BILL ANALYSIS Ó
AB 1243
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Date of Hearing: April 14, 2015
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 1243
(Gray) - As Introduced February 27, 2015
SUBJECT: Sustainable Groundwater Management Act: Enforcement
SUMMARY: Requires that 50% of the fines collected by the State
Water Resources Control Board (State Water Board) when locals
violate the provisions of the Sustainable Groundwater Management
Act (SGMA) are deposited in a Groundwater Recharge Fund to fund
local groundwater recharge projects. Specifically, this bill:
1)Establishes the Groundwater Recharge Grant Fund in the State
Treasury, with funds available to the State Water Board, by
appropriation, for grants to local governments and water
districts for groundwater recharge infrastructure projects.
2)Requires half of all funds the State Water Board recovers in
response to a violation or threatened violation of SGMA be
deposited in the Groundwater Recharge Grant Fund.
EXISTING LAW:
1)Requires the Department of Water Resources (DWR) prioritize
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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.
2)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).
3)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.
4)Requires, by January 31, 2022, that GSAs in all other high and
medium priority basins subject to SGMA develop and adopt GSPs.
5)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
basin is in a chronic condition of overdraft or in a condition
where groundwater pumping is causing a significant depletion
of interconnected surface waters.
6)Allows the State Water Board to require direct reporting of
groundwater extractions in any area subject to SGMA where no
GSA is formed by the deadline and allows the State Water Board
to charge fees for its costs of management.
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7)Continuously appropriates $2.7 billion to the California Water
Commission to fund the public benefits of surface water
storage and groundwater storage projects in California,
including up to 50% of the project's cost.
FISCAL EFFECT: Unknown
COMMENTS: This bill requires 50% of all penalty monies
collected by the State Water Board for SGMA violations be
rebated back to local agencies and water districts for
groundwater recharge projects.
In 2010, California voters passed Proposition 26, the so called
"Stop Hidden Taxes" initiative. Prop. 26 places great
limitations on the ability of State and local agencies to fund
programs by requiring that all fees that State agencies charge
must be proportional to the cost of running the program or
otherwise be considered a tax requiring a supermajority of the
Legislature to pass.
However, even Prop. 26 specifically exempts from its tax
prohibition any fine, penalty, or other monetary charge imposed
by the judicial branch of government or the State, as a result
of a violation of law. This is a recognition that fines and
penalties are not meant to provide a special benefit to anyone,
they are punitive.
Because funds for violations are not subject to Prop. 26, they
can be directed by agencies to address more general problems,
such as compliance assistance for disadvantaged communities.
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In contrast Proposition 1, the Water Quality, Supply, and
Infrastructure Act of 2014, contains $2.7 billion, which is
continuously appropriated to the California Water Commission
(CWC) to fund the public benefits of both surface water and
groundwater storage projects. Under Prop. 1, the CWC may fund
up to 50% of a project's cost.
Supporting arguments: The author states this bill is needed
because while "overuse and excessive pumping of groundwater can
cause significant problems, such as subsidence, recharging
groundwater basins is relatively cheap and easy while providing
a significant storage option that has been underutilized in the
past." The author adds that while Proposition 1 provides $100
million in funding to groundwater sustainability agencies to
develop and implement GSPs, "local jurisdictions lack a
dedicated source of funding for recharge infrastructure."
Opposing arguments: Opponents point out that "in addition to
assuring compliance with laws and regulations, fines are
assessed to cover the cost of compliance actions. Artificially
setting the level of payment into the Groundwater Recharge Fund
could have the effect of raising the size of the fines that the
Board assesses. Opponents also state that they oppose this bill
because "groundwater recharge is only one tool to achieve
sustainability, but local agencies may need Board funding for a
variety of projects and technical assistance, not just
recharge."
Suggested Committee Amendments
This bill requires 50% of all penalty funds to be diverted into
a groundwater recharge project grant program. However, the bill
does not take into account how much of those funds are needed
for the State Water Board to run the enforcement program. So,
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that would drive up the cost of fines. This bill also denies
the State Water Board the flexibility to use half of its
groundwater enforcement funds where it sees fit by requiring
that half must go towards local agencies' groundwater recharge
projects. However, recharge projects are only one potential
solution. There could be a disadvantaged community or other
group who needs help funding technical planning. There could be
another group who can't reach agreement on governance without a
mediator. There may be a local GSA that would like to offer
incentives to landowners to join a cooperative program or who
needs help funding monitoring that is in lieu of putting a
measuring device on each well. The State Water Board is not
required to provide funding to these groups, but it would likely
be precluded from using enforcement funds to help if half of all
of those funds must go towards groundwater recharge
infrastructure projects.
Since Prop. 1 already provides $2.7 billion for surface water
and groundwater storage projects, Committee staff suggests that
the State Water Board be specifically authorized, upon
appropriation by the Legislature, to use funds recovered in
response to a violation or threatened violations of SGMA, which
exceed the cost of the State Water Board's SGMA enforcement
program, for loans, grants, or other actions to help facilitate
formation of GSAs, implementation of GSPs, or other actions to
advance the purposes of SGMA.
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) prohibiting 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 adopted prior to SGMA to be amended and
extended; AB 454 (Bigelow) adding one year to the deadline to
form a GSA or adopt a GSP; AB 455 (Bigelow) requiring the
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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) changing the time period for providing
technical data upon which a fee is based from 10 days to 20 days
before the meeting to adopt the fee; AB 1242 (Gray) prohibiting
the State Water Board from setting in-stream flows standards
unless the Board mitigates for the potential local response of
increased groundwater use; AB 1390 (Alejo) creating a
streamlined process for groundwater adjudications and exempting
them from SGMA, except minimal 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
None on file
Opposition
Union of Concerned Scientists
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Clean Water Action
Community Water Center
Leadership Counsel for Justice & Accountability
Center for Biological Diversity
Sierra Club California
Analysis Prepared by:Tina Cannon Leahy / W., P., & W. / (916)
319-2096