BILL ANALYSIS �
AB 2453
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ASSEMBLY THIRD READING
AB 2453 (Achadjian)
As Amended March 28, 2014
Majority vote
LOCAL GOVERNMENT 6-1
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|Ayes:|Achadjian, Alejo, | | |
| |Bradford, Gordon, | | |
| |Melendez, Waldron | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Levine | | |
| | | | |
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SUMMARY : Establishes, in California Water District Law, a
governance and elections structure for the Board of Directors
for the Paso Robles Basin Water District. Specifically, this
bill :
1)Establishes, in California Water District Law, the governance
and elections structure for the Paso Robles Basin Water
District (District), and defines the District to mean "the
Paso Robles Basin Water District, the boundaries of which
shall be established and may be modified by the San Luis
Obispo County Local Agency Formation Commission" (SLO LAFCO).
2)Requires, notwithstanding any other law or the bylaws of the
District, that all elections for the Board of Directors of the
District (Board) be conducted in accordance with the
following:
a) Requires the composition of the Board to be as follows:
i) Provides that there shall be a total of nine
directors, each of whom shall be qualified for office by
being a person who holds title to land within the
District or a person authorized to vote in elections by
landowners pursuant to 4) below.
ii) Provides for the election of those nine members, as
follows:
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(1) Six of the directors are required to be
elected by landowners within the District, except that
each voter shall be entitled to cast one vote for each
acre owned by the voter within the District. If the
voter owns less than one acre, the voter shall be
entitled to one vote and any fraction shall be rounded
to the nearest full acre.
(2) Specifies, for the purposes of the election of
the six directors, that the landowners within the
District be divided into three classes, as specified
below, and provides that large landowners shall elect
two directors, medium landowners shall elect two
directors, and small landowners shall elect two
directors:
(a) "Large landowners" means holders of title
owning a total of 400 acres or more;
(b) "Medium landowners" means holders of title
owning a total of 40 acres or more, but less than
400 acres; and,
(c) "Small landowners" means holders of title
owning a total of less than 40 acres of land.
(3) Specifies that candidates for the six
directors may be within any landowner class.
(4) Provides that three of the directors shall be
elected by registered voters within the District at
large.
iii) Requires all nine directors to reside within the
District, within two miles of the District boundary, or
within the boundaries of the City of Pas Robles, the
Atascadero Mutual Water Company, the Templeton Community
Services District, the San Miguel Community Services
District, or the San Luis Obispo County Service Area 16.
3)Requires the elections of the District to be conducted in
conformance with the Uniform District Election Law and the
laws generally applicable to Districts created and operated
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pursuant to the California Water District Law, provided the
following shall apply:
a) Requires separate ballots to be prepared and separate
elections to be conducted for those director positions
which will be elected by resident voters and for those
which will be elected by landowner voters. Specifies that
landowner voter elections and resident voter elections
shall be conducted simultaneously.
b) Allows District elections to be conducted by all-mailed
ballots pursuant to existing law contained in the Elections
Code. Requires separate voter lists of resident voters and
landowner voters eligible to vote with the District to be
prepared and maintained according to applicable provisions
of law. Requires separate all-mailed ballot elections to
be held for the directors to be elected by resident voters
and for those to be elected by landowner voters.
c) Requires the directors elected upon formation of the
District to hold office pursuant to existing law contained
in the Elections Code.
d) Requires the director positions elected by large
landowners, medium landowners, and small landowners to be
divided into two director term classes for each (large,
medium and small), and requires the directors elected by
registered voters to be divided into two director term
classes.
e) Requires the election of directors to be held on the
first Tuesday after the first Monday in October of each
odd-numbered year.
f) Requires the voters list used for purpose of an election
of directors to be based upon the last assessment roll
prepared by the county assessor, which shall be conclusive
evidence of ownership and acreage for the purpose of
carrying out the election. Allows the voters list to be
amended if satisfactory evidence of a change in ownership
is presented at least 45 days prior to the election to the
elections official in the case of the formation election,
and thereafter to the District secretary. Provides that
the county assessor shall be compensated for all costs
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incurred in determining ownership and acreage information
and providing information to the county clerk.
