BILL ANALYSIS Ó
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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BILL NO: SB 1386 HEARING DATE: May 8, 2012
AUTHOR: Lowenthal URGENCY: No
VERSION: April 12, 2012 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL: No
SUBJECT: Municipal Water Districts, Water Storage.
BACKGROUND AND EXISTING LAW
1.The coastal plain in Los Angeles County overlays a groundwater
basin known, descriptively, as the Coastal Plain of Los
Angeles Groundwater Basin. The 310,900 acre basin is composed
of four subbasins - two large subbasins known as the West
Coast Basin (91,300 acres) and Central Basin (177,000 acres),
and two much smaller subbasins known as the Santa Monica
Subbasin (32,100 acres) and Hollywood Subbasin (10,500 acres).
Natural replenishment of the Central Basin is largely from
surface inflow and some underflow from the San Gabriel Valley
through Whittier Narrows. West Coast Basin, in turn, receives
underflow from the Central Basin. The amount of underflow is
a matter of dispute.
2.When the coastal plain began to be developed in the late
1800s, groundwater quickly became the principle source of
water. Dependable sources of groundwater attracted industry
and agriculture, and in time, the demand for water exceeded
the natural replenishment of the basins.
To help quench their growing thirst, 13 cities joined together
to bring in water from the Colorado River via the newly
created Metropolitan Water District of Southern California
(MWD). Among the original members of MWD were three cities
that wholly or partly overlaid the Central Basin; Los Angeles,
Long Beach, and Compton.
In 1938, MWD board adopted a policy limiting annexations to
entire groundwater basins or subbasins, thereby shifting from
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city memberships to municipal water district membership. (See
#3 below)
3.In 1952, the Central Basin Municipal Water District was formed
to acquire and provide supplemental water to retail water
suppliers overlying the Central Basin groundwater subbasin.
The boundaries of the district are generally those of the
Central Basin groundwater subbasin excluding those parts of
the subbasin overlain by other MWD member agencies.
Consequently, Central Basin MWD overlays slightly less than 65
percent of the Central Basin groundwater subbasin.
Central Basin MWD is organized under the Municipal Water
District Law of 1911. Among other things, this law
authorizes, but does not require, districts organized under
its provisions to "acquire, control, distribute, store,
spread, sink, treat, purify, recycle, recapture, and salvage
any water, including sewage and storm waters, for the
beneficial use or uses of the district, its inhabitants, or
the owners of rights to water in the district."
In 1954, Central Basin MWD became a member agency of MWD.
Central Basin MWD purchases its water from MWD and then
wholesales it to public and private retail water suppliers and
to the Water Replenishment District of Southern California
(WRD).
In 2008, Central Basin MWD purchased from the San Gabriel
Valley Water Co. approximately 50 acre-feet of annual "allowed
pumping allocations" for groundwater from the Central Basin
groundwater subbasin. According to Watermaster records,
Central Basin MWD has yet to exercise those rights. (See #5
below)
4.In 1959, WRD was formed to replenish and maintain the West
Coast Basin and Central Basin groundwater subbasins by
purchasing imported water, recharging the basins, and halting
sea water intrusion. The boundaries of the district are those
of the combined West Coast Basin and Central Basin groundwater
subbasins.
WRD is organized under the Water Replenishment District Act.
Among other things, the Act grants WRD authority to "manage
and control water for the beneficial use of persons or
property within the district" and further authorizes the
district "to do any act necessary to replenish the ground
water of said district," including, but not limited to:
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Buy and sell water
Exchange water
Distribute water to persons in exchange for ceasing or
reducing ground water extractions
Spread, sink and inject water into the underground
Store, transport, recapture, recycle, purify, treat or
otherwise manage and control water for the beneficial use
of persons or property within the district
Build the necessary works to achieve ground water
replenishment
In 2003, the Court of Appeal found "WRD has authority to store
water for conjunctive use and has authority to manage the
storage space in the Central Basin." The court reasoned that
"Ýs]toring water for replenishment purposes is essentially the
same as storing water for conjunctive use."
