Vina GSA Recharge Legal Framework Webinar

Currently in progress. And then we're happy that you're here. Let's talk about the specific terms under which we all think this recharge project should go. Of course, that agreement would probably include supply, location, quantity, timing, leave behind reporting. It would include a number of components that the parties, the recharger party and the GSA party, would agree to. The recharge project would move forward with that agreement. And if the project violated the agreement, then of course the GSA, like any other party to an agreement, has breached a contract and agreement. Ways to enforce the recharging party to comply with the terms.

So that is kind of this, everyone coming together, everyone agreeing on things. Really partnership based. Approach number three is similar, but it's a little bit more top-down. So it basically is that a GSA could adopt an ordinance or other rule that governs recharge projects. You would probably have the same components. You would touch on supply, location, quantity, time, lead behind reporting counting. All of those issues that a GSA wants to make sure that recharge projects are following, you could put those into again more top-down, not project-specific, but an ordinance saying hey anyone who does recharge projects in our basin, we think that this ordinance is something that you should follow.

And again, as long as the ordinance was lawful and it didn't violate those can'ts in my first slide. It didn't try to regulate service water. It didn't try to determine water rates. It would likely be a lawful ordinance. Sigma definitely gives GSAS the ability to draft ordinances on its subject matter jurisdiction. So as long as you need to ground that in here. Then you should be able to develop again these recharge rules from an ordinance. And again, the enforcement component of that would be if a recharger came in, developed a project that violated the ordinance, then obviously the GSAs have enforcement authority under SIGMA. To ensure that ordinance is followed and that recharge projects comply with the rules that it set forward.

And then finally, probably the most extreme and heavily regulated approach is number four, and this is really developing an allocation system. And again, that goes beyond Recharge, frankly. But it does touch on Recharge if the GSA develops an entire allocation system. It would need to develop that system for accounting, management, and reporting. It would be run by the GSA. There are several GSAs who have done this. Basically defined what a native yield is, and then allocated. That native yield goes to groundwater users. They basically, these GSAs that have allocation systems in place, have a really heavy lift. They have to have a huge amount of data to understand these systems. And then there's an enforcement component as well. But within these systems, obviously, you're recharged.

Project would fit into how the specific accounting of the allocation system would go, including recharge and probably some surface water. Obviously, those allocation systems cannot define rights and they cannot regulate surface water. But certainly, most of those allocation systems that GSAs have in place consider the fact that certain users included in the allocation system's conjunctive use users use both surface water and groundwater. So within an allocation system, you would certainly develop rules for recharge. Those are the four kinds of regulatory options that could apply to recharge projects, again going from a GSA project to a light touch agreement, a top-down ordinance, and then a full allocation system.

Where you're really running what happens in the accounting part of recharge. Christina next. Slide, if you don't mind. So I'm going to talk a little bit related to Vina with the challenges of options one and four. And this is true for a lot of folks statewide, but really for Vina, The Vina GSA is, of course, a joint powers authority and made up of several public agencies. And it really is not, at least at this point. It could change, but it's really not crafted, created, set up to be a water supplier. So it is not, it is a GSA so it's going to be managing for sustainability. But currently, Vina is not set up to have staff resources, and frankly, liability of running recharge projects itself. You would obviously have to start with an application for water rights.

You would have to have someone run that system, and you really begin to go down the road of a water supplier. The JPA, as it currently exists, does not consider this rule for buy-in. So that could change, and it's not like Vina couldn't do it. You could, but I think you'd really have to rethink Vina GSA's JPA and approach to becoming an agency that's going to own a water right on behalf of its constituent members. And it really isn't crafted quite like that at this point. And the other challenge for option four, remember, that's the allocation system. That's a really big hands-on kind of the GSA running the system of water supply. It takes a huge amount of time and resources and data. You have to have a really, really big.

