TESS DUNHAM: California’s Three-Legged Stool for Improving Groundwater Quality: Porter Cologne, SGMA and the Recycled Water Policy – How Do They Work Together?

Every year, the Groundwater Resources Association of California selects two speakers for the David Keith Todd Lectureship, which named after David Keith Todd to pay tribute to his legacy as groundwater science and education leader. The objective of the series is to develop scientific educational programs that promote the understanding and effective implementation of groundwater assessment, protection, and management.

One of the speakers for the 2020 lecture series was Theresa “Tess” Dunham, an attorney with Kahn, Soares & Conway LLP, who spoke about groundwater quality and how the Porter-Cologne Water Quality Control Act, the Sustainable Groundwater Management Act, and the state’s recycled water policy can work together.  The subject is one Ms. Dunham is exceptionally well-suited to cover, as she has spent the last 20 years specializing in legal and regulatory issues related to state and federal water quality laws, including CV-SALTs and the Irrigated Lands Program.  A farmer’s daughter, she represents a wide range of clients and coalitions devoted to resolving nitrate, salt and other water quality issues to promote long-term sustainability of California’s water resources and ensure the needs of farmers, private industries, and municipalities are balanced against environmental concerns.

At the 2020 Western Groundwater Congress, Ms. Dunham gave the following keynote speech.

Note:  The following is all Tess Dunham, in her own words.  It has only been edited ever so slightly for clarity.

Background

The Porter-Cologne Water Quality Control Act was adopted in 1969 and is the state’s primary authority for addressing water quality issues in both surface waters and groundwater. Since then, the State Water Resources Control Board (State Water Board) and the regional water quality control boards (regional water boards) have adopted permits and various policies to protect groundwater. However, despite these efforts, groundwater quality in many parts of California has declined due to industrial, agricultural, and municipal discharges of pollutants that are associated with human habitation. The two most pervasive pollutants of are salt and nitrate. Left unchecked, rising salt and nitrate levels in California’s groundwater basins will impact our ability to safely use groundwater for drinking and will impede agricultural production. In response, some regional water boards have spent decades developing and implementing comprehensive salt and nitrate management plans through existing authority under Porter-Cologne.

Then enters the State Water Board’s Recycled Water Policy. Just as water-short California looked to increase water availability in part through water recycling, treatment of municipal wastewater increased for a variety of reasons. Municipal wastewater agencies, and others, quickly recognized the value of highly treated effluent as a water resource. However, with recycled water comes salt and nitrate. To encourage recycled water use, make permitting of such projects more efficient, protect public health, and address salt and nitrate that comes with recycled water, the State Water Board adopted the Recycled Water Policy. The policy was first adopted in 2009, amended in 2013, and was then amended again in 2018. A key component in the Recycled Water Policy are requirements for the management of salts and nutrients through the development of comprehensive salt and nutrient management plans. While some regional boards were well ahead of these requirements, others are still working to comply with such requirements.

In 2014, the California legislature adopted and Governor Brown signed into law the Sustainable Groundwater Management Act (SGMA). While the primary focus of SGMA is to address our dwindling groundwater supplies, it includes a requirement that pertains directly to groundwater quality and groundwater sustainability agencies must consider water quality standards when setting minimum thresholds. Thus, the groundwater sustainability plans that are in development must, at least in part, address groundwater quality impacts.

In light of these multiple (but sometimes disparate) efforts to address salt and nitrate levels in groundwater, many questions are rising to the surface as to how regional water boards, dischargers and groundwater sustainability agencies are to work together to each meet their legal mandates and, more importantly, how to improve and protect groundwater quality.

In this keynote speech, Tess will explore the different legal and regulatory mandates and the creative solutions that are stakeholders are developing to address these complex issues. She will also identify the challenges and opportunities associated with implementing each leg of the stool, and how all three are essential to improving and protecting California’s groundwater resources.

The three-legged stool

Like we do at the end of every summer and the beginning of fall, we wait to see, will we face another drought this year?  Will we receive sufficient rainfall and snowpack to fill the reservoirs and replenish the snowpack in the Sierra?  Is it going to be a wet year?  An extremely wet year? Can we harness that rainfall and restore our depleted groundwater basins in the Central Valley and beyond?  Will our groundwater recharge projects that are part of our groundwater sustainability plans cause leaching of salts and nitrates from the vadose zone into our groundwater aquifers and actually result in them degrading sooner than they might otherwise?  We want to encourage the use of recycled water, but again, will salts and nutrients in recycled water cause degradation in our groundwater aquifers or to downstream water users?