On October 27, 2011, DWR designated WRD as the "monitoring
entity" for purposes of monitoring groundwater elevations
pursuant to SB7X6 of the 2009 water package.
1.In 1962, groundwater users of the Central Basin groundwater
subbasin began the legal process to have the basin
adjudicated. The purpose of the adjudication was to limit
groundwater extractions and create an exchange pool for
producers without access to supplemental water. The final
judgment in the case was signed in 1965 and became effective a
year later. The judgment has been amended twice.
As with most adjudications, the judgment quantifies water
rights and annual "allowed pumping allocations," provides for
transfers of allowed pumping allocations, establishes rules
for administering the adjudication including the appointment
of a "watermaster," and enjoins all parties from pumping more
water from the subbasin than is provided for under the
judgment. The court also reserved continuing jurisdiction
over specific aspects of the judgment, including:
"To provide for such other matters as are not contemplated by
the judgment and which might occur in the future, and which if
not provided for would defeat any or all of the purposes of
this judgment to assure a balanced Central Basin subject to
the requirements of Central Basin Area for water required for
its needs, growth and development."
Under the judgment, the court appointed DWR the watermaster
"to assist the Court in the administration and enforcement of
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the provisions of this judgment and to keep the Court fully
advised in the premises. To do so, the judgment assigns the
watermaster specific powers and responsibilities, including
to:
Require parties to provide reports, information and
records as necessary
Require all parties to install and maintain appropriate
measuring
Inspect ground water production facilities and measuring
devices
Prepare an annual report detailing the activities of the
previous year.
Prepare a budget for each administrative year estimating
the expense for administering the judgment
Adopt and amend rules reasonably necessary for the
Watermaster to carry out its duties, powers, and
responsibilities under the judgment
The judgment also assigns specific powers and responsibilities
to WRD. These include:
1. Declaring a "water emergency" - that conditions relating
to natural recharge and imported supplies of water are such
that the water resources of the Central Basin groundwater
subbasin risk degradation. Under a declared water
emergency, special provisions of the judgment apply.
2. During a declared water emergency, provide of up to
17,000 acre feet of additional pumping rights qualified
water purveyors. Specific conditions must exist before WRD
may provide those additional pumping rights. Some if these
conditions include:
WRD is in possession of a resolution of the MWD
board that there is an actual or immediately threatened
temporary shortage of MWDs imported water supply or
temporary inability to deliver MWDs imported water supply
throughout its area.
The Central Basin MWD board, by resolution, concurs
in the resolution of the MWD board.
Aside from requiring concurrence in the resolution of the MWD
board of a temporary shortage under the water emergency
provisions, the judgment does not assign any specific powers
or responsibilities to Central Basin MWD.
1.Unfortunately, in retrospect, the adjudication did not
directly address groundwater storage for conjunctive use.
Conjunctive use is the coordinated and planned management of
both surface and groundwater resources in order to maximize
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the efficient use of the resource. Water is stored in the
groundwater basin for later and planned use by intentionally
recharging the basin during years of above-average surface
water supply. Benefits of conjunctive use include
conservation, reduction in surface storage facilities, and
storage of water for periods of drought.
Estimates vary, but available storage in the Central Basin
groundwater subbasin is somewhere in the 300,000 acre-feet
range.
2.There has long been an interest on the part of most parties
concerned with the Central Basin groundwater subbasin to
better utilize and manage the storage space in the subbasin.
Given the long history of conflicts in the region over
groundwater management and storage, in November 2005 DWR
contacted James Waldo, a well-known expert in mediating
complex water disputes, to ask his assistance developing a
groundwater storage plan. Over the next three years, Mr.
Waldo worked with the various parties and stakeholders to
craft a framework of a solution.
