by Alexander J. Van Roekel ’21, UCLA School of Law, Nossaman LLP
Van Roekel’s article won the 2021 California Water Law Writing Prize, awarded at the 2021 California Water Law Symposium. The California Water Law Writing Prize is co-sponsored by the California Water Law Symposium Board of Directors and University of the Pacific, McGeorge School of Law.
Introduction
The state with the largest population, agricultural sector, and economy in the nation has a problem: it has been withdrawing groundwater at an unsustainable rate that could cause dozens of the state’s aquifers to go dry, which would have devastating impacts on the population, agricultural sector, and economy. To try to counter that, the California Legislature passed the Sustainable Groundwater Management Act (“SGMA”) in 2014, during the hottest drought in the state’s recorded history, to try to protect the source of one-third of its water during standard years and one-half of its water during drought years.[i]
However, just passing SGMA is not enough. A recent study showed the impacts of the restrictions imposed by SGMA could lead to one million acres of farmland in the San Joaquin Valley being fallowed (intentionally unused), which would be one-fifth of all the land currently being utilized.[ii] This and other related impacts could lead to $7.2 billion in lost economic activity per year and 85,000 lost jobs.[iii] Accordingly, proper implementation of SGMA is crucial to minimize impacts to people and the environment. Whether SGMA will be successful in meeting its goal of providing for long-term sustainable management of groundwater will largely depend on the actions taken by the state agencies tasked with SGMA’s implementation – the Department of Water Resources (“DWR”) and the State Water Resources Control Board (“SWRCB”). This analysis provides a framework for the agencies to fully utilize their discretion under the statute, while learning from EPA’s experience instituting the National Ambient Air Quality Standards program under the Clean Air Act.
Part II of this analysis describes the basic structure of SGMA and relevant provisions. SGMA operates by having local agencies submit plans to state agencies for review detailing how they will manage groundwater sustainably in their groundwater basin. If the agencies determine that a plan is insufficient, they can create a state-created plan to take its place.
Parts III and IV focus on the role of the state agencies tasked with enforcing and implementing SGMA. Part III looks at regulations created by the Department of Water Resources detailing its role under the statute as well as important areas in which it retains discretion. These include its evaluation of local agency plans generally as well as whether the contents of the plans meet certain requirements. Part IV then looks at the lack of regulations created by the State Water Resources Control Board and how that affects the agency’s discretion.
Part V then evaluates the history of the Clean Air Act National Ambient Air Quality Standards program, which has the same general structure as SGMA (local action with the threat of intervention by a larger governmental body to force compliance). It looks at how the Environmental Protection Agency (“EPA”) (the implementing body) has evolved in its understanding of its power and how to use that power under the program, how courts have adjudicated EPA’s decisions, and analyses of the strengths and weaknesses of the program. These areas all provide guidance to the California agencies implementing SGMA, including the importance of early action to have the threat of intervention from the larger governmental body be meaningful and the benefits of working constructively with the regulated parties.
Part VI concludes by offering recommendations to the Department of Water Resources and the State Water Resources Control Board. For the Department of Water Resources, these include making a statement early by showing a willingness to reject plans, aggressively approving plans only with conditions that will improve their efficacy, and relying on the expertise of other agencies. For the State Water Resources Control Board, these include creating regulations detailing how it will utilize its power and discretion under the statute, working with local agencies and within their plans to promote cooperation and minimize administrative burden, and treating its discretionary authority as mandatory.
Background and General Structure of SGMA
In 2014, California passed SGMA, becoming the last state in the water-sparse southwest to provide for state-level regulatory management of groundwater.[iv] SGMA was timely; in 2014 California’s groundwater supply reached the lowest point ever recorded.[v] SGMA’s goal is to manage the supply and demand of groundwater so that all basins within the state can achieve long-term sustainability.[vi] SGMA applies to medium and high priority basins, which cover ninety-six percent of groundwater withdrawals in the state.[vii] Basins need to achieve sustainability within twenty years[viii] and maintain it for fifty years.[ix]
The core concept behind SGMA is local agencies and organizations are in the best position to understand local conditions as well as how to balance the countervailing concerns of the needs of groundwater users and the need for sustainability.[x] This local focus was underscored both by Governor Brown in his signing statement[xi] and by academics, who rank California’s law as the most local-centric in the region.[xii]
Groundwater Sustainability Agencies
The majority of SGMA’s local focus is embodied in groundwater sustainability agencies (“GSAs”), the local agencies that undertake most of the responsibility under SGMA.[xiii] They are responsible for creating and implementing groundwater sustainability plans (“GSPs”).[xiv] GSAs also are required to monitor the success of their GSPs and update their plans when appropriate.[xv] GSAs have powers and authority under the statute to take steps to ensure the success of their plans.[xvi] GSAs have a significant amount of discretion and power within the framework created by SGMA and will be vital in determining whether the goals of the statute are met.[xvii]
Groundwater Sustainability Plans
GSPs are the method through which SGMA attempts to accomplish its goals. GSAs must design GSPs to show how they will meet SGMA’s “sustainability goal,” which is defined as avoiding “undesirable results” for fifty years.[xviii] In turn, SGMA defines “undesirable results” as any of six detrimental results[xix] from over-withdrawing groundwater, if they are “occurring throughout the basin” and their level is “significant and unreasonable.”[xx] SGMA is designed to ensure that GSPs are highly-detailed, science-driven, empirical documents. As such, the statute requires that plans provide detailed information on the geography and geology of the basin, measurable objectives to obtain and maintain groundwater sustainability, details concerning how these objectives will be achieved, and how GSAs will monitor and evaluate the plan’s success.[xxi] Further, “where appropriate,” GSPs shall include additional information including how certain impacts of over-withdrawing groundwater will be protected against or mitigated.[xxii]
DWR regulations also provide detailed guidance on the required contents for GSPs, including information on the basin’s sustainability goal.[xxiii] GSPs must describe how the sustainability goal for the basin was calculated, what measures GSAs will take to ensure it is reached, and how the goal will be achieved within twenty years and then maintained for fifty.[xxiv]
State Role
Despite SGMA’s primary focus on local action, California state agencies play a significant role. The state’s initial role is assigned to DWR. SGMA specifically instructs DWR to adopt regulations related to the review process and evaluation of GSPs.[xxv] As indicated above, and will be discussed in more detail throughout, DWR met this statutory requirement and has promulgated detailed regulations implementing its role under SGMA.
DWR must review GSPs and issue an assessment of each plan.[xxvi] Before issuing its assessment, DWR must post the GSP online and provide sixty days for stakeholders to comment on the plan.[xxvii] The assessment must state if the GSP as approved, incomplete, or inadequate.[xxviii] “Incomplete” means there are fixable deficiencies and the GSA will have an opportunity to correct the GSP.[xxix] However, if incomplete plans with “significant deficiencies” are not fixed prior to the expiration of the deadline, their status changes to “inadequate.”[xxx] DWR may only label a basin as inadequate “after consultation with [SWRCB].”[xxxi]
If DWR, “in consultation with [SWRCB],” determines that a GSP is inadequate,[xxxii] then SWRCB may label a basin as “probationary,” which provides the GSA an opportunity to address the inadequacies.[xxxiii] If the GSA does not fix the GSP within the specified time period, then SWRCB may develop an interim plan to in its place.[xxxiv] If SWRCB decides to undertake the process of labeling a basin as probationary or creating an interim plan, it must do so via the quasi-legislative process, including holding a hearing and providing notice of that hearing to all relevant stakeholders.[xxxv]
After the initial approval process, DWR monitors and evaluates GSPs on an ongoing basis to ensure they are being implemented in a manner that is likely achieve the sustainability goal.[xxxvi] When the agency re-analyzes GSPs every five years, it will issue a new written assessment stating whether the plan is still approved, or whether time or changed circumstances had led to the plan being incomplete or inadequate.[xxxvii]
Department of Water Resources Regulations and Important Areas of Discretion
SGMA specifically instructs DWR to adopt regulations related to evaluation and implementation of GSPs, including required contents of the plans.[xxxviii] DWR met the statutory requirement and developed detailed regulations at California Code of Regulations, Title 23, section 350 et seq. Due to the manner in which it created regulations, DWR retains significant ability to utilize its expertise and discretion to advance SGMA’s goals.
The most important of those areas of discretion concern the agency’s evaluation of GSPs for substantial compliance, the agency’s broad regulatory definition of “undesirable results,” the requirement that GSPs can meet “measurable objectives” even under “adverse conditions,” and the agency’s authority to require “additional plan contents.” As explained infra section VI. A., DWR regulations grant the agency with significant discretion and flexibility that DWR can utilize to ensure the success of GSPs under adverse and uncertain future conditions.
Evaluation of GSPs for “substantial compliance”
As noted above, DWR evaluates GSPs to determine whether they “substantially comply” with DWR’s stated criteria.[xxxix] “Substantial compliance” is defined as providing “sufficiently detailed” information and sufficiently “thorough and reasonable” analysis for DWR to evaluate the plan, along with DWR determination that any discrepancy would not materially affect the GSA’s ability to achieve their sustainability goal.[xl]
Thus, the definition of substantial compliance provides four areas in which DWR can utilize its discretion and expertise: (1) what it considers sufficiently detailed information; (2) what it considers sufficiently thorough and reasonable analysis; (3) whether it feels a discrepancy will affect the GSA’s ability to achieve their sustainability goal; and (4) whether any discrepancy will affect its ability to evaluate a plan. All four of those areas are heavily discretion-laden and are driven by DWR’s interpretation as an expert.
Broad definition of “undesirable results”
The California Legislature’s goal in enacting SGMA was to provide for sustainable groundwater management, which is defined as avoiding “undesirable results.” Thus, how “undesirable results” is defined is crucial understanding how the statute will operate. Due to the qualifiers of “significant and unreasonable” and “occurring throughout the basin,” DWR retains a significant amount of room to utilize its expertise in evaluating whether an undesirable result occurred. Per DWR regulations, GSPs must include information on how each undesirable result is defined, what situations would lead to one occurring, when and where one could occur, and potential effects of undesirable results on beneficial uses and users of groundwater and other interests.[xliii]
Importantly, the detrimental impacts of over-withdrawing groundwater only qualify as “undesirable results” if they rise to the level of “significant and unreasonable” (e.g. significant and unreasonable reduction of groundwater storage)[xliv] and are “occurring throughout the basin.”[xlv] Yet, neither phrase is defined in the statute, regulations, or any other legal context. Thus, DWR has the apparent authority to utilize its expertise to interpret each phrase, in a context-specific basis for each GSP.
Use of “minimum thresholds” to prevent undesirable results which “may” occur
A GSP is required to quantify “minimum thresholds for each applicable sustainability indicator at each monitoring site”[xlvi] A sustainability indicator is defined as potential undesirable result that has not reached the level of undesirable result.[xlvii] Minimum thresholds are levels below which an undesirable result may occur.[xlviii] DWR regulations specify that GSPs must describe how the minimum thresholds were calculated, their interrelationship, and their effects on beneficial uses and users of groundwater, land uses, and property interests, among other information.[xlix]
By utilizing minimum thresholds, DWR raised the requirements of SGMA by enabling the agency to reject a plan – not because it will cause an undesirable result, but because it may cause an undesirable result. The term “may” is not further defined in SGMA or regulation. This is significant, because “may” is a broad term and thus confers DWR with significant interpretive flexibility.
