafted; it means those 21 have been designated by DWR as indicating that the continuing current management practices would likely result in significant adverse effects.
SGMA is not the only legislation or situation under which production allocations are implemented. The California legislature has adopted special legislation specifically calling out certain agencies in statute, such as authorizing the Willow Creek Valley Groundwater Management District to eliminate the threat of overdraft or authorizing the Fox Canyon Groundwater Management Agency to establish extraction allocations by ordinance. Production allocations can also come into play in groundwater adjudications where oftentimes the judgement incorporates a physical solution, which is very similar to a groundwater management plan and within that, it would build in production allocations regulating each parties production rights, she said.
The Sustainable Groundwater Management Act (or SGMA) was adopted in 2014 with the purpose of ensuring that groundwater basins in California would be managed sustainably so that there could be future continued use of groundwater for the population.
“A key SGMA principle is that there’s a carrot and a stick,” she said. “The local agencies will be given an opportunity to regulate a groundwater basin themselves, and if they don’t, this is the stick – the state will come in. So you have the incentive to regulate the groundwater sustainably yourself and if not, the state will come in with their own plans. And if you’re like me, you’d rather handle things yourself.”
Sustainable groundwater management is defined as the management and the use of groundwater in a manner that can be maintained during a 50-year planning and implementation horizon without causing undesirable results. There are six undesirable results defined in the legislation: chronically lowering groundwater levels, reductions of storage, seawater intrusion, degradation of groundwater quality, land subsidence, and depletions of interconnected surface water.
Most of the undesirable results are a direct result of overpumping; however sometimes it’s not basin-wide overpumping but regional overpumping that can cause undesirable results, she said. For example, with respect to degradation of groundwater quality, if there is a well pumping a lot of water near a contaminated plume in the aquifer, allowing that well to continue to pump in large amounts may result in redirection of the plume of contamination. Similarly, if there are a lot of wells located near a river, the total amount of pumping by those wells may not exceed the groundwater basin’s safe yield but the regionalized pumping may result in the depletion of interconnected surface water.
There are four basic steps to SMGA:
The first step was to form a Groundwater Sustainability Agency for the basin; that deadline was in 2017. Virtually all groundwater basins subject to SGMA met the deadline to establish those agencies.
The second step is for that agency to develop a groundwater sustainability plan. The 21 basins designated as critically overdrafted by the Department of Water Resources are required to have a plan adopted by January 31, 2020; Ms. Wang noted that those basins will be the most likely ones to incorporate groundwater production allocations into their groundwater sustainability plans. The remaining basins must have their plans adopted by January 31, 2022.
The third step is to then implement the plan, and the fourth step is to reach sustainability. The groundwater sustainability agencies will have 20 years to implement the plan and reach sustainability, with critically-overdrafted basins achieving sustainability in 2040 and the remaining basins achieving sustainability by 2042.
Ms. Wang presented a slide with the basic requirements for a groundwater sustainability plan, noting that these are broad categories of what’s required with a specific emphasis on how it ties into groundwater production allocation.
The second bullet point on the slide is the description of the physical setting of the basin. This section must have a water budget, which in simple terms is how much water is coming into basin and how much water is going out of the basin.
“As part of that analysis, each groundwater sustainability plan is supposed to include an estimated sustainable yield,” she said. “And so then, by preparing that water budget, you will know how much water you have to either import into the basin to increase water available, or how much you may have to decrease water pumping by either through conservation or by establishing a production allocation.”
Ms. Wang acknowledged there are other management actions a groundwater sustainability agency could choose to take, but those are two of the common ones.
SGMA requires the groundwater sustainability plans to have measurable objectives and five-year milestones, all of which has to be justified by data, as well as the projects and management actions that will show how the basin will achieve sustainability.
“This is part of the way they make sure that you’re documenting how you will measure your sustainability so that you’re not 20 years down the line, all of the sudden surprised that your basin will not reach sustainability,” she said. “So if your basin is in a state of overdraft, you have to mitigate that overdraft, and this is another reason why production allocation is such an important tool.”
