BILL ANALYSIS Ó AB 647 Page 1 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is never abandoned as long as it is being beneficially in the ground or applied to some later beneficial use when it is withdrawn. AB 647 Page 2 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, AB 647 Page 3 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 AB 647 Page 4 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 AB 647 Page 5 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: AB 647 Page 6 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 AB 647 Page 7