Implementing Gsps and Ceqa Review: Planning Today for Streamlined Groundwater Sustainability

• Publication year: 2021
• Author: By Sara F. Dudley*

IMPLEMENTING GSPS AND CEQA REVIEW: PLANNING TODAY FOR STREAMLINED GROUNDWATER SUSTAINABILITY

By Sara F. Dudley*

I. INTRODUCTION

Seven years after the passage of the Sustainable Groundwater Management Act of 2014 ("SGMA") groundwater sustainability agencies ("GSA") have adopted - or soon will adopt - their groundwater sustainability plans. Groundwater sustainability plans ("GSP") are exempt from review under the California Environmental Quality Act ("CEQA") but the activities that implement the plans likely are not. GSAs may be tempted to forgo or delay CEQA review, reasoning that it is too costly, too contentious, and unnecessary at this "early stage."

While this line of thinking is understandable, it could hinder achievement of SGMA's goal of sustainable groundwater management by 2040 or 2042. An integrated approach to CEQA review can save GSAs precious time and money when implementing SGMA. It can also make GSAs more competitive in grant processes that rank projects more highly that are "shovel ready"-i.e., having completed environmental review.

This article: (1) provides an overview of SGMA and CEQA goals and frameworks; (2) discusses CEQA provisions for tiering, streamlining and preparing program EIRs, and how these methods can provide an opportunity for GSAs to complete CEQA review in a timely and cost-effective manner; (3) examines a case study from one GSA putting advance CEQA planning into practice; and (4) provides practical suggestions to GSAs to incorporate CEQA review into the GSP planning process.

II. SGMA AND CEQA

The purpose of the 2014 Sustainable Groundwater Management Act as amended¹ and its implementing regulations² is to provide for the sustainable management of previously unregulated groundwater resources.³ Sustainable management means avoiding "undesirable results." Reading like a modern-day list of biblical plagues, undesirable results are: "significant and unreasonable" depletions to groundwater levels and storage capacity, seawater intrusion, land subsidence, water quality degradation, and depletion of interconnected surface water.⁴

The California Environmental Quality Act⁵ and its implementing regulations ("CEQA Guidelines")⁶ require public decision-makers to consider and mitigate the environmental consequences of their actions before approving a project by conducting environmental review.⁷ As used here, "environmental review" is a broad term and encompasses the process of determining if the activity is, or is not, a "project," or if the activity is project, but categorically or statutorily exempt from CEQA.⁸ Generally, if a government action requires discretionary decision-making and may cause a direct physical change in the environment, or a reasonably foreseeable indirect physical change, then that activity is a "project" and may require preparation of a CEQA document.⁹

To avoid undesirable results, SGMA created a framework for local agencies¹⁰ to form groundwater sustainability agencies to manage their local groundwater basins and sub-basins (collectively, "basins").¹¹ GSAs must draft groundwater sustainability plans¹² to describe how they will achieve sustainability by 2040 or 2042.¹³ Sustainability means that the basin will be managed within its sustainable yield, which is the "maximum quantity of water . . . that can be withdrawn annually from a groundwater supply without causing an undesirable result."¹⁴

GSAs and GSPs are only required for high- and medium priority basins as designated in the California Department of Water Resources' ("DWR") Bulletin 118.¹⁵ DWR has further identified high- and medium priority basins that are critically over-drafted.¹⁶ The deadline to adopt a GSP for critically over-drafted basins was January 1, 2020.¹⁷ The deadline to adopt a GSP for the remaining high- and medium priority basins is January 31, 2022.¹⁸ The preparation and adoption of a GSP by a GSA is exempt from CEQA.¹⁹

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Sustainability will be achieved by implementing "projects" and "management actions" (collectively "PMAs" or "activities") outlined in the GSP²⁰ that the agency "has determined will achieve the sustainability goal for the basin."²¹ A GSP must include basic information about the PMAs, including a description of each activity, a quantification of its benefits, and a timetable for the activity's initiation and completion.²²

Importantly, the GSP must also include a discussion of the regulatory and permitting status of PMAs.²³ As will be discussed in detail below, it is here that GSAs should include a description of the PMA's CEQA's status.²⁴ A GSP must also include a cost estimate and description of how the GSA "plans to meet those costs" (funding sources).²⁵