A groundwater sustainability agency has several authorities that will impact production allocations, said Ms. Wang: The first is that GSAs have the ability to investigate water rights; the second is that they can establish groundwater production allocation; third, they can regulate, limit, or suspend groundwater production and/or new wells; and the fourth is that they can bring an enforcement action if a groundwater pumper is in violation of their established production allocation or any of the rules or regulations.
However, there are some limitations. “The GSA can investigate water rights, but SGMA also explicitly states that nothing in SGMA modifies the rights or priorities to rights or priority to use or store groundwater, and says again in the paragraph, nothing in this part or any GSP determines or alters surface water rights or groundwater rights under common law or any other provision of the law,” Ms. Wang pointed out.
So what does that mean? “On one hand, the GSA can investigate water rights, they can set production allocations, but at the same time, SGMA does not alter water rights, so it’s a bit of a head scratcher,” said Ms. Wang. “The way that I personally read this in order to make sense is that you can have water rights, but just because you have water rights doesn’t mean production allocation cannot be imposed to somehow manage the basin.”
While that might seem like a reason to file a lawsuit and seek an adjudication, there are many reasons why that might not be a good idea, she said.
First, while the California legislature recently adopted a streamlined adjudication process, Ms. Wang said it still isn’t short. “We’re about a year and a half in on a lawsuit and we’re nowhere near the first trial date yet,” she said.
She noted that adjudications can take a decade or more: In the City of LA vs. San Fernando, the case was filed in 1955 and trial started 10 years later. Judgement was entered three years after the trial ended, and in terms of timelines, things still have not improved much.
Secondly, it’s expensive. Experts are needed to explain how much water might actually be available, so in addition to lawyer’s fees, there are expert costs.
Thirdly, there’s the long implementation period. You can spend years explaining to a judge that the groundwater basin is in overdraft and is impacting everybody’s ability to access this water.
“How long do you think the judge is going to give you to get everybody to extract only the native safe yield?” said Ms. Wang. “SGMA gives you 20 years, a judge may not give you that much time.”
So instead of initiating a lawsuit, under SGMA there are community outreach requirements. “If GSAs are thinking about implementing a groundwater production allocation, one of the tools they could use is to talk to the community out there as early as possible, get their input, and make sure everybody feels they were heard before actually adopting a plan, because communication and collaborative discussion could avoid an expensive lawsuit.”
ERIC ROBINSON: Groundwater rights and setting allocations
Eric Robinson is a shareholder and the manager of the Water Resources Group at Kronick Moskovitz Tiedemann and Girard who help clients with SGMA implementation and has represented clients in several adjudications. In his presentation, he discussed water rights and groundwater production allocations, drawing on his experience with the Seaside Basin adjudication.
What is groundwater, in legal terms?
Mr. Robinson began with the legal definition of groundwater. Percolating groundwater is the water that fills the pore spaces between sediments or fissures and cracks in rocks. Water pumped from a well is legally presumed to be percolating groundwater subject to the laws of groundwater rights, but that is a rebuttable presumption.
How would it be possible that the water from the well is not percolating groundwater? If it can be shown that the water in the well is coming from a subterranean stream which is defined in water code as groundwater flowing through known and definite channels, then it is part of the surface water rights system from a legal perspective.
“The State Water Board has taken the statutory definition, and through decisional law, has applied a four part test which is stated on the slide,” he said. “The point is not to go through what the meaning of all these things are and whether this makes any sense. Courts have described this distinction as sort of Alice in Wonderland-like, and it is. But there’s a four part test that can be applied when necessary out there in the real world.”
Mr. Robinson then focused on the three main types of groundwater rights: overlying rights, appropriative rights, and prescriptive rights. He acknowledged that there are also federally reserved rights, which are water rights for land that was reserved for a federal purpose, such as military bases or Native American reservations, as well as a few other types of water rights, but they don’t come up very often.
Overlying rights: In the groundwater context, a land based right to groundwater exists where your property physically sits on top of the groundwater basin. Overlying rights are part of the landowner’s title to the land; a landowner does not need a permit to pump groundwater for use on his lands. Overlying rights are similar to riparian rights that a landowner has when they own a parcel of land that is adjacent or contiguous to a river, creek, stream, or lake.
