The American Ground Water Trust held a workshop, conference, seminar, confluence of minds regarding “Developing and Implementing Groundwater Sustainability Plans” on Tuesday, February 21, 2017 at the Kern Ag Pavilion southeast of Bakersfield. I don’t know why groundwater is spelled with two words. Andrew Stone kicked things off at 9:00am by graciously announcing the name and password for the public internet access; a wise move and one that should be emulated at every gathering. Tony Morgan, Deputy General Manager United Water Conservation District of Santa Paula who in turn introduced Eric Averett, GM Rosedale Rio Bravo Water Storage District.

GSAs & GSPs

Averett gave a history of the groundwater agenda taking place in Kern County over the past few years. In 2012 some folks who believed surface supplies wouldn’t be enough to keep the aquifer up joined together to brainstorm how to do what SGMA* is doing – only without the unintended consequences that always pop up from legislation. There are 11 GSAs in Kern County and at least on the Valley floor two main GSAs: the Kern Groundwater Authority GSA and the Kern River GSA. Averett did a great job of outlining what is required to develop an accepted GSP. A water budget will be the key. He said most agencies have yet to put pencil to paper and determine how much water goes to the ground and how much leaves. (If a sub basin was a coffee urn it would be much easier to determine a water budget. How much water is poured in the top, how much is absorbed by the coffee grounds, how much is lost to steam evaporating and how much water is poured from the spigot? The difference is the water budget. Alas, a sub basin is more like a colander buried next to a bunch of other colanders with varying water sources and elevations.)

Averett explained the SGMA timeline and how that impacts the goals GSAs are trying to achieve. Kern County has a diverse portfolio of water supplies. Kern County water agencies have contracted for 1 million a/f with the State Water Project and deliveries have not met the contracted amounts. Same for the federal Central Valley Project, deliveries not keeping up to contracts.

Somewhere DWR has written Kern County contracted with the SWP to resolve overdraft and it could do so if SWP contracted amounts were delivered. Averett said Kern County’s average overdraft has been the almost the same amount as the shortage of the SWP deliveries. How about that? The safe yield goes down and the economic vibrancy diminishes accordingly.

Legal Stuff

            Brad Herrema is an attorney with Brownstein Hyatt Farber & Schreck of Santa Barbara. I’m going to bypass the urge to comment on what it must be like for the school age children of one of those partners. Herrema has spoken before at AGWT events. He said SGMA’s fundamental object is to achieve sustainability in groundwater by avoiding undesirable results. He listed the big six undesirable results and of course intrusion of seawater isn’t a problem for the San Joaquin Valley unless the big one hits the Bay Area and the Delta. We’ll see if Sacramento can successfully legislate a response to that.

Herrema went over the legal requirements of forming a GSA: MOUs, JPAs, stand alone and such. I’m not trying to be nitpicky and laying out the definitions is a good thing, but I wonder how many entities and individuals whether public or private who don’t understand how to form a GSA by now will successfully form one by July.

Ernest Conant, Young Woolridge of Bakersfield spoke on How to Resolve the Conundrum of Restricted Pumping While Protecting Water Rights. Prescriptive, overlaying and appropriated water rights apply to groundwater and then there’s imported water that comingles with natural groundwater and that complicates things further. Conant spoke briefly on adjudication and said expedited adjudication can cut the court time in half to maybe 10 instead of 20-years. Adjudication is a court process that divides how the water will be managed and paid for. There are 27-adjudicated groundwater basins in the state and most of them are in Southern California. They often don’t follow the same boundaries as DWR’s bulletin 218 boundaries.

That brought Conant up to the point of restricting pumping. He believes restricting pumping is a last resort. The GSP could follow the Australian model and establish pumping allocations and let a market develop. Land could be fallowed or pumping fees imposed and the money used to secure further surface supplies. A GSP doesn’t have the same safeguards as an adjudication which underscores the importance of stakeholders involvement in developing a GSP. SGMA allows a “time out” in establishing pumping levels and that timeout should be extended during any time a pumping restriction takes place. Are pumping restrictions a taking of property rights? It may not be possible to fully protect rights in a SGMA world. Conant concluded by saying some water will be loss.

