BILL ANALYSIS Ó
AB 617
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Date of Hearing: April 14, 2015
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 617
(Perea) - As Proposed to Be Amended April 14, 2015
SUBJECT: Sustainable Groundwater Management Act
SUMMARY: Substantially modifies portions of last year's
Sustainable Groundwater Management Act (SGMA). Specifically,
this bill:
1)Modifies the current SGMA prohibition against counting any
increase in groundwater pumping during the period that a
Groundwater Sustainability Plan (GSP) is under development as
the basis for a later groundwater claim. Instead, this bill,
allows the prohibition to terminate (and thus potentially a
later claim to increased pumping) whenever a local agency
takes "any action to control groundwater extractions," even if
it occurs before a GSP is adopted. Makes other technical
changes to the scope of the prohibition.
2)Defines "in lieu use" to mean the use of surface water by
persons that could otherwise extract groundwater in order to
leave groundwater in the basin.
3)Allows a private mutual water company to:
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a) Join GSAs formed by one or more public agencies pursuant
to a Joint Powers Agreement (JPA); and,
b) Exercise all of the GSA powers provided by SGMA.
4)Allows Groundwater Sustainability Agencies (GSAs) to enter
into public/private partnerships to facilitate the
implementation of GSPs or elements of GSPs.
5)Waives state sovereignty and subjects state agencies to local
agencies' GSPs unless a state agency is otherwise directed or
authorized by statute. Requires all state agencies to
indicate in writing to GSAs any grounds for noncompliance.
6)Deletes the requirement that when multiple GSAs in the same
groundwater basin intend to adopt multiple GSPs then they must
utilize the same data and methodologies and instead allows
multiple GSAs adopting multiple GSPs to describe in their
coordination agreements how they will use consistent data and
methodologies.
7)Specifies that the California Environmental Quality Act (CEQA)
does not apply to the formation or election of a GSA.
8)Deletes the requirement that when multiple GSAs in the same
groundwater basin develop multiple GSPs that they must submit
them together to the Department of Water Resources (DWR) for
an evaluation of their consistency with each other and SGMA
sufficiency and instead allows independent submissions to DWR
in which each submitter explains how they deem their agency's
plan consistent with the other plans.
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9)Deletes the requirement for GSPs to be coordinated such that
the entire basin is covered and instead allows coordinated
implementation among a subgroup or groups in a basin.
10)Prohibits the State Water Resources Control Board (State
Water Board) from designating a basin as probationary for
failing to meet SGMA as long as a party can demonstrate they
are in litigation. Requires the State Water Board to suspend
SGMA deadlines for the duration of litigation plus any
additional reasonable period of time that would allow for
post-litigation compliance.
11)Prohibits the State Water Board from placing any portion of a
basin in probationary status if there is an adopted GSP that
is being implemented, without regard to the degree of
implementation.
EXISTING LAW:
1)Allows a private mutual water company to join with a public
agency using a JPA, but limits the powers of the JPA to only
those already held in common by all of the parties.
2)Mandates that local public agencies meet all "government in
the sunshine" requirements including, but not limited to,
making decisions during public meetings, making records
publicly available, and disclosing conflicts of interest.
3)Mandates that private mutual water companies meet limited
"government in the sunshine" requirements related to notices
of meetings, public agendas, public testimony and public
access to records.
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4)Requires 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;
5)Requires that local agencies in high- and medium-priority
basins or subbasins subject to SGMA form one or more GSAs by
June 30, 2017.
6)For basins or subbasins subject to SGMA, requires a GSP to
fully cover the basin or subbasin but allows multiple GSPs as
long as they do the following:
a) Cover the entire basin or subbasin.
b) Adopt a single agreement that explains how multiple
planning efforts overlying the same groundwater resource
will be coordinated.
c) Agree upon and use the same data, methodologies, and
assumptions when developing their plans.
d) Submit the coordinated plans to DWR together by the
appropriate deadline.
7)Requires that GSAs in basins with chronic overdraft develop
and adopt GSPs for their basin or subbasin by January 31,
2020.
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8)Requires that GSAs in all other high- and medium-priority
basins subject to SGMA develop and adopt GSPs by January 31,
2022.