“One of the advantages of that analogy is that you don’t have to well on every parcel of overlying land in order to exercise an overlying right to irrigate that land,” Mr. Robinson said. “The law appreciates engineering and economic efficiency, so you are allowed to have a well on your parcel there overlying this basin, and use it not just to irrigate that field, but you can pipe the water for delivery and irrigation use on another overlying field that you own. This is the same thing with riparian surface water rights where if you are on a steep river canyon and you own land on a high bluff above the river, the law does not require you to exercise your riparian right by installing a massive pump and burn tons of energy to lift the water straight up. You can go 20 miles up canyon, divert from the stream, and run a pipeline or ditch to get that water to your parcel which is still adjacent to and riparian to the river. The overlying right can work in a similar way. For people who have irrigation systems, this is important.”
Appropriative rights: These rights are not based on ownership of land but instead are based on pumping groundwater and putting it to beneficial use. Appropriative rights to pump groundwater only apply to the amount of groundwater yield in that basin that is surplus to the needs of the overlying rights holders.
“That’s an important principle,” he said. “In terms of allocating water, if there’s a shortage, under the overlying rights, competing overlyers have correlative sharing. It’s not entirely clear what that means; it’s equitable sharing between the competing overlyers and there are a number of factors you can consider in order to figure out who gets what.”
With appropriation, the person who starts producing and beneficially using the groundwater first has the prior right as to somebody who started doing it later, or ‘first in time, first in right.’
So how do these different rights and priorities fit together? The assumption is that there is a shortage, hence the concern over who gets water and how much. If you have an overlying landowner versus another overlying landowner, it is correlative sharing. If you have an overlying landowner versus an appropriator, the overlying landowner wins. If you have two appropriators, the one who started first typically wins.
Water districts or municipalities that are providing a public water supply are by definition an appropriator under the normal priority rules. If it’s an overlying landowner versus an appropriator that is a public water system, the overlyer beats the appropriator under the normal priority rules.
Mr. Robinson then ran through a more complicated example. There are four hypothetical water users:
An overlying landowner who started using water in 1920
A city who started providing water in 1910
A city who started providing water in 2000
An overlying landowner who started using water in 2010
He then discussed how these rights work.
First example: An overlyer who started using water in 1920 versus the city (appropriator) who started providing water ten years earlier in 1910. “You might think that the earlier user, since they are an appropriator and it’s first in time, first in right, might win, but that’s only between competing appropriators,” he said. “If you have an appropriator, the urban water service area versus the overlying landowner like the farmer, the farmer wins.”
Second example: The city who started providing water in 1910 versus the city who started providing water in 2000, or appropriator versus appropriator. The first in time, first in right rule applies, so the city that started providing water in 1910 would prevail.
Third example: The overlyer who started using water in 1920 versus the overlyer who started in 2010. It would be correlative sharing. “In my humble personal opinion, not stated on behalf of any real client, I would think that the date on which somebody started using water when you’re doing a correlative sharing analysis would be one of many factors that might be considered,” he said. “It shouldn’t be controlling but it would be relevant.”
Safe yield and overdraft
Mr. Robinson then turned to safe yield. While SGMA calls it sustainable yield, case law refers to it as safe yield. “For present purposes, I’m going to say there’s no difference; the lawyers out there want to correct me, I know, but let’s just call it about the same. Safe yield is the maximum amount of water that can be withdrawn by all the users from the basin under a given set of environmental, hydrologic, and end use conditions. The maximum amount you can take out over a long period of time without driving the groundwater levels steadily down to the point of causing these undesirable effects of which SGMA lists six.”
Overdraft occurs when long-term pumping exceeds safe yield and causing undesirable results. Prior to SGMA, the most common ones were chronic groundwater level decline, sea water intrusion, and land subsidence. The hydrograph shows overdraft; Mr. Robinson noted that it is not a short-term dip during a dry period that bounces back of time, but instead a long-term steady reduction.
Mr. Robinson then turned to prescriptive groundwater rights.
