In August 2022, the 2022 California legislative session closed with various relevant legislative measures either moving to the Governor’s desk for signature or failing in committee. Below is a small highlight of relevant legislation concerning water rights, agriculture, and local agency procedure. While certain bills passed the California Legislature, they must now be presented to Governor Newsom, who has until September 30th to sign any of the bills passed below.

Bills That Passed Out of the California Legislature

SB 1205 – Water Availability Analyses

Senate Bill 1205 (SB 1205) requires the State Water Resources Control Board (Board) to develop and adopt regulations to govern consideration of climate change effects in water availability analyses used in its review of applications for water rights permits. When issuing water rights permits, the Board relies on a water availability analysis (WAA) to determine whether there is available water for a new permit. The current law requires the Board, when considering an appropriative water right permit, to determine if there is sufficient water to supply the applicant, senior water rights holders, and fish and wildlife resources. For the WAA, the Board currently estimates watershed streamflow largely from historical stream gage records or from water availability models but is not required to consider the effects of climate change. SB 1205 will require the Board to consider the effects of climate change on watershed hydrology when evaluating water availability. SB 1205 requires the Board to consult with the Department of Water Resources and the Department of Fish and Wildlife when developing new regulations. SB 1205 also provides that the Board shall not refuse to accept or delay processing of an application on the basis that the Board has not yet adopted the regulations.

AB 1757 – Carbon Sequestration

Assembly Bill 1757 (AB 1757) requires the Natural Resources Agency (NRA) to work with various state agencies to determine a range of targets for natural carbon sequestration to reduce greenhouse gas emissions, before January 1, 2024. Natural carbon sequestration is the process by which carbon dioxide is captured, secured, and stored from the atmosphere into vegetation such as grasslands, forests, soils, and oceans. To determine these statewide targets, the NRA, the State Air Resources Board (ARB), the California Environmental Protection Agency (CalEPA), and the Department of Food and Agriculture (CDFA) must review and update the Natural Working Lands Climate Smart Strategy before January 1, 2025. AB 1757 empowers the ARB to adopt a methodology to track greenhouse gas emissions, reductions, and carbon sequestration on natural and working lands by January 1, 2025.

AB 2449 – Brown Act

Assembly Bill 2449 (AB 2449) makes certain amendments to the Brown Act, which ensures government transparency by mandating open and public meetings of legislative bodies. AB 2449 will allow legislative bodies of local agencies to use teleconferencing for their meetings without noticing their teleconference locations and making them publicly accessible under certain circumstances. Until January 1, 2026, each member of a legislative body need not provide its location when teleconferencing if a quorum of the legislative body is present in the same physical location and the location is noticed on the agenda and open to the public. To appear via teleconference, a member of the legislative body must either show just cause as to why they cannot attend in person or show emergency circumstances prevent them from attending. Additionally, legislative bodies must make meetings available by live webcast so the public can observe the meeting and address the legislative body remotely.

Bills That Failed in the California Legislature

AB 2201 – Groundwater Well Certification

Assembly Bill 2201 (AB 2201) would have extended the effect of Executive Order N-7-22 indefinitely, as it sought to preserve the requirements of the Executive Order in statute. While not identical to the Executive Order, AB 2201would have prohibited counties from approving any groundwater well permit unless the local Groundwater Sustainability Agency provided written verification that the proposed well would not be inconsistent with any applicable Groundwater Sustainability Plan (GSP) or decrease the likelihood of achieving a basin sustainability goal implemented by the GSP. Additionally, the permit applicant would be required to have a professional engineer or geologist provide a written report that the proposed well would not cause well interference. However, the proposed bill provided exemptions for wells that extract less than two acre feet per year of groundwater, wells that exclusively provide groundwater for public water supply systems, well and well pump maintenance, and wells in adjudicated basins. AB 2201 ultimately failed to pass out of the Legislature.

AB 2451 – Water Board Drought Section

Assembly Bill 2451 (AB 2451) would have established a permanent Drought Section at the State Water Resources Control Board and required the Board to adopt principles and guidelines for diversion and use of water during times of water shortage for drought preparedness and climate resiliency in coastal watersheds. AB 2451 would have allocated $44 million to the Board to effectuate this proposed legislation, but no funding source for the bill was identified and the bill expressly prohibited the Board from raising fees to pay for the new Drought Section. AB 2451 ultimately failed to pass out of the Legislature.

AB 2313 – Judicial Water Law Education

Assembly Bill 2313 (AB 2313) would have authorized the Judicial Council of California (JCC) to establish a program that could train and educate judges on actions related to water law. Proponents of the bill argued that due to the likely increase in litigation surrounding water rights, California judges should be prepared to adjudicate complex water rights actions. AB 2313 would have provided this education program to various judges across the state, including superior court judges, appellate court justices, and administrative law judges. Additionally, the bill would have provided resources for judges when hearing complex water rights actions, including hiring experts in water science, research attorneys, or special masters to assist the judge throughout the pendency of the case. AB 2313 also would have given parties to a water law case the ability to petition for their case to be heard in front of a judge who had participated in the water law education program. AB 2313 ultimately failed to pass out of the Legislature.

For additional information please contact Kelly Doyle at kdoyle@somach.com.

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