Data management system in order to run an allocation system. And that's because frankly, an allocation looks a lot like determining water rights when you have an allocation. You're not entirely telling people what they can use. But you are much, much more likely to be challenged. When you're telling people what they can use, because obviously embedded in that is what they can't use. And so you're really limiting people's extraction limits. You're creating rules for accounting, monitoring. You're going to need to know very precise amounts of what people are using. How they're using it and what category, what portfolio category they have. Is it an overlying right, an appropriative right or a riparian right? Surface water right and in lieu right, there are several different.

Flavors or colors as people like to say of water. And if you run an allocation system, that is defensible. You're going to have to unpack a lot of data to really understand and be able to defend the position of telling people what water they can take, when they can take it, and when they can't. So those are really challenges, I think, especially for Vina, for options one and four. So we can move to the next slide. What does that mean for options two and three? And again, I think I mentioned this when we were on the slide about the several options. The same components. You would use different mechanisms, obviously an agreement is very different than an ordinance. An agreement probably is more tailored towards a recharge project, whereas an ordinance is more of a set of rules that the GSA has developed.

And all projects would have to comply with those rules. It's less tailored, it's less partnership oriented, but really those are just different mechanisms. The components that would be in an agreement or an ordinance are very similar, most likely. And I'll talk a little bit about each of these components that you would have to really think about in order to figure out recharge and the role of a GSA in recharge. These begin to get specific, and I think we're going to begin to apply how these components, or rules, or guidelines, or agreement terms would apply to specific projects. So they become really specific really quickly, but I'll talk about them from kind of a higher level perspective of what you would need to consider.

If you were going to put together an agreement or an ordinance as a GSA, trying to put some buffer requirements on a recharge project. First is the accounting component. That's pretty important because recharge is by definition surface water. So I think historically or by default, the accounting system is likely going to be developed by the recharger. You're going to have a recharger who, assuming they're diverting surface water lawfully, has a certain amount of surface water. They're going to measure that. They're going to track where it is and how it infiltrates the aquifer. That could be through actual application to agriculture. It could be through a seepage through.

Facilities and systems could be applied to settling ponds for the specific purpose of recharge. But the accounting is going to have to be agreed upon. You're going to have to say, are you the recharge that is going to account? How are you measuring that water? Where are you applying it? How much of it is seeped in? Who keeps track is a really big issue. Included in this accounting is whether existing storage is defined. And not just defined in quantity, but really defined in ownership. And that becomes a really big issue for people who are doing recharge projects. A lot of times, GSAs talk about this concept of transition water. And that really is allocating existing storage. So when you're talking about accounting

Obviously, there's an accounting mechanism of how much water you're putting in. But how much water stays there? You have a subbasin that migrates water very easily, then you're going to have a different accounting system. Frankly, the accounting rules than if you have kind of more of your bathtub subbase somewhere, where if you put water in it, it just stays there. Another interesting subject is how people treat in-lieu. How do you account for in-lieu banking? And of course, in-lieu banking means that you have the right to extract groundwater, but instead of extracting that groundwater, you apply surface water, and then you are getting a credit for the groundwater that you had a right to use, but did not use and banked that. So what color water does that become? Does it remain groundwater? Does it become surface water?

All of those are difficult questions and would have to be included in the accounting. That is usually again done by the researcher. I'll move on to monitoring and reporting. Who reports to who? So again, in our cans and can'ts, our first slide. If a researcher had a perfect project where they were taking only the surface water that augmented the basin, and they accounted for it. You had an agreed-upon accounting mechanism, and they only diverted that exact recharged surface water. They really don't have a legal obligation to report or tell the GSA how they're doing that. But of course, the concern is that water does migrate, or that water does leave, or that water didn't augment the basin, or maybe the recharge is over counting.

Double counting water. Maybe there's a concern with how much in lieu water you're including in your accounting system. So the concept of having a recharger actually report to and talk to the GSA about how that accounting is going is probably a really good idea. However, keep in mind if the project is perfect, you don't really have a responsibility or a legal obligation to report to the GSA. If they're just minding their own business, they're just dealing with surface water and that's all they're taking. However, you can have an ordinance where you or an agreement where you ensure that accounting is done, so you're preventing any recharger from taking any groundwater. And obviously there can be approval. You would want to say, are you reporting to me? Is it on a monthly basis and yearly basis?

