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SGMA Questionnaire June 7 ,2017

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A week or two ago I sent out a questionnaire regarding Groundwater Sustainability Areas/Agencies required under the Sustainable Groundwater Management Act. Nine people took the time and energy to respond for which I’m both surprised and grateful. But one of the best things about the response was the variety of areas represented and the variety of perspectives. Of the nine people who responded there were two attorneys, two irrigation district general managers, two upper management staff and three growers. Some of them also have engineering degrees. They represent an area from Modesto to Bakersfield and Firebaugh to Porterville. This should be counted as a decent representation of the San Joaquin Valley both geographically as well as professionally within the ag water community. 

Four questions were asked:

  • What has been the biggest struggle you’ve encountered forming a GSA?
  • How did you overcome this struggle?
  • Are you preparing your GSP and coordinating with other GSAs in your sub basin?
  • And the final question was, “What questions should I have asked but didn’t?”

One respondent wanted to remain anonymous. They asked a question without answering any. “Why did the State of California let us down by not keeping up with water storage and infrastructure that has been in the master plan affording for population growth and land development years ago? You wouldn’t have to be asking the other questions right now.”

Lauren Layne an attorney with Baker Manock & Jensen in Fresno wrote, “I would say that each GSA is unique and there really isn’t one that was more difficult to form than another.” Layne continued, “The choice of the GSA entity structure was probably the biggest hurdle for most GSAs and each one handled it differently.”

Layne has played a major role in forming the Kings River East GSA, the North Kings GSA, Tri-County Water Authority, Southwest Kings GSA, Merced Sub Basin GSA and the Central Delta Mendota GSA to a name a few. She said she has worked with special act districts, joint power authorities and memorandum of understanding groups when forming various GSAs. Layne and others have run into one of the unintended consequences from SGMA – can mutual water companies belong to JPAs formed as GSAs according to the State Water Resources Control Board? To paraphrase former US Secretary of State John Kerry – you bet they might. To explain how this could work exceeds my layman’s legal knowledge, but I have seen examples of how mutual water companies can participate through the use of legislation and MOUs.

Someone else concerned with SGMA’s unintended consequences is Charles Meyers. The Kings County grower wrote, “The only thing this law does is take away property rights of the landowners. It takes away the ability of farmers to create revenue by giving the state the authority to shut down their wells instead of making surface water available, which there is plenty of.”

Meyers continued, “The last and worst drought year was last year [2016] and the feds still sent in excess of 12,000,000 acre feet out to sea. Almost no wells would run if they supply Kern County, Kings County and Westlands Water District each with 1,000,000 acre feet in drought or low-water years. That still would’ve allowed 7 to 10,000,000 acre feet to go out to sea last year.”

Meyers summed up his answer to question one, “The thing I struggle with is that the whole concept is wrong. Our leaders are coming from behind. The tail is wagging the dog. It [SGMA] is not sustainable. It does nothing to solve the problem.”

Sean Geivet is the general manager of three irrigation districts in the Tule River sub basin: Porterville ID, Saucelito ID and Terra Bella ID. Each district has a very different groundwater profile ranging from relatively shallow groundwater in some parts to no groundwater in others. He expressed the hurdle as being more human than technical.

“The biggest challenge was getting decisions makers comfortable with the idea of groundwater management,” wrote Geivet. “Then it became a challenge to get them to understand that each District does not need total autonomy to be successful managing the groundwater.”

Many if not most people fully agree with Geivet; this is only the beginning, “However, the bigger hurdle is the discussion on how to allocate the groundwater, which is where the rubber meets the road.”

Attorney Valerie Kincaid broke down the challenges from four perspectives. She wrote that people from a non-public agency background had the most trouble with timing and understanding.

“They are surprised and frustrated to understand that GSAs have already formed and claimed management authority over their lands,” wrote Kincaid. “Many have started the process to become a public agency, but that process takes time and some will not meet the June 30th deadline.”

Kincaid observes that water districts have had a difficult time trying to figure out how to work with non-water management agencies.  Cities and counties often do not manage water and if they do it is not their primary job.

“However, these local government agencies often do not feel comfortable stepping back and letting a water district or irrigation district manage groundwater in overlapping jurisdictions.  Therefore, many of the counties and cities have stepped in and created overlap or demanded to be part of a GSA because SGMA provides them the authority to do so,” wrote Kincaid.

