BILL ANALYSIS Ó
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: AB 617 Hearing Date: July 14,
2015
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|Author: |Perea | | |
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|Version: |June 29, 2015 Amended |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Dennis O'Connor |
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Subject: Groundwater.
BACKGROUND AND EXISTING LAW
The Sustainable Groundwater Management Act (SGMA):
1.Defines "sustainable groundwater management" as the management
and use of groundwater in a manner that can be maintained
during the planning and implementation horizon without causing
undesirable results.
2.Defines "undesirable results" as any of the following effects:
Chronic lowering of groundwater levels (not including
overdraft during a drought if a basin is otherwise
managed).
Significant and unreasonable reduction of groundwater
storage.
Significant and unreasonable seawater intrusion.
Significant and unreasonable degraded water quality,
including the migration of contaminant plumes that impair
water supplies.
Significant and unreasonable land subsidence that
substantially interferes with surface land uses.
Depletions of interconnected surface water that have
significant and unreasonable adverse impacts on beneficial
uses of the surface water.
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1.Requires that a groundwater sustainability plan be adopted for
high and medium priority groundwater basins in California.
Limited to "high & medium priority basins" - 127 out of
515 basins in the state.
Adjudicated basins are exempt (except for minimal
reporting), bringing the number to fewer than 100 affected
basins.
"Low & very low priority" basins are exempt, though
they are encouraged to adopt plans.
1.Establishes a timetable for adoption of groundwater
sustainability plans.
By 2017, local groundwater sustainability agencies must
be identified.
By 2020, overdrafted basins must be covered by a
groundwater sustainability plan. Other high and medium
priority basins not in overdraft must have plans by 2022.
By 2040, each high and medium priority basin must
achieve sustainability, though this can be extended by 10
years for good cause.
1.Vests local agencies with the responsibility to manage their
basins sustainably.
Provides groundwater sustainability agencies (GSAs)new
authority to adopt and enforce rules, require reporting,
raise funds and build new water projects
Directs the Department of Water Resources (DWR) to.
provide technical assistance to local agencies.
1.Establishes basic requirements for groundwater sustainability
plans (GSPs).
Long-term planning and implementation horizon.
Measurable objectives and interim milestones to achieve
sustainability in 20 years.
Most requirements similar to the current, voluntary
groundwater plan requirements adopted 22 years ago.
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DWR will develop new regulations for updating basin
boundaries and criteria to evaluate sustainability plans.
1.Provides state oversight to ensure compliance with SGMA.
Requires DWR to evaluate groundwater sustainability
plans within two years of submission.
Authorizes the State Water Resources Control Board
(SWRCB) to temporarily intervene in four limited
circumstances:
No governance structure for a basin after 2 years.
No plan after five years (overdrafted basins) or ten
years (other basins).
Plan is inadequate and the basin has serious
groundwater problems.
Local agency has not adequately implemented the plan
and the basin has serious groundwater problems.
Requires the SWRCB to return control to local agencies
as soon as they adopt an adequate plan.
Authorizes the SWRCB to limit its temporary control to
the portion of the basin not being managed.
PROPOSED LAW
This bill would make a number of changes to SGMA. Specifically,
it would:
State any action to regulate groundwater extractions taken as
a means of implementing a groundwater plan sustainability
could not be used as evidence of, or to establish or defend
against, any claim of prescription.
Redefine "groundwater recharge" to include in-lieu recharge
through delivery of water to persons that otherwise extract
groundwater, leaving groundwater in the basin.
Authorize mutual water companies to participate in a
groundwater sustainability agency through a joint powers
agreement.
Require approval of all parties of a groundwater
sustainability agency before an investor owned utility would
be allowed to participate in the agency.
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Require DWR to notify a county of any gaps in coverage of the
basin for which the county is presumed to be the groundwater
sustainability agency.
Require DWR notify the SWRCB when a county notifies DWR that
it will not be the groundwater sustainability agency for an
area within a basin that is not within the management area of
a groundwater sustainability agency.
Explicitly authorize groundwater sustainability agency to
enter into written agreements and funding with a private party
to assist in, or facilitate the implementation of, a
groundwater sustainability plan or any elements of the plan.
Authorize a groundwater sustainability agency that finds that
a state entity is not working cooperatively regarding
implementation of a GSP, to file notice with the board
regarding its finding.
State that "good cause" for DWR to grant a five year extension
beyond the 20 sustainability timeline includes litigation that
prevented a groundwater sustainability plan or program from
being implemented in a manner likely to achieve the
sustainability goal.
