BILL ANALYSIS Ó
AB 617
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Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 617
Perea - As Amended April 23, 2015
SUBJECT: Sustainable Groundwater Management Act
SUMMARY: Modifies multiple 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,
modifies the prohibition when a local agency takes "a
regulatory 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)Revises the definition of groundwater recharge to include "in
lieu use," meaning the use of surface water by persons that
could otherwise extract groundwater.
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 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)Creates a remedy for state agency noncompliance with the GSP
by allowing a GSA to file notice with the State Water
Resources Control Board (State Water Board) and allowing the
State Water Board to direct a state entity to cooperate.
6)Modifies the requirement that multiple GSAs in the same
groundwater basin must utilize the same data and methodologies
and instead states that they must 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 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.
9)Allows the Department of Water Resources (DWR) to consider,
when determining whether or not to grant five year extensions,
whether a GSA has failed to meet SGMA requirements because it
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is in litigation.
10)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 in accordance with the sustainability
goals.
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.
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
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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.
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
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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 groundwater recharge to mean augmentation of
groundwater, by natural or artificial means.
12)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.
13)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.
14)Requires state agencies to pay the same groundwater
extraction fees as local agencies but does not otherwise
subject sovereign state agencies to local rule.
15)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
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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.
16)Requires the State Water Board to exempt "good actors" from
enforcement provisions and to model interim plans on "good
actors'' plans.
17)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.
18)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: This bill makes multiple changes to SGMA, a law which
took effect on January 1, 2015. The author's office made a
preliminary presentation regarding the bill in Committee on
April 14, 2015 and the author's staff has worked diligently with
Committee staff to reduce the number of issue that need to be
addressed. However, multiple issues remain that should be
addressed moving forward. Those issues are covered in greater
detail below following the author's statement and the
background.
1)Author's statement: The author maintains that this bill
clarifies and harmonizes various SGMA provisions. In
addition, the author states that this bill proposes to address
some fundamental policy questions including, but not limited
to, the tolling of deadlines due to litigation, CEQA
application to GSA formation, whether state agencies should
comply with GSPs, and whether GSAs can enter into
public/private partnerships.
2)Background: SGMA and its related statutory provisions were
developed as a three-bill package of legislation after
intensive stakeholder input and involvement, including public
meetings facilitated by Governor Jerry Brown's administration.
Negotiations over SGMA began in earnest in January 2014 after
the Governor release his California Water Action Plan (CWAP)
and January budget. Among other action items, the CWAP
identified the need to "Improve Sustainable Groundwater
Management" and included the assertion that in basins at risk
of permanent damage from overdraft "if local agencies do not
make sufficient progress to correct the problem in a timely
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manner; the state should have carefully-defined authority to
protect the basin and its users until an adequate local
program is established." The January Budget emphasized the
importance of groundwater as a buffer against drought and,
invoking the State Water Boards waste and unreasonable use
authority, proposed $1.9 million to the State Water Board for
10 positions "to act as a backstop when local or regional
agencies are unable or unwilling to sustainably manage
groundwater basins." The proposed budget also advised that
the State Water Board "will protect groundwater basins at risk
of permanent damage until local or regional agencies are able
to do so."
The Legislature, however, was already moving into groundwater
regulation. On February 14, 2014, Democratic Assemblymember
Roger Dickinson, an attorney and former Supervisor for
Sacramento County introduced AB 1739, jointly authored by
Assemblymember Anthony Rendon (D-Lakewood), Chair of the
Assembly Committee on Water, Parks, and Wildlife. AB 1739
required the State Water Board, in consultation with DWR, to
determine sustainable yield for a groundwater basin in
coordination with other applicable local agencies. Six days
later, Senator Pavley, Chair of the Senate Committee on
Natural Resources and Water, introduced SB 1168, which amended
the AB 3030/SB 1938 statutes to, among other actions, add
definitions of overdraft and sustainable yield.
The groundwater issue was now somewhat unique in that the
Governor's office and both houses of the Legislature had
potential vehicles to regulate groundwater management. And
all three pursued them vigorously. Assemblymember Dickinson
began working with the Association of California Water
Agencies (ACWA) on potential refinements. In 2011 ACWA had
already issued a report, drafted over an 18-month period by a
task force of its Groundwater Committee, which emphasized
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groundwater sustainability but with local control. Senator
Pavley was likewise collaborating with the California Water
Foundation (CWF. CWF, at the request of the Brown
Administration, was already engaged in a dialogue with
agricultural, water agency, under-represented community, city,
and environmental stakeholders in order to "prepare a report
to the Governor and the Legislature on recommendations for
achieving sustainable groundwater management."
On March 7, 2014 the Governor's Office of Planning and
Research (OPR) released a draft framework for "soliciting
input on actions that can be taken to assure that local
groundwater managers have the tools and authority to
sustainably manage groundwater consistent with the California
Water Action Plan." The draft framework emphasized local
control but solicited ideas for the Administration regarding
whether local agencies needed additional tools and how the
State should structure state "backstop" authority when local
action had not occurred or was insufficient. OPR also
simplified public access with a one-stop-shopping web site for
the Administration's groundwater efforts.
