BILL ANALYSIS Ó
AB 1242
Page 1
Date of Hearing: April 14, 2015
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 1242
(Gray) - As Introduced February 27, 2015
SUBJECT: Groundwater: State mitigation for local actions
SUMMARY: Requires the State Water Resources Control Board
implement mitigation measures for effects to groundwater basins
that occur when local entities opt to pump more groundwater in
response to State action. Specifically, this bill:
1)Requires the State Water Board to consider groundwater plans
when adopting or approving a Water Quality Control Plan
(WQCP).
2)Requires, before adopting instream flows that protect
beneficial uses of water, that the State Water Board evaluate
impacts on groundwater basins from increased groundwater
pumping by locals in reaction to increased instream flow
requirements and consider alternatives and mitigation measures
to avoid or mitigate to less-than-significant any adverse
impacts on the groundwater basin from increased groundwater
pumping by locals, to the extent feasible.
3)Requires the State Water Board adopt and implement the
measures to mitigate for increased groundwater pumping by
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locals.
4)Prohibits the State Water Board from adopting a WQCP if there
are significant adverse impacts to a groundwater basin from
increased groundwater pumping by locals.
EXISTING LAW:
1)Maintains that the waters of the state are held in trust for
the people of California and cannot be privately owned but can
only be reasonably and beneficially used.
2)Tasks the State Water Resources Control Board (State Water
Board) with protecting and enforcing water rights and water
quality laws, included delegated water quality authorities
under the federal Clean Water Act. Places nine Regional Water
Quality Control Boards (Regional Water Boards) under the State
Water Board.
3)Requires the Regional Water Boards, or State Water Board under
specified circumstances, formulate and adopt water quality
control plans (WQCPs) for all areas within each region of the
State that protect beneficial uses of water and meet water
quality objectives.
4)Defines beneficial uses of the waters of the state include
domestic, municipal, agricultural, and industrial supply;
power generation; recreation; aesthetic enjoyment; navigation;
and preservation and enhancement of fish, wildlife, and other
aquatic resources or preserves.
5)Requires the WQCP include objectives that will ensure the
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reasonable protection of all beneficial uses, protection of
water quality, and the prevention of nuisance while
considering factors such as past, present and probably future
beneficial uses of water, environmental characteristics,
regional economics, the need to develop housing, and the need
to expand and use recycled water.
6)Requires the Department of Water Resources (DWR) prioritize
California's groundwater basins in order to focus state
resources. The basins are prioritized as either high, medium,
low, or very low based on a combination of factors including,
but not limited to, overlying population, level of dependence
for urban and agricultural water supplies, and impacts on the
groundwater from overdraft, subsidence, saline water
intrusion, and water quality degradation.
7)Requires, by June 30 2017, the formation of one or more
Groundwater Sustainability Agencies (GSAs) in all high and
medium priority basins subject to the Sustainable Groundwater
Management Act (SGMA).
8)Requires, by January 31, 2020, that GSAs in all high and
medium priority basins subject to a chronic condition of
overdraft develop and adopt Groundwater Sustainability Plans
(GSPs) that provide for the sustainable management of the
groundwater basin, as defined.
9)Requires, by January 31, 2022, that GSAs in all other high and
medium priority basins subject to SGMA develop and adopt GSPs.
10)Allows the State Water Board to impose an interim plan for
management of a groundwater basin if no GSA is formed by the
deadline, no GSP is adopted by the appropriate deadline, or a
GSP is adopted which DWR deems insufficient and where the
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basin is in a chronic condition of overdraft or in a condition
where groundwater pumping is causing a significant depletion
of interconnected surface waters.
FISCAL EFFECT: Unknown
COMMENTS: This bill would prohibit the State Water Board from
imposing in-stream flow requirements on tributaries to the San
Joaquin River unless the State Water Board pays for actions to
mitigate when locals water users pump more groundwater in
response. For thirty years the State Water Project and federal
Central Valley Project and others have been required to help
meet flow requirements in the Sacramento-San Joaquin Delta
(Delta) but the tributaries to the San Joaquin River avoided any
requirements other than experimental flows. The State Water
Board is now engaged in a long-delayed process to determine what
level of flows should be provided by the tributaries. This bill
would prohibit that action unless it is the State Water Board
who mitigates.
1. Who owns a river?
Under State law, no one can own a river. Rivers are a public
trust resource, meaning they belong to the public as a whole.
An individual or organization can obtain a right to divert a
portion of a river's flow. But the right is limited by whether
the diversion is reasonable and beneficial. A diversion or
cumulative series of diversions that ruin the public trust
values of a river for commercial and recreational fishing,
wildlife habitat, or boating and other public enjoyment can be
considered unreasonable and subject to limitations.