Change the requirement that agencies developing multiple GSPs
within a single basin coordinate to ensure that the plans
utilize the "same" data and methodologies to ensure that the
plans utilize "consistent" data and methodologies.
Exempt the formation of or election to become a GSA from CEQA.
States that the amendment to the water code that exempts the
formation of groundwater sustainability agency from CEQA does
not constitute a change in, but is declaratory of, existing
law.
Authorize, in basins designated as a probationary basin by the
SWRCB, the submission of just those groundwater sustainability
plans covering portions of a basin that have been excluded
from probationary, to comply with the requirement that all
GSPs for a basin be submitted at the same time.
State that nothing the section regarding submission of GSPs to
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DWR be construed to prohibit a groundwater sustainability
agency from implementing a groundwater sustainability plan
prior to evaluation and assessment of the groundwater
sustainability plan by the DWR.
Change the direction to the SWRCB to exclude from probationary
status any portion of a basin for which a groundwater
sustainability agency demonstrates compliance with the
sustainability goal to instead a demonstration that the agency
has adopted a GSP and that it is being implemented in a manner
that will likely achieve the sustainability goal.
Require the SWRCB to notify DWR if it will develop an interim
plan for a probationary basin and shall identify that portion
of a basin that has been excluded from probationary status.
This bill would also allow integrated resources management plans
to be based on GSPs.
ARGUMENTS IN SUPPORT
Supporters appreciate the author's attempt to clarify language
and terms contained in SGMA, as well as to harmonize key
provisions in the Act. A number also state that they are
committed to the successful implementation of SGMA, and see the
provisions of this bill as only helping in their efforts.
ARGUMENTS IN OPPOSITION
The Sierra Club objects to the bills proposed changes regarding
claims of prescriptive rights [Section 2]. They assert that it
would lead to a "race to the bottom" for groundwater
extractions.
COMMENTS
Conflicts With SB 13 (Pavley). Senator Pavley's SB 13 is being
used as a vehicle to make numerous technical and clarifying
amendments necessary to help implement SGMA. To ensure that
this bill does not change any of the policies established by
SGMA, Senator Pavley has vetted each amendment with the parties
involved in the drafting of SB 1168, SB 1319, and AB 1739.
This bill amends many of the same sections of SGMA as SB 13, but
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often not the same way. The author has agreed to defer Senator
Pavley's language in those areas where the bills conflict.
Those conflicting provisions are in Sections 2, 5, 6, 7, 10, 19,
20. With the deletion of Section 20, Section 11 (which
cross-references changes in Section 20) is also no longer
necessary.
Deleting Section 10 would also delete a proposed new subdivision
(f) which addresses a potential situation where a state agency
is not working cooperatively to conform to or otherwise
implement a groundwater sustainability plan. A hypothetical
example could be a prison that doesn't report extraction data to
the groundwater sustainability agency. To retain this provision
the language should be moved to a new standalone section in
SGMA, WC §10732.2. (See Amendment 1)
Changes In Deliberate Policies. This bill proposes to change a
number policies established in SGMA that were deliberately made
by the authors.
This bill would add a provision stating that "good cause" for
DWR to grant a five year extension beyond the 20
sustainability timeline includes litigation that prevented a
groundwater sustainability plan or program from being
implemented in a manner likely to achieve the sustainability
goal. (Section 12)
The determination of good cause is fact specific. It is not
always the case that litigation is good cause. For example,
an agency may initiate a suit specifically as a delaying
tactic; that would not be good cause.
This bill would change the requirement that agencies
developing multiple GSPs within a single basin coordinate to
ensure that the plans utilize the "same" data and
methodologies to ensure that the plans utilize "consistent"
data and methodologies. (Section 14)
The requirements for agencies developing multiple GSPs within
a single basin were the subject of much discussion last year.
The decision to require agencies use the "same" data and
mythologies was to avoid disagreements among agencies with a
basin due to data not being "consistent" enough.
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This bill would exempt from CEQA the formation of or election
to become a GSA. (Sections 16 & 21)
The appropriate application of CEQA was also subject to much
discussion last year. Ultimately, the authors decided to
exempt from CEQA only the adoption and updating of groundwater
suitability plans. This is similar to the CEQA exemption for
adopting and updating of urban water management plans and
agricultural water management plans. The authors were
unwilling to grant any further exemptions to CEQA.
