STATE WATER BOARD lays out proposed timeline for state intervention in six groundwater basins with inadequate plans

In March 2023, six basins were deemed by the Department of Water Resources to have inadequate groundwater sustainability plans, prompting possible intervention by the State Water Board.  This marks the first since the Sustainable Groundwater Management Act was passed in 2014.  The Act mandates all medium and high-priority basins to establish local groundwater sustainability agencies (GSAs) and develop and implement groundwater sustainability plans (GSPs).  These plans serve as a roadmap to ensure the long-term sustainability of groundwater resources.

The six basins, the Delta Mendota, Chowchilla, Kaweah, Tulare Lake, Tule, and Kern County, had submitted their groundwater sustainability plans (GSPs) to DWR for review in January 2020.  DWR’s evaluation found them incomplete; they were given six months to revise their plans.  The plans were resubmitted in the summer of 2022 and were ultimately deemed inadequate in March 2023.  DWR’s list of deficiencies included continuing overdraft, worsening land subsidence, and impacts on domestic wells.  This has triggered the potential for the State Water Board to intervene and starts a process that could ultimately result in the State Water Board temporarily taking over management of the basin.

The Board is now considering whether intervention is warranted and how it should prioritize and schedule potential probationary hearings.  At the June 21 meeting of the State Water Resources Control Board, the Board discussed how it should prioritize and schedule probationary hearings.

What is state intervention?

Intervention is a temporary process to help groundwater basins get back on the track to sustainability.  Intervention is triggered when the Department of Water Resources determines that a groundwater sustainability plan is inadequate.  The Board considers whether intervention is warranted.  And if it finds it warranted, it can place the basin on probation.  While on probation, GSAs have a period of time to address issues.  And if those issues are not addressed within that time, the Board can implement an interim plan.

Anthony Wohletz, Senior Engineering Geologist, noted that the process for state intervention is at the Board’s discretion; the Board decides to place a basin on probation or implement an interim plan through an open and transparent board hearing.  GSAs can petition the Board to exit state intervention if they believe deficiencies have been addressed.

If the issues are not addressed during the probationary period, the State Water Board may begin another public process to determine whether or not to develop and implement an interim plan for the basin.  Importantly, an interim plan cannot be implemented until the GSAs in a probationary basin are allowed at least one year to correct their deficiencies.  If the State Water Board adopts an interim plan, the Board will temporarily manage groundwater in the basin until the local agencies can resume management.

Prioritizing the basins for intervention

A staff presentation to the Board in April presented the factors to consider when prioritizing the six basins.  These factors included basin overdraft, subsidence impacts, impacts to domestic wells, and impacts to water quality.  Since then, staff have continued to look at the data to help inform the prioritization of basins for intervention.

Based on that analysis, staff placed the basins into two groups:

• First priority basins: Kaweah, Tulare Lake, Tule, and Kern County: These are basins with ongoing groundwater decline that poses imminent impacts to water users and infrastructure or where the proposed GSPs have the potential for substantial impacts to water users and structure or with no clear timeline or pathway to address issues.
• Second priority basins: Delta Mendota and Chowchilla: These are basins where impacts to water users and infrastructure are less severe, and deficiencies may be easier to correct.

The slide shows the proposed schedule for probationary hearings, with the Tulare Lake being the first in December of 2023 and continuing with the other five basins throughout 2024.

For Tulare Lake, Tule, and Kaweah subbasins, staff said urgency is warranted due to the anticipated impacts on drinking water wells due to declining groundwater levels and water quality degradation.

“Based on the analysis that we did with the Department of Water Resources, looking at how future drought could impact wells, that analysis showed over 2000 domestic wells were at risk of going dry in these three basins alone,” said Ms. Stork.  “Additionally, since the last information item, our team conducted further analysis on the minimum thresholds in the plans for these three basins to calculate if water levels dropped to those minimum thresholds across these basins, how many domestic wells that we know of would go dry and we saw over 2000 in that analysis, so the plans as they are today, are not protective of drinking water beneficial uses.”

She also noted that there could be subsidence impacts on infrastructure, such as the California Aqueduct, the Friant Kern Canal, and other infrastructure.

With Kern County, fundamental coordination issues and independent criteria could allow widespread exceedances of thresholds set by these plans before management actions are triggered.

“To explain that a little differently, in one area, there could be exceedances at a certain number of monitoring sites, but management actions wouldn’t necessarily kick in unless there are exceedances in other areas,” explained Ms. Stork.  “There are interdependent criteria between areas, and the thresholds for management actions within an area are just much greater.  It’s that interdependency that is concerning, especially when things aren’t coordinated across management areas, GSAs, and plan areas.  So the impacts could be extensive, but there are data gaps that make this unclear.”

In the Delta Mendota subbasin, 23 GSAs were formed that submitted 6 groundwater sustainability plans and a coordination agreement.  However, there were substantial coordination issues.  In response to the determination, they are now developing a single groundwater sustainability plan for the entire subbasin.

