BILL ANALYSIS Ó
AB 647
Page 1
ASSEMBLY THIRD READING
AB
647 (Eggman)
As Amended May 5, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
|----------------+------+---------------------+---------------------|
|Water |10-1 |Levine, Dodd, |Beth Gaines |
| | |Cristina Garcia, | |
| | |Gomez, Gray, Lopez, | |
| | |Medina, Rendon, | |
| | |Ridley-Thomas, | |
| | |Williams | |
| | | | |
|----------------+------+---------------------+---------------------|
|Appropriations |12-1 |Gomez, Bloom, Bonta, |Jones |
| | |Calderon, Daly, | |
| | |Eggman, Eduardo | |
| | |Garcia, Holden, | |
| | |Quirk, Rendon, | |
| | |Weber, Wood | |
| | | | |
| | | | |
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SUMMARY: Adds to the legal definition of what constitutes a
beneficial use of water by including water that is stored
unground, under specified conditions. Specifically, this bill:
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1)Specifies that while water is in the ground it shall be
considered as being beneficially used if it meets either or both
of the following conditions:
a) Protecting water quality, including providing a barrier to
saline water intrusion.
b) Preventing or remediating significant and unreasonable
land subsidence that substantially interferes with surface
land uses.
2)States that it is the intent of the Legislature that water
stored in the ground and considered beneficially used under the
above two conditions shall not operate to the injury of any
legal user of the water involved.
3)Specifies that the forfeiture period that applies to
appropriative water diversions shall not apply when the water is
being held in storage for the above uses or, under existing law,
when it is being later applied to a specified beneficial use.
EXISTING LAW:
1)Recognizes that the water resources belong to the people of the
State of California 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
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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,
c) The water was actually applied to that use.
5)Specifies that the State Water Resources Control Board may grant
an appropriative water rights' holders request to change the
point of diversion, place of use, or purpose of use for water
that in a specified water rights permit but only that change
will not operate to the injury of any legal user of the water
involved (the "no injury rule").
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FISCAL EFFECT: According to the Assembly Appropriations
Committee, there will be minor, if any, state costs.
COMMENTS: This bill expands the definition of beneficial use for
water rights by including water that is stored in the ground as
water that is being beneficially used under certain circumstances.
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. The author, in recognition that this needs to be
addressed, amended this bill in the Assembly Appropriations
Committee to include Legislative intent language referencing the
"no injury rule" of California water law.
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.
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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 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.
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.
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 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 question why
a change in law is necessary. Opponents also voice concern that
this bill could create significant problems for the State of
California, 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
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Valley Project contractors, as well as the state's salmon fishery
and other instream beneficial uses of water.
Related Legislation
SB 228 (Cannella) of the current legislative session, seeks to
declare that groundwater recharge is, in and of itself, a
beneficial use of water, as specified.
Analysis Prepared by:
Tina Leahy / W., P., & W. / (916) 319-2096 FN:
0000258