Do GSAs want to approve those reports? Do they have the authority to approve the reports? Those are all really difficult questions. And of course, then if there's disputes, if you disagree, you're going to have to put that either into an agreement or into an ordinance where you begin to disagree on what the monitoring, reporting, and accounting could be. It's a pretty popular, hot topic that people like to talk about. I think a lot of people talk about it as if it's like a single thing, the leave-behind. And really what it is, is usually through an agreement or through a regulation. It's water that remains in the aquifer. Even though it is recharged water from a recharge project, and when people talk about leave behind, I really think it's important to talk about.

Identifying the purpose. What is the reason that a GSA would require water to be left behind? Again, we talked earlier about the limited jurisdiction a GSA has. And I think it really depends on, The amount to leave behind should really depend on the reason you're requiring to leave behind. And is that because you need to leave behind to meet a minimum threshold? Is that because you're seeing, groundwater quality issue? Is that because. You're concerned about overdraft and you think that the recharge is taking too much. And you want kind of an accounting factor, or is it really that you're kind of I don't want to say taxing, But in an agreement certainly or in an ordinance, you're saying that in order to use the aquifer.

Just to make sure the accounting is correct, you need to leave behind ten percent or twenty percent, or whatever of what you recharged. I think when we're talking about leave behinds, that's incorporated into the accounting. But we really have to talk about why it is the GSA and what authority the GSA has to require a leave behind. I think the GSA has significantly more authority. If it's finding that MTS are being hit or there's a recharger who's taking water that maybe migrated or left the sub basin. Remember that the rules of recharge are that you can recharge water and take it back out, but if it does not augment the subbasin, you don't have a right to extract that water back out. For example, if you had a recharge scenario.

In the opposite of a bathtub basin. If you're recharging in an area where water quickly migrates and just leaves the sub-basin almost when you put it in, then really lawfully, the recharge amount that you can extract or the extraction amount you can take from that recharge project is going to be very small. It's not going to be a great return on investment if that is the physical factors that you have. Because again, you have to augment the basin. You can't just put in water.

And then have it leave and then take that water out. But again, recharge is not a molecule per molecule. You don't have to take the exact same molecule out, but you certainly cannot extract water that is no longer in the sub-basin. There's a really important physical question that I think must be asked when you're talking about a leave behind. The question becomes, is the leave behind because really the water leaves physically? And it's no longer there, which means you don't have a right to at least extract it from that sub-basin. Or, is it because you want to make sure the accounting process is correct and you want a factor of ten, twenty, whatever percent? To make sure that people are not taking water that's not theirs, or are we talking about an MT and a Sigma compliance issue? And those are all very different reasons to require leave-behind amounts. So we should be.

Clear about that. I'm going to move on. To timing constraints. This is one of the most interesting things about timing constraints in the law. That is that there really is no specific cap. Again, there's that overarching rule that the water has to remain, augmenting the basin so it can't leave. But there really is no specific timing constraint, meaning that we've had clients that say we've been recharging this sub-basin for hundreds of years. We've had a system in place and we brought in surface water. Literally, the entire thing was just a mistake. And so we think that all of that water is actually coming from the same source. So I don't know if you're going to be able to get your hands on any of those samples. If you need help with anything else, let me know.

So you would need to really put into whether it's based on physical movement. If there is data that shows after 10 years, none of the water remains in the sub-basin, then that's probably a good timing constraint because you're tying it to a physical attribute. But a lot of times you do see caps on extractions and caps on a period of storage. I've seen projects where you allow recharge and you can take 100%. You can extract 100% of the water you've recharged in year one through three, but that number goes down to 50% in years four to six. Then you can only really take twenty percent in years that are later and following. There are also issues with maybe this concept of running on the bank, running on recharge.

