Sustainable Groundwater Management Act

On September 16, 2014, Governor Brown signed the Sustainable Groundwater Management Act, which will become effective January 1, 2015.  This Act removes groundwater management from the largely exclusive realm of the California courts and provides substantial opportunities to local public water agencies, in collaboration with their neighbors, to establish local control over groundwater resources within their jurisdiction.  This new authority comes at the price, however, of submitting local authority to substantial oversight by the state, coupled with a serious new authority for state intervention if local agencies fail or refuse to act, or if their efforts are determined to be insufficient. 

The principle features of the Sustainable Groundwater Management Act include procedures and authority for local agencies to:

1.  Self-elect to become a Groundwater Sustainability Agency (GS Agency).

The Sustainable Groundwater Management Act provides that a “local public agency that has water supply, water management or land use responsibilities within a basin” may elect to become a GS Agency.  Cities, counties and water districts are expressly eligible.  Mutual water companies and investor owned utilities are not eligible. 

Local agencies may combine to form a joint power agency to establish a basin-wide GS Agency; or separate, independent but coordinated GS Agencies may be established to cover the separate areas within an entire basin.  The Sustainable Groundwater Management Act is very malleable as to designation of GS Agencies because local agency boundaries and other circumstances vary greatly from case to case relative to groundwater basin boundaries.

2.  Seek State Department of Water Resources (DWR) recognition of separate groundwater basin or subbasin boundaries.

The Act initially designates groundwater basin boundaries according to those recognized in DWR Bulletin 118.  But the new law provides a process for DWR recognition of new basins and subbasins where supported by hydrogeologic or other local conditions.

3.  Prepare and adopt Groundwater Sustainability Plans (GS Plans), which will be exempt from CEQA, in order to achieve groundwater basin sustainability within 20 years.  The goal of the GS Plan is to avoid “undesirable results”, which include (i) “chronic” lowering of groundwater levels, (ii) degradation of water quality, and (iii) land subsidence.  GS Plans are subject to review and approval by DWR.

4.  Exercise express new powers and authorities, as GS Agencies, to finance, implement and enforce GS Plans (in addition to preexisting authority).  

a.   GS Agencies will have the authority to collect money to pay for management of the basin, which may include fees on well permits or an assessment on the amount of water being pumped.

b.   GS Agencies will also have the ability to enforce rules, such as limits on groundwater use and/or creating water recharge and water recycling programs. 

The new local agency authority granted under the Act is coupled with substantial new oversight by DWR and the State Water Resources Control Board.  The Act provides new authority for “intervention” by these state agencies to take over management of groundwater resources if local agencies and other stakeholders are unable or unwilling to establish a GS Agency and prepare a GS Plan, or if the GS Plan is found by the state to be deficient.  In short, the Sustainable Groundwater Management Act is an opportunity coupled with a threat.  Technical, legal, and diplomatic acumen all will be required to take advantage of the opportunity and to avoid the threat.

Establishing an appropriate GS Agency will be challenging, but it is a necessary predicate to developing a GS Plan to protect groundwater resources.  While the process to self-elect to become a GS Agency sounds unilateral and simple, success in developing a GS Plan will depend on building substantial local consensus behind a GS Agency through an open and collaborative process.  Patient development of a consensus approach to “governance” is necessary before launching development of a GS Plan.  The consequences of failure or inability to move forward on this process could be loss of the opportunity for local control over groundwater resources.

On September 16, 2014, Governor Brown signed the Sustainable Groundwater Management Act, which will become effective January 1, 2015.  This Act removes groundwater management from the largely exclusive realm of the California courts and provides substantial opportunities to local public water agencies, in collaboration with their neighbors, to establish local control over groundwater resources within their jurisdiction.  This new authority comes at the price, however, of submitting local authority to substantial oversight by the state, coupled with a serious new authority for state intervention if local agencies fail or refuse to act, or if their efforts are determined to be insufficient. 

The principle features of the Sustainable Groundwater Management Act include procedures and authority for local agencies to:

1.  Self-elect to become a Groundwater Sustainability Agency (GS Agency).

The Sustainable Groundwater Management Act provides that a “local public agency that has water supply, water management or land use responsibilities within a basin” may elect to become a GS Agency.  Cities, counties and water districts are expressly eligible.  Mutual water companies and investor owned utilities are not eligible. 

Local agencies may combine to form a joint power agency to establish a basin-wide GS Agency; or separate, independent but coordinated GS Agencies may be established to cover the separate areas within an entire basin.  The Sustainable Groundwater Management Act is very malleable as to designation of GS Agencies because local agency boundaries and other circumstances vary greatly from case to case relative to groundwater basin boundaries.

2.  Seek State Department of Water Resources (DWR) recognition of separate groundwater basin or subbasin boundaries.

The Act initially designates groundwater basin boundaries according to those recognized in DWR Bulletin 118.  But the new law provides a process for DWR recognition of new basins and subbasins where supported by hydrogeologic or other local conditions.

3.  Prepare and adopt Groundwater Sustainability Plans (GS Plans), which will be exempt from CEQA, in order to achieve groundwater basin sustainability within 20 years.  The goal of the GS Plan is to avoid “undesirable results”, which include (i) “chronic” lowering of groundwater levels, (ii) degradation of water quality, and (iii) land subsidence.  GS Plans are subject to review and approval by DWR.

4.  Exercise express new powers and authorities, as GS Agencies, to finance, implement and enforce GS Plans (in addition to preexisting authority).  

a.   GS Agencies will have the authority to collect money to pay for management of the basin, which may include fees on well permits or an assessment on the amount of water being pumped.

b.   GS Agencies will also have the ability to enforce rules, such as limits on groundwater use and/or creating water recharge and water recycling programs. 

The new local agency authority granted under the Act is coupled with substantial new oversight by DWR and the State Water Resources Control Board.  The Act provides new authority for “intervention” by these state agencies to take over management of groundwater resources if local agencies and other stakeholders are unable or unwilling to establish a GS Agency and prepare a GS Plan, or if the GS Plan is found by the state to be deficient.  In short, the Sustainable Groundwater Management Act is an opportunity coupled with a threat.  Technical, legal, and diplomatic acumen all will be required to take advantage of the opportunity and to avoid the threat.

Establishing an appropriate GS Agency will be challenging, but it is a necessary predicate to developing a GS Plan to protect groundwater resources.  While the process to self-elect to become a GS Agency sounds unilateral and simple, success in developing a GS Plan will depend on building substantial local consensus behind a GS Agency through an open and collaborative process.  Patient development of a consensus approach to “governance” is necessary before launching development of a GS Plan.  The consequences of failure or inability to move forward on this process could be loss of the opportunity for local control over groundwater resources.

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