BILL ANALYSIS Ó
AB 452
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Date of Hearing: April 14, 2015
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 452
(Bigelow) - As Introduced February 23, 2015
SUBJECT: Sustainable Groundwater Management Act: enforcement
SUMMARY: Limits funding the State Water Resources Control Board
(State Water Board) can use to implement and enforce the
Sustainable Groundwater Management Act (SGMA). Specifically,
this bill:
1)Revokes authority for the State Water Board to use Water
Rights Fund monies to carry out SGMA and expressly prohibits
using Water Rights Fund monies for SGMA enforcement;
2)Creates a Groundwater Regulation Subaccount in the Water
Rights Fund;
3)Directs the State Water Board to deposit into the Groundwater
Regulation Subaccount amounts it recovers from:
a) SGMA enforcement violations;
b) Fees accompanying direct reports of extractions by
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persons subject to SGMA but with no local Groundwater
Sustainability Agency; and,
c) Fines collected for making a false report or willful
misstatement in a report of groundwater pumping or
measurement.
4)Authorizes the State Water Board to use fees available in the
Groundwater Regulation Subaccount, upon appropriation by the
Legislature, for SGMA enforcement activities.
EXISTING LAW:
1)Requires State Water Board to adopt, by emergency regulations,
an annual schedule of water rights fees and to adjust the fees
annually to conform to the revenue levels set forth in the
Budget Act.
2)Requires all water rights fee revenue be deposited in the
Water Rights Fund.
3)Authorizes the State Water Board to assess water rights fees
that include, but are not limited to, the issuance, review,
monitoring, changes to, and enforcement of, appropriative
permits, licenses, certificates, registrations, and water
leases.
4)Authorizes the State Water Board to enforce, and collect fines
for, illegal water diversions.
5)Requires the Department of Water Resources (DWR) to evaluate
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groundwater basins and designate them as high, medium, low or
very low, according to various factors including, but not
limited to, level of dependence upon the basin by municipal
and agricultural users;
6)Requires that local agencies in high- and medium-priority
groundwater basins subject to SGMA form one or more local
Groundwater Sustainability Agencies (GSAs) by June 30, 2017 in
order to develop and implement Groundwater Sustainability
Plans (GSPs) that sustainably manage the groundwater basin or
subbasin, as defined.
7)Requires that GSAs in basins with chronic overdraft develop
and adopt GSPs for their basin or subbasin by January 31,
2020.
8)Requires that GSAs in all other high- and medium-priority
basins subject to SGMA develop and adopt GSPs by January 31,
2022.
9)Delays enforcement for failure to a adopt a GSP in a high- or
medium-priority basins that is in a condition where
groundwater extractions result in significant depletions of
interconnected surface waters until January 31, 2025.
10)Requires that adopted GSPs utilize a 50 year planning horizon
that will achieve sustainability in a basin or subbasin within
20 years and include identified milestones at five year
intervals.
11)Defines sustainable groundwater management in a GSP as
avoiding undesirable results in the basin or subbasin from
groundwater pumping such as significant and unreasonable:
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lowering of groundwater levels: reduction of groundwater
storage; seawater intrusion; degraded water quality; land
subsidence; and, depletions of interconnected surface waters.
12)Provides GSAs with optional tools for reaching sustainability
including, but not limited to, the ability to conduct
investigations, collect fees, limit pumping, require
measurement and reporting of groundwater extractions, monitor
compliance, charge civil penalties for violations, and
implement plans and programs to recharge a basin or subbasin.
13)Authorizes the State Water Board to declare a basin in
probationary status and adopt an interim plan for a basin,
subbasin, or portion of a basin or subbasin, under three
narrow circumstances:
14)There is no GSA for all or a portion of a basin or subbasin
by June 30, 2017;
15)There is no GSP for all or a portion of a basin or subbasin
by the relevant deadline; or,
16)A submitted GSP is deemed inadequate by DWR and there is also
either:
17)Chronic overdraft in the basin or subbasin; or,
18)Groundwater pumping is causing a significant depletion of
interconnected surface waters in the basin or subbasin.
19)Allows the State Water Board, in an area that has no GSA by
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June 30, 2017, to require direct reporting of groundwater
extractions and to charge fees to administer that program.
20)Allows the State Water Board, when a basin is deemed
probationary, to charge fees for interim management and fines
for enforcement, including fines for material misstatements in
reports of groundwater extraction or measurement.
FISCAL EFFECT: Unknown
COMMENTS: This bill would limit the State Water Board's ability
to use Water Rights Fund monies to initiate SGMA enforcement
actions. This bill requires that only fees collected from SGMA
enforcement actions can be used to fund other SGMA enforcement
actions.
The author states that this bill is needed to confirm that money
in the Water Rights Fund "will get used how it was originally
intended to be used" and that "water rights fees and penalties
should be separated from various other fees." However, the
California Constitution already limits the use of water rights
fees to administration of the water rights program. Penalties
were excluded from that requirement because they are not meant
to benefit the lawbreakers from whom they are collected.
