BILL ANALYSIS Ó AB 1587 Page 1 Date of Hearing: April 12, 2016 ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE Marc Levine, Chair AB 1587 (Mathis) - As Amended March 15, 2016 SUBJECT: Groundwater SUMMARY: Expands the ability in a drought or flood to extract and recharge groundwater without oversight. Appropriates $50 million of Proposition 1 funds for groundwater sustainability plans and projects, and requires that special consideration be given to recharge basins in areas of fallow farmland. Specifically, this bill: 1)Makes findings and declarations about the increasing rate and impact of subsidence around the state. 2)Prohibits a city or county in a Sustainable Groundwater Management Act (SGMA) basin from limiting groundwater extraction in a time of drought or flood, unless the state has provided a safe, reliable, and permanent alternative source of water. 3)Eliminates the need for a permit to recharge groundwater in times of drought or flood when there is no injury or effect on beneficial uses of water. AB 1587 Page 2 4)Appropriates $50 million of Proposition 1 funds for groundwater sustainability plans and projects, and requires that special consideration be given to recharge basins in areas of fallow farmland. EXISTING LAW: 1)Expresses the state's regulatory and supervisory authority over all waters in the state, surface and underground, by declaring that all waters in the state are property of the people of the State, while recognizing that rights may be acquired to the use of water. 2)Establishes background principles that apply to all water diversion and use, including the Constitutional prohibition against waste, unreasonable use, unreasonable method of diversion or unreasonable method of use. 3)Requires the State Water Resources Control Board (State Water Board) administer the water rights system to permit the acquisition of water rights for beneficial use while preventing harm to other lawful water users. 4)Establishes the Sustainable Groundwater Management Act (SGMA). Among other things, SGMA requires that each high- and medium-priority groundwater basins be managed pursuant to a groundwater sustainability plan by January 31, 2020, if in critical overdraft, or by January 31, 2022, with the goal of achieving sustainability within 20 years. 5)Requires the Department of Water Resources (DWR) to 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 AB 1587 Page 3 groundwater from overdraft, subsidence, saline water intrusion, and water quality degradation. FISCAL EFFECT: Unknown. COMMENTS: Expands the ability in a drought or flood to extract and recharge groundwater without oversight. 1)Author's statement: Many areas of the state are disproportionately impacted by the drought because they are heavily dependent or completely reliant on groundwater. A critical number of these groundwater basins are in a state of overdraft. NASA and USDA estimate that more than 1 million acres of farms and ranches in California have gone fallow due to drought conditions. This bill will provide an opportunity to create "water farms" which will help people save their farms and create additional water storage. 2)Background: Pumping in a time of Drought or Flood Subsidence is a significant and growing problem in the state. In most parts of the state subsidence is typically caused by depleting the groundwater table through groundwater pumping. In times of drought when there is greater reliance on groundwater because surface water is not available subsidence can occur. Often times when subsidence occurs the future availability of groundwater basin to store water is diminished permanently. AB 1587 Page 4 One of the driving forces behind the passage of SGMA was the need to combat subsidence and ensure that groundwater basins were available for use into the future by requiring that they are managed sustainably. SGMA has laid out a long time frame before a basin must be sustainable because it recognized that long-term changes to long standing practices cannot happen overnight. In each SGMA basin defined as a high or medium priority basin at least one Groundwater Sustainability Agency (GSA) must form or the State Water Resources Control Board will become the GSA. It is not clear if a city or county will become a GSA, but all GSA's will have to develop a Groundwater Sustainability Plan (GSP). It is not clear if a GSP will restrict pumping in times of drought or flood, but over the long term the GSP will dictate how groundwater is managed in the basin. The committee may wish to consider if this bill would undermine the ability of SGMA to provide for long-term groundwater sustainability. Permits for Groundwater Recharge In November 2015 the Governor issued an Executive Order directing the State Water Board to issue temporary permits that enhance the ability for state or local agencies to capture stormwater. In December 2015 the State Water Board adopted an emergency regulation that reduced the fees for permits and exempted the permits from CEQA pursuant to the Governor's Executive Order. The State Water Board has received and approved two temporary permits under this action. This bill would eliminate the need for a permit to divert AB 1587 Page 5 water for groundwater recharge in times of flood or drought. In doing so it would remove the oversight of the State Water Board and replace that oversight with a prohibition on the diverter causing injury to other lawful users or having an unreasonable effect on other beneficial users. It is the State Water Board that is responsible for and has the information to make an evaluation on the potential of a diversion to cause injury or have an unreasonable effect. It is hard to envision an individual diverter who would have the information necessary to make this kind of determination and harder to see their incentive to make a determination that would limit their ability to divert. Funding for Groundwater Recharge Proposition 1 included $100 million for implementing groundwater plans. The 2015 budget appropriated all of those funds for DWR to implement a competitive grant program. DWR is currently developing guidelines for these grant programs. This bill would prioritize funding for recharge of basins in areas of fallow farmland and appropriate $50 million of funds that appear to have already been appropriated. The State Water Board has an existing policy to prioritize the issuance of water permits. That policy includes prioritizing projects of regional or statewide significance, and projects designed to minimize or avoid impacts to the environment. The committee may wish to consider if prioritizing areas of fallow farmland will undermine the existing policy. Alternatively, the committee may wish to consider defining the extent of fallow farmland for consideration in prioritization. AB 1587 Page 6 3)Prior and Related Legislation: a) The following pieces of legislation created the Sustainable Groundwater Management Act. AB 1739 (Dickinson), Chapter 347, Statutes of 2014 SB 1168 (Pavely), Chapter 346, Statutes of 2014 SB 1319(Pavely), Chapter 348, Statutes of 2014 b) AB 1471 (Rendon), Chapter 188, Statutes of 2014, placed Proposition 1, a $7.545 billion general obligation bond for water-related projects and programs on the November 4, 2014 ballot, where it passed with 67% of the vote. 1)Opposing Arguments: This bill makes a substantial and inappropriate amendment to SGMA and reappropriates Proposition 1 funding that is intended to assist local agencies in the implementation of the Act. Moreover, it removes permitting requirements for surface water diversions to groundwater recharge. The proposal to revoke local authority could impair local ability to sustainably manage the basin over time to achieve sustainability, leading to state takeover of the basin. While we support groundwater recharge, particularly through the AB 1587 Page 7 capture of flood flows, the State Water Board needs to make a finding that the water is not already appropriated to a more senior water rights holder. REGISTERED SUPPORT / OPPOSITION: Support None on File Opposition Clean Water Action Community Water Center Leadership Counsel for Justice and Accountability Sierra Club California Analysis Prepared by:Ryan Ojakian / W., P., & W. / (916) 319-2096 AB 1587 Page 8