By Natalie Willis, Reporter, Valley Ag Voice
Recent activity in California’s groundwater management landscape is marked by critical developments across Central Valley subbasins. Regulatory hearings, court rulings, and ongoing challenges highlight the pressures on groundwater users.
The Tule Subbasin has become the second basin to be placed on probation by the State Water Resources Control Board at its hearing on Sept. 17. The board’s determination came after a day-long hearing with presentations from State Water Board staff, Tule Subbasin Groundwater Sustainability Agencies, and other stakeholders as well as various public comments.
Additional battles in the decade-long Water War between the State Water Board, SGMA, local GSAs, and the agriculture industry include a court victory for the first subbasin placed on probation — the Tulare Lake Subbasin.
UNDERGROUND REGULATIONS
In September, Kings County Superior Court Judge Kathy Ciuffini ruled in favor of the Kings County Farm Bureau in their efforts to sue the State Water Board after the basin was placed on probation in April. The Farm Bureau’s lawsuit was filed in May.
According to the preliminary injunction, four specific causes of action were found to violate the law. Firstly, the court found that the SWB failed to “an affirmative mandate, not an optional duty” to consider the Good Actor Clause, which would exclude certain areas of a subbasin where the GSA demonstrates compliance with the sustainability goal.
Two GSAs — the Southwest Kings GSA and Tri-County Water Authority GSA — requested consideration for the “good actor” exclusion. However, State Water Board staff chose not to exclude any portions of the subbasin from probationary designation as it deemed the entire Groundwater Sustainability Plan inadequate.
“In other words, having and implementing a plan is a key part of the sustainability goal. For a GSA to comply with the sustainability goal of the basin and make a case for a “good actor” exemption, the GSA needs to be implementing a GSP capable of achieving sustainable groundwater management,” SWB staff stated. “The only plan covering the Tulare Lake subbasin is inadequate for the reasons described in DWR’s inadequate determination and the Final Staff Report. Therefore, no GSA’s implementing the plan would qualify for the exemption…”
The court interpreted the clause differently. According to the injunction, the SWB ignored the mandatory injunction to consider good actors by not commenting, analyzing, or considering the merits of the two GSAs’ claims.
“SWB’s interpretation of this portion of SGMA appears to be incorrect and unlawful and cannot serve as the basis for a probationary decision pursuant to [Water Code] 10735.3,” Judge Ciuffini wrote in the injunction. “SWB’s interpretation of the Good Actor Regulation would mean that no GSA would qualify if it is part of a subbasin determined to be inadequate by DWR.”
The second cause of action is the failure of the SWB to comply with the probationary hearing notice and to provide timely notice of new metering, calibration, and reporting requirements. According to the Kings County Farm Bureau, the SWB did not provide 60 days’ notice of the probationary hearing to every groundwater extractor in the basin.
According to SWB staff, namely Senior Engineer Sam Boland-Brien, Supervising Engineering Geologist Natalie Stork, and Senior Environmental Scientist Sarah Sugar, the Board did issue notice to pumpers through its Tulare Lake Subbasin “email list” of known pumpers and confirmed that notices were sent late to extractors. The court found that SWB staff provided a lack of information as a “list of all known pumpers” should have been included as an exhibit.
“SWB has failed to set forth any competent evidence, i.e. someone with personal knowledge as to the persons and dates when the notices were sent, posted, or emailed,” Judge Ciuffini stated. “The declarations of Boland-Brien, Stork, and Sugar are conclusory and are insufficient for this Court to conclude the notice of provisions of WC 10736 were complied with. If such lists exist, why were they not included as an exhibit to a declaration?”
The third cause of action identified was unlawful regulations. According to the preliminary injunction, the SWB is mandated to comply with the Administrative Procedures Act when adopting regulations.
APA’s purpose is to ensure state agencies like the SWB are transparent in their actions by providing due process and be able to challenge rules that are unfair, undisclosed, and unlawful.
The Court concluded that the SWB did not adopt regulations to avoid the harm and confusion outlined in the case and were out of compliance with APA standards.