“In my opinion, prescriptive rights were a complete fiction that was adopted by the courts in order to avoid a very undesirable result of civilization, which is that if you applied the strict priority rules in a basin where most of the water use is overlying landowners who have that prior right as against a city appropriator, and if there was only enough safe yield in that basin to meet the overlyer demand and not one drop left over for the city, the city would get wiped out under the strict application of priority rules. From a physical human perspective, you just can’t do that, so the courts invented a fiction called prescription to avoid that result.”
Prescription happens when the basin is in overdraft and an appropriator such as a city or urban water district is pumping water, and if that pumping during overdraft by the appropriator occurs for at least five years, then the minimum amount pumped continuously for each of those five years is the starting point for identifying a possible prescriptive right.
“There are other aspects of perfecting a prescriptive rights claim that the lawyers will be very interested in,” he said. “It’s like a prescriptive easement that you may have learned about for in law school for a path across a neighbors property. Open, adverse, hostile, under claim of right, notorious – all these things have been applied by the courts in the groundwater context to create this prescriptive right idea.”
If an appropriator develops a prescriptive right, there’s the question of what is the priority of that prescriptive right against the overlying landowners. “Remember, we invented this thing to save the cities from the overlyers and the strict priority system, and so the starting point here is it gives the prescriptor prior right over overlyers. Simply put, there are more nuances to it then that, but that’s the simple idea.”
There is a way to stop the prescription which is the idea of the self-help defense. This happens when the overlyers continue to pump and beneficially use groundwater while the basin is in overdraft and the urban service area is developing a prescriptive right.
“The courts have said there is a limit on prescription,” Mr. Robinson said. “It’s measured by the amount of pumping that the overlying rights have been engaged in during the prescriptive period. That amount can be protected against the prescription claim so that in the end, you have self-help overlying rights versus prescriptive rights, and the courts would then have to decide what happens to those two. Maybe they are both treated as equal, and to the extent that all pumping in the basin needs to come down in order to achieve safe yield, the two are given a pro-rata deduction, so that one doesn’t take the hit harder than the other. That’s sort of equating the rights. The case law is not 100% clear on all of these things. This is just a distillation of general concepts. I can find cases that can seem to point in other directions, but I think this is the thrust of it.”
Rights to store and recapture
There is another important kind of a water right that applies to groundwater and that is the right to store and then recapture water that has been stored. These rights are the basis for all the water banking projects that have been implemented, particularly in the southern San Joaquin Valley. The right to store and recapture is part and parcel to being able to carry out water banking projects which are among the tools that have been used and will be used to meet water needs as well as help sustainability and raise groundwater elevations, particularly in overdrafted places, he said.
“When you’re exercising your right to recapture water artificially and add it to a basin, like surface water from the State Water Project or recycled water that you’re injecting or percolating it into the ground, you have to be careful that your recovery operation, your act of recapture doesn’t materially injure other folks that have rights in the native supply,” he said. “So there are limits on these things, too.”
Groundwater production allocation example: Seaside Basin
Mr. Robinson then gave an example of allocations, drawing on his experience with the Seaside Basin in Monterey County. On the map, the Salinas Valley is to the north, the Monterey Peninsula is off to the left, and the black outline at the bottom left is the Seaside Basin.
The lawsuit was filed in 2003 and it’s probably one of the quickest groundwater adjudications ever, he said. “It only took about three years in order to get to an entered judgement, and as I recall, there was not even an appeal. There’s been litigation subsequent to interpreting the judgment and that did result in an appeal and an appellate opinion, but the judgement itself was solid after it was entered.”
The 2006 adjudication defined the geographic area of the basin, the safe yield that was available for long term use, and the different kinds of production allocations. All of that was put together in the form of a physical solution that would bring pumping down to within safe yield over a period of time in order to achieve sustainability. The threat there was seawater intrusion; there is significant seawater intrusion in neighboring basins, and it was worried that the Seaside Basin would suffer the same fate.
In order to administer the judgement and implement the physical solution, a nine-member watermaster board was established with a top executive and consultants to help plan, design, and implement the plan. The court has continuing jurisdiction; there are annual reports to the court and if somebody is frustrated about how the judgment is being implemented, they can file a motion asking the court for assistance working out the dispute.