Requirement to meet “measurable objectives” under adverse conditions
Per DWR regulations, GSPs are required to contain “measurable objectives” for each “sustainability indicator.” Measurable objectives are “specific quantifiable goals” to help achieve sustainability in the basin within twenty years.[l] The “measurable objectives” must contain “a reasonable margin of operational flexibility under adverse conditions which shall … be commensurate with levels of uncertainty.”[li] The phrase a “reasonable margin of operational flexibility under adverse conditions” is not defined in SGMA or the DWR regulations. Therefore, the interpretation of this phrase, and whether the GSP is compliant with SGMA, is a technical determination within DPR’s expertise.
As with minimum thresholds, “measurable objectives” essentially heighten the requirements of SGMA by requiring that the objectives can be met even “under adverse conditions,” (such as climate change and prolonged drought).
Discretion to require additional GSP contents
In addition to the requirement to include specific information in GSPs,[lii] SGMA also includes a section titled “[a]dditional contents of plan where appropriate” which permits DWR, in “collaboration” with local agencies, to include up to twelve additional categories of information.[liii] Presumably, as the evaluator of plans, DWR is responsible for determining when this section applies. Given the lack of guidance provided by the statute, DWR has discretion to determine when each of the categories are “appropriate” and thus require their inclusion in the GSP. This additional information is important because it not only helps DWR evaluate plans more thoroughly, but also likely leads to more informed decision-making on behalf of GSAs.
Although DWR regulations provide detailed guidance to GSAs on what is necessary to include in plans, it retains its ability to evaluate the sufficiency of the plans based on its expertise. DWR also retains significant discretion through its use and definition of minimum thresholds and measurable objectives, and its authority to require additional plan contents. Section VI. a. will provide suggestions on how DWR can further utilize its regulatory discretion to fulfill SGMA’s Legislative mandate.
State Water Resources Control Board Lack of Regulations and Important Areas of Discretion
Unlike with DWR, SGMA does not require SWRCB to create regulations related to its roles under the statute. However, SGMA does provide that SWRCB may create regulations detailing the procedures it will utilize in labeling a basin as probationary and creating an interim plan.[liv] Conversely, the statute does not provide explicit authorization to SWRCB to create regulations related to its consultative role in determining that a GSP is inadequate. SWRCB’s lack of regulations in these areas maximizes its flexibility but does so at the cost of transparency, predictability, and consistency.
Lack of SWRCB Regulations
SWRCB plays a significant role in the implementation of SGMA. It is responsible for determining whether to designate a basin as probationary and creating interim plans.[lv] Moreover, DWR must consult with SWRCB before it labels a basin as inadequate.[lvi] Despite these vital roles and clear statutory authorization for the former two roles, SWRCB still has not created any regulations for those areas.[lvii]
SWRCB is in a different position with regard to regulations that DWR, since as noted above, SWRCB was given the authority to adopt regulations, whereas DWR was mandated to do so.[lviii] Despite that difference, given SWRCB’s importance to the success of SGMA, the agency’s lack of regulations at this point is noteworthy.
SWRCB is also in a different position than DWR because it must utilize the quasi-legislative process each time it wants to adopt a determination of a basin as probationary or create an interim plan.[lix] Despite that limitation, it seems clear that providing information on the procedures it will utilize in that quasi-legislative process and the associated hearings will increase transparency, predictability, and consistency for all parties involved. Further, there is no requirement to have a unique process each time it consults on the evaluation of a GSP.
The lack of regulations is problematic because GSAs in critically overdrafted basins have already submitted GSPs to DWR for evaluation.[lx] Thus, as explained in more detail in the recommendations section, SWRCB’s consultative role has already begun, and it may need to designate a basin as probationary at any time. As time advances and SWRCB’s role grows larger and larger, this dearth of regulatory guidance becomes a more significant issue.
Important Areas of Discretion for SWRCB
SGMA, by design, accords arguably more discretion to SWRCB than DWR. This is seen by the statute providing that SWRCB may designate a basin as probationary or may adopt an interim plan without providing statutory guidance on either decision. Moreover, unlike with DWR, SWRCB has the option of developing regulations, as opposed to being required to adopt them.
The current lack of SWRCB regulations strengthens this discretion and ability utilize expertise. However, this arguably provides too much discretion, as there is no transparency or predictability for either GSAs or SWRCB in either the probationary designation or interim plan creation process.
As explained in more detail infra section VI. b., if SWRCB creates regulations in the manner in which DWR did, it can retain a significant amount of flexibility in utilizing its discretion and expertise while providing guidance and predictability for both itself and GSAs.
Clean Air Act National Ambient Air Quality Standards Program
The Clean Air Act national ambient air quality standards (“NAAQS”) program is set up very similarly to SGMA, with the focus on local control with the threat of intervention from a larger governmental body to force action by local parties. However, in the NAAQS program, the local bodies are state governments, and the larger body is the federal Environmental Protection Agency (“EPA”). EPA sets NAAQS levels for certain air pollutants that states cannot surpass, roughly approximating SGMA setting the causation of undesirable results as the level groundwater withdrawals may not surpass.[lxi] States then must create plans detailing how they will control pollution to avoid surpassing the NAAQS levels.[lxii] Next, EPA evaluates those state plans to determine if they comply with the Clean Air Act and EPA regulations.[lxiii] Last, if EPA determines a state plan is not compliant, EPA may create a federal plan, called a Federal Implementation Plan (“FIP”), to take the place of the state plan.[lxiv]
Accordingly, the structure and principles underscoring the NAAQS program and SGMA are very similar. Due to these similarities, DWR and SWRCB should rely on the lessons EPA has learned over the past fifty years[lxv] of implementing the NAAQS program. The areas that are most instructive are the manner in which EPA’s understanding of its power under the NAAQS program and its willingness to utilize that power have both evolved over time, the manner in which courts have adjudicated EPA’s decisions on whether to approve a state plan, and structural strengths and weaknesses academics and others have identified.
Historical Development of the Federal Implementation Plan Process and Power
Although there has been very little structural change in how it reviews state plans and institutes FIPs, over time EPA has undergone changes in both its willingness to create a FIP and the manner in which it approaches creating one. Those stages are characterized as a reticence to develop FIPs, understanding of the ability to create partial FIPs, state invitation of those partial FIPs, and acceptance and utilization of FIPs.
When initially created, the FIP process was conceived of more as a threat to force state action rather than an actual process EPA would undertake, and thus Congress did not consider the logistics of what a FIP would look like or how passing one would work.[lxvi] Due to that lack of foresight as well as logistic and resource deficiencies, EPA was reticent to undertake the process of drafting and instituting a FIP, which was seen by the EPA Administrator proclaiming the agency’s opposition to one of its own plans.[lxvii] States likewise were unwilling to draft plans that included the significant measures necessary to comply with the NAAQS levels, and submitted legally insufficient state plans.[lxviii]
Environmental groups forced the hands of both states and EPA by suing to enforce the Clean Air Act.[lxix] Environmental groups won the lawsuits, but the pushback from the losing parties led to the Clean Air Act Amendments of 1977.[lxx] Those amendments extended compliance deadlines and removed the ability of EPA to take certain steps in developing a FIP.[lxxi]
The same issue of EPA’s reticence arose in 1989, when courts rejected EPA’s approval of a state plan and the EPA Administrator again responded by criticizing the FIP process.[lxxii] EPA’s (and multiple state’s) dismay was heard by Congress, which again amended the Clean Air Act in 1990 to extend the dates by which states had to meet their NAAQS levels.[lxxiii] Those amendments also clarified that EPA had the authorization to create partial FIPs, federal plans that were meant to supplement or fix parts of state plans, rather than replace them entirely.[lxxiv]
By the last 1980s/early 1990s, EPA realized it could supplement state efforts through the FIP process rather than merely replace them, and this realization was reinforced by the 1990 amendments.[lxxv] However, due to its overall antipathy toward the FIP process, it was still reticent to use this power and only did so on limited occasions in limited circumstances.[lxxvi]
Despite the hesitancy from EPA, states began to see the benefit of partial FIPs and in some cases agreed to have the EPA promulgate a FIP.[lxxvii] One example was the air quality agency in Southern California supported litigation that would have led to the creation of a FIP because it realized the only way it could meet its NAAQS goal was through the implementation of federal measures over which only EPA had control.[lxxviii] Another example is Hawaii working closely with EPA to develop a plan to address regional haze.[lxxix] In some situations, even states that did not agree with aspects of the regulations, such as greenhouse gas emission reduction regulation, worked with the EPA to meet their statutory requirements.[lxxx]
By 1994, EPA began to accept and embrace FIPs and experiment with different forms and structures to work with states while advancing the goals of the NAAQS program.[lxxxi] One example is EPA saw the value in economic incentives, and thus its proposal for South Coast in 1990 marked a turning point for the agency.[lxxxii] EPA realized that by utilizing economic incentives, it was able to take on less of a regulatory burden while also focusing more on a big picture perspective.[lxxxiii] Another example is EPA creating a cap-and-trade program for sulfur dioxide emissions, which gave EPA experience administering a multi-state cap-and-trade program.[lxxxiv] While the cap-and-trade program was not directly part of the FIP process, it provided another regulatory tool for EPA to implement to achieve the goals of the statute with minimal regulatory burden.[lxxxv] A final example is EPA’s Clean Air Interstate Rule, which was focused on a long-term synergistic interaction rather than a unilateral federal takeover and was envisioned as a “hybrid” FIP.[lxxxvi] This program furthered EPA’s commitment to working cooperatively with states, leading to a manageable administrative burden while advancing the goals of the NAAQS program.
In conclusion, EPA was initially reticent to create FIPs because it felt unprepared due to lack of resources. This reticence had tangible effects as it led to states not feeling the threat of federal intervention and thus not making the difficult but necessary choices to meet their NAAQS goal. Additionally, EPA’s opposition also played a key role in the NAAQS program being amended twice and deadlines for compliance being delayed each time. However, as EPA’s understanding of the FIP process evolved and it realized it could create partial FIPs to supplement rather than replace state plans, its perspective developed as well. Alongside this change in perspective from the regulator, the regulated community (states) also began to invite federal intervention as a way to support its efforts or accomplish tasks it could not do alone. These developments were best for all parties involved and also advanced the goals of the NAAQS program by states strengthening their regulatory measures with the support of EPA. This advancement was also supplemented by EPA experimenting with, and having success with, economic incentives and other regulatory options.
These regulatory innovations allowed EPA to help states reduce pollution while taking on a relatively low regulatory burden. Thus, over time, EPA intervention in the NAAQS program transformed from a burdensome and resource-intensive process that neither the regulator nor the regulated community wanted, to a process by which the parties work together towards a common goal, each contributing in ways in which they are able. This process also allowed EPA to avoid taking on an unmanageable regulatory burden. SWRCB and DWR have the benefit of learning from EPA’s experiences and should do everything they are able to do to create the latter situation while still fulfilling their duties under SGMA.
Court Review of EPA Decisions to Approve or Reject State Plans
Analyzing how courts have adjudicated EPA decisions on whether to approve or reject state plans can provide guidance to DWR and SWRCB about how courts are likely to handle legal challenges to their decisions under SGMA.[lxxxvii] Given the similarities between the statutory structures and the deferential standards of review both federal and California courts apply to evaluating agency action, stakeholders should look carefully at how courts have resolved issues arising under the Clean Air Act when considering how the courts may interpret SGMA. It is probable that California state court will evaluate and analyze SWRCB and DWR actions under the same or similar standards as federal courts have evaluated the EPA’s decisions under its obligations in implementing the Clean Air Act. As such, court analysis of EPA decisions under the Clean Air Act can provide a preview of how courts will likely analyze comparable issues under SGMA.
