California Mandates Groundwater Regulation Through Local "sustainability Plans" Starting in 2020

• Citation: Vol. 32 No. 4
• Publication year: 2014
• Author: By Eric Robinson

California Mandates Groundwater Regulation Through Local "Sustainability Plans" Starting in 2020

By Eric Robinson

©2014 All Rights Reserved.

I. INTRODUCTION: TO AVOID DIRECT STATE REGULATION, LOCAL SUSTAINABILITY AGENCIES WILL IMPOSE PUMPING REDUCTIONS, WELL MONITORING, FEES, OR OTHER MEASURES

Unregulated development and use of groundwater is finished in California. As the state endured a third consecutive year of drought, the end of what some decried as a "Wild West" approach to groundwater use came on September 16, 2014, when Governor Brown signed the Sustainable Groundwater Management Act (the "Act").¹

Groundwater provides up to 100% of the local water supply in some parts of California, meets about 40% of statewide water demand in years with average precipitation, and meets up to 60% of statewide demand in dry years.² The Act affects thousands of rural and urban landowners, public water suppliers, and private and public enterprises that directly or indirectly rely on groundwater.

The Act sets an aggressive schedule for local districts, cities, or counties to assume the role of local groundwater regulator, to adopt regulatory plans, and to achieve groundwater sustainability by implementing those plans. If local landowners and other stakeholders fail to timely reach consensus on who will serve as their regional groundwater regulator, what the local regulatory plan will require, and how the plan will be carried out, the state will intervene by imposing its own plan. The Act empowers the state to mandate pumping reductions, impose fees, and require other measures to achieve groundwater sustainability if local jurisdictions fail to act.

The Act's framework reflects the Legislature's intent "[t]o manage groundwater basins through the actions of local governmental agencies to the greatest extent feasible, while minimizing state intervention to only when necessary to ensure that local agencies manage groundwater in a sustainable manner."³ The Act does not determine or change groundwater rights, and it does not authorize Sustainability Agencies or the State Board to determine groundwater rights.⁴

II. STATE'S BASIN RANKINGS DRIVE LOCAL PUMPING REGULATORS

A. The Act's Zone of Impact Is Geographically Broad

Geographically, the Act's direct zone of impact is sweeping. The Act mandates regulation of groundwater use in basins or subbasins⁵ designated as high- or medium-priority.⁶ Basin boundaries are established by the California Department of Water Resources ("DWR") Bulletin 118, which was last updated in 2003.⁷ A local government agency may ask DWR to revise a basin boundary or create a new subbasin pursuant to regulations that DWR must adopt by January 1, 2016.⁸

DWR's current basin priority map shows 127 high- and medium-priority basins stretching from the Oregon border, through the Great Central Valley, the San Francisco area's East Bay and South Bay, the North Coast and Central Coast wine country, the Eastern Sierra, and large portions of inland and coastal Southern California.⁹ DWR has until January 31, 2015 to finalize basin priority rankings.¹⁰

When ranking basins, DWR must consider the following factors:

• the population overlying the basin;
• the rate of current and projected population growth overlying the basin;
• the number of public water supply wells producing from the basin;
• the total number of wells producing from the basin;
• the irrigated acreage overlying the basin;
• the degree to which persons overlying the basin rely on groundwater as their primary water source;
• any documented impacts on groundwater within the basin, including overdraft, subsidence, saline intrusion, and other water quality degradation; and
• any other information DWR finds relevant, including adverse impacts on local habitat and local stream-flows.¹¹

The Act's regulatory planning mandates do not apply to basins where a court has adjudicated groundwater rights and the judgment establishes a watermaster to manage the basin.¹² Areas covered by so-called "AB 3030" groundwater management plans previously adopted under California Water Code section 10750 are subject to the Act's new regulatory planning mandates, but existing plans may provide a helpful starting point to comply with the Act.¹³

B. Local Regulatory Agencies Must Be Designated by Mid-2017

Local groundwater sustainability agencies ("GSAs" or "Sustainability Agencies") must be designated by June 30, 2017.¹⁴ A local governmental agency—like a district, city, or county—overlying all or part of a groundwater basin may elect to become a Sustainability Agency.¹⁵

[Page 5]

Where no local agency elects to be the Sustainability Agency, the county automatically assumes the role of Sustainability Agency.¹⁶ However, a county may reject that role by notifying DWR,¹⁷ in which case groundwater pumping in that particular area would be subject to new groundwater production monitoring and reporting requirements.¹⁸