Deborah Wordham, Best Best & Krieger of Los Angeles spoke on How to Harmonize Primacy Authority Among Federal & State Law Related to Forming GSPs. She said she hadn’t thought much about that and so she studied up and there wasn’t much conflict since California’s environmental law are far more robust than federal law. The state gets primacy. She said she could say “thank you for your time” at this point but she changed the topic to the intersection of state and federal law in regards to SGMA. Wordham said there is more of a blurring of the lines for surface and groundwater in both state and federal law. Federal Reserved Water Rights refers to the US Government reserving water for the use of a national land such as a park, Indian or military reservation. Agua Caliente Band of Cahuilla Indians v. Coachella Valley WD asked if groundwater is included in Federal Reserve rights and the answer was yes. However, it is on appeal before the Ninth Circuit Court. That will help to determine if a GSA can implement a GSP on a reservation. Wordman’s advice was to develop good relations with the Indian tribes.

The feds also have a stream flow enviro law that could impact a GSP. If a GSP should need to manage the interconnected surface water and need help from the feds to do so it may require compliance with the Federal Endangered Species Act. She said don’t expect NOAA or F&W to go away anytime soon.

The Clean Water Act and navigable water can be a factor. How does that involve SGMA? In Hawaii it was found waste water could get in the ocean by underground means. This established a nexus between the groundwater and the ocean – a navigable body of water if ever there was one. If a GSP gets caught in a similar situation of a nexus being established a NPDS may well be needed.

This was followed by a Q&A session. The first question was what will happened if an adjudication takes place during e development of a GSP. Conant said two things: the court could issue a stay and the GSP would move along or if the GSP is contentious the court might well adjudicate. I asked if there are any guarantees the law won’t change in the future and get worse. Conant said the problem to concern oneself is SGMA getting worse and not better.

After that we took a break and refreshments were provided. However, the refreshments were the leftover pastry from this morning before the meeting started.

Computers

Stone introduced hydrogeologist Anthony Brown of Aquilogic Inc. of Costa Mesa as the moderator of the computer/software portion of the show. The first speaker was Ben Daly of Redtrac that is one of the seminar sponsors. Daly went fast. He’s the specialist of the Internet of Things at Redtrac. He said if you use a one box data system for SGMA you will be caught in an endless cycle of obsolescence and cost increases. He gave a swift rundown of the monitoring equipment and software criteria. Daly listed eight points that compose the ideal monitoring system. I confess his technical talk went over my head, but don’t despair, call Redtrac and talk to the guy to get the guts of his talk. There are four installation considerations and an example action plan.

Greg Wegis, a grower from the Bakersfield area spoke next. Wegis spoke about how to economically monitor wells economically and profit from doing so. He said getting a good management team and pump company working on the same page has cost about $1.50 per acre foot. For a well that pumps 600 a/f per year that isn’t a big investment. He’s worked with the Fresno State University irrigation well program and found the savings from preventative maintenance has saved wells that would have been too far gone to rehabilitate. He spent a bit of time talking about oil dripping down a well and how vital that is to the well’s life span. He said without the proper drip it can cost $20,000 to fix. The proper software package can prevent this as well as keep the hours of operations in check. This software can be compared to PG&E’s bills and power spikes.

A first generation Texan and second generation hydrogeologist Aaron Collier, VP of Collier Consulting from Stephenville Texas spoke about the need for water data. He said the typical water agency or grower has data, but it’s spread all over the place and he really doesn’t like Microsoft Excel. Really doesn’t like Excel. He used Netflix as an example: you can pick and choose what you want to see. Your water software should be the same.  You should be able to choose what to look for and find it quickly. It should update itself and have the ability to work with all platforms and it should be easy to use. The way the data is displayed is also very important and he likes the dashboard method in real time.

Kevin France of SWIIM System of Denver, Colorado – Sustainable Water & Innovated Irrigation Management was the next speaker. He started by asking for a show of hands who believes their ag water supply is now secure. No takers came forward. His SWIIM product is the quick books for ag water according to him.