Mr. Waldo's framework became the basis for a motion in 2009 to
amend the judgment. The motion was filed by WRD, California
Water Service Company, Golden State Water Company, and the
Cities of Lakewood, Los Angeles, Huntington Park, Long Beach,
and Vernon. The stated goal of the proposal is to utilize
330,000 acre-feet of "dewatered space" in the Central Basin to
store water for later use. The proposal includes multiple
provisions governing the storage and extraction of stored
water and other revisions to the judgment. Of particular note
are the proposals to:
Define the amount of storage space to be used
Establish categories of storage, including individual
accounts, a community pool, and regional projects
Allow transfer of stored water
Replace DWR as the watermaster with a "participative"
watermaster, consisting of three bodies:
1. Water Rights Panel, consisting of five parties
having water rights in the subbasin, including at least
one party having water rights of 3,000 acre feet or
fewer. The Chair would represent the watermaster before
the court.
2. Storage Panel, made up of the water rights panel and
the WRD board.
3. Administrative Body, consisting of WRD.
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The motion was challenged by the Cities of Cerritos, Downey,
and Signal Hill, with Central Basin MWD intervening on their
behalf. The California Supreme Court is currently considering
whether to hear an appeal by Cerritos et al. regarding whether
the trial court has jurisdiction to consider the motion to
amend, among other issues.
1.In November 2011, Central Basin MWD issued a Draft
Programmatic Environmental Impact Report (PEIR) for the
"Central Basin Groundwater Storage Plan: Blueprint for Future
Reliability."
According to the Draft PEIR, "the proposed Program includes
acquiring and storing water in the Central Basin to improve
the reliability of CBMWD's water portfolio. Once fully
implemented, the proposed Plan would utilize some portion of
the available groundwater storage space in the Central Basin.
This storage generally would serve emergency, operational and
pre-delivery needs for local water agencies, purveyors, and
their customers. CBMWD will also ensure that the economic
benefits of this valuable local and regional asset are
distributed equitably throughout its service area and the
region and that any state and federal funds that are available
to develop this resource are optimized."
The comment period on the Draft PIER ended March 1, 2012.
Central Basin MWD staff are now developing responses to the
comments, and intend to bring to their board a final PIER for
adoption sometime in the June-July time period.
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PROPOSED LAW
This bill would amend the Municipal Water District Act to bar
the Central Basin MWD from:
1.Managing, controlling, or administering the importation of
water for storage, or the storing of groundwater.
2.Storing water underground except pursuant to either:
A contract with an independent holder of adjudicated
groundwater extraction rights within the boundaries of the
district and for the account of the water rights holder.
A court order issued by a court having jurisdiction over
the adjudication of groundwater extraction rights within
the groundwater basin where storage is sought.
ARGUMENTS IN SUPPORT
The letter from the Bell Gardens Chamber of Commerce is typical.
"For more than 50 years and until quite recently, the
'groundwater' role of the Water Replenishment District of
Southern California and the 'imported surface water' role of the
Central Basin MWD have been acknowledged and respected by the
two districts. Historically, customers of the two districts deal
with the Water Replenishment District on groundwater matters and
the Central Basin Municipal Water District on imported surface
water matters."
"This bill is necessary because in recent years, the Central
Basin Municipal Water District has inserted itself into the
groundwater arena, first by purchasing groundwater extraction
rights it does not use and then by relying on those rights to
file or intervene in groundwater litigation. The District has
sponsored unsuccessful legislation naming itself the groundwater
overseer of Central Basin. And, most recently, the Central Basin
MWD has funded a Program Environmental Impact Report to control
all groundwater in the district, an action opposed by the vast
majority, if not every groundwater producer in both groundwater
basins."