9)Prohibits a pumper who increases pumping during the time the
GSP is under development from using that pumping increase as
the basis of an expanded claim to groundwater against other
user's rights.
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)Requires state agencies to pay the same groundwater
extraction fees as local agencies but does not otherwise
subject sovereign state agencies to local rule.
14)Authorizes the State Water Board to declare a basin in
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probationary status and adopt an interim plan for a basin,
subbasin, or portion of a basin or subbasin, under three
narrow circumstances:
a) There is no GSA for all or a portion of a basin or
subbasin by June 30, 2017;
b) There is no GSP for all or a portion of a basin or
subbasin by the relevant deadline; or,
c) A submitted GSP is deemed inadequate by DWR and there is
also either:
i) Chronic overdraft in the basin or subbasin; or,
ii) Groundwater pumping is causing a significant
depletion of interconnected surface waters in the basin
or subbasin.
15)Requires the State Water Board to exempt "good actors" from
enforcement provisions and to model interim plans on "good
actors'' plans.
16)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.
17)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.
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FISCAL EFFECT: Unknown
COMMENTS: SGMA took effect on January 1, 2015. This bill would
substantially rewrite portions of the law. The nine major areas
of change are covered in greater detail below with suggested
Committee amendments, if any, following each section.
1) The rush to the pumphouse
This bill changes the prohibition against trying to rely upon an
increase in water during the time a GSP is under development as
the basis for an increased right to groundwater. SGMA was
designed to prohibit a "rush to the pumphouse" during the
development of a GSP. Ordinarily, under the law, if a party in
an overdrafted basin seeks an entitlement to a certain amount of
the basin's groundwater, that party will, at that time of their
claim, rely upon their most immediate past levels of pumping as
the evidence for their claim. The problem is that the earliest
deadline for a SGMA GSP is five years away with some GSPs not
subject to enforcement for 7 or 10 years. That is a potentially
large increment of time for parties to rush to increase their
pumping in order to set up a basis for a later claim, either
with the GSA or in the courts.
SGMA specifically tries to disincentivize that behavior by
prohibiting any pumping increase from the time the statute was
enacted (January 1, 2015) to the time the GSP is adopted, from
being used as the basis of a groundwater claim. This bill would
change that but in a way that is unclear and ambiguous.
This bill terminates the prohibition against increased pumping
being used as the basis for a later claim to the date that a
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local agency takes "any action to control groundwater
extractions." However, this bill does not set any threshold for
the local agency action such as requiring that it will be
adequately protective of the basin or even require that the
local agency action was directed at all classes of pumpers.
This bill also strikes the reference to a claim of prescription
and simply states any "claim to the use of groundwater."
Generally, if a basin is not in overdraft, than all overliers
(persons with property overlying the basin) have a right to
share the basin equally. However, once a basin is in overdraft
- meaning the amount taken out is exceeding the amount
recharging (i.e. refilling) the basin, over time - then any
additional groundwater pumping is considered "adverse" to
existing rights. This is a complex area of the law, but
basically it means the person who is taking and relying upon the
groundwater in a way that is open, hostile (meaning without
permission), and "adverse" to the others in the basin, can then
claim a "prescriptive" right to it. By striking the reference
to prescription, a complex but understood concept, it is unclear
how the author means to affect groundwater rights.
Suggested Committee Amendments
Committee staff suggests deleting Section 1 of the proposed
amendments and maintaining the existing provision under SGMA.
It is unclear how a local agency will know whether or not an
action it is taking will be sufficiently protective of a basin
or subbasin until it adopts its GSP. Meanwhile, this amendment
to the existing law could allow local pumpers to bring pressure
on local agencies to adopt de minimis or even non-binding
suggestions to control groundwater extractions as a way of
lifting the prohibition on increased pumping as a basis for
enlarged rights.
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2) In-lieu use
This bill proposes adding a definition of "in-lieu use."
