BILL ANALYSIS Ó
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: AB 2909 Hearing Date: June 28,
2016
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|Author: |Levine | | |
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|Version: |June 21, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Dennis O'Connor |
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Subject: Water: transfer or exchange: expedited review
BACKGROUND AND EXISTING LAW
1. Current law provides "It is hereby declared to be the
established policy of this state to facilitate the voluntary
transfer of water and water rights where consistent with the
public welfare of the place of export and the place of import."
To that end, the Department of Water Resources (DWR), the State
Water Resources Control Board (state board), "and all other
appropriate state agencies are directed to encourage voluntary
transfers of water and water rights, including, but not limited
to, providing technical assistance to persons to identify and
implement water conservation measures which will make additional
water available for transfer."
2. Under current law, a person with a water rights permit or
licensee may temporarily change the point of diversion, place of
use, or purpose of use due to a transfer or exchange of water or
water rights if the transfer meets certain criteria. These
include:
The transfer would only involve the amount of water that
would have been consumptively used or stored by the
permittee or licensee in the absence of the proposed
temporary change.
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The transfer would not injure any legal user of the
water, during any potential hydrologic condition that the
board determines is likely to occur during the proposed
change, through significant changes in water quantity,
water quality, timing of diversion or use, consumptive use
of the water, or reduction in return flows.
The transfer would not unreasonably affect fish,
wildlife, or other instream beneficial uses.
Key definitions include:
"Temporary change" - any change of point of diversion, place
of use, or purpose of use involving a transfer or exchange of
water or water rights for a period of one year or less. This
is sometimes also called a short-term transfer.
"Consumptively used" - the amount of water which has been
consumed through use by evapotranspiration, has percolated
underground, or has been otherwise removed from use in the
downstream water supply as a result of direct diversion.
Short-term transfers are exempt from the California
Environmental Quality Act (CEQA).
A short-term transfer is initiated by a petition to the state
board to change the terms of the permit or license. The
process is as follows:
The petitioner is required to provide a copy of the petition
to the Department of Fish and Wildlife (DFW), the board of
supervisors of the county or counties in which the petitioner
currently stores or uses the water subject to the petition,
and the board of supervisors of the county or counties to
which the water is proposed to be transferred.
Within 10 days of the date of submission of a petition:
The petitioner must publish a notice of the petition and
a brief description of the terms of the proposed temporary
change.
The state board must provide to the petitioner a list of
water right holders of record on file with the board who
may be affected by the transfer,
The petitioner must provide written notice to those
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water right holders not later than 10 days after the date
on which the petition is submitted, and
The state board must post the notice of petition on its
Internet Web site. The notice of the petition must specify
the date on which comments are due.
Also within 10 days of the date of receipt of a petition, the
state board must begin an investigation of the proposed
temporary change. As a part of that investigation, the state
board must:
Determine if the water proposed to be transferred would
have been consumptively used or stored in the absence of
the proposed.
Evaluate the changes in water storage, timing and point
of diversion, place and purpose of use, timing and point of
return flow, water quality, and instream flows, and other
changes that are likely to occur as a result of the
proposed temporary change.
Water users that may be affected by a proposed temporary
change and any other interested party may file a written
comment regarding a petition with the state board. Comments
shall be filed not later than 30 days after the date that the
notice was published.
The state board is required to render a decision on the
petition not later than 35 days after the date that
investigation commenced or the date that the notice was
published, whichever is later, with two exceptions (below).
The board must explain its decision in writing and send copies
of the decision to the petitioner, the DFW, the relevant
board(s) of county supervisors, the proposed transferee, and
any party who has filed a written comment.
If comments are filed on the proposed transfer, the
state board may extend the date of its decision for up to
20 days.
If the state board or the petitioner determines that an
additional extension of time for a decision is necessary
for the state board to make its findings or that a hearing
is necessary for the board to make those findings, the
board may extend the time for a decision with the consent
of the petitioner.
3. Also under current law, neither the state, nor any regional
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or local public agency may deny a transferor of water the use of
a water conveyance facility which has unused capacity, for the
period of time for which that capacity is available, if fair
compensation is paid for that use, subject to the following:
Any person that has a long-term water service contract with or
the right to receive water from the owner of the conveyance
facility has the right to use any unused capacity prior to any
bona fide transferor.
The commingling of transferred water will not diminish the
beneficial uses or quality of the water in the facility.
Any person has a water service contract with or the right to
receive water from the owner of the conveyance facility who
has an emergency need may use the unused capacity that was
made available pursuant to this section for the duration of
the emergency.
The use of a water conveyance facility would not:
Injure any legal user of water.