"The costs of Central Basin MWD's campaign to expand into the
groundwater business have been deleterious, costing ratepayers
millions of dollars as we pay for litigation costs on both
sides. It has also stymied regional efforts to access and
maximize the groundwater storage capacity of the Central and
West Coat Basins, delaying critical projects to increase water
supply reliability and programs to reduce Southern California's
reliance of imported water from the Bay Delta and the Colorado
River."
"The Legislature has taken steps to provide statutory guidance
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and clarification in instances where the functions are not
explicitly defined and where potential statutory conflict is
acknowledged. We need the Legislature to step in once again to
Ý?] clear up existing statutory conflict and eliminate statutory
language the Central Basin Municipal Water District relies on to
assert groundwater storage authority."
ARGUMENTS IN OPPOSITION
According to Central Basin MWD, "SB 1386 singles out the Central
Basin Municipal Water District, removing our authority over
groundwater management. This would open the possibility of
providing these powers to the Water Replenishment District of
Southern California (WRD). Providing WRD with expanded
authority is not the solution to ensure our region's water
supply and affordability, as they have been subjected to
numerous restrictions by the Legislature for financial
mismanagement have been sued by cities within ÝSenator
Lowenthal's] district for the uniform application of the
Replenishment Assessment, which has been found by the Los
Angeles Superior Court to be illegal. The uniform application
also unfairly burdens cities within the Central Basin, who
subsidize groundwater pumpers in the West Basin, as detailed in
studies by the Southeast Water Coalition."
"These and other issues related to WRD's mismanagement of funds
and resources continue to play out in the California Supreme
Court with one case concerning the West Coast Basin and WRD
being accepted in December of 2011 for review. It is our
concern that this legislation would interfere with the legal
proceedings concerning the proper steward of groundwater basins
and the constitutionality of the replenishment assessment of
WRD."
"Finally, SB 1386 sets a dangerous precedent for all California
water agencies. We have yet to see any justification for the
targeted attack this bill makes on a single water district. The
passage of this legislation would unduly impede Central Basin's
ability to perform its core functions and would pave the way for
future attempts to usurp the power of one agency and provide it
to another."
COMMENTS
Who's in charge? While both supporters and opponents of this
bill continue to squabble over a wide range of complaints that
have raged for years, this bill is focused on a fairly simple
question: Who is best suited to manage groundwater storage in
Central Basin? The author and his supporters believe that WRD,
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under the provisions of motion to amend the judgment, is the
best choice. Central Basin MWD disagrees, believing that they
are the more appropriate agency.
Special provisions for special cases. It is not unusual for the
Legislature to amend the Municipal Water District Law of 1911 to
address issues unique to specific municipal water districts.
More often than not, the special provisions identify the
specific district by name. Districts with special provisions
under that act include:
Big Bear MWD
Casitas MWD
Chino Basin MWD
Eastern MWD
Elsinore Valley MWD
Lake Hemet MWD
Marin MWD
Otay MWD
Pomona Valley MWD
Rainbow MWD
Ramona MWD
Rincon Del Diablo MWD
San Luis Rey MWD
Three Valleys MWD
Western MWD
Not the only issue, but an important one. There are a whole
host of water management issues in this area, and most of them
are being litigated. In the meantime, the groundwater subbasin
is being underutilized for conjunctive use. There are two
problems. First, the issue addressed by this bill, is the
question of who should or should not be in charge of groundwater
storage. The second problem is that while under the current
judgment, it is relatively easy to legally put water into the
subbasin, it is at best uncertain how one might legally maintain
ownership or control of that stored water and then withdraw it
when needed. That problem will continue to exist unless and
until the judgment is amended to specifically address
groundwater storage.
Clarity would be helpful. The parties repeatedly demonstrate
that they are incapable of resolving their conflicts on their
own. The relationships between the Water Replenishment
District, Central Basin Municipal Water District, West Basin
Municipal Water District, and the groundwater users in the two
subbasins (aka, the pumpers) have long been tumultuous. The
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contentious issue du jour changes frequently, as do the
political alliances of convenience. The parties have strongly
held positions, mediation has yet to result in consensus, and it
will be years before the courts resolve the current set of
lawsuits, to say nothing about those that will be filed in the
future.
