California farmers continue to face disappointment after disappointment with economic and regulatory issues, but now is not the time to bury your head in the sand. The Sustainable Groundwater Management Act (SGMA) is coming into fruition, and farmers need to not only be aware of how this will impact them, but getting involved in their local water agencies will be critical as plans are solidified. Geoff Vanden Heuvel from the Milk Producers Council addressed this at the recent California Dairy Sustainability Summit in Sacramento. Watch this brief video with Geoff and read more about it in California Dairy Magazine.
Tag: Sustainable Groundwater Management Act
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Unplanned Effect of the Sustainable Groundwater Management Act
Water Attorney Shortages – Advocacy & Ethical Conflicts
The Sustainable Groundwater Management Act (“SGMA”) has led to an unintended and unpublicized effect: a shortage of water law attorneys that can provide non-conflicted representation of farmers, water districts and groundwater sustainability agencies (“GSAs”). Although in the past, water law attorneys had to bridle the ethical and advocacy wall between representing farmers and the related water districts, which often times have common and similar goals, the new environment has made it extremely difficult or impossible to be able to ethically, and with proper advocacy, represent farmers, GSAs and water districts when the goals of the GSA, which may likely just be another hat of the water district, are so adverse to the interest of the farmers.
With the stakes so high on the potential limitation on use of well water by GSAs, can an attorney represent the GSA (i.e., likely the water district) in formulating groundwater sustainability plan (“GSP”) regulations and at the same time represent a farmer, who has critical concerns about any reduction in water use. The common sense answer is no. How can you advocate for GSA restrictions on water uses for no net loss of groundwater and at the same time represent the farmer who surely does not want any restriction or limitation on their ability to use groundwater.
The lawyer is in the position of being disloyal and not appropriately advocating either for the water district/GSA or farmer, as it would be a rare occasion that a farmer’s instructions to their attorney is “I am fine with the rules that are generated by the GSA in order to make sure there is no net loss in underground water.” Thus, the farmer, water district and GSA are put in a position of all three needing separate legal counsel, which leads to the conclusion that there may be more of a shortage of water law attorneys in the State of California than there is underground water.In the upcoming year and a half, the conflict is heightened by the requirement that by January 31, 2020, critical overdraft areas, which are largely in the central part of California, are required to have developed and implemented their GSP regulations. If the regulations are not strong enough to show that they will lead to no net loss in groundwater, the State of California steps in and takes over the oversight of the development of the regulations and possibly enforcement.
Considering the political environment of the north and south, and what they express sometimes with respect to the central valley’s farm operations and use of water, it is a scary proposition to think that the State will come in and be the drafter of such regulations and oversight without the same concerns of a local water district and GSA to the particular farming operations and regional issues. It would be great if the state understood that the central part of California produces about 90% of what Americans want to see on their table, and therefore, recognize that a nation must be able to feed its people and this is truly an area that should be protected for no other reason than national security. Unfortunately, the State seems to disregard those facts or assumes that the nation primarily just wants corn and potatoes on their table. That is a separate article in itself.
If you are a farmer or water district, you may be saying to yourself “well it seems to be working ok currently, my water attorney has represented both the water district in this process and me.” That may be correct, and as I said, that may have been fine for the past SGMA items, which related largely to the formation of the GSAs. The GSAs are primarily made up of the water districts, so not very controversial and most farmers would prefer that the GSAs be made up of the water district, as the people sitting on the water districts’ boards are usually farmers.However, now the GSAs are mandated to create GSP regulations which will have as their main purpose to restrict your ability to use groundwater, and heaven forbid you are near a river or tributary to a river and it is concluded that you are drawing water from such flow by your proximity within two miles, half a mile, who knows. In such cases, you will probably be prohibited from drawing any water from your well (unless you have riparian rights), because they will assume it comes from a source created by the river or its tributary.
We do not fully know what will be acceptable to the State as regulations. However, a review of SGMA and the various commentator statements on the same suggest regulations, especially in critical non-attainment areas, to include, but not be limited to, the following: well registration, investigation of water rights for those suspected of not complying, reporting of extractions, reporting of surface water storage, well spacing requirements, limitations on groundwater extractions, related fees and assessments, enforcement actions for noncompliance, fees on groundwater extraction, and even the possibility of jail time if you go over your allotment.
Over the next year and a half, the GSAs will be holding public hearings and allowing for comments on the GSPs, and this is a critical time if you are a farmer for you to be properly, and with strong advocacy, represented in such process. Even representing more than one farmer could be a serious advocacy problem. Different farms in areas under the same GSA have different concerns and problems. Mentioned above briefly, the issue of how close you are to a river or tributary to a river, as opposed to those that will not have to advocate regarding such issue. Since the outcome of such an issue may not be purely based and likely won’t be on good science, the adjacent farmer who is outside the distance, whatever that be, from the river, would see it as an advantage for the neighbor not to use its well as it potentially could affect their usage on their farm just across the property line. Many other examples regarding such conflicts between farmers are not too hard to contemplate. At the same time, the water districts/GSAs are going to want to make sure that their regulations are strict enough, so that the State does not take over the entire process and enforcement.