Do you want to limit extractions in drought years? Meaning, If someone is an unregulated charger or they're banking in water, or they're banking surface water. And, they really only need that water in drought times because they have a unreliable surface water supply, and they'll go to zero. And then they're going to need to pull all of that water out in drought times. I have seen some timing constraints where it says, "Hey, listen. You can really only pull out fifty percent." Forty percent of your supply during drought times. I will tell you that I think that, that is beginning to edge kind of on a little bit of a limitation that could be defensible but may not be. Again, it depends on if it's tied to MTs. And Sigma compliance. I think the closer you get to being tied towards Sigma compliance, the more authority GSA has. But you should be very careful about again telling.

Folks who have a recharge project that's lawful and therefore it's surface water when they can use that water. But I have seen timing constraints again. Kind of this idea that you get to extract less and less of your supply as time goes on. And then some drought safety provisions where it says that you can't take every molecule of water out during drought because obviously there'll be a run on supplies. Location. Interestingly also, that groundwater law considers a subbasin kind of like a bathtub, whether it is or not. In location, so you can lawfully put water in a basin. You can recharge a certain area. And legally, you can extract that water in a different area. That is what many of the Pasadena and City of L. A. Cases were about.

Back in the thirties, forties, and fifties, this exact concept was in place. Water was going in at one point, but it did augment the aquifer and city valley was allowed to take it out in a different location. So that is okay. But again, with the advent of SGMA, I would caveat that if you're putting water into an unusable area and it never migrates, and it doesn't augment the basin, and you're taking water out in an overdrafted area where there's better water quality, I think you probably can have some constraints on whether that's going to get you into an issue with MTS violating undesirable results and those types of things. So you can probably put buffers on that, but again, location, you should probably discuss location and where location is going to happen. And where the extraction and where the recharge is happening, those could be two very different things.

GSP compliance, I've touched on that throughout all of these components. But again, because that is an area of the can that what the GSA certainly can do. And it gives the GSA probably most of its regulatory authority. You can say, hey, listen. If you are going to do a research project, but it ends up hitting. A lot of our SMCs were hitting minimum thresholds, it's causing really to have the basin fail in achieving sustainability. I think that's really where GSAs come in and probably have the most jurisdiction. You are not determining the water right. You are not saying that the water user does not have the right to the surface water that they recharge. But you certainly can probably limit and say, "Hey, listen."

Recharge activities are causing us to have sustainability issues. As long as that tie is there, I do think that there's probably some increased flexibility that a GSA can have again. Be very careful. Do not tell a surface water right holder what right they have. Do not tell them that you have jurisdiction over that surface water because you don't. But you certainly have jurisdiction over how groundwater moves. And if surface water is moving groundwater in certain ways that violate MTs, that is certainly when the GSA's kind of authority kicks in as well. And finally, indemnification. I think it's probably pretty smart whether it's in an ordinance or an agreement. For a GSA to remind every recharger that does a project in its subbasin.

That any agreement or any ordinance or any compliance with an ordinance does not mean the GSA is guaranteeing that the stored surface water is safe or will be there for extraction at a later date. Obviously, GSAs also have limited authority over other groundwater users or other recharge projects. So none of these agreements, ordinances, or regulatory actions by a GSA should ever really be guarantees that recharge is safe in that basin. These are always kind of a buyer beware situation. I understand as a recharger, I would want to have full I would like to eliminate the risk, and I would know exactly how my project is going to work. But the GSA obviously cannot be responsible for other people in the subbasin that are not involved with the GSA.

