BILL ANALYSIS Ó SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Wieckowski, Chair 2015 - 2016 Regular Bill No: AB 1242 ----------------------------------------------------------------- |Author: |Gray | ----------------------------------------------------------------- |-----------+-----------------------+-------------+----------------| |Version: |5/5/2015 |Hearing |7/15/2015 | | | |Date: | | |-----------+-----------------------+-------------+----------------| |Urgency: |No |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant:|Rachel Machi Wagoner | | | | ----------------------------------------------------------------- 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 AB 1242 (Gray) Page 2 of ? 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. AB 1242 (Gray) Page 3 of ? 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 AB 1242 (Gray) Page 4 of ? 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 AB 1242 (Gray) Page 5 of ? 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 AB 1242 (Gray) Page 6 of ? 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 AB 1242 (Gray) Page 7 of ? 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 AB 1242 (Gray) Page 8 of ? 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 AB 1242 (Gray) Page 9 of ? 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 AB 1242 (Gray) Page 10 of ? 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 AB 1242 (Gray) Page 11 of ? 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 -- AB 1242 (Gray) Page 12 of ?