BILL ANALYSIS �
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2013-2014 Regular Session |
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BILL NO: AB 1739 HEARING DATE: June 24, 2014
AUTHOR: Dickinson URGENCY: No
VERSION: June 17, 2014 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Groundwater basin management: sustainability.
BACKGROUND AND EXISTING LAW
California is the only state without a mandatory statewide
system of groundwater management. That isn't to say there isn't
any groundwater management in California; some of California's
groundwater basins are sustainably managed. However, many are
not.
A number of different entities may manage some aspect of
groundwater in California. These include:
Special Districts - many types of special districts have some
groundwater related authorities under the water code and other
statutes. Such districts include county water districts,
municipal utility districts, community service districts, and
water replenishment districts.
Special Act Districts - the legislature has created a number
of special districts whose specific purpose is to manage one
groundwater basin or another. These include agencies such as
the Orange County Water District and Fox Canyon Groundwater
Management Agency.
Court Appointed Watermasters - in an adjudication, the court
determines who has rights to pump from the groundwater basin,
how much they can pump, etc. The court also typically
appoints someone to be the "Watermaster" whose job is to
ensure that the basin is managed in accordance with the
court's decree.
Cities and Counties - the courts have held that cities and
counties, under their general police powers, have the
authority to enact ordinances regarding groundwater. More
than 20 counties have done so, generally addressing issues
such as banning transfers of groundwater out of the county.
Counties also issue drilling permits for water wells.
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The powers to manage groundwater vary. In most special act
districts, the authorizing act allows the agency to require
groundwater users to report their extractions to the agency, who
can then levy fees for groundwater management or water supply
replenishment. Some acts also provide the special district the
authority to limit exports and extractions.
For most non-special act districts, the authority to manage
groundwater derives from what is commonly referred to as AB 3030
(WC �10750 et seq.). AB 3030 allows, but does not require,
certain defined existing local agencies to develop groundwater
management plans in defined groundwater basins and subbasins.
An AB 3030 plan can be developed only after a public hearing
and adoption of a resolution of intention to adopt a
groundwater management plan. If landowners representing more
than 50% of the assessed value of lands within the proposed
district do not protest the plan, the plan can be adopted
within 35 days. If landowners representing a majority of the
assessed value in the proposed district oppose the plan,
cannot be adopted and no new plan may be attempted for 1 year.
AB 3030 plans cannot be adopted in adjudicated basins or in
basins where groundwater is managed under other sections of
the Water Code without the permission of the court or the
other agency.
Once the plan is adopted, rules and regulations must be
adopted to implement the program called for in the plan. Many
plans that have been adopted are relatively simple and in some
cases are a means of defining boundaries.
There are 149 adopted AB 3030 plans.
If a local agency wishes to receive state funds administered by
the Department of Water Resources (DWR) for groundwater projects
or for other projects that directly affect groundwater levels or
quality, the local agency must have an AB 3030 plan or
equivalent groundwater management plan meets specific
requirements. These requirements are sometimes known as "SB
1938 requirements." To meet the SB 1938 requirements, a local
agency must:
Prepare and implement a groundwater management plan that
includes basin management objectives for the groundwater basin
that is subject to the plan. The plan must include components
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relating to the monitoring and management of groundwater
levels, groundwater quality degradation, inelastic land
surface subsidence, and changes in surface flow and surface
water quality that directly affect groundwater levels or
quality or are caused by groundwater pumping in the basin.
Prepare a plan that enables the local agency to work
cooperatively with other public entities whose service area or
boundary overlies the groundwater basin.
Prepare a map that details the area of the groundwater basin
and the area of the local agency that will be subject to the
plan, as well as the boundaries of other local agencies that
overlie the basin in which the agency is developing a
groundwater management plan.
Adopt monitoring protocols that are designed to detect changes
in groundwater levels, groundwater quality, inelastic surface
subsidence for basins for which subsidence has been identified
as a potential problem, and flow and quality of surface water
that directly affect groundwater levels or quality or are
caused by groundwater pumping in the basin. The monitoring
protocols must be designed to generate information that
promotes efficient and effective groundwater management.
For areas outside delineated groundwater basins, local
agencies are required to prepare plans using use geologic and
hydrologic principles appropriate to those areas.
This January, the Governor released his final California Water
Action Plan (CWAP). Among the many initiatives in the CWAP is a
call to improve sustainable groundwater management:
"Groundwater is a critical buffer to the impacts of prolonged
dry periods and climate change on our water system. The
administration will work with the Legislature to ensure that
local and regional agencies have the incentives, tools,
authority and guidance to develop and enforce local and
regional management plans that protect groundwater elevations,
quality, and surface water-groundwater interactions. The
administration will take steps, including sponsoring
legislation, if necessary, to define local and regional
responsibilities and to give local and regional agencies the
authority to manage groundwater sustainably and ensure no
groundwater basin is in danger of being permanently damaged by
over drafting. When a basin is at risk of permanent damage,
and local and regional entities have not made sufficient
progress to correct the problem, the state should protect the
basin and its users until an adequate local program is in
place."
