BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1242


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          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