Courts Upholding EPA Decisions
Federal courts have generally upheld EPA approvals and denials of state plans as long as its decisions can arguably be placed within the agency’s scope of authority under the Clean Air Act. This is especially true when decisions are based on technical information and can be deemed as utilization of EPA’s expertise.
For example, courts have deferred to EPA’s expertise on questions of predictive modeling, even when EPA admitted it did not analyze a part of the problem because it could not create an accurate model.[lxxxviii] In Connecticut Fund for the Environment v. EPA, the Second Circuit upheld EPA’s approval of Connecticut’s amendment to its sulfur control regulation despite the fact that EPA did not analyze the impact of the new rule on neighboring states.[lxxxix] EPA did not consider the issue in part because it did not have a model that would allow it to accurately predict the impact.[xc] Despite that, the court held “on this issue we must defer to [EPA’s] technical expertise.”[xci]
Likewise, in New York v. EPA, the Seventh Circuit upheld EPA’s choice of a model to measure sulfur dioxide emissions despite both New York’s claim that more reliable models existed as well as EPA’s own admittance that the model it used was inaccurate over long distances.[xcii] The court noted that the choice of modeling was “the kind of technical decision particularly within the realm of Agency expertise” and thus chose to defer to EPA and affirm its decision.[xciii]
Moreover, a court upheld an EPA decision to utilize methodology with a large margin of error for similar reasons.[xciv] In Mision Industries v. EPA, the First Circuit upheld EPA’s decision to use a model that EPA conceded had “a possible random error as high as 150 percent” for annual emissions “and 200 percent for short-term concentrations.”[xcv] The court did so because methodology questions are an area where EPA’s “expertise is heavily implicated.”[xcvi]
As with acceptances, courts have upheld EPA’s authority to decide on the proper modeling, methodology, and data when the agency rejects state plans.[xcvii] In Texas v. EPA, the Fifth Circuit upheld EPA’s rejection of a model chosen by Texas to measure its own photochemical oxidant pollution based on questions about the data, theory, and explanation behind Texas’ model.[xcviii] This was despite the fact that EPA used a different model than it typically used in those situations[xcix] and EPA’s model was not even known to be accurate.[c] The deferential standard of review and the fact that the court held it was not its place to substitute its judgment for EPA’s in modeling decisions played substantial roles in the court’s ultimate decision to defer to the EPA’s technical expertise.[ci]
EPA is also justified in rejecting new plans that are comparable to plans it previously accepted if it determines changed circumstances call for a different response.[cii] In Michigan v. Thomas, the Sixth Circuit upheld EPA’s rejection of Michigan’s rules to control fugitive dust emissions even though the rules were similar to rules EPA approved for Illinois and Wisconsin.[ciii] In reviewing the data, the court emphasized the narrowness of its review and noting that the judges, while required to “study the record carefully” are not “chemist[s], biologist[s] or statistician[s].”[civ] Using that limited perspective, the court affirmed EPA’s decision to depart from precedent based on new data.[cv]
Also, as with acceptances, EPA is able to choose how it analyzes plans to determine if they are compliant with the Clean Air Act requirements.[cvi] In Arizona ex rel. Darwin v. EPA, the Ninth Circuit upheld EPA’s decision to partially reject Arizona’s state plan, over Arizona’s objection that the plan had to be accepted or rejected in whole.[cvii]
Last, despite the focus on state control, EPA may override state decisions on technical areas to ensure compliance with NAAQS levels.[cviii] In Michigan Department of Environmental Quality v. Browner, the Sixth Circuit noted that even though the Clean Air Act does give states substantial control in determining how they will meet their emission reduction goals, EPA only has to defer to the state after it confirms that the state’s plan complies with the Clean Air Act.[cix] Thus, EPA is entitled to deference in the technical decisions it makes in determining whether a state plan is in compliance.[cx]
Looking at the cases in which courts have affirmed (or at least not overturned) EPA’s decisions on state plans demonstrates a clear trend that courts are willing to afford the agency deference when the agency’s decision-making is within the area of its technical and scientific expertise. Applying these principles to DWR’s and SWRCB’s duties under SGMA, California state courts are likely to afford those agencies with similar levels of deference, particularly when those decisions fall within the agencies’ areas of technical and scientific expertise.
Courts Overturning EPA Decisions
Conversely, courts have primarily reversed or remanded EPA decisions not based on technical decisions, but instead based on EPA either acting outside of the bounds of its statutory limitations or making scientific conclusions not based on science.
EPA acceptances of plans were primarily overturned based on either it attempting to substitute its own judgment when the intent of the statute is clear or where the court determined that that the agency did not correctly interpret statutory terms and apply statutory requirements.[cxi]
One example of this is EPA’s inability to extend a state’s statutorily-mandated deadline for submitting a plan past the statutory deadline, where in the agency’s opinion the extension was justified.[cxii] In Delaney v. EPA, the Ninth Circuit rejected EPA’s attempt to give Maricopa County and Pima County in Arizona until 1991 to attain compliance with the NAAQS, which was three years from the date that EPA approved their plans.[cxiii] The court rejected this because Congress explicitly declined to allow extensions from the attainment deadline of 1982 in the Clean Air Act.[cxiv] Congressional intent was clear and thus EPA’s attempt to substitute its own judgment was improper and was overturned.[cxv]
Another example occurred when EPA disregarded statutory requirements by allowing a state to combine two standards into one without reviewing each of them individually.[cxvi] In Ober v. EPA, the Ninth Circuit held that since EPA had promulgated standards for particulate matter under ten microns in size (PM-10) for both an annual measurement and a twenty-four hour measurement, Arizona had to comply with the statutory requirements and take steps to reduce its PM-10 emissions for both standards.[cxvii] The Clean Air Act required attainment of all NAAQS, and thus treating both the twenty-four hour and the annual standards as the same standard went directly against the text of the statute and could not stand.[cxviii]
Moreover, although EPA receives a significant amount of deference in technical areas, it may not rely on conclusions and assumptions that are unrealistic or inaccurate.[cxix] In Louisiana Environmental Action Network v. EPA, the Fifth Circuit overturned EPA’s approval of a plan to reduce volatile organic compound emissions in the Baton Rouge area because it included reductions outside of the Baton Rouge areas.[cxx] EPA attempted to rely on an unpromulgated policy guidance (which is not entitled to full deference) that stated that all emissions a certain distance away from the area at issue should be included in measuring reductions.[cxxi] However, the court noted the lack of logic behind the policy and the fact that the wind would blow the emissions away from Baton Rouge rather than toward it, and thus not contribute to emissions in Baton Rouge at all.[cxxii] Due to the lack of evidence to support EPA’s conclusions, the court overturned its decision.[cxxiii]
Similarly in Natural Resources Defense Council v. EPA, the Second Circuit remanded the case to require EPA to show that its seemingly faulty technical assumptions were proper.[cxxiv] There, EPA’s model to measure air pollution in New York assumed in part that restrictions on coal would cause all power plants to switch from coal to oil.[cxxv] Plaintiffs proved that assumption was inaccurate.[cxxvi] Moreover, the calculations used in EPA’s model were “unpersuasive and unrealistic.”[cxxvii] As a result, on remand EPA had to either show why these mistakes were not fatal or redo its full-scale analysis.[cxxviii]
Additionally, courts have overturned EPA rejections of state plans for not following the statute and for making unsupportable technical decisions.
One example of EPA not following the statute is when the court overturned EPA’s decision to reject a state plan when its decision was based on a factor other than those the Clean Air Act authorizes EPA to consider.[cxxix] In Luminant Generation Co. LLC v. EPA, the Fifth Circuit vacated EPA’s rejection of a state plan.[cxxx] The court’s decision centered on the fact that EPA rejected Texas’ state plan on the basis that it did not conform with state law, which is not a factor EPA is authorized to consider under the Clean Air Act.[cxxxi] Thus, EPA acted beyond its statutory authority and its decision was overturned.[cxxxii]
Further, EPA is not able to make decisions based on partial or missing data.[cxxxiii] In Michigan v. EPA, the D.C. Circuit overturned EPA’s request for a state plan from Wisconsin in full and from Missouri and Georgia in part.[cxxxiv] The court overturned EPA’s request of Wisconsin on the basis that EPA lacked evidence connecting the data in had on Wisconsin emissions and the impacts of those emissions on other states.[cxxxv] The court overturned EPA’s request in part of Missouri and Georgia on the basis that the data requiring the plan only covered part of those states.[cxxxvi] Since, on the basis of EPA’s own modeling, part of the states were in the area that did not need a plan update, it was an error to include the entire states in the request.[cxxxvii]
The cases in which courts have overturned or remanded EPA’s decisions show DWR and SWRCB that their discretion is not boundless. However, focusing on the details of why EPA’s decisions were overturned shows DWR and SWRCB that they are most likely to have their decisions questioned when they rely on questionable science or push the boundaries of what is allowable under SGMA too far. As long as the agencies focus on the areas in which they have discretion and utilize that discretion for technical decisions, their decisions are likely to be upheld.
Overall, courts have upheld the majority of EPA state plan decisions under the NAAQS provision of the Clean Air Act. Courts have given EPA freedom to analyze plans as it determines appropriate, as long as it does not exceed the bounds of the statute, as well as freedom to utilize its expertise to make difficult technical decisions, as long as those are not unsupportable or based on improper science. SWRCB and DWR should keep these lessons in mind as it implements SGMA through primarily technical determinations. The agencies have the opportunity to use their power and discretion to aggressively advance the goals of SGMA by pursuing sustainability throughout the state.
Effectiveness of the NAAQS Program
Analyzing the effectiveness of the NAAQS program over its fifty-year operation through evaluating its strengths and weaknesses can provide lessons for DWR and SWRCB in how to utilize their power effectively to enable SGMA to meet its goals.
Strengths
One thing that is unquestionably true is the NAAQS program has improved air quality, reducing emission of the six pollutants it covers by an average of seventy-eight percent between 1970 and 2020, [cxxxviii] despite the economy growing from just over one trillion dollars in gross domestic product to nearly twenty-one trillion dollars in that same time frame.[cxxxix] Further, the inability of some regions to meet their NAAQS goal is arguably due more to the lack of federal action in certain policy areas than the state plan process.[cxl] This both shows that SGMA can be effective in meeting its sustainability goals and shows the importance of the State supporting the efforts of GSAs through working together with them to achieve sustainability.
A significant factor in the success of the NAAQS program has been the threat of federal intervention into state affairs.[cxli] Despite the rarity of a full FIP, it has acted as a “regulatory nuclear bomb” to force state action.[cxlii] The fact that FIPs have been so rare is actually a strength of the program because their utilization is a sign of a broken system and that the threat is not working effectively.[cxliii] Accordingly, DWR and SWRCB should not only focus on how often they label basins as inadequate or create interim plans, but instead also ensure that the threat of the “regulatory nuclear bomb” is working to force GSAs to make the choices necessary for sustainability.
Further, the utilization of partial FIPs has strengthened the process and provided significant value.[cxliv] As discussed above, states are now inviting federal intervention and working cooperatively with EPA because it can both benefit the state and further the goals of the NAAQS program.[cxlv] This has played a role in EPA adjusting its perspective on the FIP process and now embracing it.[cxlvi] Similarly, EPA has developed the utilization of market mechanisms and incentives to assist states while furthering the goals of the statute and taking on minimal administrative burden.[cxlvii] Thus, DWR and SWRCB should also take whatever steps they can to work cooperatively with GSAs and experiment with different mechanisms to help GSAs reach their goals while managing their regulatory burden.
