BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                               Senator Wieckowski, Chair
                                 2015 - 2016  Regular 
           
          Bill No:            AB 1242
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          |Author:    |Gray                                                 |
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          |-----------+-----------------------+-------------+----------------|
          |Version:   |5/5/2015               |Hearing      |7/15/2015       |
          |           |                       |Date:        |                |
          |-----------+-----------------------+-------------+----------------|
          |Urgency:   |No                     |Fiscal:      |Yes             |
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          |Consultant:|Rachel Machi Wagoner                                 |
          |           |                                                     |
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          SUBJECT:  Water quality: impacts on groundwater: instream flows.

            ANALYSIS:
          
          Existing law:  
          
          1)Under the Porter-Cologne Water Quality Control Act  
            (Porter-Cologne),

              a)    Requires the State Water Resources Control Board (SWRCB)  
                to adopt a state policy for water quality control.  The  
                policy is to consist of any or all of the following: 
                             Water quality principles and guidelines for  
                     long-range resource planning, including ground water and  
                     surface water management programs and control and use of  
                     recycled water.

                             Water quality objectives at key locations for  
                     planning and operation of water resource development  
                     projects and for water quality control activities.

                             Other principles and guidelines deemed  
                     essential by the state board for water quality control.

              a)    Requires the Regional Water Quality Control Boards  
                (Regional Boards) to 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.  SWRCB is similarly tasked with  
                developing statewide plans (e.g., the California Ocean Plan  







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                and the Bay-Delta Plan).


                WQCPs are to include objectives that will ensure the  
                reasonable protection of all beneficial uses, protection of  
                water quality, and the prevention of nuisance.   
                Porter-Cologne recognizes that it may be possible for the  
                quality of water to be changed to some degree without  
                unreasonably affecting beneficial uses. Consequently,  
                regional boards are required to consider various factors in  
                establishing water quality objectives, including:
                             Past, present, and probable future beneficial  
                     uses of water. 
                             Environmental characteristics of the  
                     hydrographic unit under consideration, including the  
                     quality of water available thereto. 
                             Water quality conditions that could reasonably  
                     be achieved through the coordinated control of all  
                     factors which affect water quality in the area. 
                             Economic considerations. 
                             The need for developing housing within the  
                     region. 
                             The need to develop and use recycled water.


               In developing WQCPs, Regional Boards are required to consult  
               with and consider recommendations of affected state and local  
               agencies.   


               WQCPs adopted or amended by Regional Boards must be approved  
               by the SWRCB.


          1)Under the California Environmental Quality Act (CEQA), requires,  
            for any project or plan subject to CEQA that would potentially  
            have significant environmental impacts, an environmental impact  
            report that, among other things, identifies the following:
                             All significant effects on the environment of  
                     the proposed project.
                             Mitigation measures proposed to minimize  
                     significant effects on the environment, including, but  
                     not limited to, measures to reduce the wasteful,  
                     inefficient, and unnecessary consumption of energy.
                             Alternatives to the proposed project.








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            The development and adoption of state policy for water quality  
            control and WQCPs are subject to CEQA.


          1)Under the Sustainable Groundwater Management Act (SGMA),  
            requires, by June 30, 2017, the formation of one or more  
            Groundwater Sustainability Agencies (GSAs) in all high and medium  
            priority basins.


            SGMA requires, by January 31, 2020, GSAs in all high and medium  
            priority basins subject to a chronic condition of overdraft to  
            develop and adopt Groundwater Sustainability Plans (GSPs) that  
            provide for the sustainable management of the groundwater basin,  
            as defined.


            SGMA requires by January 31, 2022, GSAs in all other high and  
            medium priority basins to develop and adopt GSPs.


            SGMA requires GSPs to include, among other things:
                           Measurable objectives, as well as interim  
                    milestones in increments of five years, to achieve the  
                    sustainability goal in the basin within 20 years of the  
                    implementation of the plan.
                           A description of how the plan helps meet each  
                    objective and how each objective is intended to achieve  
                    the sustainability goal for the basin for long-term  
                    beneficial uses of groundwater.


          This bill: 

          1) Requires the SWRCB, in formulating state policy for water  
             quality control and adopting or approving a water quality  
             control plan that affects a groundwater basin, to take into  
             consideration any applicable GSP or alternative adopted or  
             approved SGMA.


          2) Requires the SWRCB, before adopting or approving water quality  
             objectives or a program of implementation that requires instream  








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             flows for protection of instream beneficial uses, to identify  
             projects for fish recovery that may be undertaken in lieu of  
             instream flows.



            Background
          
          SWRCB is responsible for allocating surface water rights and  
          protecting water quality.  SWRCB allocates water through an  
          administrative system that is intended to maximize the beneficial  
          uses of water while protecting the public trust, serving the public  
          interest, and preventing the waste and unreasonable use or method  
          of diversion of water. 