March 11, 2014 the Assembly Water, Parks & Wildlife Committee
held an informational hearing on Management of California's
Groundwater Resources and on March 18, 2014 the Senate Natural
Resources and Water Committee held an informational hearing
on Managing California's Groundwater: Issues and Challenges.
Both hearings revealed that dropping groundwater levels were
wreaking havoc across an ever widening swath of farms and
communities. Land subsidence was buckling infrastructure,
cracking irrigation canals, and depositing threatening levels
of sediment into flood control structures. Streams were being
dewatered, depriving both senior water rights holders and
wildlife of crucial surface flows. Coastal zones were
suffering saline water intrusion. And the lower the water
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tables fell the greater the cost to drill new wells and pump
water, for those that could afford to do so in the first
place. Some poor communities with shallow wells simply went
dry.
In April, ACWA produced its Recommendations for Achieving
Groundwater Sustainability. Shortly thereafter both AB 1739
and SB 1168 were substantially amended to depart from the AB
3030/SB 1938 statutes and instead create a new stand-alone
section in the Water Code dedicated to Sustainable Groundwater
Management. The similar approach in the amendments reflected
the fact that staff of both authors, together with key
Governor's office and agency staff, were now working
collaboratively with stakeholders to refine a new groundwater
law. The May publications of CWF's Recommendations for
Sustainable Groundwater Management: Developed Through a
Stakeholder Dialogue only strengthened that impression. Both
CWF and ACWA recommended acknowledging the connection between
groundwater and surface water; defining and setting
sustainability standards; and, empowering locals with new
management tools. In addition, if locals could not or would
not act, they said the state should be an enforcement
"backstop." CWF also launched a powerful new web site
featuring a diverse set of agricultural, water agency,
environmental, and environmental justice leaders under the
banner: Everyone's Talking About Water. For Once, They're
Saying the Same Thing. The featured "voices" included
everyone from Miles Riter of Driscoll Strawberries to Curtis
Knight of California Trout.
On May 22, 2014, after holding multiple stakeholder meetings
and receiving significant stakeholder response, the Governor's
office took the extraordinary step of posting its own draft
statutory language to its groundwater web site. Thereafter,
the Trailer Bill SB 868 (Committee on Budget and Fiscal
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Review) was introduced. But the Legislature was also moving
forward. In June Amendments to both AB 1739 and SB 1168 came
into print on the same day and showed that Assemblymember
Dickinson and Senator Pavley were now each other's principle
coauthor's. Asm. Dickinson, Sen. Pavley, and the
Administration worked through the July Legislative Recess with
four professionally-facilitated stakeholder meetings attended
by hundreds of people, both in person and through conference
capabilities. At the end of those discussions, a both bills
were amended and a fifth professionally-facilitated
stakeholder meeting was held. However, during the final weeks
of the Legislative Session the Administration decided there
needed to be an additional response to some of the concerns
being raised by agricultural stakeholders and others,
including how the State would treat the "good actors" in a
probationary basin. As a result a third bill, SB 1319 (Pavley)
was gutted and amended to modify AB 1739 and SB 1168. On
September 16, 2014, Governor Jerry Brown held a signing
ceremony at the State Capitol referring to the 3-bill package
enacting SGMA and related statutes as historic and stating,
"We have to learn to manage wisely water, energy, land and our
investments. That's why this is important."
3)Supporting arguments: Supporters state the amendments will
allow GSAs to "efficiently and effectively" implement SGMA.
Supporters add that this bill will add much needed
clarification to the timing and means by which the State Water
Board may declare a subbasin as being in probationary status.
Supporters advise that waiting for the entire subbasin to join
a single GSA or coordinate in forming sufficient numbers to
cover a whole subbasin may be an unrealistic milestone.
Supporters state that GSA's that are "up and running" should
be allowed to proceed with submittal of their GSPs with some
degree of comfort that, if these GSPs satisfy the DWR
regulations, they will not be subject to probationary status.
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4)Opposing arguments: Opponents acknowledge the progress the
author has made in certain areas of this bill but state that
this bill makes many substantive and problematic changes to
SGMA. For example, opponents are concerned with allowing
local regulatory action to change the tolling provision for
prescriptive groundwater claims as this could have the effect
of allowing increased groundwater withdrawals. Opponents also
state that deleting the problematic definition of "in-lieu
use" and folding it into the definition of "groundwater
recharge" would allow any user of surface water to assert he
is recharging groundwater. Opponents maintain that only such
activities that are part of an adopted GSP should count as
"in-lieu" use. Opponents are also concerned with the ability
of mutual water companies to join GSAs using JPAs. Opponents
state that mutual are not subject to sufficient transparency
requirements and should be subject to the same disclosure as
public agencies for GSA activities. Opponents also reject
allowing DWR to grant 5 year extensions of the 20-year
sustainability goal based on litigation and are concerned with
this bills CEQA exemption for agency formation.