In certain regions of California, agriculture is key but can’t be done without using nitrogen-based fertilizers and without concentrating salts.  While we face and deal with water shortages, we need to balance the water supply solutions against the potential impacts to water quality.  In 1969, when the California legislature adopted the Porter-Cologne Water Quality Control Act, the legislature was fully aware of the conflicting uses placed on California’s water supply and declared then that when regulating impacts to water quality, that activities and factors that may affect the quality of the waters of the state shall be regulated to attain the highest water quality which is reasonable, considering all demands being made and to be made on those waters and the total values involved – beneficial and detrimental, economic and social, tangible and intangible.

So 50 years later, how do we regulate to attain the highest water quality?  And what is the highest water quality that is reasonable?  Can we treat our way out of poor water quality?  Can we sufficiently control sources of pollutants to such a level that they no longer cause or contribute to violating water quality standards?  Can we control such pollutants and maintain agriculture in the Central Valley, the Central Coast, and beyond?  Is all of this just a big game of chess whereby the lawyers continue to move rooks and pawns across a chessboard, or are there solutions that can be implemented to better preserve California’s water supply and quality thereof?

As many of you know by profession, I’m a lawyer that specializes in state and federal water quality laws.  I represent agricultural, municipal, and industrial clients on a variety of water quality issues, from regulatory policy-related issues to defending clients against government or citizen suit enforcement actions.

Today, I’m here as a fourth-generation Californian from Maxwell, California.  Maxwell is a small town in Colusa County that many of you have never heard of – yet.  But someday you will, because what Maxwell is, it’s right off of Interstate 5 and in fact, it is the gateway to Sites, California, the future home of the Sites Reservoir.

Growing up in this small rice farming community meant that water was the topic at almost every family gathering, whether it be drought, or flood, or transfer of Northern California water to Southern California, water was king in the topic.  My grandfather was born in Maxwell in 1906, was a rice farmer, and involved in just about every civic group and organization that the town and county had to offer.  He also served on the county board of supervisors for 12 years from 1956 to 1968.  During his tenure on the Board of Supervisors, he helped to establish Letts Lake in Mendocino National Forest, and he also helped to develop the recreational opportunities at the East Park Reservoir in Stonyford, California, which is just west of Sites.  In other words, he was focused on water and many other things necessary to improve the Colusa County community and the community of Maxwell.  It is this example of civic-minded leadership that motivates me today and every day to find solutions to some of California’s most challenging groundwater issues.

So to my grandfather, Pop Dennis, I now share with you my thoughts on how Porter-Cologne, SGMA, and the recycled water policy can work together towards improving groundwater quality in California. 

First, I’d like to acknowledge the 2020 Water Resilience Portfolio that was released in a final form on July 28 of this year.  The portfolio correctly notes that there is no one size fits all approach to water resilience across California, but rather that it will need to be achieved on a region by region basis and I agree.  Fortunately, for all of us, the most important commonality that Porter-Cologne, SGMA, and Recycled Water Policy share is that they look to be implemented by regional and/or local scale.

5 key elements for integrating Porter-Cologne, SGMA, and Recycled Water Policy

Focusing on groundwater quality for this discussion, how do we make this work?  I want to share with you some key elements that I think is going to be crucial to ensuring how our policies in California work together to better improve groundwater quality and make it sustainable for decades to come. 

Key #1.  Recognize and embrace the flexibility provided to the regional water quality control boards under Porter Cologne for implementing state policy for water quality control. 

The Porter Cologne Water Quality Control Act, while it was adopted in 1969, was very forward thinking.  It was set up to ensure that we looked at things on a regional basis and provided discretion to both the State Water Board and the nine Regional Water Quality Control Boards.  Section 13142 of Porter Cologne sets forth principals and guidelines that I think are key in understanding how we can bring all of the different acts together and use the discretion that’s been afforded under the law.