In 1995, the California American Water Company (or Cal Am), a public water supplier in the area, lost a substantial portion of the water supply on which its existing customers were reliant because it was determined by the State Board that Cal Am wells in the Carmel River were operating without a legitimate water right. There were also some steelhead issues.
As a result, the State Water Board issued Water Right Order 95-10 which cutoff Cal Am. The order gave them time to implement a ramp down, but basically the order took away a massive part of their water supply without helping them figure out how to make up for it. So Cal Am installed wells in the Seaside Basin to backfill the water loss from the Carmel River which contributed to the overdraft in that basin and the threat of seawater intrusion.
At the time of the adjudication in 2006, groundwater production was about 5600 acre-feet per year. The safe yield was calculated to be 3000 acre-feet. It was divided up into two kinds of production allocations: standard production allocations which are akin to appropriative groundwater rights similar to urban water service rights, and alternative production allocations which are similar to overlying groundwater rights. The physical solution imposes a ramp-down of 10% in pumping every three years to bring groundwater production down to safe yield. The cuts in production landed on the appropriators or the standard producers, which were Cal Am, the City of Seaside, and other entities exercising appropriative groundwater rights in the Seaside Basin. No new source of supply existed at the time of this judgement being entered.
Cal Am was losing Carmel River water and was now going to lose the groundwater it was using instead. The ramp down cut fell on the standard producers and they have to come with an alternative water supply as part of their physical solution. Cal Am has twice pursued desalination as an alternative source, and it’s floundered after many years and many millions of dollars trying to get through regulatory processes.
Standard production rights (appropriators) can carry over unused amounts from one year to the next. They can store water in the basin, including carryover, but that must be done pursuant to a written agreement approved by the watermaster; the goal is to make sure that use of carryover, particularly use of storage, doesn’t somehow cause material injury to others in the basin. Standard production allocations are transferable. There is a bit of a mini groundwater market operating, although not as active as other basins.
Alternative production allocations (or overlying rights) weren’t subject to the ramp down, but they also didn’t get carryover rights or storage rights, and they are limited to being used in a geographic area specified in the judgment for each particular alternative production allocation, similar to the place of use in surface water rights. Alternative production allocations can’t be transferred unless they are converted to a standard production allocation, but once that is done, the allocation is subject to the ramp down and that is the amount that can be transferred. Transfers are limited to within the designated subbasin, so water cannot be transferred outside of Subbasin A for use in Subbasin B.
This structure of groundwater production allocations almost got in the way of a basin management improvement. There are several golf courses in the basin which each had an alternative production allocation that had been defined based on historic use of water the five years leading up to the complaint being filed.
The two golf courses were being irrigated under alternative production allocations that were relatively near a source of recycled water supply, so there was a potential project to do in lieu recharge. The golf courses could throttle back, maybe completely, on their use of production allocation for groundwater. The question was, could the golf courses do this and what would the rules be on the use of the water being saved? Mr. Robinson reminded that the golf courses had alternative production allocations which don’t have the right to store and cannot transfer the rights.
“Delivering the recycled water to the golf courses and freeing up the water, normally that water can go somewhere else to support some other land use, and instead it might be trapped on the golf course because when we defined the allocations, we tied the exercise of that right to the place of use,” he said. “We created a barrier to transferability because it reminded us of the overlying rights from whence this stuff came. So that created difficulty.”
The problem was solved by finesse. “The entity that owned and operated the golf courses also happened to be a public water supplier with a standard production allocation that comes with storage rights and transferability,” he said. “Because this project made so much common sense, when it was proposed to the watermaster, the watermaster had the project proponent to go to the court for a motion asking the court if this project was consistent with the judgment. Nobody opposed the motion because this project made sense, and it’s gone through and the court said okay.”