From unlawfully diverting recharged water. That's not something a GSA should probably try to control or guarantee. And again, when you get into those allocation systems, that option four may be a little bit different, right? Because the GSA is really controlling the accounting. They're controlling the allocation. They're controlling who pumps what, when, how and where. And so maybe that indemnification is not quite as important if you did an option four, but again. Option four requires so much data, so many resources, and a really heavy lift. That I think you are talking about something different. But I think it is important for the GSA to say listen. If we're entering into an agreement or if we're following an ordinance, it doesn't mean we're keeping your recharge water safe. It has the same risk. It would always have in a sub-basin where people may try to take that water. To the extent that a recharger needs to protect

Its investment and recharge, it's going to have to do that on its own and probably not to the GSA. Do we have another slide or is that where we end this? So that's a lot of factual information. A lot of components and the things that you really have to wrestle with. And obviously when you start applying this to specific research projects, you'll have a much clearer view. If we're talking about in lieu, if we're talking about accounting and who's going to account for what, we can really apply that much more specifically to projects. And I think that's kind of the goal. But these are ideas that, again, you'll have to think for every recharge project. You should have in the back of your mind they're really challenges that not only the recharger, but the GSA has to wrestle with in figuring out where that line is. And how we work to create sustainability.

Really overstepping our jurisdiction as a GSA, which I think is really important. I'm happy to take questions or thoughts, Christina.

Just that I think sometimes it actually gets easier when you have a specific project in mind. But then it probably gets more controversial too. There's goods and bads with that.

Sure, and I guess my question would be. I am not sure what exchange of funds would happen.

It does. I think again you'll have different. I guess attorneys read the different law a little bit differently. I tend to be a more hands-off person, that frankly warns GSAs. You know, the more regulatory they get, and the more they want to control. If it's not actually within their jurisdiction, they're really inviting risk. So, obviously the GSA has to achieve sustainability, and that's kind of our goal. But to the extent that there are private parties or other public agencies that are not related to the GSA doing projects that either help us get to sustainability or actually maybe don't. They're just neutral. But they're exercising conjunctive use, which means surface water and groundwater use. So if you've got agencies.

That are bringing in more surface water and recharging it. We have to be really careful that we create room for that and allow those people to exercise what their rights are. So if you have a lawful diversion of surface water, unless it's really interfering with achieving sustainability through sigma, or unless you're taking out more than you're putting in. Which is what triggers. Those are the two things that triggered the GSA to come in and talk to you. Other than that, the GSA's position should really be tell us what you're doing. We want to make sure that we get to sustainability. We want to make sure your project's working for you, but really, the GSA should be careful. Don't try to regulate projects that are surface water if they're not. Again, triggering either of those two jurisdictional triggers for GSAs.

Sigma sustainability and taking groundwater unlawfully. If a project is doing one of those two things, that's when the GSA can step in. If the project isn't, it should really just communicate with rechargeers and let them do recharge.

That's right. Other than in lieu, which is its own thing, there really shouldn't be any borrowing. So you cannot say I am going to take more groundwater than I have a right to take now, but I am going to recharge later. This is who is that? I'll pay you for a hamburger today. There is no doing that in the law, so you do have to recharge first. And obviously, the extraction of that recharge is limited by how much it's augmented the basin. So if it's going somewhere else immediately, if it's migrating out, if there are major issues with it and you begin to take more water.

Then you really have a right to under that recharge project. That's a problem, and I think that's your question, Jim. Which is can you say you'll pay back later? And the answer is no. That would be a clear violation of the law because you'd be taking more groundwater than you have a right to, which would be overdraft, which would be very clearly in the jurisdiction of the GSA.

That's right. That would simply be you taking what's not yours. To put it as simply as I can, you cannot borrow against the basin for a recharge project.

Floodwater is interesting. So right now, there are a couple of bills in the legislature that are hoping to change this. If those don't pass or if you just look at where we are right now for flood flows, and you were at some point, we can get into the technical like ninety twenty. But you probably don't want to. At some point, if something's categorized as a flood flow and under twelve forty two, if you are allowed to divert that water for flood flow purposes, you can recharge that water, but you never own it.