A variety of PMAs are included in GSPs that were submitted prior to the January 1, 2020 deadline.²⁶ PMAs discussed in GSPs reviewed for this article included projects or management actions that would involve some combination of the following:

• create, repair or augment basin recharge areas
• build, repair, expand or update water treatment, pre-treatment and purification facilities
• install residential water meters
• purchase imported water, including recycled water
• remove invasive plant species
• purchase agricultural leases, followed by temporary fallowing²⁷
• reduce groundwater extraction
• implement a water market pilot program
• implement groundwater allocations, limiting user extractions to a designated allotment

As noted above, GSP preparation and adoption is exempt from CEQA.²⁸ There is, however, no exemption for PMAs that implement GSPs. To reach SGMA's goals, rapid and successful implementation of PMAs will be critical.

There are several types of CEQA documents that an agency can use to analyze a project.²⁹ The most well-known is the environmental impact report ("EIR"). An EIR is required when a project may cause significant adverse impacts on the environment.³⁰ An EIR must analyze impacts to all relevant resource areas, identify feasible mitigation measures capable of lessening or avoiding those impacts, and describe less environmentally damaging project alternatives.³¹

The lead agency must circulate a draft EIR for public review and comment³² and consult with other agencies, including California Native American Tribes, with jurisdiction over or responsibility for potentially impacted resources.³³ The final EIR must indicate any changes to the draft EIR and include detailed written responses to public and agency comments.³⁴

A project-level EIR analyzes the environmental impacts of a single project,³⁵ and is typically time-consuming and expensive. As will be discussed in detail below, in contrast, a program EIR analyzes the environmental impacts of a "series of actions that can be characterized as one large project."³⁶ Without use of a program EIR or other form of CEQA streamlining, a project-level EIR could theoretically be needed for each and every project that would result in potentially significant impacts to the environment.

III. THE EARLY BIRD GETS THE WORM: PROGRAM EIRS, TIERING AND STREAMLINING PROVIDE OPPORTUNITIES FOR GSAS

The project-level EIR is ideal for analyzing impacts from an individual development project on a discrete site that is not connected to a larger plan or ongoing program. Many development projects fall under this definition, which is likely why the project-level EI R is the "most common" type of EIR.³⁷

However, SGMA's framework provides for GSPs to be implemented over twenty years, for the purpose of sustainably managing a groundwater basin to avoid undesirable results, over a fifty-year planning and implementation horizon, under the authority of GSAs comprised of multiple stakeholders. GSAs also must consider input from the public and interested parties, including neighboring GSAs.³⁸ Thus, GSPs encompass a complex and ongoing series of activities over a defined, but potentially quite large, geographic area.

Fortunately, CEQA includes alternatives to the project-level EIR that are better suited for the task of addressing impacts from implementing large-scale, ongoing programs or plans over large areas. These alternatives include tiering, streamlining and using program EIRs. Using these tools can save money and time for motivated agencies that are willing to plan early and think comprehensively.

A. TIERING

Tiering is the process of describing general matters and environmental effects in a "first tier" CEQA document that has been prepared for a policy, plan or program, which will be followed by additional analysis in a "second tier" CEQA document.³⁹ The CEQA Guidelines, section 15152 discusses the tiering process and the specific rules that govern the process, while noting that there are other more specific methods for streamlining review, including Program EIRs ("PEIRs").⁴⁰ Connecting the two concepts, it is well established that a PEIR can be used as a first-tier CEQA document.⁴¹

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The CEQA Guidelines encourage agencies to tier when "feasible" to allow agencies "to focus upon the issues ripe for decision at each level of environmental review and in order to exclude duplicative analysis of environmental effects examined in previous environmental impact reports." ⁴²

This streamlines the CEQA process, as the CEQA Guidelines specifically state that the second-tier environmental review document need not examine impacts that have already been mitigated, avoided, or otherwise sufficiently examined during first-tier review so the lead agency can determine that such impacts can be avoided with site-specific revisions, conditions of approval or similar enforceable instruments.⁴³ Therefore, even if the second-tier document is a project-level EIR, it should be a more focused, narrower document than would have been possible had it not been tiered.

B. A PROGRAM EIR: WHAT'S IN A NAME?

As noted above, in contrast to a project-level EIR, a PEIR describes the environmental impacts of a "series of actions that can be characterized as one large project."⁴⁴

A PEIR is appropriate when projects are related geographically, logically and are...