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State Board Probation Hearing for Tulare Lake Subbasin Coming Up

On Tuesday, April 16, 2024, the State Water Resources Control Board will conduct a hearing to consider putting the Tulare Lake Subbasin on “Probationary” status under the authority of the Sustainable Groundwater Management Act (SGMA) law. The hearing will start at 9:30 a.m. and can be watched online here. A meeting agenda is also available here.

 

The Tulare Lake Subbasin is located in the Southern San Joaquin Valley. There are a couple of pockets of dairy farms in the subbasin, but dairy is certainly not a dominant player in this area. What make this of interest to us is the fact that this Subbasin is the first to be considered for “Probation.” There are five other subbasins in the San Joaquin Valley, some of which do have a lot of dairies in them, whose submitted Groundwater Sustainability Plans (GSPs) were deemed “inadequate” and are subject to this same State Board probationary consideration. 

 

There are three main identified deficiencies in the Tulare Lake GSP that caused the Department of Water Resources to rate their plan as “inadequate.” The Tulare Lake Groundwater Sustainability Agencies (GSAs) that wrote those plans have been actively working to adjust them to address the concerns of the State. They have proposed to significantly raise the “minimum thresholds” for groundwater levels from where they were in the original GSP. This was done to minimize the impact on shallow domestic wells. In addition, domestic well mitigation programs have been proposed to repair and replace domestic wells that go dry from dropping groundwater levels. Raising these minimum groundwater thresholds means that farmers will have to curtail groundwater pumping much sooner than was anticipated in the original GSP that was rejected by the State.

 

The other main issue is subsidence. Some parts of the Tulare Lake definitely experience subsidence which is caused almost exclusively by deep groundwater pumping under the Corcoran clay. SGMA requires that the GSPs be written to eliminate “undesirable results” which in the case of subsidence is having the ground surface level sink to a point that it damages critical infrastructure. Of course, defining critical infrastructure is a bit tricky. Some infrastructure, like major canals, levees that protect towns, railroads and roads are obvious. In the Tulare Lake, all of these things exist and coming up with a groundwater management plan that eventually eliminates subsidence is a very challenging problem. The geological nature of the Tulare Lake Subbasin is not uniform. Trying to get on the same page has been difficult for the GSAs and going into this hearing next week, the GSAs have not been able to agree on a common approach to the subsidence issue.

 

The third deficiency is water quality. The SGMA law does require GSAs to take water quality into consideration in their plans, but it recognizes that there are other state programs that have primary jurisdiction and enforcement authority on the water quality issue. The obligation on the GSPs is that they do not exacerbate water quality degradation in their groundwater pumping plans. Addressing the water quality obligations of the GSP can be accomplished.

 

Unfortunately, while a lot of progress has been made, no official unified GSP has been produced by the Tulare Lake Subbasin GSAs going into the hearing next week. The State Board staff report is recommending that the Board vote to place Tulare Lake Subbasin under “Probation.” This would be an official takeover of the Subbasin by the state and brings with it certain requirements. The first is that meters will be required. The staff is recommending that any farmer that uses 500-acre feet per year or more must meter their groundwater pumping. Smaller farmers are encouraged to get meters but can use other measuring methods. An initial $20 per acre foot fee would be collected to fund the work of the State Board during probation. The stated goal in SGMA is that the probationary period is for the local GSAs to address the stated deficiencies and officially adopt updated GSPs that meet the SGMA standards. If this cannot be done within one year of a Subbasin going into probation, then the State Board has the authority to implement an “interim plan.” Read more about probationary status from the State Water Board here.

 

The goal of the Tulare Lake subbasin and all of the inadequate subbasins in the San Joaquin Valley has been to avoid probation. Given the reality that there is not a fully adopted updated GSP that addresses the deficiencies outlined by the State, I think it is likely that the State Board votes to put the Tulare Lake Subbasin into probation. This is the first SGMA rodeo for everyone. While having the State intervene is not what the locals want, how the State uses the considerable power and discretion that the SGMA law gives them will play a big role in how this ultimately turns out.

 

This situation reminds me of my experience representing agriculture on the board of the Chino Basin Watermaster 25 years ago. Back then the Chino Basin, which operates under a groundwater management program called an adjudication, was under a court order to produce an Optimum Basin Management Plan to address certain water supply and quality concerns. The judge with jurisdiction of the Chino Basin stipulated that if the local officials operating the water systems in the Chino Basin did not put a satisfactory plan together to address the water quality and supply concerns, the court was going to turn over control of Chino Basin to the State Department of Water Resources. This was a powerful motivator, but there was one other factor that made a huge difference in the ultimate success of the Chino Basin. There had been a water bond passed by the state and in that bond, there were millions of dollars allocated to build water infrastructure in the Chino Basin specifically contingent on an enforceable agreement by the Chino Basin parties to fix the problems. We did produce, after much difficult negotiation and pain, and with the assistance of a facilitator and court appointed referee, what we called the Peace Agreement. Getting to an agreement to do hard things is very difficult, and time consuming, and expensive. But being successful also needs positive incentives, and not just negative consequences. In other words, there needs to be some carrots to go along with the sticks.









Geoff Vanden Heuvel

Director of Regulatory and Economic Affairs

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