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WESTERN GROUNDWATER CONGRESS: SGMA and the Human Right to Water

Natalie Cochran is a water resources planner at Woodard Curran who has spent the last two and a half years primarily working on developing, coordinating, and implementing groundwater sustainability plans, primarily within the Delta Mendota subbasin.  In this presentation from the Western Groundwater Congress held in September of 2020, Ms. Cochran discussed how the groundwater sustainability plans intersect and juxtapose the human right to water doctrine, focusing on the lessons learned from the 2020 GSPs, and how development and implementation of GSPs can be applied to help achieve safe, reliable, and sustainable drinking water for all users throughout the state.

What is the human right to water?

Assembly Bill 685 was signed by Governor Jerry Brown in 2012, which amended the California Water code to recognize that every human being has the right to safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitation purposes.  The legislation obligates all relevant state agencies to consider this policy when revising, adopting, or establishing policies, regulations, and grant criteria pertinent to drinking water purposes.

California was the first state in the nation to recognize the human right to water and extend this right to all Californians, regardless of their economic circumstances or whether they live in urban or rural areas.

The State Water Resources Control Board has indicated that the human right to water is a top priority and a core value of the California Water boards, and it will be considered in revising or establishing water quality control plans, policies and grant criteria, permitting site remediation, monitoring, and water rights administration.  Funding opportunities are also available through the State Board’s Safe and Affordable Drinking Water Fund, which provides $130 million per year starting during this fiscal year over the next 10 years to help local water systems provide safe, reliable drinking water across California primarily through infrastructure upgrades.

Ms. Cochran noted that state agencies have developed tools to help identify where the human right to water violations may be occurring.  For example, the Cal EPA Office of Environmental Health Hazard Assessment has released a draft version of their interactive mapping tool, which can be used to assess water quality, affordability, and accessibility to each of the state’s communities and water providers and to help the state board and tracking progress towards achieving the human right to water.

She acknowledged that this is the 10,000-foot view of how state agencies are working to carry out the human right to water.  “We know that there’s going to be significant effort and support required, both regionally and locally, where GSPs can potentially play a role to help ensure safe and reliable drinking water is available for all Californians,” she said.

2020 groundwater sustainability plans and the human right to water

The Sustainable Groundwater Management Act requires all basins designated as high or medium priority to submit groundwater sustainability plans to the Department of Water Resources by January of 2022.  Those groundwater basins designated as critically overdrafted, shown on the map in purple, were required to submit their plans by January 31, 2020.

The Groundwater Sustainability Plan regulations specifically state that the Department shall consider the state policy regarding the human right to water when implementing these regulations, Ms. Cochran said.

There are only about five parts of the GSP regulations that could be interpreted as considering the human right to water within the GSP text,” she said.  “First, the GSPs are required to provide a map of the density of domestic wells as well as a map of the location and extent of communities dependent on groundwater. GSPs are also required to contain descriptive information of all beneficial uses and users of water throughout the basin and develop a communications plan for the involvement of diverse social, cultural, and economic elements of the population within the basin. And finally, GSPs are required to include a description of how established minimum thresholds may affect beneficial users and uses of water. Currently, there are no requirements that GSP specifically identify rural or disadvantaged communities, such as through mapping, or to specifically address how these communities were considered when establishing sustainable management criteria.”

Over the last six months since the 2020 GSPs were submitted and available for public comment., many organizations throughout the state have reviewed those plans to analyze the potential impacts of GSP implementation on the availability of water for California’s most vulnerable populations.

She highlighted three of those studies:

The Water Foundation recently analyzed 26 GSPs submitted for the San Joaquin Valley subbasins to understand how private domestic drinking water wells would be affected primarily by the sustainable management criteria for the chronic lowering of groundwater levels sustainability indicator.  Their study found that even if measurable objectives are achieved, roughly 4000 to 12,000 domestic wells will be partially or completely dry by 2040; 46,000 to 127,000 people will lose some or all of their primary drinking water supply by 2040. It will require approximately $88 to $359 million to restore access to drinking water.

The Public Policy Institute of California recently performed a similar review of the San Joaquin Valley GSPs in the context of the previous drought. Approximately 2600 well-dependent households reported water shortages across the state during the last drought.  Their study found that many of the GSPs did not set thresholds protective of domestic walls from going dry. Some of the GSPs even acknowledged that their established thresholds might cause some wells to go dry.  The map on the right shows the GSPs that did not consider domestic well protections in their plans and how some of those subbasins overlap with the high density of wells that went dry during the last drought.

Kristen Dobbin and her colleagues at UC Davis reviewed all 41 GSPs to assess the degree to which drinking water uses and users were considered in the GSP planning process, as identified within the GSP text. And the assessment performed by her team was also provided to the GSP in the form of comment letters through the SGMA portal.  Only five of the 41 GSPs submitted were found to even mentioned the human right to water. Less than 14 of the submitted GSPs described how drinking water stakeholders could be impacted based on the established sustainable management criteria for the chronic lowering of groundwater levels degraded water quality sustainability indicators. All these studies provide an important overview of SGMA through the human right to water lens.