(See Amendment 2)
Groundwater Recharge - This bill does three things regarding
"groundwater recharge." First, it changes the definition of
"groundwater recharge" to include "in-lieu recharge through
delivery of water to persons that otherwise extract groundwater,
leaving groundwater in the basin." (Section 4). Second, it
systematically deletes the phrase "or in-lieu use." (Sections 3,
12, & 15). Third, it adds the word "groundwater" in a few
instances where the only the word "recharge" is used. (Sections
13 & 18)
The change in the definition of groundwater recharge is
problematic. The definition in current law is the same as it is
used in groundwater management plans, also known as AB 3030
plans. As many agencies will be converting from AB 3030 plans
to groundwater sustainability plans, different definitions of
groundwater recharge could be problematic.
That said, SGMA does not include a definition of "in-lieu
recharge." A solution to all these issues would be to define
"groundwater recharge" or "recharge" the same as under current
law, add a definition of "in-lieu recharge," and make conforming
changes throughout SGMA. (See Amendment 3)
Regulation vs Food Fight. In drafting SGMA, the authors were
faced with a choice regarding how to establish GSAs. They could
establish a fairly detailed regulatory-like process for
determining who should act as the GSA for all or part of a
basin, with requisite notifications between DWR, SWRCB,
counties, local agencies etc. The problem with that is with
over 100 basins being under SGMA, it would have been
extraordinarily difficult, if not impossible, to come up with a
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process that would work for each and every basin. Or, they
could go with the "food fight" approach, where within each basin
the local interests work out the who's, what's, and how's of
establishing one or more GSAs and ensuring the entire basin was
ultimately covered. The authors went with the "food fight"
option.
This bill on occasion attempts to provide more guidance to local
agencies regarding the formation of GSAs, coordination of
multiple GSPs within a basin, etc. that would be consistent with
the "food fight" option. (See Amendment 4)
Editorial Changes. This bill proposes to make purely editorial
changes to one section. (Section 8) (See Amendment 5)
End Result. With the proposed amendments, this bill would
consist of the following:
Section 1
Section 3 with amendments
Section 9
Section 13 with amendments
Section 17 with amendments
A new WC §10732.2
May Need Chaptering Amends as the bill moves forward. This bill
and SB 226 (Pavley) both propose to amend WC §10721.
Related Bills. A number of bills were introduced this year to
address one or more aspects of groundwater management in general
and SGMA in particular. Bills still under active consideration
this year are:
AB 453 (Bigelow)Authorizes existing groundwater management
plans (aka AB 3030 plans) to be renewed and
amended for high and medium priority basins, until
a GSP is adopted. Also grants agencies operating
under an AB 3030 plan the same powers and
authorities of a groundwater management agencies
the authorities of a groundwater sustainably
agency.
AB 939 (Salas)Makes minor technical changes regarding making
data in support of a proposed available to the
public and regarding reprioritization of
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groundwater basins under SGMA.
AB 1242 (Gray)Requires the State Water Resources Control Board,
when setting flow requirements for a Water Quality
Control Plan (WQCP), to take into consideration any
applicable groundwater sustainability plans if a
groundwater basin could be affected and to identify
projects for fish recovery that may be undertaken
in lieu of instream flows.
AB 1390 (Alejo)Streamlines legal processes used to assign water
rights in a groundwater basin.
SB 13 (Pavley)Makes numerous non-substantive technical changes
to SGMA.
SB 226 (Pavley)Streamlines legal processes used to assign water
rights in a groundwater basin.
SUGGESTED AMENDMENTS
AMENDMENT 1:
Delete Sections 2, 5, 6, 7, 10, 11, 19, & 20
Add a new section 10732.2 to the water code incorporating
the language beginning on page 14, line 35, through page
15, line 9, inclusively
AMENDMENT 2:
Delete Sections 12, 14, 16, & 21
AMENDMENT 3:
On page 9, beginning on line 16, amend to read:
(i) "Groundwater recharge" or "recharge" means
the augmentation of groundwater, by natural or artificial
means and may include in-lieu recharge through delivery of
water to persons that otherwise extract groundwater,
leaving groundwater in the basin .
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On page 9, after line 32, insert:
(m) "In-lieu use" means the use of surface water
by persons that could otherwise extract groundwater in
order to leave groundwater in the basin.
Renumber the balance of §10721.
Delete Section 3, 15, & 18
On page 18, line 22, after "recharge," insert " in-lieu
use, "
AMENDMENT 4:
On page 20, delete lines 7 through 11 and insert "plans.
When the entire basin is covered by groundwater sustainably
plans, the groundwater"
AMENDMENT 5:
Delete Section 8
SUPPORT
Valley Ag Water Coalition (Sponsor)
City of Visalia
Kings River Conservation District
Kings River Water Association
Modesto Irrigation District
Tulare Irrigation District
Turlock Irrigation District
Western Growers
OPPOSITION
Sierra Club California
-- END --
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