“The lesson here is to be careful when designing your allocation programs to try hard to foresee the kinds of projects that people are going to want to carry out in that groundwater sustainability plan or management area,” Mr. Robinson said. “Try to foresee the kinds of projects that are going to make sense, and try to make sure that your allocation rules will facilitate those projects and not get in the way. Unfortunately it’s very hard to foresee super far into the future, so one of the other things that you can try to do is try to make the allocations as flexible as possible knowing you cannot foresee all these future eventualities, and so that’s the lesson from Seaside Basin.”
JILL WEINBERGER: The nuts and bolts of setting groundwater production allocations
Dr. Jill Weinberger is a principal hydrogeologist at Dudek working in the fields of groundwater supply and development, water resource management, and groundwater contamination. She has assisted water districts, municipalities, and agencies to prepare for and implement the requirements of SGMA, including preparing the first publicly reviewed draft Groundwater Sustainability Plans in California. In her presentation, she discussed groundwater production allocation from a consultant’s perspective, using the Oxnard and Pleasant Valley Basins as case studies.
Dr. Weinberger began by discussing what defines overdraft in an basin. The graphic is a hydrogeological conceptual model for the Borrego Valley Basin, a critically-overdrafted basin in east San Diego County. The inflows are represented by the downward arrows and the outflows are represented by the arrows going up, and the size of those arrows is scaled to the size of the inflow or the outflow to that basin. She pointed out that there are quite a few more arrows point up (outflows) than there are arrows pointing down (inflows). The very large green arrow represents extraction from agriculture in the basin. Another way of looking at it are the bars over on the right which show outlows in green and inflows in blue.
“In this basin, you’re going to be looking at developing an allocation,” she said. “This is a critically overdrafted basin.”
The Role of Allocation In a GSP – One consultant’s perspective
Dr. Weinberg said that she would be giving her perspective on establishing groundwater production allocations, drawing on her experience working as a consultant, but noting that hers is one perspective; other consultants have their own perspectives.
SGMA requires groundwater sustainability agencies to develop groundwater sustainability plans. There are several requirements for groundwater sustainability plans (GSPs).
“As consultants, we’re looking at the data to develop the hydrogeologic conceptual model,” Dr. Weinberger said. “We’re looking at data gaps to address uncertainty. We’re working with policy people to develop the sustainability goal or goals for the basin and then we’re taking our understanding of the data and the policy goals and looking to define what an undesirable result would be. And we’re doing that in the context of SGMA so we’re looking at undesirable results specific to the six sustainability indicators that we were talking about before. From that, once we know our undesirable results, we can estimate our sustainable yield, that yield of the basin that does not result in undesirable results. We can also begin to develop projects and management actions that could potentially affect that sustainable yield.”
When developing projects and management actions, the allocation process should be happening in parallel with the development of the GSP, but she pointed out that the GSP does not set the allocation; it just defines the size of the pie. The GSP will give an estimate of the sustainable yield that incorporates uncertainty; the allocation divides the pie.
Dr. Weinberger said it’s important to remember that the authority for the GSA is to establish an allocation is granted after it has adopted a GSP.
“You have to go through the GSP process first, but the best practice is to develop that allocation plan in parallel with your GSP because the two interact,” she said. “The GSP needs to be able to support your allocation and at the same time, your allocation can’t negatively impact your ability to maintain sustainable yield and looking at those sustainability indicators.”
There are some other things to keep in mind when developing an allocation plan. “You want to ensure that you have that diverse stakeholder interest incorporated into your allocation plan,” she said. “It’s a critical element throughout SGMA and it still applies to developing an allocation plan. Additionally, you want to try your best to ensure that that allocation plan addresses and achieves multiple benefits so are we talking about disadvantaged communities in it, have we looked at how habitat will be impacted, what about water quality – all of these things come into play when we talk about allocations under SGMA.”
Approaches to establishing groundwater production allocations: is it ever fair?
There are several different approaches to establishing groundwater production allocations; Dr. Weinberger noted she would only touch on some of them.
Property size: The simplest allocation method is to calculate a proportionate allocation based on property size. For example, if two landowners own property in the basin, Landowner A owns 75% and Landowner B owns 25%, then Landowner A would get 75% of the water, and Landowner B would get 25%. Dr. Weinberger pointed out that this approach completely ignores all water rights, it ignores those best practices such as considering multiple benefits and diverse stakeholder interest, and it’s not fair for who has developed their water right and who hasn’t.