The potential impacts in the Chowchilla are less extensive.  The GSA has already submitted a revised plan for review which the Board is currently reviewing.

Next steps in the intervention process

The first step is to schedule a probationary hearing.  The statute requires a minimum 90 Day notice for cities and counties, DWR, and the Board’s electronic mailing list.  60 Day notices are required for all the known pumpers in the basin and any proposed pumpers.

Next, before the hearing, Board staff will provide a list of draft deficiencies in a report released with a public comment period.  During this time, staff will also outreach to stakeholders with one in-person and one virtual meeting in each basin.

Then, staff will evaluate the information received, finalize the deficiencies, and develop a draft order which will be circulated for public comment before the probationary hearing.  At the hearing, the Board will consider the draft order, at which time the Board could potentially designate the basin as probationary.

Ms. Stork said the hope is that all six basins will get their plans back on track and exit state intervention as soon as feasible.  The first step for the GSA is to revise the plan and address the deficiencies identified by DWR.  Next, a technical meeting will be held where the GSA will explain how the deficiencies have been addressed.  Then the Board and DWR will review the revised plans.  Then the Board will decide whether the deficiencies are addressed, and if so, the Board’s intervention process will end.

GSAs should work to address deficiencies and continue implementing their plans

Ms. Stork said that while the Board is preparing to move forward, the GSAs should address the plan deficiencies the Department of Water Resources identified.  While the Board has the discretion to identify other deficiencies, the GSAs should remain focused on those identified by DWR.

The GSAs continue implementing their plans and keep those projects and management actions on track while working to address deficiencies.  She noted that the potential probationary designation doesn’t change any GSA authorities, so they should continue exercising their authority as needed to fix and implement their plans.

Board discussion

Chair Joaquin Esquivel noted that the timeline might be a ‘little aggressive,’ given the amount of work needed for each basin.  “DWR always said that the deficiencies that they had identified weren’t exhaustive, and as the board goes through a more thorough process, especially as probation sort of allows that time and engagement, there may be other deficiencies or things that may come up,” he said.  “So hopefully that isn’t of surprise, and know that it will be with a lot of scrutiny and diligence on our side.”

Vice Chair DeDe D’Adamo said that she has reviewed the FAQs that staff has developed for GSAs and the pumpers, and they have a lot of good information.  “I think they answer many of the questions I’ve been getting.  There’s a lot of angst out there.  So I want to encourage stakeholders to pull up those documents, and that should hopefully answer a lot of your questions.”

Board member Sean Maguire said he agreed with the order of the basins in terms of the need to move forward, and he’ll largely defer to staff in terms of the timing.  “I agree, to an extent, with Chair Esquivel that we should be thinking carefully about the aggressiveness of the schedule, but I think we’re going to learn a lot over the first one or two of these processes in the coming months.  And that could dictate how the rest fall out.  But I think the timing you proposed is a good starting point for now.”

He noted that it’s helpful that Ms. Stork clarified that the GSAs should work on the deficiencies identified by DWR.  So how do we make sure that the work that they continue to do is meaningful and productive?

Ms. Stork said the key is to continue scheduling meetings between the GSAs and board staff to discuss the technical issues.  “We’ve been clear with all of them that as staff, we can’t give them a thumbs up or a thumbs down on any particular issue.  Ultimately, it’s our Board’s decision, and we work for the Board.  But we can do everything we can to understand where they are headed regarding addressing these deficiencies.”

Eric Oppenheimer, Chief Deputy Director, acknowledged the challenge for the GSAs is not knowing exactly what to expect.  “I think we should not try to identify every last little problem; we should really focus on the critical issues,” he said.  “I have had some conversations with Paul Gosling at DWR.  And if the plans get in good enough shape, they can be referred back to DWR, even if they’re not perfect, because DWR then has a process where they can continue to identify and resolve corrective actions.  So there’s going to be a balance between being comprehensive and identifying the critical issues that address the critical problems, but not trying to achieve perfection at the probationary stage.”

The public weighs in

The Board then heard public comments.  All the basins except for Chowchilla had representatives that spoke at the meeting.  They emphasized the projects and actions they have already taken, such as recharge projects, allocation programs, drinking water well mitigation programs, fallowing land, and other actions.  Most basins are already working on amending their plans.  And all of them reiterated their basin’s commitment to sustainability and pleaded for more time to correct the deficiencies.

Chase Hurley, General Manager of Pacheco Water District and representative for the Delta Mendota subbasin, acknowledged that the basin has to take a different approach, so the 23 GSAs are consolidating the 6 GSPs into a single GSP and drafting an MOA, which is expected to be completed by early fall.

He noted that water quality issues are a challenge.  “We want to work closely with State Board staff to come up with solutions to our water quality issues,” he said.  “We need to find a pathway to allow our subbasin to use the state’s irrigated lands program and the CV-SALTS program.  As we develop the GSP, our landowners, and communities have put a lot of time and capital into those two programs, and we’ve got to figure out a way where that can be a common thread.”