During the Q&A someone from BSK Engineering asked who owns the data from the software developed. The consensus is the grower owns the data or the GSA or whoever contracted with the software owners.

Lunch Time

The meeting broke up from noon until one o’clock for lunch. Lunch was provided and it wasn’t bad. A variety of sandwiches: ham, beef and turkey. They used that kind of fru-fru lettuce on the sandwiches – you know the dark green, paper thin kind that sticks to your teeth. A minor problem at best, the grocery store bakery cookies made up for it.

Super Models

GEI Consulting has been working with GSAs in the Kern River and Kaweah sub basins. Brent Cain is the Senior Hydrogeologist for GEI and he spoke about What to Consider when Selecting a GW Model. Modeling and hydrogeology go together like Gimli and the Hobbits. Getting the right model is full of variables.

Phyllis Stanin, Vice President and principle geologist for Todd Groundwater. Todd has the Kern River GSA modeling contract if I recall. She said doing a basin wide water budget and meeting the SGMA goals will take more than a slide ruler. There are local and regional scale models. A local model are for a very specific task and yield more detail as well as evaluating projects and giving new, unknown data. But they impose artificial boundaries not present in the regional model. The regional model makes a more uniform evaluation but is coarser in scale. DWR has a C2VSim model that should be available this summer and the USGS has the CVHM model also available later this year. The C2 model focuses on water budgets and is supposed to fit with local zones revising areas with accurate data. It can be revised and DWR encourages this when pursuing SGMA. In the water code it requires DWR to provide the C2VSim for water budgeting.

The CVHM is good for basin-wide aquifer parameters but less emphasis on zone budgets. Stanin said it may not be as good for water budgets but it accurately portrays the San Joaquin Valley. There is a way to get “superposition” models by using both models. She explained how to do this and it yields real time results. You can plug in recharge scenarios and see what will happen without having to wait and crash computers. In summation she recommended using a model already developed and since time is short the model is the tool not the goal.

Tara Moran, Research Associate for the Stanford Woods Institute for the Environment at Stanford University was the next speaker. Moran spoke about what SGMA mentions as groundwater models. She said on the good side basins that haven’t been monitoring as well as they could will get better information to identify data gaps and make developing a water budget much more reliable. Good models are very useful in determining how to achieve the management actions. Models do take a lot of time, data and expertise to be invested in. She referred us to three reports: one from Australia, one from Stanford and one from DWR.

During Q&A it was asked how accurate is modeling. Moran said the uncertainty lies with how much or little data is available to calibrate a model. Cain said the further out timewise a model goes the less the reliability. The state understands there will be problems with the models. A person from the audience said models haven’t fared well in court. They don’t hold up as legal proof. Also, if I heard correctly the CV2Sims model doesn’t take subsidence into account.

One nice thing about all this is this program has been recorded and available from AGWT.

Stakeholders

            Steve Baker is the founder of Operations Unite and a hydrogeologist who focuses on the people side of water development. Baker moderated and said the public can fight you or help push you forward. The biggest question for farmers is the certainty of their supplies. He said the government is sometime the bad guy but the squeaky wheel gets the water so stake holders and the public have a definite role. Baker introduced Dave Ceppos from the Center for Collaborative Policy, the group from Cal State Sacramento that goes around with DWR contracts facilitating different GSA formations and such.

SGMA requires notice and communication as part of the GSP. Ceppos said that goes way further than NEPA and CEQA. A GSP has to show how the decisions are reached and other disclosers unheard of in previous regulations. The hierarchy of SMGA is first local agencies, second water corporations and mutual companies and then third beneficial users. He urges a private/unaffiliated pumpers advisory committee or an appointee system to get the boots on the ground effort to get the public engaged. He said an advisory committees need to have its role clearly defined. The advisory committee is often subject to the Brown Act but the Board is responsible for the advisory committees’ problems. He said tribal engagement involves federally recognized tribes are sovereign and don’t have to obey SGMA but the California Native American Tribes do have to the SGMA thing.

