DWR Releases Draft Emergency Regulations for Groundwater Sustainability Plans

DWR Releases Draft Emergency Regulations for Groundwater Sustainability Plans

The California Department of Water Resources ("DWR" or "Department") released draft emergency regulations on February 23 governing the preparation, evaluation, and implementation of groundwater sustainability plans ("GSPs" or "Plans") as well as coordination agreements among Groundwater Sustainability Agencies ("GSAs"). The Sustainable Groundwater Management Act ("SGMA") directs DWR to adopt final regulations by June 1, 2016.

DWR’s timely adoption of these regulations is essential as some of SGMA’s key deadlines approach. Once adopted, DWR’s regulations will provide the framework for GSAs in developing and implementing GSPs, and the standards that DWR will use in evaluating those GSPs. By January 31, 2020, all high- and medium-priority basins subject to critical conditions of overdraft must be managed under an approved GSP, and all other high- and medium-priority basins must have an approved GSP by January 31, 2022. SGMA requires each GSP to provide "measurable objectives" that will allow the basin to achieve a "sustainability goal in the basin within 20 years of the implementation of the Plan." (Water Code, ? 10727.2(b)(1).) The draft regulations are voluminous (almost 60 pages) and provide a comprehensive set of procedures, technical standards, and substantive mandates concerning GSP preparation. The regulations attempt to both promote groundwater sustainability through local management and also provide a set of statewide standards that all GSAs must apply in managing a given basin and setting numeric targets.

Provisions in the regulations include: the required contents of GSPs; minimum standards for monitoring sites, data and reporting standards; notification procedures; required information concerning basin conditions; criteria for sustainable management of the basin; water budgeting; dispute resolution; annual reporting requirements; requirements for coordination agreements; and the methodology and criteria for GSP alternatives and for adjudicated areas. Key elements of the draft regulations are summarized below.

Minimum Thresholds and Measurable Objectives for Critical Parameters
The draft regulations set forth the formula for developing minimum numeric thresholds for the six critical parameters provided in SGMA: (1) chronic lowering of groundwater levels, (2) reduction in groundwater storage, (3) seawater intrusion, (4) degraded water quality, (5) land subsidence, and (6) depletions of interconnected surface water. Each GSP is required to "include one or more measurable objectives for each critical parameter that has an established minimum threshold." It is these measurable objectives that must "ensure that the basin is managed to avoid undesirable results within 20 years of Plan implementation." The regulations repeat SGMA’s requirement that GSPs provide interim milestones for each measurable objective in increments of 5 years. The selection of quantitative standards by GSAs for their measurable objectives and minimum thresholds is an issue that is likely to lead to controversy. For instance, in areas already suffering from seawater intrusion, it may not be reasonable to maintain or improve existing basin conditions (at least initially), and so a GSA may instead focus on slowing the rate of seawater intrusion. Determining how much is enough will be challenging, and a great deal of uncertainty exists regarding how stakeholders and DWR will evaluate a chosen objective or threshold.

Projects and Management Actions

The draft regulations require each Plan to provide a description of the projects and management actions proposed or approved to meet the Plan’s measurable objectives and prevent undesirable results. The regulations also require each Plan to provide "contingency" projects or actions for each measurable objective that will be implemented in the event that groundwater conditions have not adequately responded to other measures or those measures are no longer feasible. Plans must also describe "emergency contingency" projects or actions that will be implemented in the event that groundwater conditions in the basin have passed a minimum threshold or that undesirable results have occurred or are imminent. The "emergency contingency" projects and plans must also be "designed to achieve immediate results such that the Agency is able to demonstrate that the emergency has been abated by or before the next annual report."

With respect to the selection and implementation of projects, in particular emergency contingency projects, the issue of environmental review under the California Environmental Quality Act ("CEQA") may significantly delay a GSA’s ability to implement a given project. While SGMA explicitly states that the preparation and adoption of GSPs is not subject to CEQA, no such blanket exemption was provided for proposed projects or management actions provided in a GSP. (Water Code, ? 10728.6.) On the other hand, especially in the context of the "emergency contingency" projects, it would seem that the CEQA exemption for emergencies should apply.

Monitoring Network

Under the regulations each GSA must "develop a monitoring network capable of collecting sufficient data to demonstrate short-term, seasonal, and long-term trends in surface and groundwater conditions and [that] yields representative information about changes relative to the minimum thresholds and measurable objectives for the basin." Each GSA may develop its own best management practices ("BMPs") for monitoring, but the regulations provide certain minimum standards in developing those BMPs for each critical parameter. Where a GSA’s monitoring network contains data gaps, the regulations require the GSA to describe the steps that will be taken to fill those gaps within the first five years of implementation of the GSP. One of the interesting areas of likely controversy will be GSAs’ efforts to use available and new data to interpolate groundwater contours for management purposes. Many basins lack quantitative groundwater models and extensive stratigraphy and lithography; thus, the opportunity for controversy as a GSA extrapolates groundwater contours for management is great.

The draft regulations describe the procedures, methodology, and criteria for DWR’s evaluation and assessment of GSPs. For example, DWR must provide a minimum of 60 days for public comments on adopted GSPs, prior to DWR issuing its assessment. DWR must evaluate GSPs within two years of the submittal date and issue a written assessment of the Plan, which DWR will post on its website. DWR will evaluate GSPs based on their "substantial compliance" with DWR’s regulations and the goals of SGMA. Substantial compliance will be found where:

"the Agency has attempted to comply with [the] regulations in good faith, that the supporting information is sufficiently detailed and the analyses sufficiently thorough and reasonable, in the judgment of the Department, to permit evaluation of the Plan, and the Department determines that any discrepancy would not materially affect the ability of the Agency to achieve the sustainability goal or of the Department to evaluate the likelihood of the Plan to attain the goal." (Section 355.4.)

Certain GSP requirements, however, are mandatory. DWR will make a determination of whether a GSP falls into one of three categories (1) adequate, (2) conditionally adequate, or (3) inadequate. Where a Plan has "minor deficiencies that preclude an adequacy determination, but that could be rectified" by the GSA, it will be considered "conditionally adequate" and the GSA will have up to 180 days in most cases to address the deficiencies. A Plan that does not meet the mandatory criteria for all GSPs, and contains significant deficiencies that cannot be rectified in a timely manner, however, will be deemed inadequate. DWR will review GSPs at least every five years and whenever a Plan is amended.

Once again, we anticipate that there will be a great deal of controversy over the definition of "minor" deficiencies" in a GSP and whether or not those "minor" deficiencies move an otherwise adequate plan into the "conditionally adequate" or "inadequate" categories. While there is likely to be widespread agreement on wholly inadequate plans, those plans are also not likely to occur in basins that are having groundwater management problems. It is much more likely that, for political, financial or geophysical reasons, a GSA may choose to gloss over some of the more difficult management issues in the first iteration of a GSP. If DWR finds those creative ambiguities sufficient to trigger a finding of "inadequacy" this may have the perverse effect or undermining local determination in favor of state intervention.

Comment Period on Draft Regulations

Written comments on the draft regulations are due no later than March 25, 2016. DWR will hold three public meetings, which are tentatively planned for March 21-25, 2016. DWR anticipates presenting final GSP regulations to the California Water Commission for consideration and adoption in Spring 2016. The draft regulations are available on DWR’s website at: http://www.water.ca.gov/groundwater/sgm/gsp.cfm

Written by David Aladjem, Partner, Downey Brand LLP