Additionally, EPA has developed an informal process by which parties can petition it directly to improve a state plan.[cxlviii] This process has been successful as EPA has agreed with many petitioners about identified deficiencies in state plans and worked with states to improve their plans and eliminate those gaps.[cxlix]
Overall the NAAQS process has been successful due to the threat of state intervention, the evolution of the process to allow EPA to work cooperatively with states rather than adversarially, and the utilization of informal mechanisms. To ensure the success of SGMA, DWR and SWRCB should attempt to borrow from as many of these ideas as possible.
Weaknesses
Although the NAAQS program has been successful in reducing air pollution, it has not been successful in meeting its goal of having all states below their NAAQS levels for all regulated pollutants, despite being in operation for fifty years.[cl] As of 2020, thirty-five states are above the permittable level for at least one of the six NAAQS pollutants and over 130 million people live in areas that are not in compliance with the standards.[cli] Additionally, Congress has delayed the deadline for compliance twice to attempt to accommodate these issues and they still have not been solved.[clii] This shows that DWR and SWRCB need to actively utilize their roles under SGMA rather than just relying on the framework in place to lead to sustainability.
One of the primary reasons so many states are above their NAAQS levels is the threat of intervention, especially at the outset of the program, has not been a credible one.[cliii] EPA has been described as a “paper tiger” because although the Clean Air Act gives it the ability to create a FIP, practically it has been unable to.[cliv] This is largely due to EPA’s lack of resources, particularly in the areas of money, administrative capability, and local knowledge.[clv] Congress’ lack of forethought in creating the FIP process is seen in these areas.[clvi] This was seen in early EPA Administrators’ unwillingness to create a FIP along with their criticism of the process.[clvii] Hence, DWR and SWRCB must make a statement early to ensure that the threat of State intervention remains credible and they do not become “paper tigers.” Further, the agencies must ensure that they have the resources necessary to fulfill their duties under SGMA.
Although the partial FIP and informal processes have provided value, they have been insufficient, as seen by the prevalence of areas not meeting their NAAQS goals. Those processes help with EPA’s lack of resources, but do not solve the problem completely, as each requires money, administrative capability, and local knowledge. Further, the informal process is a poor substitute, as it is a slow and exclusionary process primarily utilized by repeat players with substantial resources.[clviii] These considerations show DWR and SWRCB the importance of a holistic approach. Only by utilizing every tool they have can the agencies help guide SGMA to success.
Overall, as successful as the NAAQS program has been, it has not reached the goals of the program. Initial EPA reticence to implement FIPs, in part due to a lack of resources, played a significant role in this failure. Although the development of the FIP process has helped advance the goals of the NAAQS program, it has seemingly been both too little and too late. By leaning on the lessons EPA has learned over the past fifty years, DWR and SWRCB have the opportunity to avoid making the same mistakes and instead ensure the success of SGMA.
Recommendations for How DWR and SWRCB Can and Should Utilize Their Power and Discretion Under SGMA to Advance the Goals of the Statute and Achieve Sustainable Groundwater Management
Through analyzing the areas in which DWR and SWRCB have considerable discretion, the successes and failures of the Clean Air Act NAAQS program, and how courts adjudicated EPA’s state plan decisions under the NAAQS program, lessons emerge for how DWR and SWRCB can and should utilize their power under SGMA.
Recommendations for DWR
One overarching lesson is DWR has an opportunity to play a significant, if not determinative, role in determining whether SGMA is successful in accomplishing its goals. Another lesson is, like EPA,[clix] DWR is likely to receive substantial deference in technical decisions it makes under SGMA, including its GSP status determinations.[clx]
Make a Statement
The first, and most important opportunity for DWR to ensure the success of SGMA is to make a statement by showing it is willing to label GSPs inadequate.
SGMA, like the NAAQS program in the Clean Air Act, is premised on the theory that the threat of intervention from a larger governmental body will force a smaller governmental body to make the difficult choices necessary for compliance with the statute. DWR must use its discretion and power under SGMA to avoid making the same mistakes as EPA and avoid being a “paper tiger.” Otherwise, it is likely SGMA will meet the same fate as the NAAQS program and, while being beneficial, will not reach its goals.
The GSPs currently in front of DWR are those for the critically overdrafted basins, who have the most dire need for potentially dramatic changes to either their supply or demand of groundwater. These are the basins that are going to need to make the most difficult choices and where the risk is highest for undesirable results. DWR needs to show that it is willing to label plans as inadequate (and incomplete) as a signal that it will not be a rubber stamp and to force those necessary difficult choices. If not, in the future as GSAs are able to update their plans, some GSAs may take the path of some states in the NAAQS program and avoid making the necessary difficult and costly choices, thus heightening the risk for undesirable results. This is especially true if another major drought, climate change, or other unpredicted changed circumstance puts further stress on groundwater supplies and GSAs are faced with potential litigation and economic/political pressure on one side and a lax DWR review process on the other. This is a situation where, if the DWR gives GSAs an inch, some will likely take a mile, and SGMA will likely fail. Thus it is imperative that DWR makes it clear it will not give that inch and instead will provide the “regulatory nuclear bomb” that forces difficult local choices or will lead to highly disruptive state intervention.
One positive sign is DWR’s handling of alternative plans. An alternative plan is a plan that basins can submit in place of a GSP that accomplishes all of the same goals without having the same structure.[clxi] Alternative plans were due on January 1, 2017,[clxii] and DWR already evaluated all fifteen of them.[clxiii] It approved nine of the fifteen and rejected the other six.[clxiv] This is unquestionably a good sign and the beginning of a signaling effect, however it is a fairly weak signal, as basins are able to submit GSPs if their alternatives are rejected, and thus there is not the same threat of state intervention.[clxv]
DWR needs to build on the momentum it started by rejecting forty percent of alternative plans and scrutinize GSPs just as closely. This is the only way to avoid the negative signaling effect of the EPA in the NAAQS program, and instead signal to GSAs that state intervention is a real possibility, and therefore GSAs must make the difficult choices necessary to achieve sustainability in their basins.
Utilize the “Incomplete” Label Aggressively
Another important lesson from analyzing the manner in which EPA has administered the NAAQS program is both the regulator and the regulated entity benefit from working in collaboration rather than in opposition. Working cooperatively allows the regulated entity (here, GSAs) to retain a role in decision-making while allowing the regulator (here, DWR) to take advantage of local knowledge while conserving resources.
One way for DWR to work cooperatively with GSAs is to utilize the incomplete label aggressively. By labeling plans incomplete, DWR is able to advance the goals of SGMA by ensuring GSPs include stringent enough measures to achieve sustainability and avoid undesirable results. It also enables GSAs to utilize their local knowledge to improve their GSPs while keeping the general framework they have developed intact.
Additionally, using “incomplete” aggressively conserves state resources. If SWRCB follows DWR’s inadequate determination and decides to start the process to label a basin as probationary, it is seemingly[clxvi] required to hold a hearing and institute the quasi-legislative process for each and every basin. As discussed above, utilizing this process, especially on the initial plan determinations, is vital both to improve GSPs and to send a signal for how the State will enforce SGMA going forward. However, it is a very resource-intensive process and thus should be used primarily only when necessary, especially after the initial signal is sent. DWR using “incomplete” aggressively and often enables SWRCB to focus their resources on the worst offenders while also ensuring that all basins achieve sustainability.
Utilizing incomplete aggressively is the best way for DWR to advance the goals of SGMA while continuing GSA involvement and conserving sparse State resources.
Utilize Public Comments
As discussed above, DWR must circulate GSPs for public comment.[clxvii] While DWR is not required to respond to comments received, the agency is required to consider them as part of its GSP evaluation.[clxviii]
Stakeholders, including federal, state, and local agencies with significant expertise concerning the areas under their jurisdiction, have already submitted substantive comments to DWR on submitted plans. For example, as of April 8, 2020, the California Department of Fish and Wildlife has commented on nine GSPs and the federal National Marine Fisheries Service and commented on four.[clxix] In their comments, both agencies noted specific deficiencies in the analysis and data used in certain GSPs that, in their view, cause the GSPs to be noncompliant with SGMA.[clxx] Similarly, private individuals and private organizations have also commented on failures of particular GSPs.[clxxi]
Rather than reinvent the wheel, DWR should rely on submitted comments and the deficiencies they note as reasons to label plans inadequate or incomplete. While there is some overlap in the expertise of DWR and the commenting agencies, each provide a unique perspective and technical analysis. DWR should at least use these analyses as starting points for its evaluation rather than completely re-doing its work. This also applies to any governmental agency, whether state or federal, that comments on GSPs. Similarly, if SWRCB utilizes either formal or informal comments as part of its consultative role in labelling a GSP inadequate, DWR should rely on those as well.
In this way, public comments on GSPs provide DWR an opportunity to improve GSPs and advance the goals of SGMA with minimal administrative burden and should be utilized.
Factor in Uncertainty and Utilize Discretion to Ensure Plans Will Achieve Sustainability Under Adverse Conditions
An inherent challenge built into the structure of SGMA is that GSPs are supposed to lay the groundwork for sustainability over a fifty-year period despite a lack of certainty about what conditions will be during that time frame. While GSAs have the opportunity to update their GSPs over time, the initial plans and the steps taken in the present will impact both the types and extent of measures that will need to be taken in the future. Additionally, there is uncertainty about the causation of some of undesirable results, including the amount of groundwater withdrawal that will lead to seawater intrusion, subsidence, and depletions of interconnected surface waters. The lack of clarity concerning the definitions of “significant and unreasonable” and “occurring throughout the basin” as qualifiers on the definition of undesirable results supplements this uncertainty. Climate change exacerbates all of this by likely affecting supply, demand, and timing of availability of groundwater in ways that are difficult to presently quantify or predict.[clxxii] DWR’s regulations acknowledge this uncertainly, requiring the degree of uncertainty to be considered in the GSP’s development of measurable objectives and minimum thresholds; DWR must also consider uncertainty as a criterion when evaluating the adequacy of a GSP.[clxxiii]
While it is a positive sign that DWR, through its regulations, factors uncertainty so directly into its analysis where SGMA itself did not, it is crucial that uncertainty play a central role in SGMA analysis. This is especially true because there is considerable political will supporting strict application of SGMA at the current moment, which may not be the case in the future. Regardless, smaller steps erring on the side of conserving more water than necessary now are more politically feasible than the more dramatic steps that may be necessary in the future.
The definition of minimum thresholds as levels below which undesirable results may occur provides DWR a mechanism to properly factor uncertainty into its analysis. As does the definition of measurable objectives, which includes a “reasonable margin of operational flexibility under adverse conditions” (emphasis added). DWR must utilize these tools to their fullest extent to ensure the avoidance of undesirable results in worst-case scenarios.