Proportional allocation based on land use: This would be a flat acre-feet per acre for agricultural land. But if Landowner A grows crops that require more water than Landowner B, Landowner A’s business might suffer but Landowner B’s doesn’t. “When we’re talking about allocations, we’re talking about fairness,” she said.
Historical pumping: If landowners have different water needs, historic groundwater pumping could be a way of allocating groundwater, although there are concerns with that. This involves looking at data from wells, parameters such as base period have to be determined, and how do you make sure the basin isn’t being negatively impacting the basin by grandfathering in water users who have been abusing their water use and using too much.
Some of those pumping differences might be that some landowners have access to surface water; surface water users can improve the overall health of the basin if they divert surface water when surface water is available and they rest their groundwater wells. “We want to be able to encourage that, so these are the things we’re going to keep in mind as we’re establishing an allocation,” she said.
Flexibility is critical, particularly through the stakeholder process where there are real world problems that require the ability to adapt. Should there be credit accruals to incentivize conservation? Should debits against future pumping be allowed? Will there be a water market? What about ramp downs and how will they be incorporated into the allocation system? Do you apply it differentially to the high and low water users to potentially reward those that have already adopted irrigation efficiency measures?
Lastly, Dr. Weinberger noted that groundwater law has to be considered in the allocation process and as the statute explicitly states, SGMA does not change water rights.
Groundwater production allocation example in the Oxnard and Pleasant Valley basins
Dr. Weinberger then discussed how these different concepts were applied in the Oxnard and Pleasant Valley basins.
For background, the Oxnard and Pleasant Valley basins are located in Ventura County. The Oxnard basin, shown in purple, is on the coast, and the Pleasant Valley basin shown in orange is located just inland of the Oxnard basin. There are five different GSAs that govern these basins, the largest of which is the Fox Canyon Groundwater Management Agency. The Fox Canyon GMA was formed in 1982 as an independent special district and was given the right to be the exclusive GSA for the area under its jurisdiction written into to SGMA legislation. The red line shows the Fox Canyon boundary line and the colored areas are the DWR basin boundaries.
“The red line that goes around those basins is actually quite forward thinking,” she said. “It was formed in 1982 and it’s defined by this subsurface extent of the Fox Canyon aquifer. So they were ignoring DWR basin boundaries and actually saying in 1982, let’s try to control production just within this aquifer that’s so critical. Even today even still, the Fox Canyon aquifer accounts for over 50% of the water needs in that region of Ventura County.”
Seawater intrusion is a problem; the map shows the approximate chloride concentrations in the Fox Canyon aquifer. There are multiple aquifers in these basins. In the Fox Canyon aquifer, some of the seawater intrusion is localized in several areas; this is related to where submarine canyons come up close to the coast.
“So pumping from specific areas close to the coast appears to be inducing seawater intrusion more than the broader pumping,” said Dr. Weinberger. “However, all pumping in the Fox Canyon Aquifer is interconnected. There’s no physical barrier between the Pleasant Valley Basin and the Oxnard Basin in the subsurface in the Fox Canyon aquifer.”
The graph on the right is a model run showing the groundwater production reduction over time under SGMA with a modeled hydrology for wet and dry years. There is an upper aquifer system shown in orange and a lower aquifer system. The upper is in orange, the lower is in blue. The Fox Canyon is in the lower aquifer system shown in blue.
“If we’re thinking about allocation now, we’re thinking about where wells might be located,” she said. “Do we have wells in the upper system or the lower system and do they need to be equally reduced over time? That’s where the GSP is coming in and working to inform the allocation process.”
The graph on the slide looks at the relationship between storage and groundwater production and spreading. Storage is one of the sustainability indicators. ‘Spreading’ refers to using surface water to recharge the basin, so it is a measure of surface water availability. Storage in the basin is highly variable and is closely tied to the availability of surface water. When there is surface water available to spread from the United Water Conservation District, they can replenish the basin; when surface water isn’t available, the storage begins to decline.