          Porter-Cologne requires the adoption of WQCPs that identify  
          existing and potential beneficial uses of waters of the state and  
          establish water quality objectives to protect these uses.  The  
          plans also contain implementation, surveillance and monitoring  
          elements.  While most water quality control planning is done by the  
          Regional Boards, SWRCB has authority to adopt statewide Water  
          Quality Control Plans and adopts the Bay-Delta Plan because of its  
          importance as a major source of water supply for the state and the  
          nexus with flow and water rights implementation. 

          The Bay-Delta Plan protects water quality in the region and  
          includes water quality objectives to protect municipal and  
          industrial, agricultural, and fish and wildlife beneficial uses. 

          SWRCB's Bay-Delta Program facilitates the development and review of  
          plans and policies to protect beneficial uses of the water in the  
          Bay-Delta pursuant to the California Water Code and federal Clean  
          Water Act. The Bay-Delta Program also facilitates water right  
          activities related to the Bay-Delta, including implementation of  
          the Bay-Delta Water Quality Control Plan through water right  
          requirements. The Bay-Delta Program resides in the Division of  
          Water Rights because of the critical importance of flow objectives  
          in the Bay-Delta Plan. The Bay-Delta Program also oversees  
          implementation of the State Water Board's and Central Valley and  
          San Francisco Bay Regional Water Quality Control Boards' 2008  
          Strategic Workplan for Activities in the Bay-Delta. 

          SWRCB is currently in the process of developing and implementing  
          updates to the Bay-Delta Plan and flow objectives for priority  
          tributaries to the Delta to protect beneficial uses in the  








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          Bay-Delta watershed. Phase 1 of this work involves updating San  
          Joaquin River flow and southern Delta water quality requirements  
          included in the Bay-Delta Plan. Phase 2 involves other  
          comprehensive changes to the Bay-Delta Plan to protect beneficial  
          uses not addressed in Phase 1. Phase 3 involves changes to water  
          rights and other measures to implement changes to the Bay-Delta  
          Plan from Phases 1 and 2. Phase 4 involves developing and  
          implementing flow objectives for priority Delta tributaries outside  
          of the Bay-Delta Plan updates. 
            
          Comments
          
          Purpose of Bill.  According to the author, "For the past year,  
          SWRCB has considered a proposal to develop new unimpaired flow  
          requirements on the Tuolumne, Merced, and Stanislaus rivers.  The  
          proposed plan would require an additional 350,000 acre feet of  
          water annually to be diverted from the rivers to flow out to San  
          Francisco Bay Delta.

          The author believes that "if adopted, SWRCB's proposal will  
          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 Board  
          recognizes these impacts would have significant 'but unavoidable'  
          adverse impacts to the region.

          The author asserts, "in 2014, the Legislature passed the  
          Sustainability Groundwater Management Act which promised to empower  
          local communities with the tools to achieve sustainable management  
          goals.  The adoption of the Board's proposal without mitigating  
          measures would deny Central Valley basins one of the most important  
          tools in that tool box: the ability to recharge the depleted  
          groundwater table with surface flows.  AB 1242 would ensure that  
          the Board considers water neutral projects to help fish populations  
          before diverting water out of the Valley."

          Unintended Consequences and Costs Preventing the Adoption and  
          Implementation of Water Quality Plans?  This bill would require  
          SWRCB to identify projects for fish recovery that may be undertaken  
          in lieu of instream flows before adopting or approving water  
          quality objectives or a program of implementation that requires  
          instream flows for protection of instream beneficial uses.  This  
          bill also would require the SWRCB, when formulating state policy  
          for water quality control and adopting or approving a water quality  
          control plan that affects a groundwater basin, to take into  








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          consideration any applicable groundwater sustainability plan or  
          alternative adopted under the Sustainable Groundwater Management  
          Act.

          According to the author, this bill would ensure that SWRCB  
          considers and mitigates the adverse impacts of any new water  
          quality control plan. 

          This bill would likely result in increased litigation and  
          significant delays to the adoption of instream flows for the  
          protection of fish and wildlife, including significant delays in  
          SWRCB's current efforts to adopt its Bay-Delta Water Quality  
          Control Plan (Bay-Delta Plan).

          The provision of the bill requiring SWRCB to identify projects for  
          fish recovery that may be undertaken  in lieu  of instream flows  
          before adopting or approving water quality objectives or a program  
          of implementation that requires instream flows for protection of  
          instream beneficial uses could be interpreted to require SWRCB to  
          fully evaluate all possible actions that could be used to increase  
          fish populations.  