One way to do this is to treat any scientific uncertainty that an outcome may occur as if it will occur. That way DWR is able to prevent undesirable results to the fullest extent possible if those situations do occur. Another way to properly factor in uncertainty is to plan for worst-case climate scenarios, particularly droughts. This includes DWR factoring into its modeling the possibility of a megadrought, which is a drought that lasts over twenty years, and which NASA researchers report has an eighty percent chance of occurring in California within this century.[clxxiv] A final strategy is to closely monitor water budgets, which are essentially the amount of water a GSA determines it can withdraw without causing undesirable results.[clxxv] Per DWR regulations, historical water usage plays a role in calculating future water budgets,[clxxvi] despite scientists declaring that climate change makes relying on historical conditions to predict the future untenable.[clxxvii]
In summation, uncertainty over causation of undesirable results, future political will, and the impacts of climate change complicates the current analysis of GSPs, which are meant to provide the foundation for fifty years of sustainable groundwater management. DWR can best fulfill its role as the evaluator of GSPs by making that uncertainty central in its analysis and erring on the side of conserving more water than may potentially be necessary.
Interpret “Significant and Unreasonable” and “Occurring Throughout the Basin” Conservatively and Adapt Interpretation Based on Context
As described above, the detrimental impacts of over-withdrawing groundwater only qualify as unreasonable results if they are “occurring throughout the basin” at “significant and unreasonable” levels.[clxxviii] Also as above, these phrases are not described in SGMA itself or the DWR regulations interpreting its role in the statute. Those facts as well as the fact that applying the phrases is a technical consideration provides DWR a significant amount of discretion in how to apply the phrases and its decisions are likely to be upheld under judicial scrutiny.
Out of context, these qualifiers make more sense for some undesirable results, such as depletion of groundwater supply, than others, such as land subsidence. Adding in context changes that analysis, as any depletion of groundwater supply seems problematic in a critically overdrafted groundwater basin. Both of these considerations should factor into DWR’s analysis of how to apply the terms when analyzing the potential outcomes of a GSP.
More generally, to best advance the goals of SGMA, DWR should interpret these terms conservatively, meaning it should set low thresholds as to what qualifies as “significant and unreasonable” and what qualifies as “occurring throughout the basin.” Low thresholds would enable DWR to find potential undesirable results occurring more often and thus would label more plans inadequate or incomplete.
DWR should also adapt how it interprets the term based on the specific analysis it is undertaking. While arguments whether a specific GSA’s depletion of groundwater supply meets the qualifiers of “occurring throughout the basin” and “significant and unreasonable” is to an extent unavoidable given the SGMA statutory structure, DWR can minimize these concerns through a consistent aggressive interpretation of the terms. This best advances the goal of SGMA as well by preventing detrimental impacts of over-withdrawing groundwater to the maximum extent possible.
The structure of SGMA and the qualifiers of “significant and unreasonable” and “occurring throughout the basin” give DWR room to utilize its expertise and discretion. By defining these terms conservatively and adapting its definitions based on the context it is facing, DWR has the opportunity to utilize that discretion to advance the goals of SGMA and ensure that groundwater is managed sustainably throughout the state.
Utilize Informal Processes
Last, DWR should learn from EPA’s experiences implementing the NAAQS program in the Clean Air Act and utilize informal processes to consistently monitor and improve GSAs.
As described above, EPA has utilized an informal process by which interested parties can petition the agency.[clxxix] Through this informal process, EPA has been able to improve state plans under the NAAQS program without litigation. While there are some downsides, the petition program should be viewed as a success due to its ability to further the goals of the NAAQS program without involving litigation or other more expensive options.
DWR should create a program that allows interested parties to petition it directly with concerns they have about GSPs.[clxxx] This would be consistent with SGMA because the statute already provides opportunities for public participation through requiring GSPs be posted online for public comment. DWR should also consider these public comments in light of its duty to monitor GSPs on an ongoing basis. As with utilizing agency comments on the initial plans, as described above, this informal process would provide DWR with an opportunity to improve GSPs with minimal administrative burden. It would also advance the goal of DWR working cooperatively with GSAs, by offering it an informal way to discuss improvements with GSAs that provides less of a threat than an incomplete or inadequate label.
By utilizing an informal process in which parties can petition it directly for improvements in GSPs, DWR can advance the goals of SGMA while increasing its working relationships with GSAs and taking on minimal administrative burden.
SGMA gives DWR a substantial role to play and a lot of discretion in how to best utilize that role. By making a statement it is willing to label plans as inadequate; using incomplete aggressively; relying on agency comments; properly factoring in uncertainty; interpreting “significant and unreasonable” and “occurring throughout the basin” conservatively; and establishing an informal comment process, DWR has the ability to advance the goals of SGMA and ensure all basins in the state are managed sustainably without taking on an unmanageable administrative burden.
Recommendations for SWRCB
As with DWR, SWRCB also has a significant amount of discretion in how it utilizes its role under SGMA. Tasked with designating basins as probationary and drafting interim plans, SWRCB plays an important role, and how it utilizes its power may also potentially be determinative of whether SGMA accomplishes its goals. Unlike with DWR, however, SWRCB still has not crafted any regulations providing guidance on the process it will utilize. Thus, SWRCB has a substantial amount of freedom and discretion but has provided little guidance or predictability to interested parties. One benefit SWRCB does have, is that because its determinations of probationary status and creation of interim plans are quasi-legislative rules, it will receive substantial deference from courts on judicial review.[clxxxi]
Create Regulations and/or Informal Guidance
As discussed above, SWRCB has not created any regulations detailing the process it will use in its consultative role for determining that a GSP is inadequate, designating basins as probationary, or crafting interim plans. This is despite direct statutory authorization to create regulations for the latter two points.[clxxxii]
This is especially problematic because GSPs for critically overdrafted basins were due on January 31, 2020 and have already been submitted.[clxxxiii] Therefore, SWRCB should already be analyzing submitted GSPs as part of its consultative role. Additionally, according to the SGMA Portal, the comment periods for these end as early as May 15, 2020.[clxxxiv] As of that date, DWR can issue its first plan status determination. DWR does have up to two years to evaluate GSPs and GSAs do have up to 180 days to correct incomplete plans.[clxxxv] However, forty-three plans have been submitted and accepted, so it is unlikely DWR will utilize the full statutorily allotted time for all submitted plans.[clxxxvi] Further, DWR is authorized to designate GSPs as inadequate without first labeling them as incomplete.[clxxxvii] Therefore, SWRCB could become responsible for starting the quasi-legislative process to designate a basin as probationary as soon as May 15, 2020. All of that is to make clear that the State’s role, and specifically SWRCB’s role, has already begun. SWRCB is no longer in the situation of having time to draft regulations for a future role.
Therefore, it is crucial that SWRCB craft regulations detailing its roles under SGMA, providing a transparent, consistent, and predictable process that benefits all parties involved. Likewise, meeting those standards and explaining its process before undertaking it will help SWRCB’s decisions withstand judicial review, as a transparent, consistent, and predictable process is much less arbitrary and capricious than one based on unknown considerations.[clxxxviii]
As noted above, SWRCB’s responsibilities under SGMA are not mandatory, but rather actions it “may” take (“may designate a … basin as a probationary basin”[clxxxix] and “may adopt an interim plan”).[cxc] Thus, it is imperative for SWRCB to explain the process it will use in deciding whether to utilize those discretionary powers. For example, there are a number of unanswered questions about how SWRCB will undertake its responsibility of labeling basins as probationary. If DWR labels a basin inadequate, does that create a rebuttable presumption that SWRCB will designate the basin as probationary, or what role does that play? What will the focus be of the hearings SWRCB is required to host before designating a basin as probationary? What role will stakeholders’ comments play at the hearings SWRCB hosts during rulemaking and when its quasi-legislative ruling is open for public comment? After the hearings and the comment period, will SWRCB then create a new or separate analysis of the GSP in question? How, if at all, will the process of designating a basin as probationary affect future analyses? How, if at all, will designating a basin as probationary affect other connected basins or sub-basins who have relied in part on agreements with or calculations by the GSA in question? Those are all questions that need answering for SWRCB to have a legitimate process that stakeholders can rely on to reach particular outcomes.
Nearly all of the above questions also apply to SWRCB’s creation of an interim plan and there are further unanswered essential questions. Will SWRCB rely at all on the existing GSP it is replacing or will it craft a completely new plan? Will SWRCB work with the GSA and stakeholders in drafting the interim plan? Will SWRCB utilize measures over which only the state has control and are preempted from local use and thus unavailable to GSAs? There are clearly a number of unanswered questions that SWRCB needs to answer for its own benefit as well as the benefit of GSAs.
An alternative path for SWRCB is to answer the outstanding questions in a more informal manner. It could utilize one (or multiple) of its other tools to provide guidance to GSPs in how it will undertake its role under SGMA. While these tools do not carry the force of law in the same way regulations do, they also do not require the same formalities or bureaucratic process that creating regulations does. Moreover, they are likely the only option for SWRCB to detail its consultative role since SGMA does not give it express authorization to draft regulations in that area.
One option would be for SWRCB to issue an order describing what its expectations of GSPs will be and how it will undertake its responsibilities under SGMA. While orders do not carry the force of law, they are likely SWRCB’s strongest tool since it has the option of designating an order as precedential.[cxci] Designating an order as precedential means that SWRCB (and the Regional Water Quality Control Boards) will “ordinarily” follow it or “provide reasoned analysis for not doing so.”[cxcii] Thus, a precedential order will provide additional information to GSPs that they would otherwise lack while carrying some weight as a policy SWRCB is likely to follow.
Similarly, SWRCB could draft a resolution,[cxciii] create guidance,[cxciv] or utilize local guidance letters.[cxcv] While these tools do not carry the same weight as a precedential order or a regulation, they still give SWRCB options on how it feels best to communicate its expectations to GSPs.
SWRCB taking advantage of whichever tool it feels best for its roles under SGMA gives it the ability to be as forceful or as flexible as it feels appropriate while still providing more transparency and setting expectations for GSPs. Doing so will help legitimize future decisions and thus allow SWRCB to fulfill its duty to help SGMA meet its goals.
Make Two Statements
As with DWR, it is essential SWRCB make statements early on that it is both willing and able to (1) designate basins as probationary and (2) create interim plans. Actually carrying through the threat of state intervention is the only way for that threat to carry sufficient weight to force GSAs to make the hard choices necessary for basins to achieve sustainability and thus for SGMA to succeed.
SWRCB is in a slightly different position in this regard than DWR because of the requirement of holding public hearings and instituting a quasi-legislative process each and every time it wants to designate a basin as probationary or create an interim plan. The public nature of these hearings and this process generally will provide a very strong signal to other basins. Since GSAs have 180 days to fix their GSPs after being labeled inadequate, it is likely multiple GSAs will be in that adjustment period at the same time.[cxcvi] SWRCB designating a basin as probationary will influence the manner in which GSAs address fixing their inadequate GSAs. Similarly, SWRCB issuing an interim plan will affect the actions of other probationary basins.
SWRCB has opportunities to make a statement it is willing to designate basins as probationary and to make a statement it is willing to issue interim plans. These processes are much more resource-intensive and have more public-facing elements than DWR’s plan evaluation and thus the signaling effect will be much stronger.
Treat its “Mays” as “Musts”
As discussed above, SGMA forces very little action from SWRCB. While SGMA provides requirements for what processes SWRCB must utilize if it decides to act, most of SWRCB’s roles are discretionary, including designating basins as probationary and adopting an interim plan.[cxcvii] Also as discussed above, SWRCB has not created any regulations describing under what circumstances it will employ these discretionary powers. The best way for SWRCB to advance the goals of SGMA is to treat these discretionary powers as nondiscretionary by treating the statute’s invitations it “may” act as requirements that it “must” act.
