The groundwater gold rush is on. New projects to divert rivers for groundwater recharge are popping up across the state. Most of these projects are temporary, but most also explicitly foresee long-term, permanent projects. These recharge projects threaten to divert still more water from already-depleted rivers, even as the State Water Resources Control Board (State Water Board) finally begins the update of the Bay-Delta Plan, which starts from the premise that rivers need more water, not less.
The threat is enormous in scale. Diversions to recharge groundwater don’t have to show use of the water for up to five years. Because so many aquifers are already overdrafted, places in the ground to put water are almost unlimited. The limitations on these projects are thus economic, technical, and regulatory.
There are few established rules for when rivers have enough water to allow diversions to groundwater storage. For several years, the State Water Board has been using a 13-page “Guideline” called the “Water Availability Analysis for Streamlined Recharge Permitting” to allow temporary water rights for purposes of recharge. That Guideline established a default called the 90/20 Rule, which it explained as follows: “The 90th Percentile/20 Percent method explicitly assumes that flows above the 90th percentile daily flow, between December 1 and March 31, are protective of aquatic ecosystem functionality if the total amount of water diverted is capped at 20 percent of the daily flow.” The Guideline also set an alternative method that allowed diversions for recharge during the December 1 through March 31 period when “flows exceed thresholds that trigger flood control actions necessary to avoid threats to human health and safety. These thresholds and actions need to be established in written flood management protocols adopted by a flood control agency.”
The Guideline had the benefit of at least trying to make a general evaluation of when flows were truly high enough to allow limited additional diversions. But the Guideline’s flows were already skimpy. They looked at the flow at the point of diversion, but not in rivers downstream. They also did not consider the cumulative effect of diversions. Thus, for the Bay-Delta estuary, the only flow requirement was that the Delta had to be in “Excess Conditions”: the state and federal water projects could not be releasing water from storage to meet the existing inadequate flow and water quality requirements under Water Rights Decision 1641.
The scrum is now underway to make the rules have even fewer restrictions. The Newsom administration is leading the charge to keep the rules for diversion of surface water to groundwater as weak as possible. This is consistent with the Newsom administration’s general view that the solution to the state’s overallocation and overappropriation of water is to capture more water. (See also, CSPA-FOR protest, Sites Reservoir).
On March 10, 2023, Governor Newsom issued Executive Order N-4-23. Taking the State Water Board’s Guideline a step further, Order N-4-23 suspended until 2024 the need for a water right permit, a streambed alteration permit, and environmental review under CEQA for diversions of surface water to groundwater recharge during “flood” conditions. It weakened the definition of flood conditions to allow almost any government agency to declare such conditions, with very vague limitations. It also allowed temporary diversions with only rudimentary fish screens. Finally, it provided little assurance that water diverted to agricultural fields would not pollute the underlying groundwater. Governor Newsom’s pretext for these measures was the “ongoing drought emergency,” regardless of the fact that 2023 was well on its way to becoming one of the wettest water years in recent history.
The drought pretext didn’t last long. In July 2023, a budget trailer bill signed by the Governor made these changes permanent until 2029. (The trailer bill did somewhat strengthen requirements for fish screens and protection of groundwater water quality).
Now, various water agencies and engineering consultants are testing how far they can weaken flow requirements for water rights to divert surface water for groundwater recharge. The weaker the rules, the more likely water users will invest in facilities to divert more water. A weak Bay-Delta Plan would also, of course, make more diversions more feasible and more investments more attractive.
In September 2023, South Sutter Water District tried the predictable gambit of seeking to divert all the water it could divert and recharge over and above the (soon-to-be-implemented) required minimum flows, provided the Delta is in Excess Conditions. Accordingly, CSPA filed an Objection to South Sutter’s application on October 16, 2023.
CSPA will seek appropriate constraints on the groundwater gold rush each step of the way. CSPA will:
- Advocate for a strong Bay-Delta Plan that protects high flows from diversion throughout the Bay-Delta watershed.
- Advocate for requirements that diversions of surface water to groundwater go through complete water rights permitting, including CEQA and streambed alteration permits.
- Advocate for strong default regulations and policies to protect flows in rivers and the Delta from diversions of surface water to groundwater.
- Oppose abusive transfers (water sales) of water diverted for recharge.
- Advocate to recalculate individual and cumulative amounts of surface water depletion from groundwater pumping.
- Advocate for strong protections to assure that recharge practices do not pollute groundwater.
- Advocate that all approved diversions have fish screens that are compliant with fish agency guidelines.
- File objections to bad projects or inadequately conditioned projects as they happen.