In my opinion, an attorney representing both the farmer and water district/GSA in such matters has to be disloyal to either one or both of such parties in any negotiations on the development of the regulations. You also need to understand that once these regulations are in place, they are in place, and there are very limited appeal or challenge rights with respect to the same. Thus, sitting back and seeing how things develop, is truly pennywise, pound foolish, or should I say ounce wise, and acre-foot foolish.
For the legal professional, the consequences are fairly clear and understood with respect to providing representation in such a highly conflicted area: inability to provide the highest level of representation, a smear on their professional integrity, state bar disciplinary consequences, malpractice consequences (breach of fiduciary duty/duty loyalty or confidentiality), reputational consequences and disqualification. The consequences to the farmer for such dual representation could be more significant in that the regulations could have been better tailored to that farmer’s particular operation causing the farmer to lose valuable water, removal of permanent crops, and of course, a loss in revenue. If the dual representation attempts to be “fair” to both sides, especially in a critical non-attainment area (i.e., central California), there is a strong possibility that the State may come in and take over the regulatory process and enforcement. This would not be good for the farmer or the water district.
What does all of the above mean for you now if you are a farmer? It means the next year and a half are critical for you to be involved and have an advocate that is only on your side in monitoring and advocating on the new regulations that are being formulated by the GSA. The thought that there is some advantage to a farmer, because his attorney also represents the GSA/water district, is a fallacy, because of the competing interests and that attorney is prohibited from providing services that utilize his knowledge of the water board/GSA that have been obtained during representation of such entities – a direct conflict with an attorney’s sworn oath of loyalty to clients.
Any questions regarding this article or SGMA can be directed to Christopher A. Brown, Esq., Real Estate and Environmental Law Department Chair at Dowling Aaron Incorporated at cbrown@dowlingaaron.com or 559-432-4500.
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Flooding Alfalfa Fields Has High Potential For Groundwater Recharge
Sacramento, Calif., (January 23, 2018) – A rigorous field study in two California climate zones has found that alfalfa can tolerate very heavy winter flooding for groundwater recharge. The research was published online Jan. 16 in California Agriculture journal.
Flooding an alfalfa field for groundwater recharge. (Photo: Andrew Brown) The alfalfa research is the latest in a series of projects studying the effects of using land planted with permanent crops – including almond orchards and vineyards – to capture and bank winter storm water. Such projects have great promise but also require collaboration across multiple jurisdictions and agencies. UC Agriculture and Natural Resources vice president Glenda Humiston has made groundwater recharge on working lands and open spaces a division priority and is working with water and land use leaders around the state to facilitate it through policy recommendations and cross-agency collaboration.
Groundwater is a critical water reserve in California, particularly during droughts when surface water supplies are low. Water slowly filled California’s aquifers over tens of thousands of years. Beginning in the early 20th century and continuing in the present day, groundwater has been consistently withdrawn at a higher rate that it can be replenished naturally. In 2014, the California Legislature enacted the Sustainable Groundwater Management Act, which requires all critically overdrafted groundwater basins to have a groundwater sustainability plan in place by 2020.
Flooding agricultural land during the winter, when surplus surface water is often available, is one promising strategy for replenishing overdrafted aquifers.
View a four-minute video about on-farm flooding for groundwater recharge on the UCTV Sustainable California channel. In the video, Professor Helen Dahlke discusses the work she and her fellow UC Davis researchers, UC Cooperative Extension advisors and specialists, and California farmers are undertaking to test the impacts of irrigating almond orchards in the winter to recharge groundwater.
For the alfalfa flooding research, UC Davis and UC Cooperative Extension scientists flooded two established alfalfa stands, one near Davis and one in the Scott Valley, Siskiyou County, during the winters of 2015 and 2016. The sites were selected because the soils in those areas have relatively high water percolation rates.
Integrated hydrologic science professor Helen Dahlke in an almond orchard being flooded for groundwater recharge. “We found that most of the applied water percolated to the groundwater table,” wrote lead author Helen Dahlke, integrated hydrologic science professor at UC Davis.
The alfalfa endured saturated conditions in the root zone for a short time, but the yield loss was minimal.
Dahlke and her co-authors – USDA Natural Resources Conservation Service soil scientist Andrew Brown, and UC Cooperative Extension specialists Dan Putnam and Toby O’Geen and the late UCCE advisor Steve Orloff – noted that the positive results of the alfalfa trial show tremendous potential for the state’s groundwater basins. Using an index created by O’Geen that identifies the locations of California soils suitable for on-farm groundwater recharge, the scientists calculated the potential groundwater recharge. If all the suitable alfalfa acreage were flooded with six feet of winter water, and assuming 90 percent percolates past the root zone, it would be possible to bank 1.6 million ac-ft. of groundwater per year.
“For reference, the Oroville reservoir, second largest in the state, has a storage capacity of 3.5 million ac-ft.,” Dahlke wrote.
