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            some later beneficial use when it is withdrawn.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