2. Relationship of the San Joaquin River and its tributaries to
the Delta
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The Merced, Tuolumne and Stanislaus Rivers are tributaries to
the San Joaquin River. They originate in the high slopes of the
southern Sierra Nevada Mountains and flow westward down the
valley to contribute to the San Joaquin River's flow. The San
Joaquin River flows northward to join the Sacramento River in
the Delta. The point at which the flow of the San Joaquin River
is measured to see how much it is contributing to Delta flows is
near the town of Vernalis in San Joaquin County and often
referred to simply as "Vernalis."
3. The Delta Water Quality Control Plan
The Delta is important to the natural environment and economy of
California. The Delta's flows provide part of the drinking
water supply for two-thirds of the State's population and water
for a multitude of other urban uses as well as supplying some of
the State's most productive agricultural areas both inside and
outside of the Delta. The Delta is also one of the largest
ecosystems for fish and wildlife habitat production in the
United States, including commercial runs of salmon.
The State Water Board is responsible for protecting and managing
both water rights and water quality in California. As part of
its duties, the State Water Board developed a Delta WQCP in 1995
that included requirements as to how much water must be left
in-stream at different times to protect and balance all
beneficial uses of water including municipal and industrial,
agricultural, recreational, and fish and wildlife. After
adopting the Delta WQCP the State Water Board entered commenced
a water rights proceeding to determine the responsibilities of
water rights holders to implement the flow-dependent objectives
in the Delta WQCP. The water rights proceeding was massive and
included parties with water rights on the Sacramento River and
its tributaries, San Joaquin River and its tributaries, and in
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the Delta. The hearing was divided into 8 regional phases and
the State Water Board encouraged parties to reach settlement
agreements with other water rights holders and interested
parties as a way of proposing allocations of responsibility to
meet the flow-dependent objectives.
4. D-1641 and failure of the Vernalis Adaptive Management Plan
During Phase 2 of the hearing, parties on the San Joaquin River
and its tributaries submitted the San Joaquin River Agreement
proposing an allocation of responsibility for releasing "pulse
flows" to the Delta during the April-May and October periods,
which are most critical to migrating salmon. The parties argued
there wasn't sufficient information to determine how much water
was needed instream for fish and, therefore, they would also
conduct an experiment during the April-May period called the
Vernalis Adaptive Management Plan (VAMP). Under VAMP, parties on
the tributaries to the San Joaquin River were paid a fixed
amount of money by the federal government in returning for
maintaining low, medium, and high releases during different
years that would be tied to low, medium, and high levels of
export water by the State Water Project and Federal Central
Valley Project pumping plants in the Delta. The objective was
to evaluate the relative relationship between flows down the San
Joaquin and export pumping in the Delta on fish survival. The
VAMP flows were measured at Vernalis. VAMP ended in 2011 after
more than a decade during which the full range of flows and
export limitations were never provided to complete the
experiment and, meanwhile, populations of at-risk fish species
crashed in the Delta.
5. Current Delta WQCP update
The Delta WQCP received a minor update in 2006 but identified,
as part of that update, four "emerging issues" including the
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decline of pelagic or "open water" fish such as smelt and
threadfin shad; climate change impacts; Delta and Central Valley
salinity; and, San Joaquin River flows. With regard to San
Joaquin River flows, the State Water Board referenced data that
showed various fish species within the Delta and San Joaquin
River basin had not shown significant signs of recovery since
adoption of the VAMP experiment and recommended additional
study. Thereafter, in 2009, the State Water Board commenced a
triennial update of the WQCP that is ongoing and will include a
determination of what responsibility parties on the individual
tributaries to the San Joaquin River have for contributing to
Delta flows.
6. Relationship of the WQCP update to this bill
Parties on the tributaries to the San Joaquin River have advised
that if they are required to leave more flows in-stream they
will simply pump more groundwater. As a result, they maintain
it is the State Water Board's potential action that will be
responsible for additional degradation of their groundwater
basins. In this bill they seek to have the State Water Board
analyze the potentially significant impact of a local increase
in groundwater pumping on the basin and then require the State
Water Board and not local entities mitigate for any increased
degradation.
7. Relationship to SGMA
The most likely mitigation that the State Water Board would
require in accordance with this bill is adoption of a GSP
pursuant to SGMA. However, all basins on the eastern side of
the San Joaquin River are already ranked as high priority and
thus are already required to adopt a SGMA plan or submit an
alternative plan that meets SGMA's requirements by the
appropriate deadlines.