Groundwater Sustainability Plan Analysis Summary

The issues faced by rural and disadvantaged communities and domestic well users are often complex, multi-layered, and vary both regionally and locally.  Groundwater is usually the sole supply source, so if a well goes dry or water quality doesn’t meet drinking water standards, there’s no other supply option.

This puts these communities at the forefront of the climate change crisis where they’re the most likely to be the first and most severely impacted by more frequent and prolonged droughts and poor groundwater quality that does not meet drinking water standards,” said Ms. Cochran.

The chart shows the total population by county of communities served by water systems that exceed drinking water requirements as of the first quarter of this year.  Many of the 1 million Californians served by out of compliant water systems are located within basins where the 2020 plans were developed; that includes Kern, Tulare, San Joaquin, Merced, Fresno, and Kings County. They have limited technical, managerial, and financial resources related to participation in the GSP planning process. Funds may not have been available to help hire counsel with the appropriate technical expertise, or community representatives weren’t able to attend meetings or review GSP sections to provide meaningful feedback due to either time constraints or potentially language barriers.

With those issues in mind, she then discussed how the 2020 GSPs addressed the existence of rural and disadvantaged communities, what their representation and involvement in the GSP planning process, and how they were considered in developing sustainable management criteria specifically for the chronic lowering of groundwater levels and degraded water quality sustainability indicators, as those are the ones that directly impact the ability to achieve the human right to water.

In terms of GSPs identifying rural and disadvantaged communities, Kristen Dobbin and her colleagues evaluated whether descriptive information about these communities was included in GSP texts such as the number, name, and location of disadvantaged communities (or DACs), and the counts and depths of domestic wells. Her team found that such descriptive information was found in 76% of GSPs for DACs, 53% of GSPs for public water systems, and 34% of GSPs for domestic wells. 15 GSPs provided either an estimated total number of domestic wells or a map by parcel but not both, and 12 GSPs included no descriptive information about domestic wells at all.

Ms. Cochran noted that it is a requirement of the groundwater sustainability regulations that at least a map of the density of domestic wells is provided.  “So, the absence of descriptive information about these communities could be indicative of their representation and involvement in the groundwater sustainability planning process.”

Disadvantaged communities and domestic well users often face significant barriers to involvement in the GSP development process from the start due to limited resources. But on top of that, of the 97 GSAs that contributed to the development of the 41 2020 GSPs, only 13 GSAs reported having drinking water representation on their stakeholder and advisory committees. Only 12 GSAs reported having disadvantaged community representation.

The time available to review GSPs may have also been viewed as a barrier to participation due to plans’ technical nature and how some were several 100 pages to over 1000 pages long.  A separate public review period prior to GSP submittal to DWR is not required, and only 31 GSPs identified that they had this review period in their GSP text. For those who did hold a public comment period, the average duration was 71 days.

In terms of the groundwater sustainability plan content, only 11 of the 41 GSPs were found to have projects or management actions with specific benefits for disadvantaged communities, such as drinking water consolidation or installing water meters.

It could be inferred that the lack of project management actions identified as specifically benefiting disadvantaged communities could be the result of significant barriers in participation in the planning process or a lack of formal representation or comment periods that didn’t allow for a complete or thorough review of draft materials,” she said.

Ms. Cochran then briefly touched on how the GSPs established the sustainable management criteria for the chronic lowering of groundwater levels and degraded water quality.

They looked at what factors were considered in determining the measurable objective and minimum thresholds for the chronic lowering of groundwater levels sustainability indicator. The chart shows the number of GSPs that considered each factor, where each GSP could have considered more than one factor.

It’s not additive across the columns, but 8 GSPs explicitly stated the impacts on disadvantaged communities and domestic well users were considered in establishing measurable objectives and 14 GSPs indicated the same for minimum threshold,” she said.  “Historically observed water level data was most frequently used in establishing minimum thresholds and measurable objectives for groundwater levels where previous studies may indicate that historic data might not be protective of disadvantaged communities and domestic well users.”

A similar question was asked relative to the degraded water quality sustainability indicators. In this case, only seven GSPs stated that impacts on DACs and domestic wells were considered in developing sustainable management criteria for degraded water quality regulatory requirements. Maximum contaminant levels were the most frequently used criteria, and many GSPs still allowed for the exceedances of regulatory levels for key constituents.  Of the seven GSPs that addressed impacts to DACs and domestic wells, it was noted in some that numeric criteria would be established during the 2025 update to the GSP once sufficient data had been collected or that while additional exceedances of the maximum contaminant levels or secondary maximum contaminant levels are considered undesirable, SGMA doesn’t mandate the improvement of water quality.

It should be recognized that there was a significant effort involved in developing these GSPs throughout the state and all the hard work put in by the GSAs to develop these plans, and especially the sustainable management criteria, and that should not go unnoticed,” she said.  “Many of you who have worked on GSPs are likely well aware of some of the major barriers in developing GSPs, which may have also presented barriers to addressing the human right to water in the GSPs. So missing information was likely encountered to some extent in the development of all GSPs throughout the state where maybe well records are incomplete, or datasets are incomplete or out of date, in particular for domestic while users and small water systems.”

