March 01, 2015

California adopts sustainable groundwater management

Alf W. Brandt

Finally! California has joined its sister western states in implementing a statewide groundwater management system. For decades, California and Texas were the only western states without one. Texas approved a groundwater management law in 2008. The next year, California Governor Arnold Schwarzenegger approved the state’s first tentative step—a statewide system of local monitoring of groundwater elevations—after vetoing previous groundwater bills. In 2014, after a serious drought, the legislature and governor approved a statewide Sustainable Groundwater Management Act (SGMA), Part 2.74 of Division 6 of the California Water Code.

Historic legislative development

A century ago, the legislature left groundwater out of its state water right permitting system, leaving management to local groundwater users and court adjudications. Southern Californians adjudicated their aquifers in the 1950s. Two decades ago, the legislature created a voluntary legal structure for collaborative management, and courts recognized that county governments could manage groundwater under their police power. However, this led to inconsistencies, including patchwork and limited groundwater management of the state’s largest aquifer in the Central Valley and an ever-growing decline in groundwater resources.

2014 drought

By 2014, California’s long-standing problem with pumping too much water from the Central Valley aquifer had become acute. The state was suffering one of its most serious droughts. Surface water imports from the California Delta slowed. The Central Valley Project, which the Bureau of Reclamation built to counteract groundwater overdraft 75 years ago, had substantially reduced its deliveries to eastern and western San Joaquin Valley. Wells started running dry. Some small towns came within 60 days of complete loss of their drinking water supply.

Emergency plan

In January 2014, with this dire information streaming in, Governor Jerry Brown declared a drought emergency and issued his “California Water Action Plan” that, among other things, called on the legislature to “ensure” that local agencies had sufficient authority to protect groundwater supplies. The governor’s staff convened stakeholders, as well as legislative staff whose members expressed interest in groundwater management. So began a seven-month collaboration between the governor and the legislature, working closely with stakeholders on both sides of the issue. Passed in the final days of the legislative session and signed on September 16, SGMA took effect on January 1, 2015.

California’s groundwater management framework

SGMA came out of three bills: SB 1169 (Pavley), AB 1739 (Dickinson), and SB 1319 (Pavley). Together, these bills establish a statewide framework that relies on local agency leadership to generate “sustainable groundwater management,” defined as the management and use of groundwater without an “undesirable result,” such as unreasonable reduction of groundwater storage, degradation of quality, seawater intrusion, or land subsidence.

SGMA requires an existing or a newly created local agency, called groundwater sustainability agencies (GSAs), to volunteer to develop and implement a sustainable groundwater management plan for a basin. SGMA then invests these agencies with authority and a mandate to collect information, create a plan, regulate groundwater extraction, and enforce limits on pumping to maintain sustainability.

Prioritization of basins

SGMA also requires the California Department of Water Resources (the Department) to prioritize each groundwater basin, from high to very low priority, based on a range of factors. The Department must analyze the projected effects of groundwater depletion on local habitat and surface stream flow, implicitly reversing California’s long-standing legal fiction denying a connection between surface water and groundwater. Any basins designated as high- or medium-priority basins must, in turn, have a GSA that manages groundwater sustainably.

Implementation timelines

As for implementation timelines, SGMA requires the Department to adopt regulations for evaluating GSA groundwater management plans by June 2016 and to establish best groundwater management practices by 2017. Any GSAs in basins subject to “critical conditions of overdraft,” one subcategory of high- and medium-priority basins, must adopt a sustainable groundwater management plan consistent with the Department’s regulations by 2020. Other high and medium-priority basins have an additional two years, until 2022, to complete their plans.

State Board oversight

Perhaps the most critical legal change that will ensure local agencies manage groundwater is the so-called “backstop” of state management by the State Water Resources Control Board (State Board). SGMA authorizes the State Board to put a basin on “probation” if no local agency assumes GSA responsibility or if a designated groundwater sustainability plan is deficient. To put a basin on probation, Water Code section 10735.2 requires the State Board to make certain determinations regarding the sustainability of the basin’s management. Once a basin is on probation, the State Board may adopt its own “interim plan” for the basin.

This state backstop fundamentally changes the default condition if local agencies and groundwater pumpers do nothing in response to SGMA’s passage. Before the new law, local failures to adopt groundwater management meant that pumpers could extract groundwater without any limitation. Now local failures kick authority to the state to step in and regulate. Both pumpers and local agencies prefer local control, making local sustainable groundwater management—and limitations on pumping—an incentivized and achievable objective.

The road ahead

With the law now in effect, it is up to local agencies to implement sustainable groundwater management and decide the fate of the surrounding water supplies. These local agencies may be eligible to get state funding from the recently approved water bond, which included $100 million for groundwater sustainability planning and projects. As local agencies work to assess how much pumping is sustainable, the governor and the legislature may consider how to streamline groundwater adjudications by the courts. Achieving sustainable groundwater management will take a long road, perhaps decades-long. But, at the very least, California can now say it has begun its journey.

Alf W. Brandt

____

Alf W. Brandt serves as an expert in water law and policy for the California State Assembly and as executive director of the Dividing the Waters Program at the National Judicial College.