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State Water Resources Control Board Releases Draft Emergency Regulation Establishing Fees to Recover Costs Incurred Due to State Intervention under SGMA

On March 8, 2017, the State Water Resources Control Board (SWRCB) released for public comment a draft emergency regulation that would impose new fees on certain groundwater extractors. The purpose of the fees is to recover the costs of state intervention in local sustainable groundwater management under the Sustainable Groundwater Management Act (SGMA). Following the submittal of public comment, the SWRCB is tentatively scheduled to adopt the regulation at its meeting on May 16, 2017.

Under SGMA, local groundwater sustainability agencies (GSAs) are required to be established to manage groundwater resources in California’s high- and medium-priority groundwater basins. GSAs are required to develop groundwater sustainability plans (GSPs) that make basins sustainable within 20 years of GSP implementation. If local agencies are unable or unwilling to act as a GSA and/or cooperate together to sustainably manage their basin, the SWRCB is authorized under SGMA to intervene and assume management responsibilities for the basin. In accordance with SGMA, the draft regulation establishes a schedule of fees to enable the SWRCB to recover its costs incurred in managing the affected basins. (Water Code, §§ 5202(f); 1530.)

The proposed fees would apply to persons that are required to file annual groundwater extraction reports with the SWRCB because their property is located in one of three areas for which the SWRCB is permitted to intervene under SGMA. These areas include: 1) Unmanaged Areas; 2) Probationary Basins; and 3) Interim Plan Areas. An Unmanaged Area is an area within a high- or medium-priority basin that is not within the jurisdiction or management area of an established GSA by the July 1, 2017, deadline. A Probationary Basin is a groundwater basin designated by the SWRCB as “probationary” because, by June 30, 2017, no local agency or collection of local agencies had elected to become/form a GSA and to develop a GSP for the entire affected basin. (Water Code §§ 5201(a)(1); 10735.2(a).) Finally, an Interim Plan Area is a probationary basin in which the SWRCB directly manages groundwater extractions. In those areas, the SWRCB is required to develop an interim plan that contains corrective actions, a timeline to make the basin sustainable, and a monitoring plan to ensure corrective actions are working. (Water Code, § 10735.8.)

Conclusion and Implications

Following the close of the public comment period, the SWRCB plans to release the final proposed regulation on May 6, 2017, for eventual adoption at the meeting scheduled for May 16, 2017. Once adopted, the emergency regulation will be submitted to the Office of Administrative Law and will ultimately become effective on July 1, 2017. Additional information regarding the draft regulation and proposed state intervention fees can be found on the SWRCB’s website at http://www.waterboards.ca.gov/water_issues/programs/gmp/fees.shtml.

(Paige H. Gosney, Michael Duane Davis)