Several commenters expressed concerns that the probation process would jeopardize the GSA’s continued progress.  Soren Nelson with the Association of California Water Agencies pointed out that local groundwater managers have been working hard to build trust and create buy-in for SGMA, so the Board needs to be careful not to undermine the GSAs and compromise the trust that has been built.

“Community participation is crucial to our success in reaching sustainability, but the continued success with landowner participation will be difficult should the Tule Basin proceed to a probationary hearing,” said Ashley Walker, an attorney representing the East Tule GSA.  “Without landowner participation, the overdraft conditions could exacerbate, and the dollars that might be paid as a result, thus mitigation for drinking water wells and impacts caused by land subsidence will go unpaid and potentially unfixed.”

Rogelio Caldeo, also with the East Tule GSA, reiterated the concerns of the process being derailed.  “Unfortunately, since we got the determination letters for some landowners, it has sort of questioned the legitimacy of the GSA, and it’s becoming a bit harder to continue implementing our policies with this looming over us.”

Vice Chair De De D’Adamo said they would like to work on the messaging so their good work is not undermined.  “My husband’s a farmer, so I completely understand how difficult it can be,” she said.  “What I don’t think we can fix is a desire that things are different.  We’re in a changing world, and we have recognition across the Board, from the legislature, from our agency, DWR, and really from the whole state, that we need to change our practices so that we will have water in the future in our groundwater basins.  So I wanted to let you know that we want to do everything we can to help you to message that to your growers.”

Chair Joaquin Esquivel added, “This isn’t a devaluation of the GSAs or delegitimizing of your leadership and work,” he said.  “We’re here to support the communities, and the more we can make sure that is the message, the more we can start these projects and this work in the right way.”

Trevor Joseph with the Sacramento Groundwater Authority and Regional Water Authority spoke of his concerns about the Board’s potential probationary determinations.  His concerns are twofold:  the need for clarity for the GSAs regarding the requirements for meeting the plan deficiencies and the technical expertise of the Board when determining its own deficiencies in the GSP.

Tien Tran with the Community Water Center said the plans must prioritize climate resiliency in the San Joaquin Valley.  The plans should incorporate an analysis of how climate change will impact water supply, sustainable management criteria, and projects and management actions; extreme dry and wet scenarios should be considered in water planning; and ensure that the subbasin develops a climate change analysis on the amount of pumping that would be allowed under climate conditions.

Ms. Tran also said there has been poor stakeholder engagement across most basins, and now some GSAs have moved from online or hybrid meetings to in-person meetings only, which limits community participation significantly.

Jasmine Rivera with Self Help Enterprises expressed the concern that the aggressive timeline for the probationary basins does not come at the expense of meaningful engagement in this process and ensuring the protection of drinking water sources.  Self Help Enterprises values the State Water Board as partners in SGMA implementation and drought mitigation efforts.  Ultimately, they support the State Water Board in whatever the Board thinks is the best way forward.

Nataly Escobedo Garcia with the Leadership Counsel for Justice and Accountability said they support the inadequate determinations and the prioritization of the basins with the most impacts on drinking water users.  However, they believe the timeline is still too long, and request the Board initiate probationary hearings immediately.  She said that even if they fix their plans, the probationary hearing should still be held.

“We implore the Board to exercise their expertise on groundwater quality and require major revisions on groundwater quality sustainable management criteria and groundwater quality monitoring networks.  The majority of GSPs across the state have major gaps in groundwater quality protection, and the Board’s leadership in groundwater quality will be instrumental in ensuring GSAs going into probation address groundwater quality issues, but will also set a standard for how basins should be managing and monitoring groundwater quality moving forward.”

Concluding remarks

Overall, the Board members seem to agree on the prioritization rationale and the proposed timeline for moving forward.  Board member Laurel Firestone pointed out that the basins with inadequate determinations are the most challenging in the state in terms of local conditions.  “I think it’s really important that as we move forward as a board, we recognize these are extreme challenges.  This is not a penalty; this is very much recognition and support for all the efforts that are going on in the basins who are embracing SGMA and working on getting to success.  So I think that’s going to be critical in our messaging to make sure that we are supporting and building on all the trust and work that’s going on in the basins.”

“On the other hand, we do have a really important role here as part of SGMA as the backstop.  I agree in terms of both the schedule and order laid out as for now … Of course, throughout that process, there must be a lot of stakeholder engagement.  I hope we can avoid going into probation and, even more so, having to adopt an interim plan.”

Board member Sean Maguire agreed with DWR’s findings and acknowledged that if it were simple, all the basins in California would be sustainable right now.  “I am cautiously optimistic, but at the same time, it’s the Board’s responsibility and duty to proceed with the probationary process as appropriate.”

Chair Joaquin Esquivel pointed out that probation isn’t the start of any forced action from the Board.  “It’s still a full year after that before an interim plan is developed here at the Board, so we have to remember that probation is the start of a process within SGMA. … If a basin is then brought into probation, at that moment, it’s still a full year before any interim plan can be developed or implemented.”