And that is very strange in the world of groundwater rights. It's a more practical application. The governor's executive order and things that preceded that law were hoping that people would just, frankly, get water out of the way to prevent flooding. But you cannot put it in the ground and say now it is only your right to extract that water later. There can never be, at least right now under the law, if you divert pursuant to flood flows, you don't own that water; you are just moving the molecules. To the extent that you could, let's say hypothetically, recharge a hundred acre feet from a valid flood flow diversion, you could put that in the ground, and it would certainly help our groundwater elevations, and it would probably create more water for overlying water right holders. But no one in particular owns and controls that amount of water. So when you divert flood flows

You simply don't have an ownership component. You're just moving molecules.

Christina, I don't know if you want to take that, but my sense is that we already have funds to do feasibility studies, and part of the feasibility studies is figuring out whether these projects can obviously be feasible, whether they can go forward, whether there's a lawful way to do recharge. One of the things that we're looking at under that existing grant funding is what are the rules? What are the rules that would apply to the recharge components of existing projects?

That would all probably be included in the accounting mechanism. We've worked with certain subbasins where they have really good areas and aquifers are not uniform. Some areas are really great and more bathtubby, and you can put water in and it goes, infiltrates really quickly. Sorry Christina, I'm sure it's painful for you to hear me talk about these technical components, but yeah, I mean it really is based on geology.

Again, in the top of the eastern San Joaquin Basin is a great example. They have plenty of surface water coming off the Mokelumne. They want to do recharge, but it just happens that where they could put that water, they have figured out it immediately leaves the basin, so it's not a great place for a recharge project. It's not a great place for investment because of that. And so, you look around and say, well, can we get it to another area where it doesn't do that? In general, that should probably be in a perfect project. That would be part of the accounting, and people would say, 'Hey, listen. We're going to assume 10% leaves, unless you know like I was telling you about that specific project, unless you know that it's way more than that, you can probably come up with an agreed upon number.' Again, it would probably be a leave-behind number accounting for some sort of physical attribute where you say, 'Hey, listen.'

X percent is probably going to leave. But again, in a perfect world, you'd understand; you'd have a particle tracking model where you'd understand where every single molecule went. But short of that, you kind of have to come to general agreements and general understanding.

Sure. I think what will happen is that we'll Review the feasibility and kind of. Put out a GSA. This is how the law would apply to these projects, and people are more than happy. And I Honestly, can say I welcome people saying, "Well, that can't be right," or "Why would you say that?" So. Any public comment and any pushback that you have on that, but again, it's going to be kind of how the law applies to these projects. And again happy to take public comment on that. Happy to.

Discuss why the law works the way it does. I am happy to take other people's thoughts on why they may agree or disagree with that. I don't think there is any helpfulness in having input on the front end of that. From my perspective, it's pretty mechanical. The rules are what they are. You feed them into the facts of the project. And then again, people can public comment or question that. I certainly welcome that.

Minus the ET. So if you were recharging by flood irrigation, you would say I just applied one hundred acres. I was estimating the trees or whatever the crop was used. This amount and the remainder has infiltrated. It's a pretty basic subtraction component. I know that in other projects, people have measured groundwater elevations really locally to make sure that it's actually doing that and they've measured infiltration rates too. But you're right, Todd. It does seem like you're putting water on. The big question is if someone else is taking it, if that water doesn't.

A hundred acre feet on you measured for the ET, and your math was great, but you have a neighbor who's You know, hot to trot and overdrafting a ton, and so you don't see groundwater elevation. Response: It's not because the water didn't infiltrate. It's just because someone's overdrafting and stole it. Again, I mean those are the tools that people are using right now. Thank you. Patricia.

Sure. The JPA is the document that the members have executed to form the agency. That's the GSA. It's a governance document. It doesn't really have anything to do with MTS, MOS or any ecological component. The JPA is often revised when members want a change, or membership changes or voting changes. Or any governance structure needs amendment or changes, those are usually triggers.

And I think that's probably related more frankly to the GSP than it is to the JPA unless you're talking about representation. But you know that we're currently undergoing a periodic review of the GSP, and certainly those are components that anyone in the public should really pay attention to. If you've got issues, comment on that process. It's kind of an ongoing process. There's tons of public meetings with the GSP.

Thanks, Rosina. It's always fun to work with you.