In-lieu use is a term that appears multiple times in SGMA so a
definition could be helpful. Frequently, in-lieu use occurs
with "conjunctive use" programs. These are programs where when
a party has access to both surface water supplies and
groundwater supplies, the surface water supplies are used in
times of relative water abundance and groundwater supplies are
used in times of relative water scarcity. To effectuate the
conjunctive use program some parties who could use groundwater
will take surface water "in lieu" of pumping the groundwater.
The increment of water left in the ground is then credited to
their action.
Suggested Committee Amendments
Clarify that in-lieu use, for the purposes of SGMA, only
encompasses actions that are being taken as part of a GSP or
other agreement with a GSA. SGMA acknowledges and encourages
that GSAs may have "conjunctive use" programs. However, if the
definition is not tied back to the GSP then it could create
legal uncertainty where a party simply claims, as against the
GSA, that their incidental surface water use was "in-lieu" of
groundwater use and thus they are entitled to water from the
basin.
3) Allowing private mutual water companies to join GSAs
This bill proposes that private mutual water companies could
join GSAs and then use all GSA authorities - fees, enforcement,
and more either in furtherance of the GSP or outside of it.
However, prior to AB 240 (Rendon), which took effect on January
1, 2014, there were no transparency requirements for mutual
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water companies. Now boards of mutual water companies are
prohibited from conducting non-emergency business outside of
meetings that interested persons have an opportunity to attend
and speak at and that are noticed four days in advance. Mutual
water companies must also make certain specified records
available such as agendas and minutes of meetings, annual
reports, etc.
Committee staff recognizes that private mutual water companies
that rely upon a groundwater basin may have a keen interest in
partnering with public agencies in the management of the basin.
However, Committee staff also recognizes that now that mutual
water companies have put initial transparency measures in place
they should be able to adapt to public agency requirements if
they are going to stand in the shoes of public agencies and
exercise GSA powers.
Suggested Committee Amendments
Clarify that if other members of the GSA are amenable a mutual
water company or companies may join the GSA, however, all of the
following will apply:
a)Mutual water companies shall only exercise GSA powers when
developing or implementing GSPs;
b)Mutual water companies, when exercising the powers of the GSA,
shall be subject to all Ralph M. Brown Act requirements
(Government Code Section 54950 et seq.); and,
c)Mutual water companies, when exercising the powers of the GSA,
shall be subject to all Public Records Act requirements
(Government Code Section 6250 et seq.).
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4) Allowing GSAs to enter into public/private partnerships
This bill would allow GSAs to enter into public/private
partnerships by written agreement in order to implement the GSP
or any element of the GSP. Sometimes public/private
partnerships can, among other benefits, provide the capital that
public agencies alone are unable to raise. For example, there
is significant private ownership in the Kern Water Bank in Kern
County.
Suggested Committee Amendments
Committee staff suggests that, at a minimum, such agreements
must be in writing, subject to adequate transparency
requirements, and discussed as a proposal during at least one
public meeting before action could be taken on such an agreement
at a subsequent public meeting.
5) Subjecting state agencies to local agency GSPs
This bill would waive state sovereignty for any state agency
that could be subject to a GSP, unless otherwise specified in
law. However, SGMA already requires state agencies to pay the
same fees as any nongovernmental entity and to work
cooperatively with local agencies. This provision is
problematic on several levels. Local agencies are subdivisions
of the state over whom the state has authority to regulate in
various ways. This provision flips that relationship on its
head and now allows local agencies to regulate the state.
Suggested Committee Amendments
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Committee staff suggests striking the proposed language
subjecting the state to local authority.
6) Decoupling of multiple GSAs and GSPs in the same groundwater
basin
This bill has several provisions that work to decouple the
coordination requirements for multiple GSAs in one groundwater
basin. During the development of SGMA there was much discussion
as to whether each groundwater basin or subbasin should be
required to have one GSA and one GSP that covered the entire
basin or if there could be multiple GSAs and GSPs that together
covered an entire basin. The major question posed was: When
there are multiple entities that are all depending on one shared
resource, how can it be managed consistently so that
sustainability is achieved and parties are not working at
cross-purposes? Stakeholders successfully argued that they were
differently situated from one another in a basin but that if all
GSPs were coordinated and all GSAs used the same assumptions
then it should be irrelevant as to whether it was one plan or
multiple plans forming a unified whole. The compromise that was
reached was that multiple plans would have to describe in
writing how they would coordinate, would have to use the same
data and methodologies for their plans, and would have to submit
their plans together.
