New Rules of Groundwater Management in California: a Primer on California's Sustainable Groundwater Management Act of 2014

• Jurisdiction: California,United States
• Author: Derek R. Hoffman, Esq.
• Citation: Vol. 2018 No. 2
• Publication year: 2018

New Rules of Groundwater Management in California: A Primer on California's Sustainable Groundwater Management Act of 2014

Derek R. Hoffman, Esq.

Derek R. Hoffman, Esq. specializes in California water law. He represents a wide variety of clients in obtaining, evaluating, protecting, and litigating water rights and resources. His practice includes guiding clients through the implementation of California's Sustainable Groundwater Management Act and other state and federal natural resources laws and regulations. For more information on Derek, visit www.greshamsavage. com.

I. Introduction

For well over 150 years, California did not have a statewide regulatory process to manage the state's groundwater resources. Whereas surface water rights have been regulated since 1914 pursuant to a licensing and permitting system administered by the agency now known as the State Water Resources Control Board¹("State Water Board"), groundwater regulation was traditionally managed locally, if at all, through county ordinances or through the courts in complex ground-water adjudications that often involved hundreds of parties and lasted well over a decade.² To incentivize local agencies to work cooperatively to manage groundwater resources within their jurisdictions, the California Legislature added provisions to the California Water Code in 1992 that encouraged³—but did not require⁴—local public agencies to adopt groundwater management plans and programs.⁵

In September 2014, California Governor Jerry Brown signed into law three legislative bills collectively known as the Sustainable Groundwater Management Act of 2014 ("SGMA"),⁶ which took effect on January 1, 2015. SGMA marks the first-ever comprehensive statewide groundwater regulation in California's history.⁷ It requires local agencies in all "high-" and "medium-priority" groundwater basins in California (with some limited exceptions) to establish new "Groundwater Sustainability Agencies" ("GSAs"). GSAs must prepare, adopt, and implement "Groundwater Sustainability Plans" ("GSPs") that include management actions to achieve groundwater sustainability for their basins over a twenty-year period.

II. Groundwater Basins Subject to SGMA

California's groundwater basins and subbasins are identified in the California Department of Water Resources' ("DWR") widely-known report, "California's Groundwater: Bulletin 118," as it is updated periodically in accordance with the California Water Code.⁸ DWR published an Interim Update to Bulletin 118 in 2016, which included changes to reflect SGMA implementation and updated basin boundaries. Today, there are 517 specifically identified groundwater basins (and sub-basins) in California.⁹

Under SGMA, all high- and medium-priority basins that are subject to critical conditions of overdraft must be managed under a GSP (or coordinated GSPs) by January 31, 2020.¹⁰ For all other high- and medium-priority basins, the deadline is January 31, 2022.¹¹ Local agencies in low- and very-low priority basins may voluntarily form GSAs and establish GSPs but are not subject to the rigorous DWR review process or to the risk of penalties or intervention by the State Water Board.¹² Basin priority designations may change as DWR evaluates the impact of basin boundary changes and the development of GSAs and GSPs.

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Groundwater basin priority levels were initially determined by DWR in accordance with the criteria established in previously-enacted groundwater monitoring laws.¹³ The initial prioritization designated 127 medium- and high-priority groundwater basins in California, which according to DWR collectively account for approximately 96 percent of groundwater use in California and 88 percent of the state's population.¹⁴

In January 2016, DWR released a final list of twenty-one groundwater basins that are deemed to be "subject to critical conditions of overdraft," which, under Bulletin 118, is a condition defined to exist "when continuation of present water management practices would probably result in significant adverse overdraft-related environmental, social, or economic impacts."¹⁵ These groundwater basins are:¹⁶

"Critically Overdrafted" Basins
DWR Basin / Sub-basin Number	Basin / Sub-Basin Name
3-001	Santa Cruz Mid-County
3-002.01	Pajaro Valley
3-004.01	180/400-Foot Aquifer
3-004.06	Paso Robles Area
3-008	Los Osos Valley
3-013	Cuyama Valley
4-004.02	Oxnard
4-006	Pleasant Valley
5-022.01	Eastern San Joaquin
5-022.04	Merced
5-022.05	Chowchilla
5-022.06	Madera
5-022.07	Delta-Mendota
5-022.08	Kings
5-022.09	Westside
5-022.11	Kaweah
5-022.12	Tulare Lake
5-022.13	Tule
5-022.14	Kern County
6-054	Indian Wells Valley
7-024.01	Borrego Springs