Stakeholders in basins with multiple overlying local jurisdictions need to agree upon whether to have a single Sustainability Agency carrying out a single Sustainability Plan or to have multiple Sustainability Agencies that will each develop and carry out its own separate Sustainability Plan in coordination with the other Sustainability Agencies in that basin. In multi-jurisdictional basins, the single-agency approach may be carried out through a joint powers authority, a memorandum of agreement, or other agreement.¹⁹

III. SUSTAINABILITY PLANS MUST BE ADOPTED AS EARLY AS JANUARY 2020

Sustainability Agencies in high- or medium-priority basins with critical conditions of overdraft must approve groundwater sustainability plans ("Sustainability Plans") by January 31, 2020.²⁰ Sustainability Agencies in high- or medium-priority basins without critical conditions of overdraft have until January 31, 2022 to adopt Sustainability Plans.²¹ "Overdraft" generally means the chronic lowering of groundwater levels due to excessive groundwater pumping.²²

The process of preparing and adopting a Sustainability Plan is exempt from review under the California Environmental Quality Act ("CEQA").²³ However, this exemption does not apply to a "project" that implements a Sustainability Plan.²⁴

A. Groundwater Basins Must Achieve Sustainability Within Twenty Years

Sustainability Agencies must achieve "sustainability" in their basins within twenty years after adopting their Sustainability Plans.²⁵ The Act defines "sustainability" as operating the basin within its "sustainable yield,"²⁶ which generally means the maximum quantity of water that can be withdrawn annually from a groundwater supply without causing an undesirable result.²⁷ An "undesirable result" means:

• chronic lowering of groundwater levels;
• significant and unreasonable reduction of groundwater storage;
• significant and unreasonable seawater intrusion;
• significant and unreasonable degraded water quality;
• significant and unreasonable land subsidence that substantially interferes with surface land uses; or
• surface water depletions that have significant and unreasonable adverse impacts on beneficial uses of the surface water.²⁸

DWR may grant up to two extensions of five years each to Sustainability Agencies that show "good cause" for not achieving sustainability by the Act's twenty-year deadline.²⁹

Sustainability Plans must have an overall time horizon spanning fifty years³⁰ and must specify "measurable objectives" and "interim milestones" in five-year increments to achieve the sustainability goal within twenty years.³¹ Sustainability Agencies must periodically evaluate their Sustainability Plans to assess changing basin conditions that might warrant modification of the Sustainability Plan to ensure timely achievement of milestones, objectives, and the twenty-year sustainability goal.³²

Adoption or amendment of a Sustainability Plan must occur following a public hearing held at least ninety days after providing notice to any city or county within the area covered by the proposed plan or amendment.³³ Prior to initiating development of a Sustainability Plan, the local Sustainability Agency must provide DWR, the public, and the governing body of any city or county located within the planning area with a written statement describing how "interested parties" may participate in the development and implementation of the Sustainability Plan.³⁴ Each Sustainability Agency "shall consider the interests of all beneficial uses and users of groundwater," including:

• holders of overlying groundwater rights (including agricultural users and domestic well owners);
• municipal well operators;
• public water systems;
• local land use planning agencies;
• environmental users of groundwater;
• surface water users, if there is a hydrologic connection between the applicable surface and groundwater bodies;
• the federal government, including the military and federal land managers;
• California Native American tribes;
• disadvantaged communities;
• any judicially appointed watermaster administering the final judgment in a groundwater rights adjudication;
• any water replenishment district; and
• certain local agencies conducting groundwater elevation monitoring.³⁵

B. Groundwater Pumping Restrictions, Fees, Metering, Reporting, Inspections, and Investigations Authorized to Achieve Sustainability

Sustainability Agencies may directly regulate groundwater pumping by restricting or suspending well production, prohibiting new well construction, imposing well-spacing requirements, and requiring measurement (e.g., metering) and reporting of groundwater production by well owners.³⁶ Small domestic wells are exempt from metering and reporting.³⁷

Sustainability Agencies may conduct investigations to determine specific groundwater management needs, to help prepare a Sustainability Plan, to propose and update fees, and to monitor compliance and enforcement of Sustainability Plan requirements.³⁸ Private property or facilities may be inspected upon consent or an inspection warrant.³⁹ Sustainability Agencies may impose penalties of up to $500 per...