AB 1242
Page 1
Date of Hearing: April 14, 2015
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 1242 (Gray) – As Introduced February 27, 2015
SUBJECT: Groundwater: State mitigation for local actions
SUMMARY: Requires the State Water Resources Control Board implement mitigation
measures for effects to groundwater basins that occur when local entities opt to pump more
groundwater in response to State action. Specifically, this bill:
1) Requires the State Water Board to consider groundwater plans when adopting or approving a
Water Quality Control Plan (WQCP).
2) Requires, before adopting instream flows that protect beneficial uses of water, that the State
Water Board evaluate impacts on groundwater basins from increased groundwater pumping
by locals in reaction to increased instream flow requirements and consider alternatives and
mitigation measures to avoid or mitigate to less-than-significant any adverse impacts on the
groundwater basin from increased groundwater pumping by locals, to the extent feasible.
3) Requires the State Water Board adopt and implement the measures to mitigate for increased
groundwater pumping by locals.
4) Prohibits the State Water Board from adopting a WQCP if there are significant adverse
impacts to a groundwater basin from increased groundwater pumping by locals.
EXISTING LAW:
1) Maintains that the waters of the state are held in trust for the people of California and cannot
be privately owned but can only be reasonably and beneficially used.
2) Tasks the State Water Resources Control Board (State Water Board) with protecting and
enforcing water rights and water quality laws, included delegated water quality authorities
under the federal Clean Water Act. Places nine Regional Water Quality Control Boards
(Regional Water Boards) under the State Water Board.
3) Requires the Regional Water Boards, or State Water Board under specified circumstances,
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.
4) Defines beneficial uses of the waters of the state include domestic, municipal, agricultural,
and industrial supply; power generation; recreation; aesthetic enjoyment; navigation; and
preservation and enhancement of fish, wildlife, and other aquatic resources or preserves.
5) Requires the WQCP include objectives that will ensure the reasonable protection of all
beneficial uses, protection of water quality, and the prevention of nuisance while considering
factors such as past, present and probably future beneficial uses of water, environmental
characteristics, regional economics, the need to develop housing, and the need to expand and
use recycled water.
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6) Requires the Department of Water Resources (DWR) prioritize 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.
7) 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).
8) 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.
9) Requires, by January 31, 2022, that GSAs in all other high and medium priority basins
subject to SGMA develop and adopt GSPs.
10) 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.
FISCAL EFFECT: Unknown
COMMENTS: This bill would prohibit the State Water Board from imposing in-stream flow
requirements on tributaries to the San Joaquin River unless the State Water Board pays for
actions to mitigate when locals water users pump more groundwater in response. For thirty years
the State Water Project and federal Central Valley Project and others have been required to help
meet flow requirements in the Sacramento-San Joaquin Delta (Delta) but the tributaries to the
San Joaquin River avoided any requirements other than experimental flows. The State Water
Board is now engaged in a long-delayed process to determine what level of flows should be
provided by the tributaries. This bill would prohibit that action unless it is the State Water Board
who mitigates.
1. Who owns a river?
Under State law, no one can own a river. Rivers are a public trust resource, meaning they belong
to the public as a whole. An individual or organization can obtain a right to divert a portion of a
river's flow. But the right is limited by whether the diversion is reasonable and beneficial. A
diversion or cumulative series of diversions that ruin the public trust values of a river for
commercial and recreational fishing, wildlife habitat, or boating and other public enjoyment can
be considered unreasonable and subject to limitations.
2. Relationship of the San Joaquin River and its tributaries to the Delta
The Merced, Tuolumne and Stanislaus Rivers are tributaries to the San Joaquin River. They
originate in the high slopes of the southern Sierra Nevada Mountains and flow westward down
the valley to contribute to the San Joaquin River's flow. The San Joaquin River flows northward
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to join the Sacramento River in the Delta. The point at which the flow of the San Joaquin River
is measured to see how much it is contributing to Delta flows is near the town of Vernalis in San
Joaquin County and often referred to simply as "Vernalis."
3. The Delta Water Quality Control Plan
The Delta is important to the natural environment and economy of California. The Delta's flows
provide part of the drinking water supply for two-thirds of the State's population and water for a
multitude of other urban uses as well as supplying some of the State's most productive
agricultural areas both inside and outside of the Delta. The Delta is also one of the largest
ecosystems for fish and wildlife habitat production in the United States, including commercial
runs of salmon.
The State Water Board is responsible for protecting and managing both water rights and water
quality in California. As part of its duties, the State Water Board developed a Delta WQCP in
1995 that included requirements as to how much water must be left in-stream at different times
to protect and balance all beneficial uses of water including municipal and industrial,
agricultural, recreational, and fish and wildlife. After adopting the Delta WQCP the State Water
Board entered commenced a water rights proceeding to determine the responsibilities of water
rights holders to implement the flow-dependent objectives in the Delta WQCP. The water rights
proceeding was massive and included parties with water rights on the Sacramento River and its
tributaries, San Joaquin River and its tributaries, and in the Delta. The hearing was divided into
8 regional phases and the State Water Board encouraged parties to reach settlement agreements
with other water rights holders and interested parties as a way of proposing allocations of
responsibility to meet the flow-dependent objectives.