          SWRCB currently identifies alternative actions that could be taken  
          to implement instream flows to protect fish and wildlife in the  
          Bay-Delta Plan, and this information could be used by diverters  
          during the implementation phase of the Bay-Delta plan to  
          investigate, develop and propose projects to increase fish  
          populations and thereby potentially reduce the amount of instream  
          flows necessary for fish and wildlife. 

          Further, the bill's language is ambiguous as to what is intended in  
          requiring SWRCB to "  identify  projects for fish recovery?."    
          Proponents may view this bill to require that SWRCB not simply  
          identify, but comprehensively evaluate and implement, on its own,  
          projects for fish recovery that may be implemented in lieu of  
          in-stream flows under CEQA. 

          Assembly Member Gray testified in the Senate Natural Resources and  
          Water Committee that his intent is for SWRCB to fully evaluate  
          under CEQA all possible alternatives to increasing flows. 

          As a result, the ambiguity of this bill would likely increase the  
          likelihood and complexity of litigation over SWRCB's adoption of  
          future water quality control plans.  Potential litigation and  
          requirements that SWRCB develop substantial additional analysis  








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          could result in significant delays and additional costs for the  
          adoption of instream flows. 

          Additionally, this bill could result in profound delays in SWRCB's  
          implementation of the Bay-Delta Plan.  Delays in properly  
          addressing the needs of water users downstream of the Delta and the  
          associated environmental impacts could have larger ramifications  
          for state economic activity. Without a plan ensuring fair access to  
          water while preserving environmental resources and the public  
          trust, economic harm is likely, in the forms of uncertainty in the  
          agricultural industry and destruction of fisheries and tourism in  
          the Delta.  

          The impediments to timely regulatory action caused by this bill  
          would ultimately result in degraded water quality and harm to  
          wildlife and public trust resources.  

          According to the Assembly Appropriations Committee estimates  
          increased contract costs for the SWRCB to perform the duties  
          required in the bill of up to $21 million General or Water Rights  
          Fund (which is supported by water rights fees).  


          SWRCB estimates increased litigation, significant delays to the  
          adoption of instream flows for the protection of fish and wildlife,  
          including significant delays in the SWRCB's current efforts to  
          adopt its Bay-Delta Water Quality Control Plan (Bay-Delta Plan)  
          could result in costs in excess of $36 million to the General Fund  
          or to the Water Rights Fund. 

          Is This Bill Necessary?  Porter-Cologne already requires SWRCB,  
          when developing a state policy for water quality control, to  
          consult with and carefully evaluate the recommendations of  
          concerned federal, state, and local agencies.  Local agencies would  
          include groundwater sustainability agencies formed to develop and  
          implement GSPs.  There are similar requirements for developing  
          WQCPs.
           
           SWRCB also has to comply with CEQA when adopting a state policy or  
          a WQCP.  Such analysis requires identifying and evaluating  
          alternatives to establishing instream flows for protection of  
          instream beneficial uses.

          It is not clear what benefit this bill would provide beyond that  
          required under current law.  Additionally, there is a question as  








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          to whether the perceived benefit of this legislation is worth the  
          fiscal cost to the state, the economic cost to the region or the  
          harm to the environment caused by the inevitable delay to adoption  
          of WQCPs.

          However, if the concern is that alternatives to instream flows are  
          not currently considered and that the SWRCB and regional board  
          consider water neutral projects to help fish populations before  
          diverting water then the bill should be amended to require, when  
          SWRCB adopts or approves water quality objectives which require  
          instream flows for the protection of instream beneficial uses,  
          SWRCB shall include flexibility for implementation through methods  
          that provide the same level of protection without requiring as much  
          water for instream flows.
            
          

            Related/Prior Legislation
          
          A number of bills were introduced this year to address one or more  
          aspects of groundwater management in general and SGMA in  
          particular.  Bills still under active consideration this year are:

          AB 453 (Bigelow)authorizes existing groundwater management plans  
          (aka AB 3030 plans) to be renewed and amended for high and medium  
          priority basins, until a GSP is adopted.  Also grants agencies  
          operating under an AB 3030 plan the same powers and authorities of  
          a groundwater management agency the authorities of a groundwater  
          sustainably agency.

          AB 617 (Perea) makes numerous changes throughout SGMA:  some  
          changes are minor and technical; others are substantive policy  
          changes, such as eliminating the requirement that a groundwater  
          sustainability agency submit its groundwater sustainability plan to  
          the Department of Water Resources as a condition of a groundwater  
          sustainability agency becoming authorized to exercise its powers to  
          implement SGMA.

          AB 938 (Salas) makes a minor technical change regarding  
          reprioritization of groundwater basins under SGMA.

          AB 939 (Salas) makes a minor technical change regarding making data  
          in support of a proposed fee available to the public.