4)Requires, notwithstanding any other provision contained in the
California Water District Law of the Uniform District Election
Law, election participation by landowners to be carried out as
follows:
a) If the holder of title is a trust, any trustee of the
trust may vote on behalf of the trust;
b) If the holder of title is a corporation, the president,
vice president, secretary, or other duly designated officer
may vote on behalf of the corporation;
c) If the holder of title is a limited liability company
(LLC), any managing member may vote on behalf of the LLC;
and,
d) Any officer or partner with managerial responsibilities
of a legal entity not listed in a) to c) above, inclusive,
may vote on behalf of the entity.
5)Provides the District with the authority afforded to local
agencies as provided in the section of law contained in the
Water Code related to Groundwater Management Plans, as that
part may be amended, consistent with the requirements and
limitations of applicable law.
6)Finds and declares that the bill's provisions are enacted in
order to provide a governmental framework for the District to
balance the supply to and consumption of groundwater within
the basin underlying the District, and thereby pursue
stabilizing that basin and sustaining its resources for the
beneficial use of all who use water within the District.
7)Declares that the creation of the District is not intended to
and shall not modify the powers of the County of San Luis
Obispo and the San Luis Obispo County Flood Control and Water
Conservation District, carried out consistent with applicable
law, to manage and protect groundwater resources within the
County of San Luis Obispo, including the Paso Robles
Groundwater Basin.
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FISCAL EFFECT : None
COMMENTS :
1)Purpose of this bill. This bill establishes, in the
California Water District Act (Division 13 of the Water Code),
a governance and elections structure for the District, and
specifies that boundaries of the District shall be established
and may be modified by the SLO LAFCO. The bill provides an
alternate structure for the elections of the Board of
Directors for the not-yet-established District other than what
is contained in the California Water District Act, specifies
the qualifications of the directors to hold office, and
provides the procedures for the District's elections for the
Board of Directors.
The bill specifies that the Board of Directors is a
nine-member board. To be qualified to be a director, a person
must hold title to land within the District or be a person
authorized to vote in elections by landowners as provided in
the bill, and must reside within the District, two miles of
the District boundary, or within the boundaries of several
other specified local agencies.
Of the nine directors, six will be electors by landowners
within the District, in three categories - large landowners
(400+ acres), medium landowners (40 - 399 acres), and small
landowners (less than 40 acres). The bill specifies that each
landowner category would elect two directors, and candidates
for the six director slots may be within any landowner class.
Provisions in the bill specify that each voter in these
landowner classes will be entitled to cast one vote for each
acre owned by the voter within the District. The bill also
provides that three of the directors would be elected by
registered voters within the District at large.
The bill also provides that the District shall have the
authority afforded to local agencies as provided in the
section of the Water Code related to groundwater management
plans. Because the bill amends the California Water District
Act, it is implied that the District to be formed by SLO LAFCO
would be a California Water District, with the powers and
duties contained in the District's Act (Division 13 of the
Water Code), absent any further specification in the bill
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about the District's powers.
The boundaries of the District are also not specified in the
bill, although the bill makes a finding and declaration that
the District is formed to "balance the supply to and
consumption of groundwater within the basin underlying the
District."
This bill is sponsored by Paso Robles Agriculture Alliance for
Groundwater Solutions (PRAAGS) and PRO Water Equity.
2)Background on the Paso Robles Groundwater Basin and actions at
the local level. According to a Paso Robles Groundwater Basin
newsletter published by the County of San Luis Obispo's
Department of Planning and Building, Public Works and Public
Health in June of 2011 and sent to all rural property owners
throughout the North County, "The basin covers approximately
800 square miles and is the primary, and in many places the
only, source of water available to property owners throughout
the North County?the county Board of Supervisors, after a
four-year study, has concluded that groundwater levels are
dropping throughout the basin. The Board has also concluded
that pumping of groundwater from the basin has reached or is
quickly approaching the basin's 'perennial yield.' Once the
perennial yield of a groundwater basin is reached, additional
pumping beyond that amount will result in lowering groundwater
levels.
