State Water Board’s Reckless Handing of the Sustainable Groundwater Management Act

Here’s what I’m hearing in the coffee shops and parking lots regarding the California State Water Resources Control Board’s handing the Sustainable Groundwater Management Act. This government controlled matter has immediate impacts on the livelihoods of the people of the San Joaquin Valley. If there were a word cloud made from the statements of those most impacted, farmers and people in the agricultural industry – out of control, overreaching, disingenuous, confused and reckless – would be the words in the largest font.

But is this fair? Yes and no. At the risk of sounding like former Senator John Kerry who responded, “You bet I might” when asked if he’d support a controversial bill – I think there’s a case to be made the State Board is doing what it’s allowed to do and almost no one is happy with the results.

How to be Nonpartisan?

Some of the organizations I belong to clutch pearls at my written opinions, stating they are too partisan and politicized. Everything at the state level dealing with water, including the State Board is politicized and since only Democrats hold any compelling or coercive power in California it is just about impossible to go against a government position without going against the Democrats thus being partisan.

How can one be nonpartisan in California? You can’t. Unless you go along with what the state wants. The dichotomy in the United States is usually presented as left/liberal/Democrat or right/conservative/Republican. This doesn’t hold up in California where we have Democrat elected officials holding all statewide offices and a super majority in both the Assembly and State Senate.

The only way to confront a super party or a minor party for that matter, is with truth. Fortunately, truth doesn’t care which political party supports it. Define truth. That’s beyond the bounds of this essay but I agree there is absolute truth and relative truth. I’ll always try to go with absolute truth.

Probation

On Thursday, February 20^th the State Board held a probation hearing for the Kern Subbasin in the Cal EPA building in Sacramento. Without a doubt one of the most thankless jobs out there is a seat on the State Board. Long hours and endless testimony making the hours seem longer day in and day out. However, all five members are appointed by the governor, so it is political and that makes it partisan.

The Kern Subbasin hearing was no exception. Most of the testimony given was pertinent to the subject. Some of it was wildly off the mark. NGOs lined up people to speak online, claiming they were scared to show up in person. I’m willing to bet it was more a story of they didn’t want to get up before everybody else went to bed to drive to Sacramento from Kern and sit in a packed auditorium.

Not all but most of the NGO testimony was given in Spanish and had nothing to do with the provisions in the Kern Subbasin’s Groundwater Sustainability Plan. Which was the purpose of the hearing – to determine if the plan was adequate. The translated statements were all in favor of placing the Subbasin in probation and centered around how the “rich” farmers were taking advantage of the “poor” people living in the area. The tone was punish anyone applying water for anything other than domestic use.

It wasn’t helpful. Not to the much less “rich” farmers who collectively have been forced to pay millions of dollars trying to write and rewrite a plan the State Board’s staff approves. It wasn’t helpful to the staff and it wasn’t helpful to those “poor folks” giving that testimony. But it was helpful to the NGOs who put them up to it. Because in the end half of the baby went the NGOs. They got a resolution calling for the Subbasin to pay more attention to them.

A reoccurring theme of the NGOs specializing in social and environmental “justice” has been the Groundwater Sustainability Agencies have blocked the Disadvantaged Communities from taking part in the SGMA process. These same NGOs receive grant money from the State Board to act as technical advisors to conduct outreach to the DACs. I see representatives attend GSA meetings but never bring anyone from the DACs with them. Yet these NGOs issue press releases claiming the farmers have taken over the process.

Farmers are the ones putting their money where their mouth is. Their income (and that of the majority of agricultural workers residing in the DACs) is threatened by SGMA. They have no choice but to attend. Everyone is welcome to attend a GSA meeting and speak their issues. It makes you wonder just how the NGOs are performing outreach.

State Board Staff

And State Board staff doesn’t have it easy. They are asked to evaluate a Groundwater Sustainability Plan the Department of Water Resources has found inadequate. Until a couple of years ago no one had ever seen a GSP. And no one had ever tried to place a subbasin in probation.