Ceppos said sub basins with have more GSAs than other but if the sub basin is chock full of GSAs all the outreach can cause a stakeholder’s head to explode. He reminded the folks the state doesn’t care how sustainable a GSA is, it cares about how sustainable a basin is. He said you’re not creating a club or a group – you’re creating a government agency; it analogous to forming hundreds of small cities at the same time. Ceppos said charging members to be a part of a GSA may not hold up in court. I’ve heard Ceppos speak before and I was pleasantly surprised with how witty and informative he was today. Ceppos was one of the better speakers.

Julia Golomb is an associate with the Consensus Building Institute has been working with GSAs in the Salinas Valley. She said SGMA requires SGAs to consider the interest of all users of groundwater, inform the public and encourage diversity amongst the stakeholders. She put up a lot of info on the screen, most of which I couldn’t read. She spoke about consulting with someone and empowering someone else. She asked what the purpose of identifying rural residential well owners and how could their input impact GSPs. I’m sorry I really had a time following what this lady was saying. According to her some rural well users are from disadvantaged communities that need door to door canvassing and information tables at parties. You have to have an email list of course. You can do radio and television interviews with progressively less effective results. I’m not really giving Golomb a fair shake here. My butt was getting tired of sitting and the post lunch yawns were taking over.

During the Q&A there were more questions of a legal nature, I thought. On a side note a lady from Salinas said much of what Golomb spoke about was completed before CBI arrived. Baker asked a farmer what he has to lose if SGMA doesn’t work and he was told most of his net worth. The next question came from a lady from Indian Wells. She said the US Navy and a couple of large ag companies are involved in the GSA but the smaller growers have been shut out. She wanted to know what to do. Ceppos said Indian Wells is obeying the letter but not the spirit of the law. He said to go immediately to the State Board would be a good idea. Ceppos said he and his staff begin with establishing common principles between all the players and has had success building a JPA from that. Ceppos said SGMA is pitting different parts of agriculture against each other. He reminded everyone in water or marriage both sides have to see themselves in the other’s story.

David Beard, Kern County Water Agency asked about using GSAs as a geopolitical force and wanted examples. Ceppos said a good model is what is taking place in Yolo County. A lady from the Kern County Farm Bureau said if this much work was paid to caring for smelt and farmers we wouldn’t be here. Ceppos said the infrastructure of California was developed to create water supplies for farmers and a large industry grew from this. All of a sudden the game changed. He said SGMA is sustainability delivered on the tip of a legislative spear. Don’t think of it as the “Big S” of sustainability and get to the local sustainability, the local, the “small s” that will keep things in place for family farms. Baker asked what the most difficult problem has been for the speakers. Golomb said when parties won’t come to the table. Another grower asked how to get them to the table because they could be the one to start the adjudication process and throw the entire basin under the bus. Ceppos said in his experience folks don’t always follow Maslow’s hierarchy of needs. One must peel back the onion until that common principle comes forward. He said one county told the state board to jump in a lake and come and get them. They offered to be the hill the state died on.

Water & Pumping Allocation Schemes for GSPs

Morgan moderated the last session of the day. Bryan Bondy, Groundwater Manager at the Calleguas Muni WD of Thousand Oaks said there is a case study in Fox Canyon where the land use is predominately ag. The water comes from the SWP, groundwater and recycled water. Almost all ag uses pumps. It looks like a fourth of all pumping would have to stop. Before SGMA 10 percent of the pumping was curtailed in 2014; in reaction to this and before SGMA was passed a group was formed to deal with the area’s groundwater. There is unirrigated land that wouldn’t ignored; it had to be included in any plan. There is varied cropping and irrigation demands. Bondy said there are growers near the ocean growing citrus that don’t use much water and growers inland that use a lot of water on cut flowers and such.

Bondy said certainty of supplies along with flexibility is was foremost on folks’ mind. There are three management areas and that initially caused friction. After a while folks realized fighting in court would most likely yield the same results but wreak havoc on the local economy in the meantime. A period of five years was used as a base for the allocation. A minimum allocation was established to help folks who may have planted a new orchard during the five year period. Once a user rises or is reduced to the minimum that’s it. They can’t be forced to give up more than the minimum. Bondy said he’s learned stakeholders can make difficult compromises, not one size fits all allocation will work, balancing water rights with equity was key, early buy-in was important and the non-severability agreement and the non-binding agreement created an environment conducive to negotiation.