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PROPOSED LAW
This bill would overhaul how California manages its groundwater.
Specifically, it would:
Require all groundwater basins designated as high or medium
priority basins by DWR to be managed under a groundwater
sustainability plan or coordinated groundwater sustainability
plans, with specified exceptions.
Require a groundwater sustainability agency to certify that
its plan complies with the requirements of this bill no later
than January 31, 2020, and every 5 years thereafter.
Encourage basins designated as low-priority basins by the
department to be managed under groundwater sustainability
plans as soon as possible.
Require, to the extent practicable, a groundwater
sustainability plan to be coterminous with, and augment a
groundwater management plan.
Provide a groundwater sustainability agency specific
authorities, including, but not limited to, the ability to:
" Require the registration of a groundwater extraction
facility. Any form used to register such a groundwater
extraction facility would be prohibited from being made
available for inspection by the public.
" Require that a groundwater extraction facility be equipped
with a water-measuring device.
" Regulate groundwater pumping
" Impose certain charges.
Prohibit, after January 31, 2020, a person from increasing
groundwater extractions on a property within the basin until a
groundwater sustainability agency or the State Water Resources
Control Board (SWRCB) complies with the requirements described
above, unless the person submits to the county a specified
report.
Authorize a groundwater sustainability agency to conduct
inspections and would require the inspection to be made with
any necessary consent or with an inspection warrant. Because
the willful refusal of an inspection lawfully authorized by an
inspection warrant is a misdemeanor, this bill would impose a
state-mandated local program by expanding the application of a
crime.
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Authorize DWR to provide technical assistance to a groundwater
sustainability agency upon the request of the agency
Require, by January 1, 2017, DWR to submit to the Legislature
and publish on its Internet Web site best management practices
for the sustainable management of groundwater.
Establish it is policy of the state to encourage conjunctive
use of surface and groundwater.
Declare that the storage of water underneath the ground is a
beneficial use of water.
Require, prior to the adoption or any substantial amendment of
a general plan, the local planning agency to review, and if
necessary revise the land use, conservation, open space, or
any other element of the general plan to address a groundwater
sustainability plan, groundwater management plan, groundwater
management court order, judgment, or decree, adjudication of
water rights, or a certain order of the SWRCB.
Require the planning agency to refer a proposed action to
adopt or substantially amend a general plan to any local
agency or joint powers authority that has adopted a
groundwater sustainability plan or that otherwise manages
groundwater and to the SWRCB if it has adopted a groundwater
sustainability plan that includes territory within the
planning area.
Require a public water system to provide a report on the
anticipated effect of the proposed action on implementation of
a groundwater sustainability plan.
Require a groundwater sustainability agency to provide the
planning agency with certain information as is appropriate and
relevant.
State the intent of the Legislature to the following:
" Amend this measure to provide that one or more state
agencies act to ensure that all basins in California are on
track to achieve the sustainability goal if local agencies
are unable to adopt or implement groundwater sustainability
plans that achieve that goal.
" Amend this measure to provide for expedited adjudications
of rights to extract and store water from and in basins by
enacting and directing the Judicial Council to develop
innovative judicial procedures to manage those adjudications
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as quickly as reasonably feasible.
" Amend this measure to provide that the SWRCB and the
regional water quality control boards must weigh the value
of surface water for groundwater replenishment and recharge
to promote the state's interest in groundwater
sustainability.
Provide that with regard to certain mandates no reimbursement
is required by this act for a specified reason.
Provide, with regard to any other mandates, that if the
Commission on State Mandates determines that the bill contains
costs mandated by the state, reimbursement for those costs
shall be made pursuant to statutes governing state mandated
costs.
ARGUMENTS IN SUPPORT
According to the California Water Foundation (CWF), "AB 1739
addresses one of California's most pressing water management
issues - the need for improved and sustainable groundwater
management. The current drought and its immediate impacts to
the state's groundwater resources compel us to search for
solutions now so we are better prepared for further droughts.
Improved groundwater management will protect critical water
supplies and provide ecosystem and economic benefits to the mid-
and long-term."
