BILL ANALYSIS Ó
SB 757
Page 1
SENATE THIRD READING
SB 757 (Berryhill)
As Amended August 22, 2014
Majority vote
SENATE VOTE : Vote not relevant
SUMMARY : Requires local agencies in high and medium priority
basins that are in a condition of long-term overdraft to form a
groundwater management agency (GMA) or group of GMAs by January
1, 2018, and to self-certify a groundwater management plan (GMP)
or set of GMPs for the basin by January 31, 2020. Compels
counties to assume groundwater management duties if no other
local agency steps forward in an area. Specifically, this bill :
1)Adopts a policy statement regarding groundwater management.
2)Changes existing water rights law by declaring groundwater
storage, in and of itself, to be a beneficial use of water.
3)Adds a new part 2.74 entitled Groundwater Management to the
Water Code directly before the existing part 2.75 entitled
Groundwater Management.
4)Enacts the Groundwater Management Act (Act).
5)Limits the requirements of the Act to management of high and
medium priority basins that are in a condition of long-term
overdraft.
6)Exempts from all requirements of the Act, except copies of
documentation, any local agency that conforms to the
requirements of an adjudication of water rights in a
groundwater basin or to that groundwater basin and includes,
but is not limited to, a stated list of groundwater basins
that are legally adjudicated.
7)Defines various terms, including that a de minimis user of
groundwater is one who pumps 20 acre-feet or less annually.
8)Uses the basin boundaries established by the Department of
Water Resources (DWR) in Bulletin 118, but allow DWR to
reprioritize basins or adjust boundaries.
9)Requires DWR to adopt regulations on basin boundary
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adjustments.
10)Allows any local agency or combination of local agencies to
elect to be a GMA.
11)Exempts from the California Environmental Quality Act (CEQA):
GMA formation; and, GMP development, adoption, amendment,
implementation or enforcement. Construction or installation
of new facilities are not exempted but neither term is
defined.
12)Requires, in an area that is not already managed by a GMA
(unmanaged area), that a local agency formation commission
(LAFCO) complete all proceedings on the formation of a new GMA
for that area, or annexation into an existing GMA, within 180
days.
13)Compels a county or counties in a basin to:
a) Be a GMA; or,
b) Develop a GMP and enter into a coordination agreement
with other GMAs; or,
c) Join a joint powers authority (JPA) that is the GMA for
the basin so that the unmanaged area is subject to the GMP
for the basin.
14)Provides the GMA with broad powers including, but not limited
to, conducting investigations, registering groundwater
facilities, requiring well metering or other measurement, and
requiring reporting of groundwater withdrawals for any
extractor over 20 acre-feet annually.
15)Allows the GMA to validate an existing groundwater
conjunctive use program of another agency.
16)Allows a GMA to regulate extractions from groundwater wells,
including but not limited to establishing well-spacing
requirements on new groundwater wells, and regulate, limit, or
suspend extractions from individual groundwater wells or
groundwater wells in aggregate.
17)Authorizes, unless prohibited by law, a GMA to impose any
requirement or impose any penalty or fee on the state or any
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agency, department, or officer of the state. Require state
agencies and departments to comply with GMPs to the same
extent as private parties.
18)Requires a GMA to develop a GMP in each high and medium
priority basin that is in a condition of long-term overdraft
and specify mandatory and optional GMP elements including, but
not limited to, measurable objectives and interim milestones
that will allow the GMP to meet the management goal for the
long-term beneficial uses of groundwater within 20 years of
the implementation of the plan.
19)Requires, by January 31, 2020, and every five years
thereafter, that a GMA self-certify that its GMP meets the
management goal of responsible groundwater management and
submit that self-certification to DWR.
20)Requires DWR or a GMA to provide technical assistance to
entities that extract or use groundwater.
21)Requires DWR to develop advisory best management practices
through a public process, as specified.
22)Allows a GMA to charge fees for activities and services
related to the GMP.
23)Allows the GMA to bring suit to recover delinquent fees and
recover litigation fees if it is the prevailing party.
24)Requires DWR to develop regulations governing the evaluations
of GMPs and to periodically evaluate them.
25)Allows a GMA a minimum of 180 days to remedy a deficiency if
DWR finds a GMP is out of compliance.
26)Includes a statement that the Legislature intends to develop
a streamlined adjudication process.
27)Allows the State Water Resources Control Board (State Water
Board) to designate a noncomplying basin as a probationary
basin if, after providing at least 180 days to cure any
deficiencies, the State Water Board determines:
a) By January 1, 2018, there is no GMA or group of GMAs for
the basin; or,
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b) By January 31, 2020, there is no GMP or equivalent for
the basin; or,
c) DWR determines the GMP for the basin is deficient.
28)Allows the State Water Board to address a probationary
basin's management deficiencies by either:
a) Initiating a legal adjudication action for the basin;
or,
b) Developing an interim plan for the basin with remedial
actions after providing a 90-day notice of intent to
develop an interim plan to any GMA, the County, and by
publication intended to reach landowners, groundwater
rights holders, and groundwater users.