First, state policy for water quality control shall consist of all the following:

      • Water quality principles and guidelines for long-range resource planning, including groundwater and surface water management programs and control and use of recycled water.
      • Water quality objectives at key locations for planning and operation of water resource development projects and water quality control activities. In other words, let’s talk about where we should be looking to comply with water quality objectives.  What are the key locations when we’re talking about groundwater? Is it in the public water supply wells?  Is it in domestic wells?  Is it in both?  Is it in the groundwater aquifer or is it in first-encountered groundwater?  We need to identify where are we looking to meet water quality objectives
      • Other principles and guidelines deemed essential by the state board for water quality, in other words, and open ended placeholder to allow for the ongoing changes in California.

Each plan needs to conform, and by plan, I mean the Water Quality Control Plans which are often referred to as the basin plans.  These plans, while they are called plans, are in fact regulation.  And encompassed within them are water quality standards with beneficial uses, as well as the water quality objectives necessary to protect those beneficial uses for all of our surface waters and groundwater in California.  And each plan needs to conform to the policies established by the legislature which includes regulating to the highest quality which is reasonable considering all the demands.

We need to use the water quality control plans or the basin plans for developing regional or subregional management plans.  With that, how do we take what we’re doing in SGMA and the groundwater sustainability plans and bring them in, not in a regulatory context, but at least refer to them in our regional basin plans.  We need to make sure that as groundwater sustainability plans are approved, and the programs go forward and be implemented, that we incorporate the implementation mechanisms that are going on under the groundwater sustainability plans into our water quality control plans, for they are a key component of how we will likely meet water quality objectives for decades to come.  We need to utilize this discretion in our water quality control plans, so we can meld and bring forward SGMA and Porter-Cologne.

Porter-Cologne establishes baseline minimums for these basin plans, but as indicated, they still have tremendous discretion and flexibility.  The key component is that in a basin plan, we have to identify what water quality objectives we’re going to be meeting that are reasonable to protect our beneficial uses in our groundwaters, we need to have a program of implementation, and a timeline for implementing that program.  Clearly, with our groundwater sustainability plans, we can meld the two components together.

We need our state and regional boards to exercise their discretion and authority to the fullest to encourage the use of recycled water, and that means a discussion about what is a reasonable water quality objective, in light of our need to use recycled water in California.  It is a resource; it is not a waste.

Our recycled water policy requires that salt and nutrients be managed on a basin-wide or watershed-wide basis.  It too encourages the development of regional and subregional salt and nutrient management plans and does not necessarily impose requirements solely on individuals.  Again, a regional plan, taking into account the groundwater sustainability plans.  Where does recycled water fit into those plans?  A lot of it is about groundwater recharge. There are a lot of studies going on regarding how we can better utilize recycled water to recharge our basins, of course ensuring that we still have safe drinking water.

Key #2.  Take the time and effort to engage multiple stakeholders to develop water quality control plans and policies. 

Key number two is making sure that we have all the right diverse stakeholders sitting down at the table to develop the plans and policies together, melding the GSPs along with our basin plans for water quality control, and our salts and nitrate management plans under the recycled water policy. 

It’s important that we argue about it in a meeting room and not a courtroom, and I say this as a lawyer.  We need to recognize that yes, this does add years to the process, and many may argue that we can’t wait that long.  But I contend that if we don’t take that time in a stakeholder process, then we will spend more time in the courts, arguing about it rather than looking to see what can be done collectively.  It’s important that we use this.  It’s important how we develop our plans in order to have not consensus – while I think it would be great if everybody comes around and agrees wholeheartedly.  I think most importantly is that we get to some agreement.  And again, doesn’t have to be a unilateral agreement, but that there’s an understanding and everybody has been part of the development of the process.

The diverse stakeholders actually can reach an agreement based upon what is right for the groundwater aquifer or the region versus a court that’s just going to look at whether that plan meets the letter and the intent of the law.  Now that’s important, but it’s more important that we work collectively to come up with creative solutions.  We need to take time to understand the different community needs, and to understand the different economic and business needs.  Our communities cannot survive in California and in particular the Central Valley without agriculture or the businesses that are there, so we need to balance the needs of our communities along with the needs of our businesses and economic needs in those areas.

A couple of examples of where the stakeholder processes have led to key examples of plans. 