Unreasonably affect fish, wildlife, or other instream
beneficial uses
Unreasonably affect the overall economy or the
environment of the county from which the water is being
transferred.
4. DWR has contracts with the water agencies participating in
the state water project (SWP). Provisions of those contracts
govern how, among other things, DWR treats requests to exchange
water among SWP contractors. (The contracts do not allow for
selling what are known as Table A supplies, only exchanges.)
PROPOSED LAW
This bill would:
Require the state board to develop and implement an expedited
30-day review process for approval of petitions to temporarily
change the point of diversion, place of use, or purpose of use
due to a transfer or exchange of water or water rights if the
transfer is for a reoccurring water transfer or an
environmentally beneficial transfer.
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Require DWR to develop a 30-day review process for reoccurring
water transfers between contractors for State Water Project
water and for reoccurring water transfers that utilize
facilities of the State Water Project.
Define the following terms
"Environmentally beneficial transfer" means a transfer that
does not negatively impact an ecosystem's health or local
drinking water supply in the source area and includes any of
the following:
A transfer between water users that is designed to
benefit the environment.
A transfer that protects habitat and sensitive wildlife
or enhances managed wetland supply, wildlife refuges,
ecosystems, and instream flow.
A transfer that benefits local drinking water supplies
by reducing local groundwater overdraft or improving water
quality.
A transfer that contributes to the implementation of the
Sustainable Groundwater Management Act (SGMA).
"Reoccurring water transfer" means a transfer of one year or
less that is substantially similar in volume, time of year,
and hydrologic conditions to a transfer previously approved by
the department or the board in the past 48 months.
Further provide:
Transfers under this bill shall not alter the priority for use
of conveyance facilities.
The provisions of this bill are in addition to any other law
relating to water transfers or exchanges.
This bill shall remain in effect only until January 1, 2022,
and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2022, deletes or
extends that date.
ARGUMENTS IN SUPPORT
According to the author, "Water transfers make up only 3% of all
water use in California. Clearly we can do better. It is
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important that we remove as many barriers to transfers as
possible. This bill is a simple step to ensure that where
substantially similar transfers have been completed before they
do not have to go back to square one for approval.
Additionally, a more nimble response to critical environmental
needs is provided. This will allow for improved efficiency in
completing transfers as we move forward and will help us more
efficiently distribute water."
ARGUMENTS IN OPPOSITION: None Received
COMMENTS
How Long Does Approving Short-Term Transfers Normally Take? By
law, the state board moves pretty quickly in approving short
term transfers.
Current law requires public notice of the petition to be
provided within 10 days of the date of submission of the
petition to the State Water Board. The notice period per the
Water Code lasts 30 days. If no comments are received, the state
board usually acts on the petition within 5 days. If comments
are received, the State Board may extend their decision for up
to 20 days. All told, this means the state board acts between
about 45 days to 60 days to approve short-term transfers.
Balance Of Expediency And Protection Of Water Rights. The
current process reflects a balancing of acting quickly versus
ensuring no harm to legal water users and the environment.
Reducing the state board's time to process a short term transfer
means reducing the level of effort by the state board and
interested parties to ensure the transfer will do no harm to any
legal water user or the environment.
Access to SWP. DWR has to consider two key issues when
determining whether to transport (or "wheel") water using the
SWP:
Would the transfer harm any legal water user or the
environment?
Does the SWP have sufficient excess capacity to move that
water?
The question about excess capacity hinges on two additional
things. First, DWR's window for wheeling non-SWP water is
July-August-September. That is when the various biological
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opinions and other constraints allow wheeling of non-SWP water.
Second, DWR cannot know if it will have excess capacity during
that transfer window until it schedules all SWP deliveries, and
DWR determines that in May. So, the decision regarding wheeling
of non-SWP water hinges more on the time of year than the
administrative review process.
Definition Of An Environmentally Beneficial Transfer Is Broad.
For example, it includes any transfer that reduces local
groundwater overdraft or helps to implement SGMA. Arguably, any
transfer that brings water into an overdrafted basin will help
reduce overdraft, either by reducing demands for ground water or
by recharging groundwater through water that percolates after
use for irrigation.
Recurring Short Term Transfer Vs. Long Term Transfers.
Short-term transfers have a fairly quick approval process and
are exempt from CEQA. Long-term transfers, defined in statute
as any period in excess of one year, are not exempt from CEQA
and so their approval process can take significantly more time.
By requiring the state board to develop a process to approve
short-term transfers that are "substantially similar in volume,
time of year, and hydrologic conditions" to a previously
approved transfer, this bill seems to be blurring the difference
between short-term transfers and some long-term transfers.
SUGGESTED AMENDMENTS: None
SUPPORT: None Received
OPPOSITION: None Received
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