Counties are another type of entity experiencing the mandate to manage new expectations and new default responsibilities.

Kincaid wrote, “SGMA dealt counties one of the most difficult hands – managing white areas, which are usually areas that have not previously been managed. Often the areas are not contiguous (but rather spread all over the outskirts of the basin boundaries), with varied challenges, and often no ability to access surface water or imported water supplies.” Kincaid believes this will become a larger problem in GSP development, but it also influenced GSA election.

As for the larger JPA groups Kincaid is thinking in line with fellow attorney Layne. She sees JPAs challenged by managing the evolving interpretation of SGMA requirements by state agencies.

“GSA formation was a drastic change regarding how Districts, District Managers and the public they serve had to begin to view their responsibility to each other, to the environment and their neighbors,” was Deanna Jackson’s first comment. Jackson represents the Tri-County Water Authority GSA.

Jackson continued, “The biggest struggle with the formation of our GSA has been working with ooverlap, and begin to form JPA’s or MOU’s that would provide mutual benefits for each entity. In most cases we were successful, but not all.”

Tim Allan works with Sun Pacific Farming and represents white areas on the East Tule GSA. He saw equitable representation as the key issue in forming his GSA.

Allan said, “The biggest struggle for this GSA is determining fair representation in a GSA that consists of eight public agencies and a significant ‘white area’ that covers more than 50 percent of the GSA. This white area consists of permanent, high value crops and the growers in this area rely solely on groundwater.”

Going further north Steve Knell, GM Oakdale ID and a member of two GSAs: the Eastern San Joaquin GSA and the Modesto Sub-basin GSA in Stanislaus County wrote, “I think anytime you have counties and agencies within counties trying to work together to develop a workable agreement, you will have issues.” He included legal, territorial, representation, etc., you know – issues.

I believe Jose Gutierrez of the Westlands Water District GSA would agree with Kincaid about counties having to come to grips with some hard choices. Gutierrez wrote his biggest challenge was coordinating with counties for the ‘white areas’ that overly the sub basin, but are outside the District’s service area.

“Some counties have no interest in being part of our GSA or providing financial assistance to develop the Groundwater Sustainability Plan,” wrote Gutierrez. “The lack of county interest could create compliance issues if the Regional Board intervenes in the unmanaged areas.” To be fair to all parties Westlands sits in more than one county so don’t count this as a blanket statement. And he didn’t state counties are not stepping up but rather if they don’t step up the recipe for heartache will be furthered.

Question Two

So, Gutierrez would be a good one to start with for answering question number two; how did your GSA overcome its struggles? He wrote his GSA, “. . . prepared a MOU outlining the responsibilities of the District and county for funding, developing and implementing the GSP as well as indemnifying the county for work performed by the District.”

Knell simply replied, “Fortunately in Stanislaus County we have had a semblance of a GSA structure going back to the late 1990s that was addressing groundwater concerns.”

Balance is in the eye of the beholder and cooperation will be necessary for survival under SGMA. Allan explained the solution for his GPA, “A JPA was signed that assigns a board seat and vote to each of the eight public agencies plus one seat/vote for the white area. This solution provides a voice and vote to the white area that SGMA did not require. At the same time, it assigns the same voting power to a district with less than 1,500 acres as it does to the white area’s 80,000 acres. That said, we appreciate the board’s willingness to engage the white area growers and look forward to setting up a GSP that accommodates the needs of each party.”

Jackson credited foresight and straight talk for helping her GSA meet its formation challenges. “The best way to work together is to be as knowledgeable as possible with regards to how sustainability and sustainability agencies will look and function in the future, and work towards that common goal,” wrote Jackson. “As agencies we need to be creative when it comes to how we will replace the loss of pumped groundwater. When you bring people together and communicate openly, with a willingness to succeed, and take a hard look at the future it becomes obvious that economy of scale will be important when it comes to the expense of this undertaking, and a larger, more diverse group will be better able to create and execute projects and plans to cause the GSP to meet its sustainability goal while maintaining productivity.”

Without giving much in the way of details Kincaid explained, “Many struggles were resolved with picking the lesser of two evil options. Others were somewhat resolved with increased communication and creativity.”