SWRCB’s powers to designate basins as probationary and create interim plans are already qualified by requirements DWR finds a GSP inadequate[cxcviii] and the GSA does not fix the GSP within a year of being designated probationary,[cxcix] respectively. Under both of those scenarios, the GSA is clearly at fault for the quality of its GSP and should be held accountable. Especially in the situation of SWRCB creating an interim plan, it is highly unlikely anything will surface in the public hearing or in public comment on the proposed ruling of which SWRCB was unaware. While not impossible, those situations should be considered the exception rather than the rule. Instead, the rule should be that if a GSA submits an inadequate GSP, SWRCB labels the basin as probationary, and if a GSA does not fix its GSP within a year, SWRCB creates an interim plan.
By making it a near certainty SWRCB will use its power under SGMA in basin designation and plan creation, SWRCB can ensure it is holding GSAs accountable. This is the best way for SWRCB to advance the goals of SGMA by ensuring state intervention where GSAs have proven unwilling to make the choices necessary to achieve sustainability.
Work Within Existing GSPs
An important lesson SWRCB can learn from EPA’s creation of federal plans under the NAAQS program is that it is beneficial to work within existing GSPs. While SWRCB does not have the explicit power to create partial interim plans the way EPA does to create partial FIPs, there is no reason SWRCB could not approximate the process. Rather than reinventing the wheel, SWRCB can use the existing inadequate GSP as a starting point for its interim plan.
One of the primary lessons from EPA’s experience implementing the NAAQS program is that intervention by a larger governmental body into local affairs can put a strain on resources. Intervention requires money, administrative capacity, and local knowledge to be effective. EPA solved some of these issues by relying on partial FIPs and supplementing the work done by states rather than creating an entirely new plan. This required less money and administrative capacity and relied on the local knowledge of states EPA lacked.
SWRCB can take advantage of a similar system. GSAs have the best knowledge of local conditions as well as relevant stakeholders and how they would be impacted by restrictions. SWRCB should rely on that local knowledge to save financial and administrative capacity resources. SWRCB can essentially re-create the process of a partial FIP by leaving in place non-problematic parts of GSPs and improving the rest. This process will likely be benefitted by DWR (and other agencies such as the California Department of Fish and Wildlife and the federal National Marine Fisheries Service) commenting on specific deficiencies in their GSP analyzation process. Those are the areas SWRCB can focus on and leave the rest primarily in place. Thus, SWRCB can both signal to GSAs it is willing to create interim plans while avoiding being overwhelmed as EPA was when it was first faced with creating a FIP.
Overall, SWRCB needs to show it is willing to create interim plans to force GSAs into making difficult choices, but it also needs to account for the agency’s limited resources. The best way for SWRCB to accomplish these contradicting goals is to work within existing GSPs, only changing the necessary deficiencies and any related sections. That will enable SWRCB to advance the goals of SGMA without putting itself in a position it cannot manage.
Include State Measures and Economic Incentives in Interim Plans
Another lesson SWRCB can learn from EPA’s experience implementing the NAAQS program is that it should look for ways to advance the goals of SGMA while instituting measures localities and GSAs consider beneficial. This helps take SWRCB out of the role of enforcer and put it into the role of partner, which in the NAAQS program setting helped change state’s perspective about the statute.
EPA primarily took this strategy by including measures only the federal government had control over into partial FIPs and utilizing market incentives including cap-and-trade.[cc] The federal measures approach led to states actually inviting federal intervention into state markets and the market incentives approach allowed EPA to regulate more efficiently.[cci] It is not a coincidence these approaches coincided with EPA’s new embrace of federal intervention and state’s change of perspective about the NAAQS program more generally.
SWRCB should follow suit and learn from EPA’s successes. The most straightforward application would be to develop and include measures over which only the state has control into interim plans.[ccii] Another strategy would be to utilize economic incentives in interim plans.[cciii] Taking the same concept and applying it in a slightly different way, SWRCB could also either change, or, if necessary, lobby the California Legislature to change certain water policies that make achieving sustainability easier.[cciv] SWRCB should utilize its role and its institutional power to include in interim plans measures that GSAs support that also advance the goals of SGMA.
SWRCB has the advantage of learning from the successes of a similarly structured policy that came before it in the NAAQS program. SWRCB should take advantage of this and employ a lesson learned by EPA in its administration of the NAAQS program, which is that SWRCB should include in interim plans measures only the State has control over, economic incentives, and other policy changes. Doing so would both help basins achieve sustainability and transform SWRCB’s role from an adversary of GSAs to an ally.
Work Cooperatively with GSAs and Other Stakeholders
Related to the previous two recommendations, SWRCB should learn from EPA’s experience administering the NAAQS program of the Clean Air Act and, to the extent possible, work cooperatively with GSAs and other stakeholders.
The early period of the NAAQS program pitted EPA against states as (unwilling) adversaries and that hampered the success of the program.[ccv] Over time, that relationship advanced into more of a cooperative one, and both parties benefitted.[ccvi] The current phase of the relationship is defined by the parties working in collaboration and states seeing EPA as a resource.[ccvii]
SWRCB should follow this path and, to the extent possible, become an ally rather than an adversary for GSAs. Not only will effectively becoming a resource for GSAs advance the goals of SGMA by enabling more efficient groundwater management, it will also bolster political support. The more GSAs and the more groundwater basins that approve of SWRCB and its SGMA work, the better SGMA will be able to withstand opposition from GSAs that are unhappy about an interim plan or groundwater users that are unhappy about changes in their ability to utilize groundwater. This is vital because SGMA already provides twenty years for basins to come into sustainability. If deadlines are delayed because of political pressure, as happened with NAAQS deadlines twice, SGMA is likely to meet the same fate of the NAAQS program and benefit groundwater management but ultimately not accomplish its goals.
SWRCB has a few tools through which to accomplish these goals. These include the previous two recommendations: utilizing existing GSPs when developing interim plans and including policy measures GSAs generally support in interim plans. By building off the work GSAs put into their GSPs, SWRCB is able to provide minimal disruption and ensure that GSAs feel like they are being intruded on to the least extent possible. Similarly, by including policies only the state has control over, it leaves more of the GSP in place and validates the work done by GSAs. Another way to ensure GSAs in probationary basins or those with interim plans feel the most respected is for SWRCB to factor into its analysis any comments made at the public hearings required to designate a basin or create a plan. As discussed above, it is unlikely anything new or determinative will be raised in these hearings, but SWRCB factoring the comments into its analysis allows GSAs to feel more included. Similarly, SWRCB can also provide GSAs in non-probationary basins the opportunity to utilize the state measures, economic incentives, and policy changes developed for interim plans. This would lessen the burden on GSAs in those areas and potentially benefit both the GSAs and groundwater users. Especially in those situations where the relationship is primarily non-adversarial because they are not probationary, benefitting the GSAs could develop them into allies.
SWRCB is in a somewhat difficult position because its role is inherently combative and likely to cause tension with GSAs if utilized. However, to secure the success of SGMA, SWRCB must use its powers. By working cooperatively with GSAs and other stakeholders to the extent possible, SWRCB has the opportunity to soften opposition from parties that may be inherently opposed and make allies among those who are not.
Aggressively Utilize Consultative Role
SWRCB’s role in plan evaluation is one of the vaguest areas of SGMA. SGMA provides that SWRCB may begin the process of designating a basin as probationary if DWR, in consultation with SWRCB determines the GSP is inadequate.[ccviii] However, it does not explain what this means in any further detail or reference that role anywhere else. DWR regulations likewise provide that DWR may only label a GSP as inadequate “after consultation with [SWRCB]”[ccix] with no further detail. Based on the way SGMA is structured and the lack of detail, SWRCB has an opportunity to play an even bigger role in SGMA implementation that may be obvious from first pass of the statute. That role would be to be an additional reviewer and evaluator of GSPs.
In/after “consultation with” could be read a number of ways and there is little guidance from SGMA on which is correct. The reading that both gives SWRCB the most power and best advances the goals of SGMA best is to read it as giving DWR and SWRCB nearly equal power. The only qualifier is that since SGMA provides that “DWR … determines” a GSP is inadequate, DWR should have the final say if the agencies cannot come to an agreement. Especially to the extent it is institutionally capable, SWRCB independently assessing GSPs provides for another expert agency ensuring GSPs are sufficient. DWR should then factor SWRCB’s assessment into how it makes a final determination of plan status. The way to best do this and to best advance the goals of SGMA would be to make a final determination based on whether either agency considered the GSP “inadequate.” This holds GSPs to a higher standard by making them pass evaluation from two separate agencies before going into effect.
SWRCB’s consultative role on plan status determinations is vague and ill-defined. SWRCB should take advantage of this and aggressively interpret that part of the statute and analyze every GSP. By ensuring that GSPs pass evaluation by two separate expert agencies before going into effect, this would best advance the goals of SGMA and give California the best chance at sustainably managing its groundwater.
Demand the Resources Necessary for Success
Last, SWRCB should take advantage of momentum and political support to ensure it is in a position to succeed. Another weakness of the NAAQS program was EPA’s lack of resources ensured the agency was not able to effectively create a FIP. SWRCB should focus its attention on immediately lobbying the California Legislature for whatever resources it considers necessary to effectively fulfill its duties under SGMA.
The threat of federal intervention in the NAAQS program into state affairs was significantly weakened at the outset due to the lack of foresight by Congress into what that process would actually look like. EPA lacked the resources to effectively create a federal plan and the EPA Administrator loudly and publicly made that point clear. Instead of focusing on advocating for the resources necessary for success, the EPA Administrator criticized the program as a whole and put his lobbying efforts into delaying deadlines, and those efforts were successful.
SWRCB may be in a similar position to EPA in the early 1970s. The process of hosting a hearing for every probationary designation and every interim plan with detailed notice requirements is a heavy administrative burden. Further, if SWRCB follows the advice in the previous section and independently analyzes every GSP, that is another significant drain on resources. Conversely, this paper has laid out suggestions for ways in which SWRCB can operate more efficiently and conserve resources, including working within existing GSPs. Where the net balance of these suggestions is relative to SWRCB’s institutional capacity is unclear. However, what is clear is that SWRCB should take stock of these questions and make its own assessment. Additionally, as more plans are determined to be “inadequate” and SWRCB’s workload grows, it should be consistently monitoring its current institutional capacity and projecting its ability to meet future deadlines based on different projections. If at any point in the current or on future projections SWRCB determines there will be a gap between demand for its services and its capability, it must lobby the California Legislature for additional resources. Additionally, SWRCB should view its own capacity very conservatively, requesting more resources than may be necessary in best-case scenarios.
SWRCB plays a significant role in SGMA through consulting on plan evaluations to determining whether to designate a basin as probationary to creating interim plans. All of those responsibilities are also very resource-intensive undertakings. SWRCB must ensure it puts itself in a position in which it can succeed by ensuring it has the resources necessary to handle worst-case scenarios.
Overall, SGMA gives SWRCB a significant amount of responsibility and discretion. SWRCB can best manage this responsibility and advance the goals of SGMA by creating regulations to provide guidance, predictability, and consistency; making it clear it can and will take the steps necessary to create interim plans; taking on more responsibility to ensure the goals of SGMA are met; and work efficiently within GSPs and with GSAs to both maximize its institutional capacity and build the relationships necessary for long-term success.
Conclusion
Passing SGMA was an important and necessary step in the right direction for California to be able to successfully manage the vital resource of groundwater. However, just as critical is successful implementation of the statute.