"The entire population of the rural North County gets its
water from groundwater wells. What that means is that there
are a lot of 'straws' in the same glass; in fact, there are
over 8,000 wells in the Paso Robles Groundwater Basin."
The San Luis Obispo County and other jurisdictions in the
County of San Luis Obispo have undertaken a number of efforts
to address the basin decline, including the following:
a) In 2010/2011, the City of Paso Robles and the County of
San Luis Obispo led a voluntary effort along with other
basin stakeholders to prepare a groundwater management plan
(GMP) for the Paso Robles Groundwater Basin. The GMP
address groundwater conditions, identifies local and
basin-wide groundwater issues, and outlines measures to
protect groundwater within the basin. On March 18, 2014,
the Board of Supervisors held a public hearing to consider
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adopting a resolution that would direct staff on drafting
amendments to the existing [GWP] that was originally
adopted on March 27, 2012.
b) On September 25, 2012, the Board of Supervisors adopted
the Paso Robles Groundwater Basin water conservation
ordinance, which requires large land uses to offset new
water use, prohibits the creation of new parcels in the
basin and requires changes to the county's general plan to
be water neutral. The ordinance did not affect the cities
of Paso Robles and Atascadero, or the towns of Templeton,
San Miguel or Shandon, and did not affect the drilling of
wells or the building of single family homes.
c) The County Board of Supervisors on August, 27, 2013,
adopted an Urgency Ordinance that established a moratorium
on new or expanded irrigated crop production, conversion of
dry farm or grazing land to new or expanded irrigated crop
production and new development dependent upon a well in the
Paso Robles Groundwater Basin, unless such uses offset
their total protect water use, including certain
exemptions.
d) On October 8, 2013, the Board of Supervisors continued
the Urgency Ordinance adopted on August 27, 2013, for two
years.
e) On February 25, 2014, the Board of Supervisors approved
a resolution adopting the New Development Water
Conservation Program. The program implements the Paso
Robles Groundwater Basin Urgency Ordinance, which requires
all new development in the Paso Robles Basin Area to offset
new water use through verifiable evidence or participation
in an approved County Water Conservation Program.
The County of San Luis Obispo, jurisdictions within the
county, and residents and community groups continue to look
for solutions to manage the groundwater basin.
3)Author's statement. According to the author, this bill is
"the culmination of a year-long negotiation between two groups
in my district and has the support of the San Luis Obispo
County Board of Supervisors as well as the City Council for
the City of Paso Robles. This bill would allow the Paso
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Robles Groundwater Basin (Basin) to elect a hybrid board of
directors to manage groundwater in the Basin.
"This hybrid board structure attempts to represent the unique
composition of landowners/residents in the Basin. The water
district itself will be a California Water District and will
be established via the Local Agency Formation Commission once
the sponsors file a petition for formation. [I recognize]
that groundwater in the basin is in decline, with wells going
dry; therefore a need for groundwater management is essential.
Given the unique composition of landowners in the Basin -
large agriculture, small wine grape growers, and
landowners/residents - the need for a unique board structure
is necessary."
4)Options for groundwater management. According to the
Department of Water Resources, in 1914 California created a
system of appropriating surface water rights through a
permitting process, but groundwater use has never been
regulated by the state. Though the regulation of groundwater
has been considered on several occasions, the Legislature has
repeatedly held that groundwater management should remain a
local responsibility.
There are three ways to manage groundwater resources in
California: 1) management by local agencies (special
districts) under authority granted in the California Water
Code or other applicable state statutes; 2) local government
groundwater ordinances or joint powers agreements; and, 3)
court adjudications.
a) Special districts with groundwater management authority.