Leigh Bernacchi, program coordinator of UC Water at UC Merced, interviewed Helen Dahlke to get more details on groundwater recharge strategies for California. Read the Q&A on the UC Water Center website.
Author: Aubrey Thompson
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A New Water Year Brings Uncertainty
Sacramento, Calif., (October 9, 2017) – After five years of drought, the 2017 water year brought unexpectedly heavy precipitation, ranking second only to 1983 as California’s wettest year for statewide runoff. The dramatic swing in water conditions highlights the need to develop better long-range weather forecasting to cope with the state’s highly variable annual precipitation.
DWR begins water year 2018 intent on narrowing the forecasting gap with improved sub- seasonal to seasonal (S2S) forecasting. Working with researchers at the National Aeronautics and Space Administration (NASA) and the Scripps Institution of Oceanography, DWR is developing innovative technology to forecast land-falling atmospheric rivers.
“Current short-term forecasting for seven days out is 70 percent accurate, while the 14-day forecast is only seven percent accurate,” said DWR Director Grant Davis. “That isn’t adequate for water management. Advancing accurate, even longer-range forecasting is critical for our ability to plan for California’s highly variable weather.”
The water year that ended September 30 saw an extraordinary number of atmospheric rivers that created high water conditions throughout the state. The Feather River watershed received record runoff in January and February, which led to some of the highest inflows into Lake Oroville ever recorded. More accurate forecasting would have helped DWR manage reservoir levels to deal with significant inflow in the days following the February 7 discovery of erosion on the main spillway at Lake Oroville. Better forecasting also would help inform the spillway’s reconstruction timeline based on predicted precipitation.
The record-setting precipitation in Northern California and above-average rainfall elsewhere contributed to flooding in several river systems. Fifty-two counties declared states of emergency due to the January storm sequence, and flood fight materials and specialists were pre- positioned in Merced, Butte, Stanislaus, Fresno, and San Joaquin counties based on the forecasts in anticipation that local agencies would request support.
Despite record-breaking rainfall in Northern California in water year 2017, drought impacts still linger. Governor Edmund Brown Jr. issued an executive order in April to end the statewide drought emergency, but maintained a state of emergency for the counties of Fresno, Kings, Tulare, and Tuolumne, where homes with dry or contaminated private wells continue to receive emergency drinking water deliveries.
One success story stemming from the drought is the East Porterville Emergency Water Project, which will see 756 unincorporated East Porterville homes connected to the City of Porterville’s municipal water supply by the end of 2017. Similar projects are underway in the communities of Okieville, Monson, and Seville-Yettem to connect an additional 195 homes to a sustainable water supply.
Another highlight of the 2017 water year was the announcement that 99 percent of the state’s high- and medium-priority groundwater basins met a key deadline to form local Groundwater Sustainability Agencies (GSAs) under the state’s landmark Sustainable Groundwater Management Act (SGMA) of 2014. California depends on groundwater for a major portion of its annual water supply, particularly during times of drought. The long-term planning required by SGMA will reduce the impacts of groundwater overdraft, including subsidence, and provide a buffer against drought and climate change.
Although a wet 2017 minimized the risk of subsidence in historically affected parts of the San Joaquin Valley, DWR continues to fund satellite- and aircraft-based radar monitoring of subsidence by NASA to support local implementation of SGMA.
Looking ahead, DWR is preparing for the uncertainty of water year 2018 and beyond:
- In August, the Central Valley Flood Protection Board adopted the 2017 update to the Central Valley Flood Protection Plan, prepared by DWR, which recommends long-term multi-benefit actions to improve flood risk management.
- This past year DWR awarded more than $4.2 million in Delta Flood Emergency Response grants to improve Delta flood response and increase public safety.
- In the past five years, DWR has awarded 46 grants totaling $25 million to develop and update flood safety plans, and increase coordination, training, and flood fight supplies for local agencies across the state.
- Ongoing SGMA implementation will bring overdrafted groundwater basins into balance to protect our water supply against the impacts of prolonged drought and climate change.
- California WaterFix will upgrade California’s water supply infrastructure to more reliably transport water through the Delta, protecting against the impacts of natural disasters and climate change. The project provides a more flexible and environmentally-responsible way to convey water during significant precipitation events for use in dry years. Construction could begin in 2018, pending support from public water agencies.
- The first phase of reconstruction on the Lake Oroville spillways will be completed by November 1, 2017, ensuring the spillway can handle 100,000 cubic feet per second (cfs) this water year. Phase 2, which will be completed by end of 2018/early 2019, will bring the spillway to final design with a capacity of 270,000 cfs. The emergency spillway will be reinforced with several erosion-prevention features, including a cutoff wall to prevent head-cutting erosion.
In the face of California’s highly variable weather patterns, DWR and our local, state, and federal partners are working together to ensure that Californians are prepared. Infrastructure improvements and advances in accurate, long-term forecasting are critical to public safety and sustainability. When it comes to water, California must prepare for the worst and hope for the best. Read more about water year 2017 in the report “What a Difference a Year Makes.”