Timing is an issue. As noted above, Central Basin MWD staff
intend to bring to their board a final PIER for adoption
sometime in the June-July time period. Once that is done, it
seems inevitable that someone will sue Central Basin MWD and
seek injunctive relief. This bill, presuming it passes the
legislature and is signed by the Governor, would not become
effective until January 1, 2013.
Where is the Watermaster? DWR has commented on both the WRD et
al. motion to amend the judgment and on the Central Basin MWD
Groundwater Plan.
On April 6, 2009, Mark Cowin, then Deputy Director now Director
of DWR, filed a declaration in support of the motion to amend
the judgment. "DWR supports the proposed Judgment Amendments as
a solution to beneficially use the storage space in the Central
and West Coast Basins, enable the region to implement strategies
appropriate for its own needs and become more self-sufficient.
Approval of the Judgment Amendments is consistent with the
goals, objectives and strategies of the California Water Plan,
and, will help ensure a more sustainable and reliable water
supply for the communities underlying the Basins."
On March 3, 2011, Mark Stuart, Watermaster, wrote to Central
Basin MWD regarding its February 2011 Notice of Preparation.
"Among other duties, Watermaster monitors all groundwater
extractions from the basin to ensure that they are within the
limits prescribed in the Central Basin Judgment Ýcitation
omitted]. The Judgment says that 'Ýe]each party Ý?] is enjoined
and restrained Ý?] from extracting from Central Basin any
quantity of Water greater than the party's Allowed Pumping
Allocation Ý?].' Watermaster considers any extractions in
excess of the limits set by the Judgment to be a violation of
the Judgment. Watermaster believes that your proposed project
may result in extractions that would be out of compliance with
the Judgment."
The Draft EIR did not erase, solve, dismiss, or invalidate the
watermaster's concerns expressed in the March 3, 2011 letter.
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People in glass houses ? As with any issue associated water
management in or around the West Coast Basin or Central Basin
groundwater subbasins, there are numerous assertions that one
party or another is or has behaved questionably. Given the
history of the last 20 years or so, it is not a stretch to say
that nobody has particularly clean hands.
JLAC Audit. Some have asserted that the current audit approved
by the Joint Legislative Audit Committee on "Los Angeles
County-Water Cost and Delivery" is relevant to the policy issues
raised by this bill. Perhaps, but only tangentially.
According to JLAC's analysis of the audit request,
"Assemblymember Lara is concerned that retail customers and
businesses in Los Angeles County may be paying excessive water
rates and wants to understand the significant factors
contributing to water rates at the wholesale level and at the
retail level, including both private and public agencies."
Accordingly, "Assemblymember Lara is requesting an audit of the
rising cost of water in Southeast Los Angeles County.
Specifically, the audit should focus on the significant factors
contributing to the cost of water."
True, as a part of the audit JLAC intends to identify the roles,
regulations, and rules related to the delivery and sale of water
in Southern California. However, that is only to set the
context for the audit of water rates for various water agencies.
It might be that the audit will shed light on the cost effects
of not better utilizing groundwater storage. However, it seems
more likely that the audit will highlight the costs associated
with ongoing squabbles in the region.
SUGGESTED AMENDMENTS: None
SUPPORT
Bell Gardens Chamber of Commerce
Central Basin Water Association
City of Norwalk
City of South Gate
City of Torrance
Congress Person Grace F Napolitano
Long Beach Board of Water Commissioners
South Bay Latino Chamber of Commerce
Southeast Water Coalition
Water Replenishment District of Southern California
West Basin Water Association
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OPPOSITION
Central Basin MWD
City of Bell Gardens
City of Cudahy
City of Montebello
San Gabriel Valley Water Company
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