Greater authority to manage groundwater has been granted
to a small number of local agencies or districts created
through a Special Act of the Legislature. Currently, 13
local agencies have specific groundwater management
authority as a result of being special act districts. The
specific authority of each agency varies, but they can
generally be grouped into two categories: 1) the agency
has authority to limit export and extraction (upon evidence
of overdraft or threat of overdraft); or, 2) the agency
does not have authority to limit extraction but the users
in the basin are required to report extractions to the
agency (who can levy fees from groundwater management or
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water supply replenishment).
The Special Act special districts with groundwater
management authority include the following: Desert Water
Agency, Fox Canyon Groundwater Management Agency, Honey
Lake Groundwater Management District, Long Valley
Groundwater Management District, Mendocino City Community
Services District, Mono County Tri-Valley Groundwater
Management District, Monterey Peninsula Water Management
District, Ojai Groundwater Management Agency, Orange County
Water District, Pajaro Valley Water Management Agency,
Santa Clara Valley Water District, Sierra Valley Water
District, and Willow Creek Groundwater Management Agency.
Special Act special districts are located in the Water
Appendix.
b) Groundwater ordinances and groundwater management plans.
Groundwater management can also be achieved through local
groundwater ordinances. According to the Department of
Water Resources (DWR), more than 27 counties have adopted
groundwater ordinances. These counties include: Alpine,
Butte, Calaveras, Colusa, Fresno, Glenn, Imperial, Inyo,
Kern, Lake, Lassen, Madera, Mendocino, Modoc, Mono,
Monterey, Napa, Sacramento, San Benito, San Bernardino, San
Diego, San Joaquin, Shasta, Sierra, Siskiyou, Stanislaus,
Tehama, Tuolumne, Ventura and Yolo.
Another option for local agencies to manage groundwater is
through a groundwater management plan. AB 3030 (Costa),
Chapter 708, Statues of 1992, the California Groundwater
Management Act, was passed by the Legislature in 1992. It
was a significant addition to the groundwater management
authorities granted under the Water Code in that it greatly
increased the number of local agencies authorized to
develop GMPs and set forth a common framework for
management by local agencies throughout California.
Adoption of a GMP was encouraged under AB 3030 but not
required. SB 1938 (Machado), Chapter 603, Statutes of
2002, took a further step when it set out certain specified
components for GMPs and required any local agency seeking
state funds administered by DWR to meet those requirements.
Subsequent bond initiatives have also made an adopted GMP
an eligibility criterion for receiving groundwater project
and program funds. Since its passage, 149 agencies have
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adopted GMPs in accordance with AB 3030. Other agencies
have begun the process. As mentioned above, in some
basins, groundwater is managed under other statutory or
judicial authority.
The California Groundwater Management Act (Act), as
amended, provides a systematic procedure to develop a GMP
and requires the inclusion of certain minimum components.
These include basin management objectives as well as
monitoring and management of groundwater levels, inelastic
surface subsidence, and changes in surface flow and surface
quality that directly affect groundwater levels or quality
or are caused by groundwater pumping. The Act also
requires a description of how recharge areas identified in
the plan substantially contribute to the replenishment of
the groundwater basin. In addition, suggested optional
components that might be relevant for a particular
groundwater basin are listed.
c) Court adjudication. According to DWR, another form of
groundwater management in California is through court
adjudication. In basins where a lawsuit is brought to
adjudicate the basin, the groundwater disputes of all the
overliers and appropriators are determined by the court.
The court also decides: 1) who the extractors are; 2) how
much groundwater those well owners can extract; and, 3) who
the Watermaster will be to ensure that the basin is managed
in accordance with the court's decree.