Existing Water Rights Fund limitations
In 2010, the passage of Proposition 26, the so-called "Stop
Hidden Taxes" initiative, amended California Constitution with
regard to state and local fees. The state provisions make any
levy charge, or exaction, of any kind, a tax requiring the
approval of a supermajority of the Legislature, with certain
exceptions.
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A primary exception is that a State fee is not considered a tax
if it is equivalent to the "reasonable regulatory costs" to the
State of issuing licenses and permits, performing
investigations, inspections and audits, enforcing agricultural
marketing orders or enforcing or adjudicating those activities.
This means that Proposition 26 already requires the water rights
fees that the State Board collects to be tied to the reasonable
regulatory costs of the State's water rights program.
Fines, penalties, or other monetary charges imposed by the State
or the Courts for violations of law were made expressly exempt
under Prop. 26. That makes sense as fines are meant to be
punitive. They are not required to benefit the class of
violators.
Water Rights Fund use is the subject of existing litigation
Since 2004, the State Water Board has been statutorily required
to adopt emergency regulations
revising and establishing water right fees to be deposited in
the Water Rights Fund and revising fees for water quality
certification. In addition to assessing annual fees and
one-time filing fees, the State Water Board may pass through
fees to federal water contractors who contract for water supply
under a federally held water right (commonly referred to as the
"pass-through fees"). The State Water Board must set a fee
schedule that will generate revenues in the amount appropriated
by the Legislature for expenditure from the Water Rights Fund
for support of water right program activities. The State Water
Board also must review and revise the fees each fiscal year as
necessary to conform to these revenue levels. Each year since
the State Water Board first adopted emergency water right fee
regulations in 2003, it has been sued by agricultural and
water-user interests. The litigation is still pending.
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Supporting arguments. Supporters state that this bill would
ensure that only moneys in the Groundwater Regulation Subaccount
would be available for SGMA enforcement. Supporters add that
this bill would prohibit moneys in the subaccount from being
used to fund regulatory activities related to surface water
rights. Supporters state that this bill ensures that revenues
derived from fees on water rights permits and licenses are not
comingled with fees or penalties imposed pursuant to SGMA
because the "former are imposed for and benefit the
administration of surface water rights, while the latter are
related to groundwater management." Supporters state they want
to keep surface water and groundwater separated as "two
programmatic areas of responsibilities."
Opposing arguments. Opponents state that this bill limits the
State Water Board's ability to administer and enforce local
groundwater plans by narrowing its ability to collect fees to
recover costs. Opponents state the success of SGMA depends on
the ability of the State Water Board to act to ensure
sustainable groundwater management when a local entity fails to
do so. Opponents point out that restricting the State Water
Board's abilities to use money existing in the Water Rights Fund
for SGMA enforcement continues to impose the mistaken
distinction between surface water and groundwater that has
persisted in California law for centuries. Those opponents
maintain the State Water Board should have the discretion to
apply all water right violation funds for water rights
management, wherever the need exists.
Related Legislation
This is one of 14 bills in the Legislature proposing changes to
SGMA and its related statutes. The other bills are: AB 453
(Bigelow) allowing groundwater management plans adopted prior to
SGMA to be amended and extended; AB 454 (Bigelow) adding one
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year to the deadline to form a GSA or adopt a GSP; AB 455
(Bigelow) requiring the Judicial Council to come up with a
270-day process for completing all California Environmental
Quality Act (CEQA) legal challenges to SGMA projects; AB 617
(Perea) adding mutual water companies to GSAs; AB 938 (Salas)
making minor technical changes to SGMA; AB 939 (Salas) changing
the time period for providing technical data upon which a fee is
based from 10 days to 20 days before the meeting to adopt the
fee; AB 1242 (Gray) prohibiting the State Water Board from
setting in-stream flows standards unless the Board mitigates for
the potential local response of increased groundwater use; AB
1243 (Gray) rebating 50% of all SGMA enforcement penalties back
to local governments and water districts for groundwater
recharge projects; AB 1390 (Alejo) creating a streamlined
process for groundwater adjudications and exempting them from
SGMA, except minimal reporting requirements; AB 1531
(Environmental Safety and Toxic Materials Committee) making
minor technical changes to SGMA; SB 13 (Pavley) making
noncontroversial technical cleanup changes to SGMA; SB 226
(Pavley) adding a streamlined groundwater adjudication section
to SGMA; and SB 487 (Nielsen) exempting SGMA projects from CEQA.
REGISTERED SUPPORT / OPPOSITION:
Support
Association of California Water Agencies
Rural County Representatives of California
Valley Ag Water Coalition
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Opposition
Center for Biological Diversity
Clean Water Action
Community Water Center
Leadership Council for Justice and Accountability
Natural Resources Defense Council
Sierra Club California
Analysis Prepared by:Tina Cannon Leahy / W., P., & W. / (916)
319-2096
AB 452
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