29)Requires state entities to comply with the State Water
Board's interim plan or provide an explanation, in writing, of
why they are not complying.
30)Allows initiation of a legal adjudication action by:
a) A GMA if a GMP has not been adopted and only if it finds
an adjudication is the most efficient means of achieving
responsible groundwater management;
b) By DWR or the State Water Board if all of the
qualifications and limitations on designating a
probationary basin are met; or,
c) By landowners, groundwater rights holders, or
groundwater users in the basin.
31)Allows a GMA to intervene as a matter of right in an
adjudication.
32)Directs the court in an adjudication to determine rights to
groundwater in a basin, appoint a water master, and retain
continuing jurisdiction to resolve disputes.
33)Allows a court to impose a GMP in lieu of an adjudication if
a landowner or landowners that control at least 50% of the
land in the basin and the GMA, if any, agrees.
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34)Prohibits a court from apportioning or awarding costs to any
party in an adjudication.
35)Allows a GMA to be a California Statewide Groundwater
Elevation Monitoring (CASGEM) program entity.
36)Requires information-sharing between local land use agencies
and GMAs.
COMMENTS : This bill was substantially amended that previously
dealt with junk dealers and recyclers. This bill takes partial
language from SB 1168 (Pavley) of the current legislative
session, and AB 1739 (Dickinson) of the current legislative
session, which are known collectively as the Sustainable
Groundwater Management Act and are currently pending in the
Senate and Assembly, and introduces new and sometimes confusing
definitions, reinserts some language that was previously
rejected during the stakeholder process that was used to develop
SB 1168 and AB 1739, and omits many of the refinements that were
subsequently developed in that stakeholder process. The
following is a partial list of problematic issues in this bill.
Potential Interference with Surface Water Rights. This bill
purports to make water stored in the ground in and of itself a
beneficial use of water. This is legally problematic because it
conflates putting water to beneficial use (taking an affirmative
action) with a state of being: water is in the ground. That
undermines State Constitutional requirements that water must
continuously, beneficially and reasonably used and could enlarge
"paper water rights" to the detriment of other water-rights
holders.
No Ounce of Prevention, No Pound of Cure. Under this bill
requirements for groundwater management plans are limited to
those high and medium priority basins that are already in
long-term overdraft, a highly-degraded condition. There are no
planning functions in this bill for other high and medium
priority basins that are heavily relied upon. This bill then
allows groundwater management agencies to "self-certify" their
plans with no requirement for State agency review, instead
allowing DWR the option of reviewing plans.
Unfunded and Open-Ended State Obligations. This bill mandates
DWR provide technical assistance in response to any request from
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a GMA, without qualification. This bill requires the State
Water Board to intervene if no governance, no plan, or an
insufficient plan in a basin. But, unlike the provisions
regarding local agencies, this bill does not provide the State
Water Board with an ability to require reporting of extractions
or fund its management. In contrast, this bill allows local
agencies to "impose any requirement" on the State and charge any
penalty or fee on the State or any agency, department or officer
of the State that it would impose on a private party, unless
prohibited by law.
Confusing Definitions, Unintended Consequences. This bill
engages in circular reasoning by purporting to require a GMP to
meet the threshold of sustainable management but defining
sustainable management to include a chronic lowering of
groundwater levels as long as that is consistent with the GMP.
This bill also exempts from responsible groundwater management
all agencies that are conforming to an adjudication of water
rights in a basin and all basins where there is an adjudication
of water rights, even if those local agencies or basins include
areas that are not subject to the adjudication. This bill also
exempts any 20 acre-foot or less extraction of groundwater from
responsible groundwater management, without regard to cumulative
effects of 20 acre-foot extractions.
Compels counties to take over groundwater management duties.
This bill dictates counties must take over groundwater
management in any "unmanaged area" irrespective of the ability
of the County to do so.
No requirement for a diversity of interests in planning. This
bill states a GSA should articulate its process for including
stakeholders and can consult with an advisory group but includes
no requirements for a minimum diversity of interests and no
documentation of how interests were considered.
Majority landowner control of adjudications. This bill could
impair the ability of parties to a legal adjudication to seek a
final determination of their rights by allowing any landowner or
landowners that control 50% of the property in a basin,
irrespective of their level of groundwater reliance, to combine
with groundwater management agencies, if any, in a basin and
stipulate to a groundwater management plan instead of a final
decree.
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No allowance for tribal involvement. This bill has no
provisions allowing tribes to voluntarily participate with local
agencies in groundwater management and no protection of tribes'
sovereign rights if they do participate.
Provides broad CEQA exemptions. This bill exempts from the CEQA
GMA formation and well as GMP development, adoption, amendment,
implementation or enforcement. It caveats that with a statement
that construction or installation of new facilities are not
exempted but does not define what those terms mean. This bill
takes the CEQA exemption in SB 1168 for GMP development, which
was modeled on the CEQA exemption for urban water management
planning, and creates a precedent by broadening it to encompass
many other activities such as potential new agency formation
under LAFCO or the implementation of an action (increased
groundwater pumping under the plan, even if it worsens
overdraft) as long as no new facilities are constructed.
Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916)
319-2096
FN: 0005381