The graph is for the years 1986 to 2015, and from 2013-2015, there was basically no surface water available to spread.
“If we’re talking about an allocation that has to consider a baseline period, what baseline are we picking?” said Dr. Weinberger. “We have incredible variability here and the baseline period we pick is going to impact our allocations quite substantially.”
Fox Canyon began this process at the end of 2015, and it has been a long, stakeholder involved process to develop allocations. Recently, stakeholders and agency staff came together to compare the plans that were being developed. They were largely similar but there were a few critical differences:
There were differences in baseline periods for setting the allocation. The agency selected a 14-year period from 2003 to 2016; the stakeholder group wanted a relative percentage with the highest pumping during water years 2014-2015, 2015-2016, and 2016-2017. The years 2014-15 and 2015-16 were really dry years. Another difference was a proportional reduction under the agency plan or a hybrid to a flat allocation system in the stakeholder plan, and whether the allocation was tied to extraction facilities (pumps) or tied to the land.
With respect to the shorter baseline period, there are some pros to this approach for setting allocations. It’s representative of current land use practices and cropping patterns, and you’re more likely to have data in the recent years, but if you’re only selecting only those really dry years, is that representative of what’s going on in the basin as a whole?
As for the cons of a shorter baseline for setting allocations, it may be biasing toward higher drought groundwater production from those who have surface water rights, and those who adopted conservation practices may receive lower allocations because they adopted those more recently. A longer base period is consistent with the ten year base period allocation for after SGMA and it’s a good average of wet and dry years; however, it might not reflect current practices, and if it’s tied to extraction facilities, how to account for replacement wells?
Surface water and groundwater considerations
There’s also the issue of surface water and groundwater. If only groundwater is considered and it’s tied to extraction facilities, it’s easy to measure by putting a meter on the pump, and in this case, it was consistent with what the agency had already been doing. However, it might discourage conjunctive use in the future, it could include widely varying extractions by pumpers who have access to surface water, and it might not account for in-lieu recharge programs.
“We’re looking at a combination of groundwater and surface water, back to encouraging conjunctive use, and we’re limiting a bonus for pumpers with access to surface water, but there are some legal implications that I will leave with the lawyers to discuss when you’re lacking in measurements.”
Wellhead versus land-based system
What about the wellhead versus the land-based system? A wellhead-based system is consistent with practices at Fox Canyon and reporting is easier. However, it’s not consistent with water rights and it’s difficult to incorporate. For example, there are wells tied to specific parcels, and then new wells are added, parcels can be subdivided, and things can change from year to year. How to address those changes and data insufficiencies is critical to developing the allocation plan.
A land-based system is more consistent with the water rights of overlyers, you can account for surface water better under a land use plan, and it’s a more stable allocation.
What was decided
With respect to short versus long base period, they ended up selecting a base period of 2005 to 2014. It does not include extractions that incurred surcharges over that time, because Fox Canyon already had the ability to allocate water and to charge for water over a certain allocation, so they excluded water that was pumped that incurred surcharges so as not to encourage overuse of groundwater.
Surface water users were included in the allocation plan. They were allotted the groundwater produced plus surface water during that baseline, but the critical issue was to address the concerns of groundwater producers, so during wet years when surface water is available, diverters have to reduce their extraction allocation one to one for every acre-foot that they divert.
Because of data concerns, they started with the wellhead system because that’s what was already in place. They are going to transition to a land-based system as the data becomes available. That will require additional reporting, so they’ve added requirements to operators to collect the data they need to move to a land-based system.
As for carryover, 50% of an unused allocation can be carried over to the next year, but the carryover water is the first water that gets used the next year. One cannot carryover more than 100% cumulative and carryover allocations expire after 5 years, in order to limit the accrual credits that are floating out there that could exceed the actual sustainable yield of the basin.
The allocation reduction in the future is still pending before the board, so once the GSP is adopted, the board will consider the ways in which to go about reducing allocations as necessary by incorporating projects and other management actions, and that is yet to come.
“So the question is, is this fair?,” said Dr. Weinberger. “That, of course, is up to the individual stakeholder to answer and not up to me. But thank you for your time and attention.”