In November 2023, the State Board members and staff held a public hearing in Hanford prior to the final Sacramento hearing as to whether or not to place the Tulare Lake Subbasin on probation. Remember this is a plan the local farmers, not the NGOs, spent millions of dollars on that is supposed to look 20-years into the future and staff working somewhere in Sacramento (not clear if they are still working from home) is somehow supposed to know if it will bring about sustainable groundwater in the Tulare Lake Subbasin or not.

When you added up the amount of money at stake it was a good chunk of change. About $30 million for the first year. This cost, born by large and small and in between farmers would be a combination of having to purchase, install and calibrate meters, a flat fee per well and a per acre foot pumped charge. Where would that money go? It wouldn’t be spent on improving the GSP to make it acceptable to the State Board. It wouldn’t be spent on bringing more surface water supplies, you have to have surface water to recharge. It wouldn’t be spent on new infrastructure to help the subbasin become sustainable. It would go to the State Board so it could monitor and regulate the subbasin while it was on probation.

SGMA provides for the State Board to receive necessary sums to administer a subbasin on probation. But it doesn’t set any limits on the amount. The $30 million was reduced to $20 million after an outcry. Ultimately the good folks of the Tulare Lake Subbasin sued the State Board requesting a temporary injunction against the State Board from collecting the fines it set.

The judge’s ruling went against the State Board and it wasn’t kind. The document referred to “underground regulations” and pointed out enforcement of installing meters would have been devastating to the crops (and therefore the local economy) as it was in the middle of irrigation season. Since then State Board staff have cut off contact with the GSAs in the Tulare Lake Subbasin.

The Tulare Lake Subbasin was the first to be placed on probation and since the lawsuit the State Board has been more flexible you might say. The Kaweah Subbasin’s hearing wasn’t set, the Tule Subbasin was placed on probation but there were provisions for “good actors” given. The Kern Subbasin was granted further time to work out an adequate GSP.

Again, nobody has ever done this type of work before. Never in California’s history has the state mandated an entire suit of laws to regulate groundwater. It’s easy for everyone to go on guard over water when there are no clear precedents or examples to follow.

At the Kern Subbasin hearing one of the speakers singled out Natalie Stork of the State Board staff for her hard work and willingness to help resolve issues. I honestly thought for a moment applause was going to break out. Maybe it should have.

Some Non Fixes?

There’s a hearing in State Capital Room 447 on Wednesday March 5^th beginning at 9:30am of the Assembly Budget Subcommittee No. 4 on Climate Crisis, Resources, Energy, and Transportation. On the agenda is Issue No. 5, an informational item, meaning there isn’t a vote but the committee staff recommends holding it open.

The proposal is for the Underground Storage Tank fund, which has hundreds of millions of dollars in it, to loan the State Board $5.5 million. The State Board has 40 SGMA positions currently but without the loan it would only have $3.5 million annually from the general fund after this year, which is only enough to keep 18 positions dedicated to SGMA.

There are questions that need to be asked at this hearing. Like doesn’t this funding cause an incentive for the State Board and staff to place subbasins in probation for job security?

But Friday night February 28^th Assembly Speaker Robert Rivas (D – Hollister) kicked Assemblywoman Alexandra Macedo (R – Tulare) off the Assembly Budget Subcommittee No. 4. Guess who is chair of this committee? Assemblyman Steve Bennett (D – Ventura). He’s the same guy who for two years running tried to get a bill passed that would require an impossible engineering report before a well permit could be issued in the San Joaquin Valley.

Some Fixes?

So, again how does one go about dealing with water issues in a nonpartisan manner? How do we preserve our groundwater and our livelihoods in a nonpartisan manner? It’s not the water rights that are broken. It’s not some evil staff trying to destroy ag and the Valley. It’s the government in California that’s broken. What incentive is there for a uni-party to control itself or improve how it manages resources? I don’t know and that’s the truth.

I’ve wondered, what if instead of the governor appointing all five State Board members there was a nine member board? Each board member could be elected by the citizens and represent the nine Regional Water Quality Control Board areas in the state. Some say that would ultra politicize the State Board. It’s already ultra politicized. Having the State Board accountable to the voters? Sounds like that would democratize it.