Using a heaping helping of creativity Geivet wrote communication was a major component of getting his GSA up and running. In fact he emphasized it three times.

“Communication, communication, communication. I went at it a little different than others. I started with a basic premise of the GSP, manage the groundwater similarly to how we manage the local surface water, through a share system. Once the directors had somewhat of an idea of the management plan then it became easier to start to build consensus on what the GSA needed to look like.”

Question Three

The third question was; how are you preparing for your GSP and coordinating with other GSAs in your sub basin? The talk I’ve been hearing could be boiled down to – forming the GSAs is a political exercise, each GSA developing a GSP for itself is a matter of quantification, arriving at a coordinated agreement will require Job to mediate. However as the people tasked with SGMA compliance are looking at things with more, I don’t know if optimism is the correct word, after all these are water people. But, water people only survive by solving problems and they’re usually pretty good at it.

Layne feels most GSAs are in their “data collection period.”  She states the GSAs are trying to gather as much existing data as possible, so they can determine where there are information gaps and what additional work needs to be done to complete the GSP.

“Most of the sub basin coordination has already started,” wrote Layne. “GSAs are meeting on a sub basin level to start to coordinate information sharing and plan how to apply for grant funding or use grant funds already received. Some are using facilitators and others are using a familiar engineer to help guide the group.”

“We are blessed to have a strong leader such as Mr. Schafer [Richard Schafer, RL Schafer Assoc. Visalia] who has been able to bring the necessary type A managers in the room to build consensus on a coordination agreement and a hydrogeologist to help us calculate safe yield,” wrote Geivet.

It’s not just that the participants were born with cooperative genes – hydrogeology plays a role, “We are also lucky that most of the Tule Sub-Basin is covered with similar surface water Irrigation District. As far as the GSP because of the groundwork laid in setting up the GSA we have already begun to draft our GSP using the Duke [Duke University] roadmap as our starting point. We will see how it goes from here, but so far so good.” He has more to say about this later.

Kincaid wrote, “Most GSAs are just beginning the process. Currently most groups are drafting agreements that set the ground rules for how the different GSAs in the basin will work together.”

Jackson wrote the Tule and Tulare Lake Sub Basins have been meeting for some time. She wrote they knew early on it would be imperative to come to common agreements in order to meet the minimum requirements of coordination under SGMA.

“GSP preparation cannot be completed in a vacuum and there is much work to be done on a sub basin level; such as governance, the coordination agreement, and agreed upon common hydrology data, not only for individual sub basins but for the hydrologic region,” continued Jackson. “On the GSA level we have already addressed governance through the JPA and we are working to gather the data that will be necessary for the GSP. We are currently working on a vigorous outreach program to inform stakeholders, so they can prepare for the future, and gather their feedback regarding how we can reach our goals in the most efficient way possible in this new world of SGMA.”

Allan reported the six GSAs in the Tule Sub basin are coordinating at the sub basin-level through an MOU, and most of the technical work of the GSP will come out of that group.

“Each GSA will then write the policy/management sections of the GSP. In the Eastern Tule GSA, we are looking towards a market-based system similar to the ‘SGMA Roadmap’ prepared by Mike Young at the University of Adelaide, which is based on water markets in Australia,” wrote Allan. [Young is also part of the Duke University study Geivet referred to.]

“The first major technical task is the construction of a groundwater model that simulates the long-term behavior of the sub basin,” wrote Gutierrez. “The District created a Water User Technical Review group staff will coordinate with to explain the technical aspects of the groundwater model and management measures that achieve sustainability. The District has conducted a number of water user workshops over the last two years to explain SGMA, the implementation schedule, and work completed by the District. We also provide monthly updates at the Board meetings.”

Regarding the coordination with other GSA’s Gutierrez wrote, “The District is part of the Fresno County SGMA advisory committee and we meet quarterly to discuss governance and technical issues, and we cooperate to seek grant funding to support SGMA activities in Fresno County. We also attend DWR’s Tulare Lake Basin meetings with neighboring GSAs to discuss DWR’s administrative, policy and technical perspective regarding SGMA implementation.”

Gutierrez wrote Westlands has also promoted data sharing with its neighbors so groundwater models are complete and have the appropriate boundary conditions to determine the flux of groundwater at those boundaries.

