DWR Proposes Requirements for Determining Adequacy of Groundwater Sustainability Plans Mandated by SGMA

February 22, 2016 | Bulletin No. 1273994.1

The California Department of Water Resources (“DWR”) has released draft emergency regulations specifying the criteria by which it would assess the adequacy of Groundwater Sustainability Plans (“GSP”) mandated for 127 high- and medium-priority basins, under the Sustainable Groundwater Management Act (“SGMA”).

Released February 18, 2016, the draft regulations specify the method by which DWR would assess the adequacy of GSPs that must be adopted by 2020 for basins in critical overdraft and by 2022 in all other high- and medium-priority basins. GSPs that fail to pass muster would set the stage for the State Water Resources Control Board (“State Board”) to intervene and impose its own interim GSP. DWR must finalize the regulations by June 1, 2016.

The draft regulations specify requirements and provide guidance on potential use of existing groundwater management programs as alternatives to developing new GSPs, agreements to coordinate development and implementation of multiple GSPs in a single basin, and coordination of GSPs in separate, but hydrologically connected, basins. Comments on the draft regulations may be submitted to DWR in writing through March 25, 2016.

Background

On January 1, 2015, California began implementing SGMA, a landmark law that for the first time establishes a statewide regulatory framework for groundwater management. SGMA enlists local agencies in groundwater basins identified as “high” or “medium” priority to implement GSPs or alternatives tailored to the needs of their communities. The ultimate goal of SGMA is to ensure that groundwater production and use in at least 127 basins is managed to avoid “undesirable results,” such as chronic lowering of groundwater levels, seawater intrusion, subsidence, or depletions of interconnected surface waters. To achieve that goal, SGMA generally requires designation of local Groundwater Sustainability Agencies (“GSA”) by June 30, 2017, in order to meet the 2020 and 2022 deadlines for managing basins under GSPs or alternatives.

The Draft Regulations

The draft regulations would lay out the required content for GSPs to achieve SGMA’s mandate to avoid undesirable results, defining “critical parameters” to include chronic lowering of groundwater levels indicating a depletion of supply if continued over the planning and implementation horizon, reduction of groundwater storage, sea water intrusion, degraded water quality, land subsidence that substantially interferes with surface land uses, and depletions of surface water that have adverse impacts on beneficial uses of surface water that may lead to undesirable results.

Among other things, the draft regulations require Groundwater Sustainability Plans to:

  • Provide detailed information regarding the local managing agency, including the legal authority and financial ability necessary to implement the plan.
  • Provide detailed information regarding the physical characteristics of the basin, which must be prepared under the direction of a professional geologist or engineer. This information must include a hydrogeologic conceptual model, historic and current basin conditions, and a water budget encompassing groundwater and surface water supply and demand.
  • Describe the sustainability goal the local agency established for the basin and describe how the basin will be operated within its sustainable yield, and explain how the goal will be achieved within 20 years of GSP approval.
  • Establish “minimum thresholds” for each critical parameter that define the point at which actual conditions for each parameter are significant and unreasonable. A local agency may determine minimum thresholds are not required for seawater intrusion, land subsidence, depletions of interconnected surface water, or water quality—but only if this determination is supported by clear and convincing evidence.
  • Include one or more “measurable objectives” for each critical parameter that has an established minimum threshold. The GSP must include “interim milestones” for each measurable objective. The measurable objectives must ensure the basin is managed to avoid undesirable results within 20 years of GSP approval and that groundwater is sustainably managed over each GSP’s 50-year planning and implementation horizon.
  • Describe the projects and management actions adopted to meet measureable objectives and prevent undesirable results, including emergency contingency projects.

As part of preparing and implementing a GSP, the local agency must also:

  • Develop a monitoring network capable of collecting sufficient data to demonstrate trends in surface water and groundwater conditions;
  • report monitoring data to DWR, either in an annual report or by making the data available to DWR throughout the year;
  • submit an annual report to DWR by April 1 each year, providing information on groundwater elevations, groundwater extractions, total water use, change in groundwater use, and progress towards implementing the GSP; and
  • prepare and submit to DWR an assessment report every five years, evaluating and assessing basin conditions relative to the basin’s sustainability goal.

The draft regulations describe the method and criteria DWR would apply to evaluate and assess the adequacy of a Groundwater Sustainability Plan, as well as for periodic assessment of plan implementation. In conducting the evaluation, DWR would: 

  • Evaluate a GSP within two years of its submittal date and determine whether the GSP is adequate to satisfy the goals of SGMA and be in “substantial compliance” with DWR’s requirements for GSP content; and
  • review, every five years, approved GSPs to ensure each GSP, as implemented, remains in conformance with SGMA and is likely to achieve the sustainability goal for the basin.

The draft regulations also address coordination agreements, GSP alternatives, and adjudicated basins. The draft regulations would require:  

  • Intra-basin coordination agreements for basins with multiple GSAs and GSPs and establishment of a “Submitting Agency” that must compile data by all GSAs in the basin and produce a single report for submittal to DWR;
  • adjudicated areas to submit an annual report to the appropriate court, detailing groundwater data, total water use, and change in groundwater storage; and
  • GSP alternatives would have to include an explanation of the “functional equivalence” of terms and concepts used in the alternative with the substantive and procedural requirements of SGMA and of DWR’s emergency regulations for GSPs.

What This Means To You

The draft emergency regulations would specify detailed GSP content requirements and impose rigorous criteria for DWR to review the adequacy of local GSPs and GSP alternatives. Water agencies, cities, counties, landowners and other stakeholders in SGMA’s 127 high- and medium-priority basins should review the draft regulations and consider submitting comments to help make the final regulations work for stakeholders. DWR will accept public comments on the draft regulations through March 25.

Questions

If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult:

Eric Robinson 
erobinson@kmtg.com | 916-321-4576

Hanspeter Walter 
hwalter@kmtg.com | 916-321-4535

Stanley Powell 
spowell@kmtg.com | 916-321-4214