The last specific cause of action was that the SWB exceeded its authority. If a subbasin amends their GSP, SGMA regulations require it be submitted to DWR for review. However, the injunction explained that the SWB unlawfully requires GSAs to submitted revised plans to their staff.
According to the SWB 2024 Final Staff Report, if a GSA revises its plan, they can seek to exit probationary status by submitted those plans to the Board. If SWB finds the deficiencies were addressed, it may remove the basin from probation.
However, if the deficiencies are not addressed after a year, the SWB can “take steps to manage groundwater more directly by developing and adopting, after notice and a hearing, an interim plan for the basin.”
According to Judge Ciuffini’s preliminary injunction, this procedure unlawfully expands SWB’s authority contrary to DWR regulations.
As a result of the court’s injunction, probationary pumping fees and reporting demands have ceased. These probationary requirements will be paused until the end of the trial — the next hearing will be in Jan. 2025.
TULE SUBBASIN
On the heels of Kings County Farm Bureau’s victory, the SWB placed the Tule Subbasin GSAs on probation after a 10-hour hearing. The SWB deemed a probationary status necessary due to unresolved deficiencies in its Groundwater Sustainability Plans.
However, of Tule Subbasin’s seven GSAs, “good actors” Delano-Earlimart Irrigation District and Kern-Tulare Water District are exempt from reporting requirements and fees. According to the State Water Board, the “good actor” clause under SGMA allows the board to exempt GSAs from probation if it demonstrates compliance with the sustainability goal.
The Tule Subbasin, located in the southern half of Tulare County and part of the San Joaquin Groundwater Basin, has been critically overdrafted for decades. In March 2023, DWR determined that the GSPs from local agencies in the basin were inadequate as they did not lay out plans to adequately protect groundwater resources for the future. After that determination, DWR referred the basin to the State Water Resources Control Board for further review.
In his opening remarks, State Water Board Chair E. Joaquin Esquivel explained that while Tule Subbasin GSAs submitted revised plans for public comment in Aug. 2024, the probationary hearing would be based on the 2022 GSPs.
“The Tule Groundwater Sustainability Agencies have sent the new 2024 Groundwater Sustainability Plan to the State Board. It’s great that the GSAs have been working to improve their plans. However, a full review of the updated plans will take at least three months to complete,” Esquivel said. “Given the tight timeline between the submission of the 2024 GSPs and the hearing today, the board will focus on the plans agencies adopted in 2022 and allow staff adequate time to review those updated GSPs.”
SWB staff also acknowledged the submission of an updated GSP in their final draft staff report, explaining that the while revised GSPs are undergoing public comments and have not been officially adopted, staff have started to evaluate these new plans.
“While Board staff has not completed its review, it tentatively believes that the Tule GSAs have made substantial progress in addressing many deficiencies identified by the Draft Staff Report,” the draft staff report said. “Preliminary review of these GSPs indicates that many deficiencies appear to have been addressed, and many of the significant and unreasonable impacts allowed by the 2022 GSPs appear to have been addressed or mitigated.”
However, Board staff noted continued deficiencies concerning the subsidence management approach detailed in 2022 GSPs as they did not appear to slow subsidence, especially along the Friant-Kern Canal.
“Based on this preliminary review the Final Staff Report still recommends the State Water Board designate the subbasin as probationary,” the report said.
The deficiencies found in the 2022 GSPs included the chronic lowering of groundwater levels with insufficient management criteria, continued land subsidence, further degradation of groundwater quality, and depletions of interconnected surface water.
Probationary requirements for extractors will begin on Jan. 1, 2025.
KERN SUBBASIN
The Kern County Subbasin’s probationary hearing is set to take place on February 20, 2025. Covering roughly 2,834 square miles, the Kern Subbasin is the largest groundwater subbasin in California.
Despite the Kern County Subbasin submitting a revised 2024 GSP in May, the SWB held a public workshop on the 2022 plan in August. Attendees at the workshop urged the SWB to adequately consider the revised plan before moving forward with the probationary hearing.
For now, SWB staff’s recommendation is to place Kern on probation.