Meanwhile up in Oakdale Knell reports GSP development has not yet fully begun but will be a similar challenge to the GSA process.

“Updating the existing GW models is a top priority as it will be a source for drawing conclusions on aquifer status and management needs moving forward,” wrote Knell. “The early stages of data collection and discussions regarding the selection of a modeling platform have begun to ensure this is a process that occurs in parallel with GSP preparation. We as agencies all have our ideas but haven’t put them on paper for vetting yet. I currently assume all projects likely will be run through a benefit/cost analysis so we start on the projects that give us the biggest bang for the public money being spent.”

Question Four – What questions should have been asked?

We’ll start with Layne’s answer, “I think the question you should ask is whether or not the SWRCB will be stepping in to implement SGMA within the Central Valley. My answer is: I hope not. It seems like the Counties are on the side of the local agencies and are willing to step in where necessary to ensure complete coverage.”he final question is one of my favorite ones when interviewing somebody. Obviously it covers me from missing the obvious but it also stimulates the mind of those being interviewed. What question should I ask you – is as good a starting point as any to keep the conversation going. This time I added the respondents would receive bonus points for not only stating the question but answering it as well. Under full disclosure I wasn’t actually trying to bribe them with bonus points and I’m sure they are all well aware the value of bonus points has been decimated by the Hunt Brothers in Texas when they tried to corner the market on bonus points using bit coin.

In all the meetings I’ve attended regarding SGMA not once have I heard anyone say how much they’d love it if the State or Regional Board would only take over. Layne’s question is one everyone is asking themselves.

Geivet would have won on Jeopardy if the category was After The Government Helps, “What steps are you taking to avoid the inevitable lawsuits to come?”

“I think the key is to find a balance between those who want to use one safe yield for the entire sub-basin – which I support – and the proponents of a more historical basis for allocation. To keep it fair, in a share system I see allocating the safe yield over all the acreage equally and then allocating a block of shares based on historical use that will degrade in volume over time,” continued Geivet.

“So that at some point down the road; the only shares in the market will be the shares allocated on an acreage basis initially. To survive adjudication we need to have a majority of the growers agreeing with the approach, as no matter what system is developed someone will not like and will sue over it. The program needs to be strong enough that a judge can look at it and say it looks fair, reasonable and has support from people on all sides of the issue.”

Like the non-desire of state intervention, the idea of adjudicating the San Joaquin Valley is not well received.

Kincaid posed an interesting question, “Is it likely that GSAs will need to change after the June 30th deadline?” Her answer was a positive response to our old friend; unintended consequences, “Yes, there will need to be a mechanism for amending or reforming GSAs.”

Jackson also raised a good question, “What do you see as the advantages and/or disadvantages of multiple GSPs per sub basin versus one GSP per sub basin?”

Allan and I got into a long Chevy verses Ford, why not Dodge pickups discussion and I missed his GSA related question and comments. Sorry. Go Dodge.

Meyers wrote the question often asked when the state imposes yet another program on ag water. “My question is how we can get all the members of the other GSAs united and refuse to cooperate with the state until they resend this stupid law and enact one that will offer a solution as outlined in [question] number one above.” To refresh your memory Meyers (and plenty of others) was rightfully critical of the waste of surface water.

Gutierrez asked and answered, “Should GSAs share groundwater data and modeling results with neighboring sub basins and GSAs? Yes. Sharing data and modeling results is instrumental in determining whether a sub basin is being managed sustainably.”

There’s a reason follow the money is a guiding tenant when trying to make sense of a situation. Knell explains, “The gorilla in the room is going to be the mechanism for funding both GSA management and oversight and paying for the planning, development and construction of the GSP projects. Along with that will be the annual funding for the long term O&M costs these projects will require.  Money, money, money…”

I saved eastside family farmer, Karen Yohannes response for last. It doesn’t really follow the questions but I think she sums up what a lot of folks are feeling in regards to SGMA.

“Through my participation in the GSA formation process for three agencies, as an interested party stakeholder, I have met many dedicated, passionate, honest, talented, hardworking people in my community. The degree we can accomplish communication and engagement, consideration of others, mutual respect and a regard for our shared humanity will determine and secure the success of our local governance and sustainability. We have many talented people in this community. I’ll give this everything I’ve got.”

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.