5)What is a California Water District and how is it formed?
a) Powers. A California Water District may exercise powers
that are enumerated in Division 13 of the Water Code,
including the acquisition and operation of works for the
production, storage, transmission, and distribution of
water for irrigation, domestic, industrial and municipal
purposes, and any drainage or reclamation works connected
with such undertakings. A California Water District may
also acquire and operate facilities and services for the
collection, treatment, and disposal of sewage, waste, and
storm waters.
b) Governing body and election to the Board. The governing
body of a California Water District is generally composed
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of a five-member elected Board of Directors, each of whom
must be a landowner within the district. At any time after
four years from the date of the district's formation, the
board may, by resolution, increase the number of directors
from 5 to 7, 9, or 11. In general, the election for
directors is based on one vote for each dollar's worth of
land to which he or she holds title. However, if an
equalized assessment book of the district does not exist,
then each voter shall be entitled to cast one vote for each
acre owned by the voter within the district.
c) Formation of a California Water District. The formation
of a California Water District is initiated by petition to
LAFCO by holders of title to a majority of land (based on
acreage) that is capable of using water beneficially for
irrigation, domestic, industrial or municipal purposes, and
that can be serviced from common sources of supply and by
the same system of works. LAFCO then considers the
application for formation. If approved, a protest process
would be conducted, and, if successful, an election would
then be conducted.
6)California Water District vs. this bill.
a) Powers. This bill does not specify which powers the
District will have under Division 13 of the Water Code.
Instead, those powers will be determined through the LAFCO
process. The bill does, however, grant specific authority
to the District related to AB 3030 and groundwater
management plans.
b) Governing body and election to the Board. The bill
specifies that the governing board will consist of nine
directors, all landowners. The election for the directors
is based on one vote for each acre owned by the voter
within the District, with respect to the six directors that
will be elected by landowners. The other three directors
will be elected by registered voters at large (meaning one
vote per person).
c) Formation. The bill does not modify any provisions
related to formation in the California Water District Act.
The SLO LAFCO would be involved in the formation process
and once a petition is filed, they would consider the
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petition and then undertake a protest process, and, if
successful, an election would be conducted pursuant to the
provisions regarding formation elections in the California
Water District Act.
7)SLO LAFCO. According to the SLO LAFCO, a Notice of Intent to
circulate a petition has not been submitted, meaning that
there has been no petition filed to form this District.
According to the SLO LAFCO, the petition is on hold until
there is certainty that the governance and elections structure
in this bill will be chaptered into law.
8)Groundwater management legislation and Governor's budget
trailer bill. There are currently two legislative efforts to
address better local groundwater management in the
Legislature, and a proposal contained in the Governor's
proposed budget released in January of 2014. Both bills
represent initial groundwater management concepts developed
after extensive stakeholder processes.
a) AB 1739 (Dickinson) of 2014 requires sustainable
groundwater management in all groundwater subbasins
determined by DWR to be at medium to high risk of
significant economic, social and environmental impacts due
to an unsustainable and chronic pattern of groundwater
extractions exceeding the ability of the surface water
supplies to replenish the subbasin. The bill passed the
Assembly Water, Parks and Wildlife Committee on April 29,
2014, on a 9-5 vote and is pending in the Assembly
Appropriations Committee.
b) SB 1168 (Pavley) of 2014 establishes the statutory
framework for a new Sustainable Groundwater Management Act.
The bill states the intent of the Legislature that all
groundwater basins and subbasins be managed sustainably by
local entities pursuant to an adopted sustainable
groundwater management plan; attention to develop, adopt,
and implement a sustainable groundwater management plan be
directed first to high and medium priority groundwater
basins and subbasins; and, upon a finding of compelling
state interest, the state would have recourse to cause a
sustainable groundwater management plan to be developed,
adopted, and implemented where local interests either
cannot or will not do so themselves. The bill passed the
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Senate Natural Resources and Water Committee on April 22,
2014, on a 7-2 vote and is currently pending in the Senate
Appropriations Committee.
c) Governor's proposed budget. The January proposed budget
included $1.9 million General Fund and 10 positions for the
State Water Resources Control Board (Water Board) to act as
a backstop when local or regional agencies are unable or
unwilling to sustainably manage groundwater basins. The
Water Board will protect groundwater basins at risk of
permanent damage until local or regional agencies are able
to do so.