This bill makes three changes to coordinated GSAs and GSPs:
a)Deletes the requirement for multiple GSAs to use the same data
and methodologies in their GSPs and instead requires that they
describe in their coordination agreement how different data
and methodologies used in their GSPs will be consistent;
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b)Deletes the requirement for GSAs to explain together how their
multiple GSPs will be implemented together to achieve
sustainable management for the basin or subbasin and instead
allows each GSA to explain independently how its plan will be
implemented with other plans to achieve sustainability; and,
c)Deletes the requirement for GSAs to ensure that coordinated
implementation of their plans covers the entire basin or
subbasin.
Suggested Committee Amendments
Committee staff suggests striking the proposed language that
decouples multiple GSAs and GSPs in a basin and allows different
data and methodologies to potentially be used in plans which can
then be submitted to DWR independently for evaluation. The
provisions ensuring consistency between multiple plans in the
same basin received substantial discussion during the
development of SGMA, a statute that has only been in effect for
four months. The onus should be on multiple actors in a basin
to ensure their own coordination and not on the state to try to
piece together multiple plans to see if in fact they are
complying with SGMA. If each plan is interpreting for itself
that it is consistent with other plans, inevitable
finger-pointing will then ensue as to who's interpretation is
the legitimate one.
Some stakeholders voiced concerns that they would be found in
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violation of SGMA and the basin would be deemed probationary if
they had to wait to submit their GSPs together because an
outlier agency in the basin could hold things up. It is
accurate that a basin could be deemed probationary if the entire
basin isn't covered by multiple plans that were submitted by the
deadline. However, GSAs are not prohibited from adopting and
implementing their GSPs just because they cannot submit a
complete package of GSPs for the basin. In other words, the
basin itself would be deemed probationary, but "good actors"
would be exempt from probationary status, and State Water Board
action, if they have adopted a GSP that is demonstrating
compliance with the sustainability goal. In addition, the State
Water Board would consider their GSP as the basis for curing the
noncompliant portion. (See number 8 below.)
The amendments also change the language regarding multiple GSAs
using the "same data and methodologies." The question that was
raised by stakeholders is that "same data and methodologies"
could be too restrictive and mean exactly the same even though
some entities have invested heavily in their existing data and
methodologies. However, DWR is currently developing guidelines
for GSAs and GSPs. Since the earliest that a GSP is due is
January 31, 2020, interested persons who are concerned with the
interpretation of "same data and methodologies" should work with
DWR to clarify the meaning as having each entity describe its
own "consistency" is ambiguous.
7) GSA formation not subject to CEQA
This bill specifies that GSA formation is not subject to CEQA.
However, CEQA applies to the discretionary decision of a public
agency to approve or fund a project that could cause potentially
significant impacts on the environment. It is not clear that
agency formation, in and of itself, is a "project" subject to
CEQA.
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8) The potential litigation loophole
This bill would waive SGMA deadlines for any local agency that
can prove it is in litigation that is preventing it from
"meeting a deadline or other requirement." The local agency
would then be given additional post-litigation time to comply.
This amendment could encourage litigation and may also create a
loophole that swallows the entire act by enabling "friendly
litigation" to toll SGMA deadlines indefinitely.
Currently, the consequence of non-compliance with a deadline is
that the State Water Board could declare a basin in probationary
status and implement an interim plan. That plan could include
fees, pumping restrictions, or other measures. Knowing the
State Water Board could come into a basin is a powerful
disincentive for locals to sue their GSA over the development or
adoption of the GSP as it is a potentially worse consequence
than working with the GSA. Conversely, if a GSA is attempting
compliance in good faith, the State Water Board can take that
into consideration when implementing interim measures.
Suggested Committee Amendments
Committee staff suggests striking the proposed language allowing
litigation that could potentially toll SGMA compliance deadlines
indefinitely. Tolling provisions were discussed during the
development of the bill and rejected as counter to the goal of
empowering and motivating locals to come together and develop
their GSPs.