CV-SALTS

CV-SALTS is the Central Valley’s salt and nitrate management program that was adopted by the regional board in 2018 and then approved by the State Water Board in October of 2019.  This process has not gone without its hiccups.  There is a salt control program and there is a nitrate control program.  And while we spent over 10 years at the table trying to come to some agreement, clearly there was still not complete agreement by the time it got to the State Water Board. 

But rather than giving up and just having the state water board reject or not the plan, we ended up, a small group of us – diverse stakeholders representing the agricultural and the business community along with the environmental justice community, Cal EPA, the state board and the regional board – we sat in a room for several weeks, basically ironing out revisions that could happen and be done to that basin plan amendment that would help to keep it moving forward. 

And we came to an agreement, and it is now being implemented.  So don’t ever give up, even if at the regional board, there’s not unilateral agreement, there are still opportunities to try to work things out.  Now, we’ll still wait to see as we move forward with implementation of the nitrate control program in particular, whether it will get implemented in the way that we all want, and intend to, but I think we’re on a good start and a good footing to begin.

The Santa Ana region

Another long-term example that has gone on for decades is the basin monitoring example in the Santa Ana region.  It really is the leading example of how stakeholders have worked for decades to conduct salt and nutrient management planning, in order to basically protect water quality for downstream users with recycled water being put into the streams and recharging into the groundwater aquifers, and how to ensure that groundwater and the water supplies for Orange County are protected. 

That is a long-term example that I think has been on the forefront for many years, so it’s really important that we do include our environmental justice communities and our downstream communities into these examples, whether its Orange County in the Santa Ana region or its some of the Delta water agencies that are looking to see what CV-SALTS is going to do with respect to salts as it may impact the Delta. 

Now clearly, in these diverse stakeholder groups, it’s a little uncomfortable.  But I would rather have it be uncomfortable with people expressing what they really think then the silence.  We all need to be honest in these discussions.  We can be respectful and it’s important to be respectful, but we need to be honest in order to have the tough conversations.

Key #3.  We need to find those interim solutions to protect public health while we are developing and implementing the long term solutions. 

With respect to the CV-SALTS process, one of the key components that was discussed was how do we ensure that we can protect and provide people safe drinking water over in the interim and looking forward for the long-run while it takes us potentially decades for our groundwater aquifers to recover from contamination of nitrate that has occurred over the last however many decades.  What we came up with was that we need to develop and implement Early Action Plans to ensure that people have safe drinking water.  Nitrate is an acute contaminant and it is highly problematic for pregnant women and infant children; they are very vulnerable to nitrate contamination. 

We know that we need to make sure people have safe drinking water.  This is California in 2020.  How do we not ensure that people have safe drinking water?  So we’re working on that.  It doesn’t happen overnight, but there are a lot of things that have happened.  Agriculture and the environmental justice community came together a couple of years ago to pass SB 200 which helps provide $130 million for the next ten years to address drinking water issues throughout California for all constituents.  We are looking at how do we make sure that whether its fill stations or bottled water there’s a way for folks to be able to get access to safe drinking water at no cost to themselves.

It is key.  We cannot have our long-range plans and still allow people to drink unsafe drinking water until those plans are fully implemented.  It just can’t happen.  So we need to be able to deal and mitigate with issues in the interim.

Key #4.  We need to balance our economic needs with our community needs, the environmental justice concerns, along with our agencies. 

In other words, balance means compromise.  We are not all going to get what we want, and it’s not going to be perfect, but I’d rather have us get to the 80%, and thank you Felicia Marcus for reminding us that if we can get to 80%, then we’ve done a really good job of getting where we need to go, but to get there, it means compromising.  And that means not getting all that we want, because this is life, so it’s important that we continue to balance that economic need with the environmental justice concerns and to ensure that our communities have safe access to drinking water.

That can be done through all of our programs, whether it’s SGMA, or Porter-Cologne, or the recycled water policy.  The law allows us that discretion, that flexibility, and in fact, the legislature as I said in 1969, clearly indicated that there would be a balancing for all the demands being placed on California’s waters, including groundwater.

Key #5.  Be patient. 

This is not going to happen overnight.  We all need to be able to compromise, work hard, dig in, I don’t mean in your position, but dig in to get the work done. 

So in closing, I just want to say thank you so much for all that everybody does in the groundwater world.  It cannot happen without all of us, and we sure look forward to seeing you in 2021.

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