January 2022 was a busy month for the Sustainable Groundwater Management Act (SGMA). The California Department of Water Resources (DWR) issued remaining assessments for groundwater sustainability plans (GSPs) for critically overdrafted basins, except for GSPs covering the Madera Subbasin. GSPs for high- and medium-priority subbasins that are not critically overdrafted were due to DWR by Jan. 31, 2022. DWR published 15 of these GSPs to the SGMA Portal and is now accepting public comment. Additionally, the first five-year updates for GSP alternatives were submitted by Jan. 1, 2022, and are now open for public comment.
On Jan. 13, 2022, DWR approved two additional GSPs in the Las Posas Valley and Indian Wells Valley basins. Both GSPs were approved with recommended corrective actions the groundwater sustainability agencies (GSAs) will need to address in their five-year update in January 2025. These approvals increase the total number of approved plans to eight.
These approvals come about a month after DWR sent letters to GSAs across the remaining Central Valley subbasins warning GSAs that “staff have identified several deficiencies which will preclude [DWR’s] approval.” DWR recommended the GSAs review assessments for other subbasins in the San Joaquin Valley and prepare to address deficiencies similar in theme.
On Jan. 22, 2022, DWR released assessments for the Westside Subbasin, Delta-Mendota Subbasin, Cuyama Valley Basin and Paso Robles Subbasin, and about a week later (Jan. 28) for the Eastern San Joaquin Subbasin, Merced Subbasin, Chowchilla Subbasin, Kings Subbasin, Kaweah Subbasin, Tulare Lake Subbasin, Tule Subbasin and Kern County Subbasin.
Deficiencies identified in DWR’s assessment must be addressed within 180 days following the release of DWR’s determination that the GSP is incomplete. DWR has prepared a Frequently Asked Questions reference document for incomplete determinations. Key milestones of the resubmittal process include the following:
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Optional or Required?
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Process Item
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Optional
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DWR Initial Consultation Meetings with DWR staff to clarify any deficiencies and potential corrective actions
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Optional
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DWR Technical Check-In Meetings regarding the technical analysis to correct deficiencies and potential corrective actions
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REQUIRED
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Notice to Cities and County. This includes notifying each city and county within the subbasin at least 90 days before the public hearing to adopt the amended GSP and proper review and consideration of any comments.
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Optional
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Interim Board or Committee Meetings to allow the key parties to GSP, as well as members of the public, to consider and provide feedback on the proposed amendments
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Optional
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Public Hearing to adopt the Amended GSP
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REQUIRED
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Resubmission to DWR: Resubmit the Adopted Amended GSP on or before 180 days following DWRs determination
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Alarming for Agriculture ‒ Key Takeaways from DWR’s Jan. 13, 2022, Approvals
Many agricultural interests are concerned that in DWR’s approval of the Indian Wells Valley GSP, it approved of the Indian Wells Valley Groundwater Authority (IWVGA) GSA:
- Making water rights determinations in granting Annual Pumping Allocations of native groundwater,
- Assigning a replenishment fee of $2,130 per acre-foot, and
- Eliminating existing agricultural water use (the Plan states that “under the Allocation Plan, agricultural water use would be eliminated, and groundwater use would predominantly be for municipal and domestic uses and the U.S. Navy.”).
While DWR’s approval could easily be misconstrued as validation of the GSA’s actions that make water rights determinations, DWR acknowledges in the approval that “potential water rights issues . . . are beyond the scope or authority of [DWR].” It deserves restating plainly that SGMA does not impair water rights, and only a court can adjudicate water rights. DWR’s role is limited to review of the GSP’s technical components. Regardless of its authority to approve a GSP, it does not follow that DWR can in doing so approve or validate any potential violation of water rights.
Summary of Released GSP Assessments
Approved
- 180/400 Foot Aquifer Subbasin in Salinas Valley (June 3, 2021)
- Santa Cruz Mid-County Basin (June 3, 2021)
- Oxnard Subbasin (Nov. 18, 2021)
- Pleasant Valley Basin (Nov. 18, 2021)
- North Yuba Subbasin (Nov. 18, 2021)
- South Yuba Subbasin (Nov. 18, 2021)
- Las Posas Valley Basin (Jan. 13, 2022)
- Indian Wells Valley Basin (Jan. 13, 2022)
Incomplete and Require Consultation
- Cuyama Valley Basin (assessment released June 3, 2021, last update Jan. 21, 2022)
- Paso Robles Area Subbasin (assessment released June 3, 2021, last update Jan. 21, 2022)
- Eastern San Joaquin Subbasin (assessment released Nov. 18, 2021, last update Jan. 28, 2022)
- Chowchilla Subbasin (assessment released Nov. 18, 2021, last update Jan. 28, 2022)
- Merced Subbasin (assessment released Nov. 18, 2021, last update Jan. 28, 2022)
- Westside Subbasin (assessment released Nov. 18, 2021, last update Jan. 21, 2022)
- Delta-Mendota Subbasin (assessment released Jan. 21, 2022)
- Kings Subbasin (assessment released Jan. 28, 2022)
- Kaweah Subbasin (assessment released Jan. 28, 2022)
- Tulare Lake Subbasin (assessment released Jan. 28, 2022)
- Tule Subbasin (assessment released Jan. 28, 2022)
- Kern County Subbasin (assessment released Jan. 28, 2022)
Inadequate
All assessments are publicly available for review on DWR’s SGMA Portal.
Brownstein will continue to monitor developments.
This document is intended to provide you with general information regarding groundwater sustainability plans and the Sustainable Groundwater Management Act in California. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.