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: | |
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|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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