BILL ANALYSIS Ó
AB 452
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Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 452
(Bigelow) - As Amended April 21, 2015
SUBJECT: Water rights fees: limitation
SUMMARY: Prohibits the State Water Resources Control Board
(State Water Board) from using water rights fees collected under
the water rights program to fund Sustainable Groundwater
Management Act (SGMA) enforcement.
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,
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monitoring, changes to, and enforcement of, appropriative
permits, licenses, certificates, registrations, and water
leases (Water Rights Program).
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
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
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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:
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,
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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
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 prohibits the State Water Board from using
Water Rights Program fees to fund SGMA enforcement actions.
1)Purpose: 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 should be separated from various other fees."
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2)Consistency with Proposition 26: In 2010, the passage of
Proposition 26, the so-called "Stop Hidden Taxes" initiative,
amended the 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.
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 bill is consistent with the Proposition 26
requirement that the water rights fees that the State Board
collects must be tied to the reasonable regulatory costs of
the State's water rights program.
3)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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4)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."
5)Opposing arguments: 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.
6)Prior and Related Legislation: SGMA went into effect on
January 1, 2014. The Act and its related provisions were the
result of almost a year of intense stakeholder negotiations
culminating in the drafting of the three interlocking bills
that formed SGMA: SB 1168 (Pavley), Chapter 346, Statutes of
2014; AB 1739 (Dickenson), Chapter 347, Statutes of 2014; and
SB 1319 (Pavley), Chapter 348, Statutes of 2014.
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This bill is one of 13 bills proposing changes to SGMA and its
related statutes this session. The other bills are:
AB 453 (Bigelow) allows groundwater management plans adopted
prior to SGMA to be amended and extended.
AB 454 (Bigelow) adds one year to the deadline to form a GSA
or adopt a GSP.
AB 455 (Bigelow) requires 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) adds mutual water companies to GSAs.
AB 938 (Salas) makes minor technical changes to SGMA.
AB 939 (Salas) changes 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) prohibits 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) rebates 50% of all SGMA enforcement penalties
back to local governments and water districts for groundwater
recharge projects.
AB 1390 (Alejo) creates a streamlined process for groundwater
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adjudications and exempting them from SGMA, except minimal
reporting requirements.
SB 13 (Pavley) makes noncontroversial technical cleanup
changes to SGMA.
SB 226 (Pavley) adds a streamlined groundwater adjudication
section to SGMA.
SB 487 (Nielsen) exempts SGMA projects from CEQA.
7)Suggested Committee amendments: The author has taken
amendments to narrow the scope of the original bill but the
term "water rights fees" may need to be defined in order to
prevent later confusion.
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
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