Emergency Groundwater Sustainability Plan Regulations Adopted By California Water Commission

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Key Principle: Sustainable Management Through Local Efforts

The California Water Commission unanimously adopted a demanding set of regulations to govern the creation and implementation of groundwater sustainability plans under the Sustainable Groundwater Management Act, California’s historic groundwater legislation. The emergency regulations, developed by the Department of Water Resources, were adopted Wednesday and take effect in June.

The regulations, which must be followed by local agencies implementing SGMA, include extensive requirements for groundwater monitoring and data collection, as well as the development of local “water budgets” that take into account land use planning, climate change, population growth, and projected groundwater and surface water supply and demand. After much public debate and comment following DWR’s release of the regulations in draft form in February, the Commission agreed to a final version that retained a controversial and somewhat flexible “substantial compliance” standard of review. DWR will use this standard to determine whether local plans and their implementation are adequate. The stakes are high in the process because plans, or implementation of plans, deemed inadequate by DWR can lead to intervention by the State Water Resources Control Board in managing local groundwater basins.

The adoption of the emergency regulations marked a key development under SGMA. The legislation, which took effect last year, established a first-ever comprehensive governance structure for regulating California’s groundwater  in the face of basins dwindling at an alarming pace in some areas.

Under SGMA, local agencies must form groundwater sustainability agencies to manage groundwater basins identified as “high” or “medium” priority by the State. The complex and political process of forming such agencies is currently taking place throughout California. Once formed, the new GSAs must develop Groundwater Sustainability Plans by either 2020 or 2022, depending on basin conditions, or alternatives to such plans. The plans must ensure that local groundwater supplies are protected and managed on a long-term sustainable basis. These plans are the subject of the new regulations.  

Under the regulations, GSPs or alternatives must identify where and when groundwater conditions cause problems for six key areas identified in SGMA:

  • chronic lowering of groundwater levels,
  • storage reduction,
  • seawater intrusion,
  • degraded water quality,
  • land subsidence and
  • surface water depletions.

Plans must spell out the specific projects and management actions that local agencies will implement to address and prevent the six identified problems. And they must describe how local agencies will monitor groundwater and how the monitoring data will be used to improve conditions.

The regulations follow SGMA’s guiding principle that control over groundwater management should be left in the hands of local agencies. The regulations include requirements for the development of alternative submittals to GSPs for basins that have operated within their sustainable yield for at least 10 years. Local agencies opting to submit an alternative plan face a short timeline and rigorous requirements. Such alternatives must be submitted to DWR by Jan.1, 2017, and agencies must include information demonstrating the alternative is “functionally equivalent” in terms of meeting the extensive plan content and annual reporting mandates in the regulations for regular GSPs.

DWR will apply two sets of criteria when evaluating local plans:

  1. “Pass-Fail” criteria will be applied to ensure that plans are timely adopted, complete, cover the entire basin, and contain any required corrections to cure plan deficiencies identified by DWR.
  2. A “Substantial Compliance” standard will be used to determine whether the many substantive elements of plans meet the new regulations’ requirements. As DWR staff and California Water Commission members explained Wednesday, given the complexity of groundwater management and the wide variety of conditions throughout the State, the goal is not to require agencies to create “perfect” plans, but rather to achieve groundwater sustainability.

When developing GSPs or alternatives, local agencies should be aware that DWR will be reviewing plans to ensure “substantial compliance” under the new regulations and also overall “compliance” with SGMA itself. The numerous requirements contained in SGMA are not spelled out in the regulations, so local agencies will need to carefully review both the regulations and the statute when developing and implementing plans under SGMA. DWR may develop future guidelines and hold workshops to help local agencies navigate this complex legal terrain. DWR will also be developing a number of “best management practices” to further guide agencies in developing plans that will meet the new regulatory requirements.

The regulations and further information can be found here:  http://www.water.ca.gov/groundwater/sgm/gsp.cfm

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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