SGMA grants the responsibility for successful implementation to the Department of Water Resources and the State Water Resources Control Board. By properly utilizing their discretion and expertise and learning from EPA’s implementation of the NAAQS program, the agencies have an opportunity to fulfill their task. The best way to do this is to ensure that the threat of state intervention remains effective, make the most efficient use of their resources by relying on other agencies as well as GSAs, and err on the side of measures that lead to more groundwater availability than may be necessary if worst-case scenarios do not occur. Doing so will ensure California’s population and agriculture have access to the groundwater they need going forward.
NOTES
[i] Jeffrey Mount et al., Managing Drought in a Changing Climate, Public Policy Institute of California, at 5 (Sept. 2018), https://www.ppic.org/wp-content/uploads/managing-drought-in-a-changing-climate-four-essential-reforms-september-2018.pdf.
[ii] David Sunding & David Roland-Holst, Blueprint Economic Impact Analysis: Phase One Results, at 1 (Feb. 15, 2020), https://waterblueprintca.com/wp-content/uploads/2020/03/Blueprint.EIA_.PhaseOne.2.28.pdf.
[iii] Id.
[iv] Rebecca Louise Nelson & Debra Perrone, Local Groundwater Withdrawal Permitting Laws in the South‐Western U.S.: California in Comparative Context, 54 Groundwater 747, 749 (Nov./Dec. 2016).
[v] Union of Concerned Scientists, The Big Water Supply Shift (Nov. 2015), https://www.ucsusa.org/sites/default/files/attach/2015/11/california-water-supply-shift.pdf.
[vi] California Department of Water Resources, California’s Groundwater and the Sustainable Groundwater Management Act (Jan. 2020), https://water.ca.gov/-/media/DWR-Website/Web-Pages/Programs/Groundwater-Management/Sustainable-Groundwater-Management/Files/CA-Groundwater-and-SGMA-Fact-Sheet.pdf?la=en&hash=5AF8E1BF67B0FE30B0744E29B822A89C5D5FDF2E
[vii] Nelson & Perrone, supra note 4 at 748.
[viii] The twenty-year timeframe starts after local agencies have to submit their plans to the state for review, which means critically overdrafted basins have to achieve sustainability by 2040, and all others by 2042.
[ix] California Department of Water Resources, SGMA Groundwater Management, https://water.ca.gov/Programs/Groundwater-Management/SGMA-Groundwater-Management (last visited Apr. 18, 2020).
[x] Id.
[xi] Id.
[xii] Nelson & Perrone, supra note 4 at 749.
[xiii] Cal. Water Code § 10723.2 (West 2018).
[xiv] Cal. Water Code § 10727 (West 2015).
[xv] Cal. Water Code § 10728.2 (West 2015).
[xvi] See Chapter 5 of the California Water Code, Cal. Water Code § 10725 (West 2015) et seq.
[xvii] Nelson & Perrone, supra note 4 at 748.
[xviii] Cal. Water Code § 10727(a) (West 2015); Cal. Water Code § 10721(u), (x) (West 2019).
[xix] The results are: (1) chronic lowering of groundwater levels indicating a significant and unreasonable depletion of supply; (2) significant and unreasonable reduction of groundwater storage; (3) significant and unreasonable seawater intrusion; (4) significant and unreasonable degraded water quality; (5) significant and unreasonable land subsidence; and (6) depletions of interconnected surface water that have significant and unreasonable adverse impacts on beneficial uses of the surface water. (Cal. Water Code § 10721(x)(1) – (x)(6) (West 2019).
[xx] Cal. Water Code § 10721(x) (West 2019).
[xxi] Cal. Water Code § 10727.2 (West 2015).
[xxii] Cal. Water Code § 10727.4 (West 2016).
[xxiii] Cal. Water Code § 10725 (West 2015).
[xxiv] Cal. Code Regs. 23 § 354.24 (2016).
[xxv] Cal. Water Code § 10733.2 (West 2016).
[xxvi] Cal. Water Code § 10733.4(a), (d) (West 2016).
[xxvii] Cal. Water Code § 10733.4(c) (West 2016).
[xxviii] Cal. Code Regs. 23 § 355.2(e)(1) – (e)(3) (2016).
[xxix] Cal. Code Regs. 23 § 355.2(e)(2).
[xxx] Cal. Code Regs. 23 § 355.2(e)(3)(B) (2016); see id. at (e)(2)(B) for a discussion when the deficiencies are “minor.”
[xxxi] Cal. Code Regs. 23 § 355.2(e)(3).
[xxxii] The process is slightly more complicated for basins that are not in conditions of critical overdraft, but for the purposes of this analysis, that difference is negligible.
[xxxiii] Cal. Water Code § 10735.2 (West 2016).
[xxxiv] Cal. Water Code §§ 10735.4(a); 10735.6(a) (West 2016).
[xxxv] Cal. Water Code § 10736 (West 2015).
[xxxvi] Cal. Water Code § 10733 (West 2015).
[xxxvii] Cal. Code Regs. 23 § 355.6 (2016).
[xxxviii] See generally Cal. Water Code § 10733.2 (West 2016) (authority and process for adopting regulations).
[xxxix] Cal. Code Regs. 23 § 355.4(d) (2016).
[xl] Id.
[xli] The ten criteria are listed in Cal. Code Regs. 23 § 355.4(b)(1) – (b)(10) (2016):
(1) Whether the assumptions, criteria, findings, and objectives, including the sustainability goal, undesirable results, minimum thresholds, measurable objectives, and interim milestones are reasonable and supported by the best available information and best available science. (2) Whether the Plan identifies reasonable measures and schedules to eliminate data gaps. (3) Whether sustainable management criteria and projects and management actions are commensurate with the level of understanding of the basin setting, based on the level of uncertainty, as reflected in the Plan. (4) Whether the interests of the beneficial uses and users of groundwater in the basin, and the land uses and property interests potentially affected by the use of groundwater in the basin, have been considered. (5) Whether the projects and management actions are feasible and likely to prevent undesirable results and ensure that the basin is operated within its sustainable yield. (6) Whether the Plan includes a reasonable assessment of overdraft conditions and includes reasonable means to mitigate overdraft, if present. (7) Whether the Plan will adversely affect the ability of an adjacent basin to implement its Plan or impede achievement of its sustainability goal. (8) Whether coordination agreements, if required, have been adopted by all relevant parties, and satisfy the requirements of the Act and this Subchapter. (9) Whether the Agency has the legal authority and financial resources necessary to implement the Plan. (10) Whether the Agency has adequately responded to comments that raise credible technical or policy issues with the Plan.
[xlii] See id.
[xliii] Cal. Code Regs. 23 § 354.26(a), (b) (2016).
[xliv] Cal. Water Code § 10721(x) (West 2019); Cal. Code Regs. 23 § 354.26(a) (2016).
[xlv] Cal. Water Code § 10721(x) (West 2019); Cal. Code Regs. 23 § 354.26(a) (2016).
[xlvi] Cal. Code Regs. 23 § 354.28(a) (West 2016).
[xlvii] A sustainability indicator is a detrimental effect of over-withdrawing groundwater that is not “significant and unreasonable” or “occurring throughout the basin” and thus not an undesirable result. Cal. Code Regs. 23 § 351(ah) (2016).
[xlviii] Cal. Code Regs. 23 § 354.28(a) (2016); see also Cal. Code Regs. 23 § 351(t).
[xlix] Cal. Code Regs. 23 § 354.28(b) (2016); see also Cal. Code Regs. 23 § 351(t)
[l] Cal. Code Regs. 23 § 351(s) (2016); see also Cal. Code Regs. 23 § 354.30(a), (b) (2016).
[li] Cal. Code Regs. 23 § 354.30(c) (2016).
[lii] Cal. Water Code § 10727.2 (West 2015).
[liii] Cal. Water Code § 10727.4(a) – (l) (West 2016).
[liv] Cal. Water Code § 10736(d)(2) (West 2015).
[lv] Cal. Water Code §§ 10735.2(a)(3); 10735.6 (West 2016).
[lvi] See Cal. Code Regs. 23 § 355.2(e)(3) (describing that DWR may only label a plan as inadequate “after consultation with [SWRCB]”); see also Cal. Water Code §§ 10735.2 (a)(3); (a)(5)(A)(i); (a)(5)(A)(i) (West 2016) (noting that a basin may only be labeled as probationary if “[DWR], in consultation with [SWRCB], determines that a [GSP] in inadequate or that the [GSP] is not being implemented in a manner that will likely achieve the sustainability goal.”
[lvii] Cal. Water Code § 10736(d)(2), (d)(3) (West 2015).
[lviii] Compare Cal. Water Code § 10736(d)(2) (West 2015) (providing that Board “may adopt” regulations) with Cal. Water Code § 10733.2(a)(1) (West 2015) (mandating that DWR adopt regulations by June 1, 2016).
[lix] Cal. Water Code § 10736 (West 2015).
[lx] Department of Water Resources, All Submitted GSPs, SGMA Portal, https://sgma.water.ca.gov/portal/gsp/all (last visited Dec. 29, 2020).
[lxi] 42 U.S.C.A. § 7409 (West 1977).
[lxii] 42 U.S.C.A. § 7410 (West 1990).
[lxiii] Id.
[lxiv] Id.
[lxv] While there were amendments in 1977 and 1990, the NAAQS program has more or less stayed the same since the Clean Air Act Amendments of 1970.
[lxvi] Daniel P. Selmi, Federal Implementation Plans and the Path to Clean Power, 28 Geo. Envtl. L. Rev. 637, 644 (2016).
[lxvii] Id. at 645, 654-655.
[lxviii] Id. at 644, 654.
[lxix] See id. at 655.
[lxx] Id. at 644.
[lxxi] Id. at 644, 657.
[lxxii] Id. at 657-658.
[lxxiii] Id. at 659.
[lxxiv] Id. at 660.
[lxxv] See id. at 659.
[lxxvi] See id. at 660-661.
[lxxvii] Id. at 665.
[lxxviii] Id. at 659-660.
[lxxix] Id. at 665.
[lxxx] See id.
[lxxxi] Id.at 667-675.
[lxxxii] Id. at 659, 668-669.
[lxxxiii] Id. at 669.
[lxxxiv] Id. at 669-670.
[lxxxv] Id. at 670.
[lxxxvi] Id. at 670-671.
[lxxxvii] While the legal standard is different for state agency decisions and federal agency decisions, the difference here should be negligible. See infra notes 159-160, 181 for further details.
[lxxxviii] See Conn. Fund for Env’t, Inc. v. E.P.A., 696 F.2d 169 (2d Cir. 1982); see also N.Y. v. E.P.A., 716 F.2d 440 (7th Cir. 1983).
[lxxxix] Conn. Fund for Env’t, Inc., 696 F.2d at 177.
[xc] Id.
[xci] Id.
[xcii] N.Y., 716 F.2d at 443-444.
[xciii] Id. at 444.
[xciv] See Mision Indus., Inc. v. E.P.A., 547 F.2d 123 (1st Cir. 1976).
[xcv] Id. at 128.
[xcvi] Id. at 129.
[xcvii] See Tex. v. E.P.A., 499 F.2d 289 (5th Cir. 1974).
[xcviii] Id. at 298-301.
[xcix] Id. at 297-298.
[c] Id. at 301.
[ci] Id.
[cii] See Mich. v. Thomas, 805 F.2d 176 (6th Cir. 1986).
[ciii] Id.
[civ] Id. at 182.
[cv] Id. at 185.