          AB 1390 (Alejo, Gomez, and Perea) streamlines legal processes used  








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          to assign water rights in a groundwater basin.

           SB 13 (Pavley) makes numerous non-substantive technical changes to  
                        SGMA.

          SB 226 (Pavley) streamlines legal processes used to assign water  
          rights in a groundwater basin.
            
          DOUBLE REFERRAL:


          This measure was heard in Senate Natural Resources and Water  
          Committee on June 23, 2015, and passed out of committee with a vote  
          of 6-0.


            SOURCE:                    Author  




           SUPPORT:               

          Agricultural Council of California
          Almond Hullers & Processors Association
          Building and Construction Trades Council of Stanislaus, Merced,  
          Tuolumne, and 
               Mariposa Counties
          California Diary Campaign
          California Farm Bureau Federation
          California Women for Agriculture
          City of Atwater
          City of Ceres
          City of Dos Palos, Mayor Jerry Antonetti
          City of Gustine
          City of Livingston
          City of Los Banos
          City of Merced
          City of Modesto
          City of Patterson, Mayor Luis Molina
          City of Turlock, Mayor Gary Soiseth
          Coalition of California Utility Employees
          Congressman Jim Costa
          Glen-Colusa Irrigation District
          Greater Merced Chamber of Commerce








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          Harris Farms, Inc.
          IBEW - Local 684
          IBEW - Local 1245
          Latino Community Roundtable
          League of California Cities - Central Valley Division
          Merced County Board of Supervisors
          Merced County Farm Bureau
          Merced County Sheriff Vernon Warnke
          Merced Irrigation District
          Modesto Chamber of Commerce
          Modesto Irrigation District
          Northern California Water Association
          Regional Water Authority
          Stanislaus Business Alliance
          Stanislaus County Board of Supervisors
          Stanislaus County Farm Bureau
          Stevinson Water District
          Turlock Chamber of Commerce
          Turlock Irrigation District
          Valley Ag Water Coalition
          Western Growers Association
          Yosemite Community College District
          Yosemite Farm Credit
           
           OPPOSITION: 
             
          California League of Conservation Voters
          Center for Biological Diversity
          Clean Water Action
          Coastal Environmental Rights Foundation
          Community Water Center
          Friends of the River
          Klamath Riverkeeper
          Leadership Counsel for Justice and Accountability
          Natural Resources Defense Council
          Sierra Club California
          The Nature Conservancy
          Union of Concerned Scientists
           
           ARGUMENTS IN  
          SUPPORT:    According to Congressman Jim Costa, "Subsidence was a major  
          factor motivating passage of the Sustainability Groundwater  
          Management Act of 2014 and Merced County is significantly impacted  
          by subsidence.  However the proposal from SWRCB to require up to an  
          additional 250,000 acre feet to be diverted to the Sacramento San  








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          Joaquin Bay-Delta from these rivers would have a catastrophic  
          impact on the rate of subsidence of the Valley.  Our agricultural  
          economy and our region's ability to achieve sustainable management  
          goals laid out by the Sustainability Groundwater Management Act of  
          2014 are dependent on these headwaters.  AB 1242, if enacted, would  
          ensure that SWRCB consider and mitigate the adverse impact of any  
          new water quality control plan."
           
           ARGUMENTS IN  
          OPPOSITION:    According to a coalition of environmental and environmental  
          justice organizations, "Under existing law, the State Water  
          Resources Control Board and its regional boards are required, as  
          they develop water quality control plans for the State, to consider  
          all existing and potential future beneficial uses of water, as well  
          as economic considerations ?These water quality control plans  
          include pollution standards, instream flows, and other measures to  
          best manage the scarce water resources of the state and to comply  
          with other statutory and common law obligations. In setting these  
          standards, the State and regional boards already consider impacts  
          to groundwater resources, and they are required to mitigate those  
          impacts to less than significant levels when feasible, or to adopt  
          a statement of overriding considerations ? In addition, in  
          developing water quality control plans the State Water Resources  
          Control Board already considers both flow and nonflow measures,  
          such as habitat restoration, pollution controls, or improved water  
          use efficiency, in order to protect and restore fisheries and other  
          beneficial uses.

          Opponents argue, "AB 1242, attempts to undermine more than a  
          century                                           of California law, which requires maintaining adequate  
          instream flows below dams in order to maintain healthy rivers and  
          fisheries. The bill would limit the State Board's ability to  
          require instream flows in a water quality control plan by requiring  
          the State Water Resources Control Board to identify measures to be  
          taken instead of instream flow, regardless of whether such measures  
          can successfully protect and restore healthy rivers and fish and  
          wildlife populations. The bill could even be read to require the  
          Board to eliminate all instream flow in a river, completely drying  
          up the river."

                                            
                                       -- END --
          










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