“Several GSAs and municipalities have initiated well census projects to understand groundwater uses throughout their basin better and fill in this information,” she continued.  “But these projects can also present their own challenges where certain users may be reluctant to provide information to the GSAS about their well location or their groundwater pumping or water quality due to the fear of being regulated. And databases can also be out of date and incomplete.”

Ms. Cochran noted that there are a lot of unknowns about who is responsible for addressing this issue, what roles the groundwater sustainability plans play, and how SGMA fits in with other programs like the irrigated lands regulatory program, or CV-SALTS.  Funding to develop a groundwater sustainability plan that meets the requirements of the regulations and the required elements of GSP implementation is also a challenge for many of the GSAs throughout the state. The additional projects or studies that are a requirement of SGMA further add to the expense of developing and implementing a GSP.

GSAs also have limited legal powers and authority to address issues that directly impact the human right to water as GSAs don’t have the authority over well permitting or dischargers within their areas,” she said.  “So I want to acknowledge that there is not going to be a one size fits all approach as the challenges that are faced in each basin and by each community and the individual users are different.”

Lessons learned from the 2020 groundwater sustainability plans

There are important lessons that can be learned from the 2020 GSPs and insight from advocacy work that’s being done throughout the state that can be used to help engage rural and domestic communities and carry out the human right to water doctrine.

So outreach is a key component of GSP development, and it doesn’t end once a GSP is submitted. It is a continuous process and effort throughout implementation.

The Water Education Foundation recently released a handbook for best practices in engaging disadvantaged communities on water issues, including engaging community partners and organizations to help identify users, develop engagement strategies, and begin to understand the needs of small groundwater users.  The work done under the Prop 1 disadvantaged communities involvement program primarily by the Integrated Regional Water Management groups can also be utilized to identify rural and disadvantaged communities and their needs without completely reinventing the wheel.  GSA representatives should also be looking for opportunities to reach out directly to identify community leaders and organizations to begin to, or continue to foster such relationships and identify where their goals for groundwater management overlap.

Ms. Cochran said that with only 11 of the 41 GSPs containing projects or management actions with specific benefits for disadvantaged communities, funding is a well-known issue for the GSAs in trying to get their projects and management actions off the ground.  Partnering with rural and disadvantaged communities in identifying projects with benefits for multiple parties can help apply for funding through grants and loans. There are often funds set aside to fund projects that provide benefits to disadvantaged communities.

She also suggested that regional cooperation outside of the groundwater management bubble and coordinating with other programs that overlap with SGMA, such as the irrigated lands regulatory program or CV-SALTs, to understand their goals and requirements and how they overlap with a GSP may result in efficiencies in developing and implementing a GSP. And additionally, such coordination can also help address issues related to the human right to water violations such as poor water quality by working to define each party’s responsibilities.

The human right to water has been identified as a state priority and was most recently discussed in the 2020 water resilience portfolio,” said Ms. Cochran.  “While addressing the human right to water in the groundwater sustainability plan text is not a direct requirement, requirements may change in the future for subsequent updates.  Now’s the time to get ahead of the curve by engaging all beneficial uses and groundwater users now, particularly the small groundwater users, and begin to build or continue to solidify such relationships moving forward. And with the implementation of the 2020 GSPs just now getting off the ground, GSAs should examine what focused studies they will need to fill data gaps that were identified or even not identified during GSP development.”

An example of a focused study related to the human right to water is the drinking water well impact mitigation program framework developed by the Leadership Counsel for Justice and Accountability, Community Water Center, and Self Help Enterprises. While such a project is not a requirement of SGMA, this program framework can help mitigate and prevent and address adverse effects on drinking water wells caused by active management of a GSP as part of the implementation.

Key elements of this type of program include:

    • mapping and assessing drinking water vulnerabilities by identifying well locations and depths to determine if impacts may occur during GSP implementation activities;
    • developing an adaptive management or trigger system where if groundwater levels or groundwater quality reaches a level that would negatively impact drinking water users;
    • develop and utilize a tool or model that’s tied to a monitoring network to predict when drinking water impacts may occur and attempt to mitigate them;
    • public outreach and education to make drinking water users aware of the mitigation activities in place so that they can raise concerns if they experience negative impacts, and if negative impacts occur, having short term and long term mitigation measures identified, such as third party determination of causality, interim drinking water solutions or reduction or adjustment of pumping near the impacted drinking water well.

Ms. Cochran pointed out that such activities could receive technical assistance and support from both the State Water Resources Control Board and DWR.  The State Water Resources Control Board offers the technical assistance funding program available to help small and disadvantaged communities of less than 10,000 people develop, fund, and implement drinking water, wastewater, stormwater, and groundwater projects.  DWR also offers similar funding and technical assistance programs such as the technical support services for activities like installing a monitoring well, or model training and support, facilitation support services to fund professional facilitators for stakeholder assessments, public outreach, and targeted outreach to underrepresented groundwater users, and written translation services for outreach documents such as written notices, and presentations, fact sheets, and brochures.

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