9) No longer requiring good actors to demonstrate compliance
with the sustainability goal
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This bill would remove the requirement that to be excluded from
probationary status a good actor must be demonstrating
compliance with the sustainability goal. Some stakeholders have
voiced concern that "demonstrating compliance with" could be
interpreted to mean the basin must be sustainable. Other
stakeholders are concerned that if there are multiple GSPs in a
basin and they are all held up from submitting their coordinated
plans by one outlier, then they will all be considered "bad
actors." As explained in number 6 above, they would not all be
considered bad actors. SGMA requires the State Water Board to
exclude "good actors" from probationary status.
Suggested Committee Amendments
Committee staff suggests modifying the current language of
Section 10735.2 (e) to read:
e) The board shall exclude from probationary status any portion
of a basin for which a groundwater sustainability agency has
adopted and is implementing a groundwater sustainability plan
that demonstrates compliance with the sustainability goal.
This addition makes it clear that a GSA can adopt and be
implementing a GSP even if all actors in the basin have not done
the same. A GSP has twenty years to achieve sustainability with
five year milestones. If more clarity is needed regarding what
"demonstrating compliance with the sustainability goal" means
that should be addressed in the SGMA guidelines currently being
developed by DWR.
Supporting arguments: The author states that the purpose of
this bill is to "clarify and harmonize various provisions of
[SGMA]" and that it also addresses fundamental policy questions
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related to the tolling of deadlines due to litigation, CEQA
applicability, whether state agencies should comply with GSPs,
and whether GSAs should be able to enter into public/private
partnerships. Other supporters state the amendments will allow
GSAs to "efficiently and effectively" implement SGMA. Note:
Most stakeholders have not had time to review and comment upon
the proposed amendments in their current form.
Opposing arguments: Opponents arguments were regarding the bill
in print which allows mutual water companies to join GSAs.
Opponents state that will "enable privatized control of
groundwater basins, defeating the purposes of [SGMA] to empower
local management of groundwater resources." Instead, opponents
state this bill would give private corporations "taxing and
spending powers" and "disenfranchise the groundwater rights and
needs of local landowners, water users, and the interconnected
aquatic and riparian ecosystems." Note: Most stakeholders have
not had time to review and comment upon the proposed amendments
in their current form.
Related Legislation
This is one of 14 bills in the Legislature proposing changes to
SGMA and its related statutes. The other bills are: AB 452
(Bigelow), which prohibits the State Water Board from using
Water Rights Fund monies for SGMA enforcement, except funds
collected from SGMA enforcement; AB 453 (Bigelow), which allows
groundwater management plans adopted prior to SGMA to be amended
and extended; AB 454 (Bigelow), which adds one year to the
deadline to form a GSA or adopt a GSP; AB 455 (Bigelow), which
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 938 (Salas), which makes a
minor technical change to SGMA; AB 939 (Salas), which 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
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fee; AB 1242 (Gray), which requires the State Water Board, when
setting in-stream flows, to take into account any groundwater
management plan, including under SGMA, and mitigate for the
effects upon a groundwater basin if surface water diverters
decide to then turn to groundwater pumping; AB 1243 (Gray),
which rebates 50% of all SGMA enforcement penalties back to
local governments and water districts for groundwater recharge
projects; AB 1390 (Alejo), which creates a streamlined process
for groundwater adjudications and grandfathers them into SGMA;
AB 1531 (Environmental Safety and Toxic Materials Committee),
which makes minor technical changes to SGMA; SB 13 (Pavley),
which makes noncontroversial technical cleanup changes to SGMA;
SB 226 (Pavley), which adds a groundwater adjudication section
to SGMA; and SB 487 (Nielsen), which exempts SGMA projects from
CEQA.
REGISTERED SUPPORT / OPPOSITION:
Support
Valley Ag Water Coalition (sponsor)
Kings River Conservation District
Kings River Water Association
Tulare Lake Basin Water Storage District
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Opposition
Center for Biological Diversity
Analysis Prepared by:Tina Cannon Leahy / W., P., & W. / (916)
319-2096