BILL ANALYSIS Ó
AB 647
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Date of Hearing: April 14, 2015
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 647
(Eggman) - As Introduced February 24, 2015
SUBJECT: Groundwater: beneficial uses
SUMMARY: Changes the legal definition of what constitutes a
beneficial use of water to include water that is stored in the
ground even if no further purpose is identified. Specifically,
this bill:
1)Calls stored water a "diversion of water underground."
2)Allows an appropriative water right to attach to the water
diverted underground.
3)Defines the water that while water is in the ground it shall
be considered as being beneficially used including, but not
limited to, if the presence of the water protects water
quality or recovers groundwater levels.
4)States that water that is in the ground is never abandoned as
long as it is being beneficially in the ground or applied to
some later beneficial use when it is withdrawn.
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EXISTING LAW:
1)Recognizes that the water resources belong to the people of
the State but that individuals can hold rights to use water.
2)Recognizes two primary forms of water rights:
a) Riparian rights, which are based on applying water from
a stream or watercourse to adjoining land; and,
b) Appropriative water rights, which attach when an entity,
whether or not it borders a water course, is the first in
time to divert the water and use it in a way that is both
reasonable and beneficial.
3)Specifies that any portion of an appropriative water right
that is not used beneficially during a five year period may be
considered abandoned. Technically, it means that volume of
water reverts back to the public and may be available for use
by others.
4)Allows water that is stored underground to be considered to
have been beneficial used if the following three things
happen:
a) The purpose for which the water was later used was
identified at the time of storage;
b) The use that was identified was considered beneficial;
and,
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c) The water was actually applied to that use.
FISCAL EFFECT: Unknown
COMMENTS: Converting the status of water that is "parked"
underground from an intermediary point on the beneficial use
continuum into an end point could have complex ramifications to
the existing water rights system with far-reaching consequences.
Beneficial use is a fundamental principal of water rights law.
It defines and limits, on an ongoing basis, the scope of an
appropriative water right. It is the difference between a
"paper" water right - a document asserting that an individual
has the right to a specific amount of water, whether they have
used it or not - and a "wet" water right, meaning a water right
of continuing validity because the amount of water described has
been reasonably, beneficially, and continuously used.
The difference between the two does matter. California is an
arid state. The beneficial use concept was born out of
recognition that economic opportunities, from gold mining to
farming, are tied to the availability of water. It rewards those
intrepid individuals who are "first in time" to put the water to
use and gives them water rights senior to all others who come
after. Later the doctrine was modified to prohibit the
squandering or hoarding of water by limiting the legal right to
only that portion that is used reasonably and continuously.
The seniority of a water right is important. In times of
shortage the most senior water rights holder receives all of his
or her allocation, and then the next most senior, and so on and
so forth. The most junior water rights holders might receive
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nothing. This is not an intellectual hypothesis. During the
four year drought we are currently experiencing it is happening
right now. Some junior water rights holders are being told to
cease withdrawals so that senior water rights holders can be
kept whole.
This bill could potentially allow a senior water right to be
created, enlarged, maintained, or all three, upon the assertion
that a recharge of groundwater from overlying land occurred.
There is no requirement that the action be deliberate or not
otherwise a waste of water, such as from flooding a filed or
leaking from a ditch. A claim to the amount of water in
recharge could then be sold or transferred. Perhaps more
importantly, the portion of water diverted to recharge would be
denied to downstream water users.
Supporting arguments: The author states this bill is necessary
to "allow entities who wish to recharge an aquifer for the
health of the basin, to do so without being at risk of
forfeiting their water right." The author also wants to prevent
water in underground storage from being considered abandoned
after five years. The author also states that "recharge is
necessary and crucial for multiple reasons" in that it not only
serves as a "practical way to augment California's water
storage, but it also helps mitigate the consequences of decades
of chronic overuse of groundwater." Supporters state that this
bill "will confirm into law what Californians already know: that
groundwater recharge of surface water is not only a beneficial
use of water, but a critical component of stabilization of
groundwater basins throughout California."
Opposing arguments. Opponents state that they support
groundwater banking and conjunctive use programs and that "for
many decades, local governments have successfully managed some
groundwater basins (particularly adjudicated basins) and have
created groundwater banking and recharge programs in water banks
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like Kern Water Bank and Semitropic." Opponents state that they
are unaware of any situation where existing law on beneficial
use precluded groundwater recharge and management programs" and
thus "it is not clear why such a dramatic change in law is
necessary." On the other hand, opponents voice concern that
this bill "could create significant problems for the State,
other water users, and the environment" and that it could
"effectively increase the overallocation of water in California
and cause injury to existing water rights holders and other
water users, including State Water Project and Central Valley
Project contractors, as well as the state's salmon fishery and
other instream beneficial uses of water."
Suggested Committee Amendments
Committee staff suggest the author narrow the groundwater use
provisions to those situations where the groundwater recharge is
for the purpose of addressing an identified threat of saline
water intrusion or other contamination or for the purpose of
preventing or remediating significant and unreasonable land
subsidence that substantially interferes with surface land uses.
In addition, committee staff suggests retaining the language
that prohibits forfeiture of water that is stored for beneficial
uses that are either identified at the time of storage or
consistent with the above.
Related Legislation
AB 937 (Salas) and SB 228 (Cannella) are identical to each other
and seek to declare that groundwater recharge is, in and of
itself, a beneficial us of water.
REGISTERED SUPPORT / OPPOSITION:
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Support
San Joaquin County Board of Supervisors
Stockton East Water District
Opposition
Center for Biological Diversity
Clean Water Action
Community Water Center
Leadership Counsel for Justice & Accountability
Natural Resources Defense Council (unless amended)
Sierra Club California
Analysis Prepared by:Tina Cannon Leahy / W., P., & W. / (916)
319-2096
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