Legal Alerts Feb 19, 2016

DWR Releases Draft Emergency Regulations for Groundwater Sustainability Plans in California

Proposed Regulations Include Required Plan Elements and Criteria for State Review

The Department of Water Resources released draft emergency regulations Thursday that spell out the steps and requirements local agencies would need to follow in developing new plans to manage groundwater under the Sustainable Groundwater Management Act. SGMA established, for the first time, a comprehensive governance structure for regulating groundwater throughout California.

SGMA requires local agencies to form “groundwater sustainability agencies” to manage groundwater basins identified as “high” or “medium” priority by the state. GSAs must develop and implement Groundwater Sustainability Plans. These plans are locally driven to ensure that groundwater supplies are protected and managed on a sustainable basis. DWR developed the draft regulations to guide and govern the development, makeup and content of the new plans, as well as the state’s eventual evaluation of the plans. If a local plan or plans for a groundwater basin are deemed inadequate or do not achieve their stated goals, it could lead to intervention in managing the basin by the State Water Resources Control Board.

The draft regulations are numerous, detailed and demanding. They follow SGMA’s guiding principle of local control by leaving key decisions about how to manage a basin and achieve sustainable groundwater supplies in the hands of local agencies. In particular, the regulations provide GSAs with flexibility to define problems, establish numeric “minimum thresholds” for management, set measurable objectives, and determine the local projects and actions that will be implemented over a 20-year period. Among the many provisions:

  • Plans must identify where and when groundwater conditions cause problems for six “critical parameters.” These parameters come directly from SGMA and include: chronic lowering of groundwater levels, storage reduction, seawater intrusion, degraded water quality, land subsidence that interferes with surface land uses, and depletions of surface water.
  • Plans must spell out the specific projects and management actions GSAs will implement to address and prevent the identified problems.
  • Plans must describe how GSAs will monitor groundwater and how the monitoring data will be used to improve conditions.

Under the draft regulations, DWR would apply two sets of criteria when evaluating plans:

  • Pass/Fail criteria would include timely adoption of plans, completeness, coverage of the entire basin, and whether an agency has taken corrective actions to address plan deficiencies identified by DWR.
  • Substantial Compliance (Adequacy) criteria would include a checklist of 11 key factors, including substantial compliance with the regulations; whether the assumptions, criteria, findings and objectives of the plan are reasonable and supported by the available evidence; the feasibility of projects and management actions and likelihood they will prevent undesirable results and ensure a basin is operated within its sustainable yield; and whether an agency has the legal authority and financing plan necessary to implement the plan.

Other issues addressed in the draft regulations include: Coordination agreements among agencies, alternative plans, adjudicated basins, technical and reporting standards, public involvement in the development of plans, administrative information such as revenue and cost estimates, local land use considerations, requirements concerning “water budgets” that account for groundwater inflow and outflow in a basin, and consultation with the SWRCB when plans are deemed inadequate or are not being implemented in a manner that will likely achieve the sustainability goal for the basin.

Written comments on the draft regulations must be received by March 25. Comments also will be accepted at one of three public meetings, tentatively planned between March 21 and March 25. DWR expects to present the draft regulations to the California Water Commission for adoption in May. Under SGMA, they must be adopted by June 1.

For more information on these draft regulations and the comment process, please contact one of the authors of this Legal Alert listed at the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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