Specific adjudicated groundwater basin areas are exempt from SGMA's GSA and GSP requirements, but they must comply with certain annual reporting requirements to DWR.¹⁷ The exempted adjudicated areas are:¹⁸

Adjudicated Areas
Beaumont Basin	Riverside Basin
Brite Basin	San Bernardino Basin Area
Central Basin	San Jacinto Basin
Chino Basin	Santa Margarita River Watershed
Cucamonga Basin	Santa Maria Valley Basin
Cummings Basin	Santa Paula Basin
Goleta Basin	Scott River Stream System
Lytle Basin	Seaside Basin
Main San Gabriel Basin	Six Basins
Mojave Basin Area	Tehachapi Basin
Puente Basin	Upper Los Angeles River Area
Raymond Basin	Warren Valley Basin
Rialto-Colton Basin	West Coast Basin

SGMA also provides conditional exemptions for basin areas that were still in the adjudication process when SGMA became effective, so long as the superior court issued a final judgment, order, or decree in those cases.¹⁹ One example is the Antelope Valley Groundwater Basin located in the western Mojave Desert of Southern California. In December 2015— nearly one year after SGMA took effect—the Los Angeles County Superior Court entered a stipulated final judgment and physical solution in the Antelope Valley Groundwater Cases. That judgment culminated more than fifteen years of complex litigation proceedings among thousands of parties, including agricultural and other landowners, public agency water suppliers, mutual water companies, federal and state governments, small pumpers, and non-pumping property owners.²⁰ Though appeals are now pending, the entry of the final judgment by the superior court satisfies the SGMA exemption requirement.

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Notably, if an adjudication action has determined the rights to extract groundwater for only a portion of a basin, the exemption applies only to those adjudicated portions, leaving any non-adjudicated portion subject to the full range SGMA requirements.²¹ DWR recently released mapping tools on its website to identify adjudicated areas and non-adjudicated portions within DWR basin boundaries.²²

III. Groundwater Sustainability Agencies

Each local agency, which is defined under SGMA as "a local public agency that has water supply, water management, or land use responsibilities within a groundwater basin," may decide to become a GSA or to form a GSA with other local agencies within a basin.²³ A combination of local agencies may form a GSA using a joint powers agreement, a memorandum of agreement, or other legal agreement.²⁴ Mutual water companies and water corporations regulated by the California Public Utilities Commission may also participate in a GSA through a memorandum of agreement or other legal agreement.²⁵ SGMA deems certain statutorily-created agencies to be the exclusive GSAs within their respective jurisdictions unless they opt out.²⁶ As a backstop, counties are presumed to be GSAs for unmanaged basin areas, unless they too opt out.²⁷

To satisfy SGMA, the entirety of each high- and medium-priority basin must be covered by a GSP.²⁸ In some basins, achieving complete basin coverage is complicated by the fact that groundwater basin boundaries do not always—and in fact often do not—perfectly align with local agency and county jurisdictional areas.

GSAs for all high- and medium-priority basins were required to be established by July 1, 2017. DWR maintains a list of all established GSAs, including helpful tools such as a "GSA Map Viewer" that depicts the location of each established GSA throughout the state.²⁹ Similarly, the State Water Board maintains a list and maps of unmanaged areas in each county.³⁰ Groundwater pumpers within those unmanaged areas may be required to report groundwater pumping directly to the State Water Board and pay associated fees.³¹

IV. Groundwater Sustainability Plans

GSAs must ensure that their GSPs cover the entirety of their basins.³² If there are multiple GSAs for a basin, those GSAs may develop and implement a single GSP for the basin. Alternatively, they may develop and implement multiple GSPs that cover the entire basin, but those GSPs must be established pursuant to a single coordination agreement.³³ GSPs may incorporate, extend, or be based on a previously established groundwater management plan, but GSPs must satisfy all SGMA requirements.³⁴

A. Sustainability Goal and Avoiding Undesirable Results

A GSP must establish and define the "sustainability goal" for the basin, which will "achieve sustainable groundwater management by identifying and causing the implementation of measures targeted to ensure that the basin is operated within its sustainable yield."³⁵ The sustainable yield of a basin means "the maximum quantity of water, calculated over a base period representative of long-term conditions in the basin and including any temporary surplus, that can be withdrawn annually from a groundwater supply without causing undesirable results."³⁶

In other words, the sustainable yield of a basin is not necessarily static, and is primarily a function of avoiding six specific "undesirable results" (sometimes facetiously referred to as the "six unpardonable sins of groundwater management"). The six SGMA-defined undesirable results that must be avoided are:

1. Chronic lowering of groundwater levels indicating a significant and...