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SGMA provides locals with tools to help manage their groundwater
basin over time and under changing circumstances. Under the GSP
locals could investigate groundwater storage, conjunctive use
programs, stormwater capture, agricultural water use efficiency
incentives and other strategies for maintaining adequate
supplies of groundwater. If locals are unwilling or unable to
adopt a GSP, SGMA then triggers State Water Board involvement
but only as a last resort.
The recently-passed Proposition 1, The Water Quality, Supply,
Treatment, and Storage Projects Act of 2014, has $100 million
that will be available to help locals with sustainable
groundwater management planning. The Governor's January 10
budget proposes $21.3 million of those funds be made available
for the 2015-2016 fiscal year. Prop. 1 also has $2.7 billion,
continuously appropriated to the California Water Commission for
surface water and groundwater storage projects.
Supporting argument: The author states this bill is necessary
because the State Water Board is considering "a proposal to
develop new unimpaired flow requirements on the Tuolumne,
Merced, and Stanislaus rivers." The author maintains that the
proposed plan would significantly increase the level of water
into the Delta and thus "devastate the groundwater basins in the
Valley by reducing surface water recharge opportunities and
eliminating surface water deliveries to domestic and
agricultural water users." The author maintains that the State
Board's action will "deny Central Valley basins one of the most
important tools in the tool box: the ability to recharge the
depleted groundwater table with surface flows."
Opposing arguments: Opponents state that this bill would
"unreasonably limit the authority of the State Water Board to
balance the use of water in the State for all beneficial uses,
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including fish and wildlife that are held in trust by the
State." Opponents state that this bill also fails to threaten
vulnerable communities from unsustainable groundwater management
by inserting a "broad and inappropriate requirement that
essentially makes every Basin Plan subservient to any and all
GSPs in that basin" with the effect of "placing the onus for
paying for local problems on the State Water Board," interfering
with the Board's ability to protect water quality, and making
the Board rather than the polluter the responsible party in case
of contamination. Specifically with regard to the San Joaquin
River and its tributaries, opponents note that "in some years
more than 80% of the natural flow of these rivers is diverted,
which has devastating impacts on salmon, steelhead, and other
native fisheries as well as the health of the Delta." Opponents
add that "during the negotiations for SGMA the author attempted
to include the provisions of this bill but they were rejected."
Related Legislation
This is one of 14 bills in the Legislature proposing changes to
SGMA and its related statutes. The other bills are: AB 452
(Bigelow) restricting the State Water Board from using Water
Rights Fund monies for SGMA enforcement, except funds collected
from SGMA enforcement; AB 453 (Bigelow) allowing groundwater
management plans that preceded SGMA to be amended and extended;
AB 454 (Bigelow) adding one year to each of several SGMA
deadlines; AB 455 (Bigelow) requiring the Judicial Council to
come up with a 270-day process for completing all California
Environmental Quality Act (CEQA) legal challenges to SGMA
projects; AB 617 (Perea) adding mutual water companies to GSAs;
AB 938 (Salas) making minor technical changes to SGMA; AB 939
(Salas) allowing 20 days instead of 10 days to review technical
data upon which a fee is based; AB 1243 (Gray) rebating 50% of
all SGMA enforcement penalties back to local governments and
water districts for groundwater recharge projects; AB 1390
(Alejo) creating a streamlined process for groundwater
adjudications and exempting them from SGMA, except minimal
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reporting requirements; AB 1531 (Environmental Safety and Toxic
Materials Committee) making minor technical changes to SGMA; SB
13 (Pavley) making noncontroversial technical cleanup changes to
SGMA; SB 226 (Pavley) adding a streamlined groundwater
adjudication section to SGMA; and SB 487 (Nielsen) exempting
SGMA projects from CEQA.
REGISTERED SUPPORT / OPPOSITION:
Support
Agricultural Council of California
California Women for Agriculture
City of Ceres
City of Dos Palos
City of Merced
City of Modesto
City of Turlock
Merced County Board of Supervisors
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Modesto Irrigation District
Stanislaus County Board of Supervisors
Stanislaus County Farm Bureau
Stevenson Water District
Turlock Chamber of Commerce
Turlock Irrigation District
three individuals
Opposition
Center for Biological Diversity
Clean Water Action
Community Water Center
Leadership Counsel for Justice & Accountability
Natural Resources Defense Council
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Sierra Club California
Union of Concerned Scientists
Analysis Prepared by:Tina Cannon Leahy / W., P., & W. / (916)
319-2096