"A new statewide policy for sustainable groundwater management
is urgently needed, and AB 1739 is an important piece of this
discussion. Numerous stakeholders have been involved and are
continuing to toward together on this legislation and ? SB 1168
[Pavley]. CWF is working with both authors to help ensure that
these bills provide the right provisions to empower local
groundwater management agencies with new tools and authorities,
and to create an appropriate state 'backstop' that will allow
the state to intervene, only when needed, to ensure groundwater
management goals are met."
ARGUMENTS IN OPPOSITION
According to the California Farm Bureau Federation, "We are
concerned the current process is rushed to meet arbitrary
deadlines without adequate time to address such a complex issue.
This measure will have huge long-term economic impacts on farms,
the State and local economies and county tax roles, with a very
real potential to devalue land and impact farms and businesses
viability and in turn impact jobs. We believe groundwater must
be managed locally/regionally and that overlying property rights
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are protected to avoid a taking. Without addressing these issues
with stakeholder input, this measure will certainly create a
significant fiscal impact to the state when many are forced to
defend their overlying property rights through adjudication."
"Overall, Farm Bureau believes we do not have a groundwater
problem solely from a lack of regulation, but from a failure to
update our water capture and delivery system to today's
conditions. Any legislation that creates a new groundwater
management regime must be coupled with real, substantive actions
to increase surface water supplies and restore water supply
reliability. The complexities of groundwater, groundwater
management and interactions with surface water are too great to
rush to judgment and to an isolated solution. We are not
suggesting the status quo, nor are we suggesting do nothing, but
we do recommend a carefully thought through process to develop
appropriate protections of our groundwater resources for future
generations. For these reasons we are actively engaged with
others to develop a path forward, but we must oppose AB 1739."
COMMENTS
Time Is Ripe For Action. This committee, the Assembly Water,
Parks, and Wildlife Committee (AWP&W), and the administration
all held hearings and workshops this year on the need to reform
groundwater management. This committee's hearing focused on
California groundwater law, groundwater management approaches,
what does and does not work in groundwater management, and the
administration's plan to move forward. AWP&W's hearing
addressed where we are on groundwater management, what are the
elements of successful groundwater management, and stakeholder
perspectives on where we should go from here. (Information
presented at each hearing is available on this committee's and
AWP&W's websites.)
The administration held a workshop to hear from a variety of
stakeholder groups their proposals for a new approach to
groundwater management in California. There were formal
presentations from the following:
Lester Snow, Executive Director, California Water Foundation
Tim Quinn, Executive Director, Association of California Water
Agencies and
David Orth, General Manager, Kings River Conservation
District; Vice-Chair, Groundwater Sustainability Task Force,
Association of California Water Agencies
Robert Reeb, Executive Director, Valley Ag Water Coalition
Jonas Minton, Water Policy Advisor, Planning and Conservation
League
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What was remarkable about all three hearings and workshops was
not only the breadth of acceptance that something needed to be
done, but also of many of the key elements of the "solution."
One of Two, One of Three, One of Many. There are currently two
major groundwater bills moving through the legislature: This
bill, AB 1739 (Dickinson), and SB 1168 (Pavley). There are
three major proposals for reforming groundwater, by: the
California Water Foundation, the Association of California Water
Agencies (ACWA), and the administration. This bill largely
follows the ACWA proposal. There are many perspectives on which
precise right mix of proposals is best for all concerned; this
bill reflects just one of them.
We Can Work It Out. The two authors are collaborating with each
other, as evidenced by their each being principal co-authors of
the other's bill. They are also working and the administration
to craft a final product. Further, the authors have committed
to working through July with the administration and all
interested parties to craft a proposal that addresses and
resolves as many issues as is practicable.
Much Work Ahead. While there appears to be general agreement on
a broad framework of a sustainable groundwater management
system, there are quite a number of potentially contentious
issues to be resolved.
Issues where the various proponents are close to agreement
include:
Identifying mandatory elements for groundwater management.
Enforcement powers for groundwater management entities.
Permitting of new and/or existing wells.
Issues where there are significant differences of opinion
include:
The definitions, including "sustainable groundwater
management."
The scope of management plans: one for the entire basin or
subbasin, or many.
Changes in land use planning requirements, or not.
Appropriate protections of both property rights and community
rights.
Representation on groundwater management entities.
Level of transparency in managing and use of groundwater.
Reporting requirements for groundwater users.
Financing of groundwater management activities.
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State intervention authorities.
Issues that have yet to be addressed include:
Integrating water quality with water supply considerations.
Coordination among subbasins within a basin.
Scope and limitations on groundwater storage and banking.
Inclusion of an administrative adjudication process.
The need to create a new groundwater management district act.
SUGGESTED AMENDMENTS: None
SUPPORT
California Water Foundation - if amended
OPPOSITION
California Farm Bureau Federation
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