9)Landowner qualification. The California Constitution provides
that the right to vote or serve in elected office may not be
conditioned on a landownership qualification. However, in
1973, the U.S. Supreme Court ruled in Salyer Land Co. v.
Tulare Water District that the California statute requiring a
landownership qualification did not violate the Equal
Protection Clause of the U.S. Constitution. The court ruled
there was no violation because those districts do not exercise
normal governmental authority and their activities
disproportionally affect landowners.
The California Supreme Court, in Choudhry v. Free (1976) 17
Cal. 3d 660, declared unconstitutional a section of the
Irrigation District Law requiring potential board candidates
to be landowners. The court ruled that this section was
unconstitutional as applied to the Imperial Irrigation
District and its board of directors, the real parties in
interest, because it deprived the irrigation candidates and
voters, including petitioner voters, of equal protection. The
court's opinion gave two reasons it did not extend its ruling
to other irrigation districts. First, the Imperial Irrigation
District was singular at that time among irrigation districts
in that it had more residents, land, and employees than any
other irrigation district and it was providing retail water
service. Second, neither respondents nor real parties in
interest had opposed petitioners' claim that Water Code
Section 21100 was unconstitutional, and numerous irrigation
districts in the state that would have been affected by a
finding of unconstitutionality did not have the opportunity to
present their views or offer evidence regarding the
characteristics and operation of irrigation districts in
general.
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The Teamsters Public Affairs Council raises the issue that
this bill's proposed governance structure for the District is
unconstitutional and undemocratic and argues that "all
eligible voters within the District should be able to run for
office, regardless of whether they are property owners."
Additionally, they argue that "the control of a public
resource like groundwater that can be used for drinking water,
irrigation, industrial or other purposes is clearly a matter
of vital concern to all citizens in the region, regardless of
whether they own property."
10)Policy considerations.
a) Alternatives. There are many other ways for local
agencies and communities to manage groundwater, including
the formation of a special act special district, adoption
of groundwater ordinances or GWPs, and other types of
special districts that have groundwater management
authority. Each of these options has been tried and tested
throughout California.
The Legislature may wish to ask the author why a California
Water District, with this governance structure, presents
the best option for the management of Paso Robles
groundwater basin, and what other options were considered
throughout the stakeholder conversations.
b) Powers of the District. How will the District manage
groundwater and what powers, of those enumerated in the
California Water District Act, would the proponents of the
District like the District to exercise?
c) Boundaries. What will the boundaries of the District
be? Will the entire region overlaying the groundwater
basin be included? What is the composition of the area
within the boundaries of the District - largely
agricultural, residential, etc.?
11)Arguments in support. Supporters argue that this bill
contains a unique, equitable representation that continues and
promotes cooperation among residents, and prevents a dominant
faction. Supporters believe that this approach reflects the
agreement that was reached locally and that the voting
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structure elegantly allows for representation of the different
interests of the Basin, grouping like with like, and
preventing any single landowner or group of landowners from
controlling the seats in their category or the board as a
whole. Additionally, supporters argue that this bill allows
further scrutiny by SLO LAFCO and the opportunity for the
public to weigh in at that forum as well.
12)Arguments in opposition. Opponents of the bill argue that
the governance and elections structure in the bill favors
large landowner control by allowing the formation vote and
election of directors to be based on acreage, rather than one
owner, one vote. Opponents argue that the better approach is
a voting system where residents are treated equally regardless
of the amount of lands owned and could be achieved by a
one-voter, one-vote system. Opponents also question the need
for this type of District and think that this bill harms water
rights.
Analysis Prepared by : Debbie Michel and Misa Yokoi-Shelton /
L. GOV. / (916) 319-3958
FN: 0003384