[cvi] See George L. Blum, EPA Rulemaking As Arbitrary or Capricious, 20 Am. L. Rep. Fed. 3d 8 (2017).
[cvii] Ariz. ex rel. Darwin v. EPA, 815 F.3d 519, 532-533 (9th Cir. 2016).
[cviii] See Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000); Bunker Hill Co. v. E.P.A., 572 F.2d 1286 (9th Cir. 1977).
[cix] Mich. Dept. of Envtl. Quality, 230 F.3d at 183-184.
[cx] Id. at 185-186.
[cxi] See generally, e.g., William B. Johnson, Propriety of EPA Determinations Whether State Implementation Plans (SIPs) or Revisions Complied with Criteria for Approval Under Clean Air Act (42 U.S.C.A. §§ 7401 et seq.), 176 Am. L. Rep. 137 (2001) (discussing that courts do not defer when the intent of Congress is clear).
[cxii] See Delaney v. E.P.A., 898 F.2d 687 (9th Cir. 1990) (superseded by statute).
[cxiii] Id.at 689-691
[cxiv] Id. at 691.
[cxv] Id.
[cxvi] See Ober v. E.P.A., 84 F.3d 304 (9th Cir. 1996).
[cxvii] Id.
[cxviii] Id. at 309-310.
[cxix] See La. Envtl. Action Network v. E.P.A., 382 F.3d 575 (5th Cir. 2004); Nat. Res. Def. Council v. E.P.A., 494 F.2d 519 (2nd Cir. 1974).
[cxx] La. Envtl. Action Network v. E.P.A., 382 F.3d 575 (5th Cir. 2004).
[cxxi] Id. at 585-586.
[cxxii] Id. at 586.
[cxxiii] Id. at 586-587.
[cxxiv] Nat. Res. Def. Council v. E.P.A., 494 F.2d 519 (2nd Cir. 1974).
[cxxv] Id. at 525-526.
[cxxvi] Id. at 526.
[cxxvii] Id.
[cxxviii] Id.
[cxxix] See Luminant Generation Co., L.L.C. v. U.S. E.P.A. 675 F.3d 917 (5th Cir. 2012).
[cxxx] Id.
[cxxxi] Id. at 926-927.
[cxxxii] Id.
[cxxxiii] See Michigan v. E.P.A., 213 F.3d 663 (D.C. Cir. 2000).
[cxxxiv] Id.
[cxxxv] Id. at 681.
[cxxxvi] Id. at 681-685.
[cxxxvii] Id.
[cxxxviii] U.S. EPA, Progress Cleaning the Air and Improving People’s Health, https://www.epa.gov/clean-air-act-overview/progress-cleaning-air-and-improving-peoples-health (last updated Oct. 13, 2021).
[cxxxix] United States (USA) GDP – Gross Domestic Product, https://countryeconomy.com/gdp/usa?year=2020 (last visited Jan. 10, 2022).
[cxl] See, e.g., describing the importance of emission from mobile sources (cars) and their importance in state emissions: Arnold W. Reitze, Jr., Air Quality Protection Using State Implementation Plans — Thirty-Seven Years of Increasing Complexity, 15 Vill. Envtl. L. Rev. 209, 365-366 (2004); Robert W. Adler, Integrated Approaches to Water Pollution: Lessons from the Clean Air Act, 23 Harv. Envtl. L. Rev. 203, 240 (1999); David E. Adelman, Environmental Federalism When Numbers Matter More Than Size, 32 UCLA J. Envtl. L & Pol’y 238, 292 (2014).
[cxli] Brigham Daniels, Environmental Regulatory Nukes, 2013 Utah L. Rev. 1505, 1526-1529 (2013); Emily Hammond & David L. Markell, Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out, 37 Harv. Envtl. L. Rev. 313, 350 (2013); Selmi, supra note 66 at 644.
[cxlii] Daniels, supra note 141 at 1526-1529.
[cxliii] Hammond & Markell, supra note 141 at 350.
[cxliv] See, e.g., supra notes 77-80 (discussing states seeing the benefits of partial FIPs).
[cxlv] Id.
[cxlvi] See supra note 81.
[cxlvii] See generally supra notes 81-86 (discussing EPA’s use of market mechanisms).
[cxlviii] Daniels, supra note 141 at 1528-1529.
[cxlix] Id. at 1528-1530; Hammond & Markell, supra note 141 at 343, 351, 353.
[cl] U.S. EPA, Current Nonattainment Counties for All Criteria Pollutants, Green Book, https://www3.epa.gov/airquality/greenbook/ancl.html (last updated Mar. 31, 2020).
[cli] Id.
[clii] See generally supra notes 69-74 (discussing the Clean Air Act Amendments of 1977 and 1990)
[cliii] Daniels, supra note 141 at 1528; Hammond & Markell, supra note 141 at 332.
[cliv] Daniels, supra note 141 at 1528; Hammond & Markell, supra note 141 at 332.
[clv] See generally Reitze, Jr., supra note 140 at 233; Hammond & Markell, supra note 141 at 332, 341-342; Daniels, supra note 141 at 1527-1528; Selmi, supra note 66 at 655 (all discussing EPA’s resource limitations).
[clvi] Selmi, supra note 66 at 644.
[clvii] See supra notes 67, 72.
[clviii] Hammond & Markell, supra note 141 at 337, 346.
[clix] Although DWR decisions are evaluated under a different standard than EPA decisions (Yamaha Corp. of America v. State Bd. of Equalization, 19 Cal.4th 1 (1998) and Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), respectively), it is likely the outcome will be the same. See infra note 160 for further details.
[clx] Although DWR’s plan status determinations seem to be interpretive rather than quasi-legislative decisions, they seem to be the first category of interpretive rules, in which the agency has a comparative interpretive advantage over the courts due to their technical nature and thus will receive deference. See Yamaha Corp. of America v. State Bd. of Equalization, 19 Cal.4th 1, 10-15 (1998). A further analysis of this issue is outside of the scope of this paper.
[clxi] Cal. Water Code § 10733.6 (West 2015).
[clxii] Id.
[clxiii] Department of Water Resources, DWR Approves Nine Alternatives to Groundwater Sustainability Plans (July 17, 2019), https://water.ca.gov/News/News-Releases/2019/July-19/DWR-Approves-Nine-Alternatives-to-Groundwater-Sustainability-Plans, last viewed Dec. 30, 2020.
[clxiv] Id.
[clxv] Id.
[clxvi] As discussed in further detail below, the process by which one probationary designation informs others is unclear and an area that would benefit from SWRCB regulations.
[clxvii] Cal. Water Code § 10733.4(c) (West 2016).
[clxviii] Cal. Code Regs. 23 § 353.8(f) (2016).
[clxix] Department of Water Resources, supra note 60.
[clxx] See, e.g., Comments on Merced Subbasin Final Groundwater Sustainability Plan from Department of Fish and Wildlife (Feb. 25, 2020) (posted online at https://sgma.water.ca.gov/portal/gsp/comments/9); NOAA’s National Marine Fisheries Service comments on the Public Final Groundwater Sustainability Plan for the Northern and Central Delta-Mendota Regions (Apr. 6, 2020) (posted online at https://sgma.water.ca.gov/portal/gsp/comments/13).
[clxxi] See, e.g., Comment Letter on 180/400 Aquifer GSP from Salinas Valley Water Coalition (Nov. 25, 2019) (posted online at https://sgma.water.ca.gov/portal/gsp/comments/29).
[clxxii] See Sarfaraz Alam et al., Climate change impacts on groundwater storage in the Central Valley, California, 157 Climatic Change 387, 401 (2019).
[clxxiii] Cal. Code Regs. 23 §§ 354.30; 354.28; 355.4(b) (2016).
[clxxiv] Union of Concerned Scientists, supra note 5.
[clxxv] Cal. Code Regs. 23 § 354.18 (2016).
[clxxvi] Cal. Code Regs. 23 § 354.18(c) (2016).
[clxxvii] Peter Backlund et al., The Effects of Climate Change on Agriculture, Land Resources, Water Resources, and Biodiversity in the United States (May 2008) at 8, https://downloads.globalchange.gov/sap/sap4-3/sap4.3-final-all.pdf.
[clxxviii] Cal. Water Code § 10721(x) (West 2019).
[clxxix] Daniels, supra note 141 at 1528-1529.
[clxxx] Cal. Water Code § 10733 (West 2015) (DWR authority to review plans).
[clxxxi] See supra notes 159-160; Yamaha Corp. of America v. State Bd. of Equalization, 19 Cal.4th 1, 10-15.
[clxxxii] Cal. Water Code § 10736 (d) (2) (“the board may adopt a regulation … setting procedures for adopting a determination or plan”).
[clxxxiii] Department of Water Resources, supra note 60.
[clxxxiv] Id.
[clxxxv] Cal. Code Regs. 23 § 355.2(e); (e)(2)(B) (2016).
[clxxxvi] Department of Water Resources, supra note 60.
[clxxxvii] Cal. Code Regs. 23 § 355.2 (2016).
[clxxxviii] See generally supra note 181 (introducing the legal standard under which SWRCB decisions are adjudicated).
[clxxxix] Cal. Water Code § 10735.2 (West 2016).
[cxc] Cal. Water Code § 10735.8 (West 2015).
[cxci] California State Water Resources Control Board, Resolutions, Orders & Decisions, https://www.waterboards.ca.gov/board_decisions/adopted_orders/ (last updated Apr. 17, 2020).
[cxcii] Id.
[cxciii] California State Water Resources Control Board, Resolutions, https://www.waterboards.ca.gov/board_decisions/adopted_orders/resolutions/ (last updated Jan. 6, 2022).
[cxciv] See, e.g., California State Water Resources Control Board, Drinking Water Resource Guide (Feb. 2018), https://www.waterboards.ca.gov/publications_forms/publications/general/docs/drinking_water_ej_resource_guide.pdf; California State Water Resources Control Board, Guidance Compendium for Watershed Monitoring and Assessment, https://www.waterboards.ca.gov/water_issues/programs/swamp/cwt_guidance.html (last updated Apr. 28, 2021).
[cxcv] See, e.g., California State Water Resources Control Board, UST Program – Available Local Guidance (LG) Letters, https://www.waterboards.ca.gov/water_issues/programs/ust/leak_prevention/lgs/index.html (last updated Feb. 5, 2021).
[cxcvi] Cal. Code Regs. 23 § 355.2(e)(2)(B) (2016).
[cxcvii] Cal. Water Code §§ 10735.2; 10735.4; 10735.6; 10735.8 (West 2016).
[cxcviii] Cal. Water Code §§ 10735.2; 10735.4; 10735.6; 10735.8 (West 2016).
[cxcix] See Cal. Water Code § 10735.6(b) (West 2016).
[cc] See, e.g., supra notes 78-80 (EPA utilizing measures over which only it had control).
[cci] See, e.g., id. (discussing states’ invitation of EPA’s federal measures).
[ccii] What falls into this category is outside of the scope of this analysis.
[cciii] Cap-and-trade seems like a poor fit, but there are other economic incentives SWRCB could utilize, the details of which are outside of the scope of this analysis.
[cciv] This could include changes to water storage as a beneficial use, facilitating water trading, and other options, although a more detailed analysis is outside of the scope of this analysis.
[ccv] See generally Selmi, supra note 66.
[ccvi] Id.
[ccvii] Id.
[ccviii] Cal. Water Code § 10735.2 (West 2016).
[ccix] Cal. Code Regs. 23 § 355.2(e)(3).
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