4. D-1641 and failure of the Vernalis Adaptive Management Plan
During Phase 2 of the hearing, parties on the San Joaquin River and its tributaries submitted the
San Joaquin River Agreement proposing an allocation of responsibility for releasing "pulse
flows" to the Delta during the April-May and October periods, which are most critical to
migrating salmon. The parties argued there wasn't sufficient information to determine how much
water was needed instream for fish and, therefore, they would also conduct an experiment during
the April-May period called the Vernalis Adaptive Management Plan (VAMP). Under VAMP,
parties on the tributaries to the San Joaquin River were paid a fixed amount of money by the
federal government in returning for maintaining low, medium, and high releases during different
years that would be tied to low, medium, and high levels of export water by the State Water
Project and Federal Central Valley Project pumping plants in the Delta. The objective was to
evaluate the relative relationship between flows down the San Joaquin and export pumping in the
Delta on fish survival. The VAMP flows were measured at Vernalis. VAMP ended in 2011 after
more than a decade during which the full range of flows and export limitations were never
provided to complete the experiment and, meanwhile, populations of at-risk fish species crashed
in the Delta.
5. Current Delta WQCP update
The Delta WQCP received a minor update in 2006 but identified, as part of that update, four
"emerging issues" including the decline of pelagic or "open water" fish such as smelt and
threadfin shad; climate change impacts; Delta and Central Valley salinity; and, San Joaquin
River flows. With regard to San Joaquin River flows, the State Water Board referenced data that
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showed various fish species within the Delta and San Joaquin River basin had not shown
significant signs of recovery since adoption of the VAMP experiment and recommended
additional study. Thereafter, in 2009, the State Water Board commenced a triennial update of
the WQCP that is ongoing and will include a determination of what responsibility parties on the
individual tributaries to the San Joaquin River have for contributing to Delta flows.
6. Relationship of the WQCP update to this bill
Parties on the tributaries to the San Joaquin River have advised that if they are required to leave
more flows in-stream they will simply pump more groundwater. As a result, they maintain it is
the State Water Board's potential action that will be responsible for additional degradation of
their groundwater basins. In this bill they seek to have the State Water Board analyze the
potentially significant impact of a local increase in groundwater pumping on the basin and then
require the State Water Board and not local entities mitigate for any increased degradation.
7. Relationship to SGMA
The most likely mitigation that the State Water Board would require in accordance with this bill
is adoption of a GSP pursuant to SGMA. However, all basins on the eastern side of the San
Joaquin River are already ranked as high priority and thus are already required to adopt a SGMA
plan or submit an alternative plan that meets SGMA's requirements by the appropriate deadlines.
SGMA provides locals with tools to help manage their groundwater basin over time and under
changing circumstances. Under the GSP locals could investigate groundwater storage,
conjunctive use programs, stormwater capture, agricultural water use efficiency incentives and
other strategies for maintaining adequate supplies of groundwater. If locals are unwilling or
unable to adopt a GSP, SGMA then triggers State Water Board involvement but only as a last
resort.
The recently-passed Proposition 1, The Water Quality, Supply, Treatment, and Storage Projects
Act of 2014, has $100 million that will be available to help locals with sustainable groundwater
management planning. The Governor's January 10 budget proposes $21.3 million of those funds
be made available for the 2015-2016 fiscal year. Prop. 1 also has $2.7 billion, continuously
appropriated to the California Water Commission for surface water and groundwater storage
projects.
Supporting argument: The author states this bill is necessary because the State Water Board is
considering "a proposal to develop new unimpaired flow requirements on the Tuolumne,
Merced, and Stanislaus rivers." The author maintains that the proposed plan would significantly
increase the level of water into the Delta and thus "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 author maintains that the State Board's action will
"deny Central Valley basins one of the most important tools in the tool box: the ability to
recharge the depleted groundwater table with surface flows."
Opposing arguments: Opponents state that this bill would "unreasonably limit the authority of
the State Water Board to balance the use of water in the State for all beneficial uses, including
fish and wildlife that are held in trust by the State." Opponents state that this bill also fails to
threaten vulnerable communities from unsustainable groundwater management by inserting a
"broad and inappropriate requirement that essentially makes every Basin Plan subservient to any
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and all GSPs in that basin" with the effect of "placing the onus for paying for local problems on
the State Water Board," interfering with the Board's ability to protect water quality, and making
the Board rather than the polluter the responsible party in case of contamination. Specifically
with regard to the San Joaquin River and its tributaries, opponents note that "in some years more
than 80% of the natural flow of these rivers is diverted, which has devastating impacts on
salmon, steelhead, and other native fisheries as well as the health of the Delta." Opponents add
that "during the negotiations for SGMA the author attempted to include the provisions of this bill
but they were rejected."
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) restricting 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 that preceded SGMA to be amended and
extended; AB 454 (Bigelow) adding one year to each of several SGMA deadlines; AB 455
(Bigelow) requiring the 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) allowing 20 days instead of 10 days to review technical data
upon which a fee is based; AB 1243 (Gray) rebating 50% of all SGMA enforcement penalties
back to local governments and water districts for groundwater recharge projects; 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
Agricultural Council of California
California Women for Agriculture
City of Ceres
City of Dos Palos
City of Merced
City of Modesto
City of Turlock
Merced County Board of Supervisors
Modesto Irrigation District
Stanislaus County Board of Supervisors
Stanislaus County Farm Bureau
Stevenson Water District
Turlock Chamber of Commerce
Turlock Irrigation District
three individuals
Opposition
Center for Biological Diversity
Clean Water Action
Community Water Center
Leadership Counsel for Justice &
Accountability
Natural Resources Defense Council
Sierra Club California
Union of Concerned Scientists
Analysis Prepared by: Tina Cannon Leahy / W., P., & W. / (916) 319-2096