Steve Bachman is a hydrogeologist/consultant from Santa Barbara who spoke about an area near the Fox Canyon site. His area included Oxnard, Camarillo and a Navy base. There were ag areas and areas with saline intrusion. He said the growers assessed themselves $10 per acre to provide technical and legal support. There was no desire to make this group accountable to the Brown Act as there are monthly threats of adjudication. Bachman said the realization is coming that after 10-20 years of legal fights and millions of dollars spent things will most likely end up the same as going through SGMA. There is surface water available on the coastal part of the area and allocation can be tricky. Most of the growers voluntarily curtail pumping and some have not used groundwater for some time. This leaves the question of how much pumping should they be allowed. This area is actually two basins and DWR won’t allow it to be one GSA. The plan is to develop two GSPs and operate the area as one.

Bachman talked about an undecided allocation. The allocation by acre and he allocation by historical use. The historical plan would have to define: the hydrologic base period, maximum pumping, account for just groundwater or not, include surface water and imported water. The problem is the difference between ag and urban uses during drought. Ag use goes up and urban use remains mostly stable. He ended by saying making this distinction is where the fun begins and I think it is a window on what GSP and adjoining sub basins have to look forward to.

The last speaker was attorney Craig Parton of Price Postel & Parma LLP of Santa Barbara who began by saying the adjudication process is fraught with danger. SGMA makes people deal with the possibility of going broke. He said if you think there is enough groundwater in your area get as many wheelbarrows of money as possible and start suing each other over adjudication. Parton said he suspects courts will be hesitant to adjudicate while SGMA is going on. He said for sure it will cost an exorbitant amount of money. He called the supporters of allocation by acreage the Burney Sanders group. He said someone using three to four acre feet per year in a reasonable way will be harmed by the per acre method. Parton said the most important thing in developing allocations is to get to the meaty issues first. Adjudication may be a smart way to go for a basin without overdraft; but then if that were the case why would you need SGMA?

The first question is what would happen if there were a cut back in water forcing everyone to cut back and grow lemon and a disease wipes out lemons in the area. It was rhetorical and an example of what would happen if the per acre equality method would be put in place. Parton said it is also important to avoid a super complex deal. He said he has a copy of the Tehachapi v. Cummings suit and he doesn’t understand it except he’s glad he doesn’t have to deal with this most complex mother of lawsuits. An attorney in the audience said she tells her clients adjudication is the nuclear option. She asked Parton if he knows of anyone who has sat down with a client and figured out how many hundreds of thousands of dollars per acre feet adjudication will cost. She also asked about bank lending and its impact on growers under SGMA. I really didn’t understand the answer. Another man asked how the banking of Met Water in Kern County will be figured in. Bachman said his guess is it won’t count. Bondy said Met water stored in his area isn’t counted. Paul Hendrix, GM Tulare ID and Mid Kaweah GSA asked about the pumping by cities. Parton said water supplies can change general plans. He said M&I at Oxnard is also feeling the joint pain. Parton repeated the theme models don’t stand up in court. And that was that. Go to www.agwt.org for more info.

DISCLAIMER OF RESPONSIBILITY; Don A. Wright strives to provide his clients with the most complete, up-to-date, and accurate information available. Nevertheless, DAW does not serve as a guarantor of the accuracy or completeness of the information provided, and specifically disclaims any and all responsibility for information that is not accurate, up-to-date, or complete.  DAW’s clients therefore rely on the accuracy, completeness and timeliness of information from DAW entirely at their own risk. The opinions expressed in this report are those of the author and do not represent any advertisers or third parties.

ALL RIGHTS RESERVED.  Copyright 2017 by Don A. Wright   No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of DAW.

*SGMA – Sustainable Groundwater Management Act, GSA – Groundwater Sustainability Area/Agency, GSP – Groundwater Sustainability Plan.