5)Prior and related legislation:
SB 13 (Pavley) is the bill most relevant to this bill. As
referenced above, Senator Pavley is one of SGMA's authors and
SB 13 is a SGMA cleanup bill. Importantly, like this bill, SB
13 also addresses mutual water company participation in a GSA
but does so by stating that a water corporation regulated by
the Public Utilities Commission or a mutual water company may
participate in a GSA through a memorandum of agreement or
other legal agreement with the public water agency members but
that such agreement does not confer any additional powers to a
nongovernmental entity.
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This is one of 13 bills in the Legislature proposing changes
to SGMA and its related statutes. In addition to SB 13, the
other 11 bills are:
AB 452 (Bigelow) prohibits the State Water Board from using
water rights fees for SGMA enforcement.
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 938 (Salas) makes a minor technical change 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) 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.
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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
adjudications and grandfathers them into SGMA.
SB 226 (Pavley) adds a groundwater adjudication section to
SGMA.
SB 487 (Nielsen) exempts SGMA projects from CEQA.
The three-bill package of legislation forming SGMA and related
statutes is: SB 1168 (Pavley), Chapter 346, Statutes of 2014;
AB 1739 (Dickinson) Chapter 347, Statutes of 2014; and, SB
1319 (Pavley), Chapter 348, Statutes of 2014.
6)Outstanding issues:
a) 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
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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 prohibition 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 local agency
takes "any action to regulate 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.
b) In-lieu use: This bill proposes changing the current
definition of groundwater recharge, inserting that "in-lieu
use" is also recharge, and striking independent references
to in-lieu use. This appears confusing and unnecessary.
In-lieu use is a term that appears multiple times in SGMA
so a separate 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.
But characterizing any action where an entity takes surface
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water when it could have taken groundwater as "recharging
the basin," is misleading and unnecessarily confusing. It
appears to create a de facto claim against a GSA for a
share of the "recharged" groundwater because, in contrast,
a party working with a GSA would already be credited under
a conjunctive use program.
c) Allowing private mutual water companies to join GSAs via
a JPA: This bill proposes that private mutual water
companies could join GSAs through JPAs and then use all GSA
authorities - fees, enforcement, and more either in
furtherance of the GSP. However, prior to AB 240 (Rendon),
which took effect on January 1, 2014, there were no
transparency requirements for mutual 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. But mutual water companies are not subject
to the same transparency as local agencies.
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, mutual water companies,
like water corporations regulated by the Public Utilities
Commission (PUC), are private entities. There does not
appear to be a good reason to treat a mutual different than
a water corporation regulated by the PUC. In fact, there
may be less, as mutual water companies are unregulated.
Under existing law, water corporations regulated by the PUC
can join by contract and participate in GSA governance.
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But contracts do not bestow independent powers. Similarly,
mutuals could join by contract and participate in a GSA.
But there would be no confusion as to whether they now
enjoy powers that are only properly conveyed on public
agencies.
d) Deletion of requirement for multiple GSPs in a
groundwater basin to have to cover the entire basin: This
bill has several provisions that could work to
disincentivize local agencies to have to work together to
submit their plans. Currently, there is a drafting error
that removes the need for multiple coordinated GSAs to have
to submit their plans to DWR. But beyond the drafting
error, this bill removes the requirement that GSAs must
work to ensure that an entire basin is covered by either
one plan or multiple plans.
During SGMA's development 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. 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 an entire basin or subbasin would
have to be covered by multiple plans, those multiple plans
would have to describe in writing how they would
coordinate, they would have to use the same data and
methodologies for their plans, and they would have to
submit their plans together.
Currently, multiple GSAs are required to submit their plans
together so that DWR can evaluate if they are indeed
coordinated and whether, in sum, they achieve
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sustainability. Even as GSAs wait to submit their bundle
of plans, they can still adopt and implement their GSPs.
The only consequence of failing to submit to DWR, by the
deadline, a bundle of plans that cover an entire basin will
be referral to the State Water Board where the basin could
be deemed probationary. Yet, even if it is deemed
probationary the State Water Board still exempts any "good
actors" from probationary status and only develops and
"interim plan" for areas where there is no GSA, no GSP, or
a GSP that is insufficient.
REGISTERED SUPPORT / OPPOSITION:
Support
Valley Ag Water Coalition (sponsor)
Kings River Conservation District
Kings River Water Association
Tulare Lake Irrigation District
Tulare Lake Basin Water Storage District
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Opposition
Center for Biological Diversity
Clean Water Action (unless amended)
Community Water Center (unless amended)
Leadership Council for Justice and Accountability
North County Watch
Analysis Prepared by:Tina Cannon Leahy / W., P., & W. / (916)
319-2096
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