The New Era of SGMA Begins with Problems on the Horizon

By Darin DuPont
November 21, 2019

As the year comes to an end, the beginning of 2020 will bring a multitude of issues and policies to the next legislative session. Groundwater will be one of those issues, as the Sustainability Groundwater Management Act (SGMA) has a deadline of January 31, 2020 for Groundwater Sustainability Plans (GSP) in critically over drafted basins.

As the GSPs come in, there could be an influx of issues and concerns that both the State, and the individual Groundwater Sustainability Agencies (GSA) have, pertaining to the plans and the viability of the goals of SGMA. SGMA has presented indicators that will measure the viability of these plans, two of which are land subsidence and seawater intrusion. There will be some tension between these indicators and the beneficial use doctrine of water, both of which could cause an increase in litigation and confusion.

Groundwater is a key component to the California water system. In times of drought, we turn to groundwater to sustain us from depriving citizens of quality drinking water and food. In order to provide quality groundwater for different users, GSAs must battle with seawater intrusion and land subsidence. Groundwater recharge occurs through different avenues. A special water district can dedicate groundwater recharge basins for the purpose of recharging aquifers or through the beneficial use of water in application or irrigation use.

Groundwater recharge will be an important tool to replenish aquifers and fight the problem with subsidence and seawater intrusion. However, groundwater recharge is not a beneficial use unless it is pumped out of the ground and put to a beneficial use, such as irrigation. Under SGMA, the GSAs are required to fight against land subsidence and seawater intrusion. They need to be able to use the various tools, such as groundwater recharge for the sole purpose of filing storage aquifers, pushing the seawater back to the coast and avoiding more damage in land subsidence.

The authority to change all groundwater recharge to beneficial use resides in the legislature, which passed AB 658 that allows GSAs to apply to the State Water Resources Control Board (SWRCB) for a temporary permit, either 180 days or 5 years, to divert water for the purpose of groundwater recharge storage. SWRCB has created a new streamlined process for the standard permit but this is met by CEQA and thirty years of data requirements to apply for this water right for groundwater recharge. Even though this streamlined standard permit process is a step in the right direction from the hand that has been dealt, the legislature could find themselves with more problems to solve or mediate because this creates more confusion in the management of groundwater throughout the whole system, as local agencies and GSAs have to apply for new rights.

Water does not wait for decisions by the State agencies before flowing past these pockets of underground storage and even with an urgency permit there is still a passage of time to make a determination of the impacts of this diversion. Further, these permits are not free, an additional fee will be charged to the GSA for the temporary permit and be added to the fee that will be charged to the rate payers, on top of what they will need to pay for the function of the GSA and GSP.

Additionally, this legislation does not pertain to pre-1914 water rights, the most senior water rights in the state, meaning there is still a gap between those GSAs that will be in conjunction with pre-1914 surface water providers. There will now be two different expectations in law of groundwater recharge, where some will need to go through this additional permitting process due to the rights they hold and those with the most senior water rights that could apply water for groundwater recharge and be subject to a violation of the beneficial use doctrine.

SGMA was passed to allow local control and management. If tools of management, such as groundwater recharge, have to continually go through State agencies, such as Department of Water Resources and SWRCB, this will not enhance local control. Furthermore, as SGMA issues grow the burden put on the SWRCB could slow down the management because this agency will not be prepared to regulate and cover all that is being asked. More permitting, more regulatory review, more delay, and more litigation.

By acknowledging that groundwater recharge, for the purpose of storing, is a beneficial use allows the GSA to manage groundwater, this will cut out the middleman and allow for local control and management, which is what SGMA was supposed to champion. This will allow GSAs to manage and determine the best practices in that specific water year. Additionally, there would be an ability to focus on a conjunctive use of water, providing surface water during more abundant years and quality groundwater during the scarce years, providing consistency for the agriculture industry.

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Darin DuPont is a law student at University of the Pacific, McGeorge School of Law. He is born and raised from Merced County and received his B.S. in Public Administration with a concentration in Public Policy from George Mason University. Darin has worked for both policy and campaign interests in the Central Valley and Washington, D.C., recently working for an irrigation district. The views presented here are strictly his own.

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