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August 6, 2014  |  Written by Aaron A. Ferguson

Comprehensive Groundwater Bill Continues to Advance Through Legislature

The California Legislature is preparing to merge two comprehensive groundwater management bills – Assembly Bill 1739 and Senate Bill 1168 – into one bill (Unified Bill).  The Unified Bill will then likely serve as the primary legislative vehicle for discussion and debate over comprehensive groundwater management.  A draft of the forthcoming Unified Bill, which will likely appear as a revised AB 1739, was released on July 25, 2014.  The Unified Bill contains many of the common elements of the current versions of AB 1739 and SB 1168.  Most notably, the Unified Bill would significantly expand the State Water Resources Control Board’s (SWRCB) regulatory authority over groundwater production throughout the state.

Details of the Unified Bill

The Unified Bill would require that, by January 31, 2020, every “basin” that the California Department of Water Resources (DWR) identifies as either a “medium or high priority basin” be subject to a Groundwater Sustainability Plan (GSP).  The Unified Bill defaults to the basin/subbasin boundaries in DWR’s Bulletin 118 to define the coverage areas, but provides a mechanism for a local agency to petition DWR to revise the basin/subbasin boundaries contained in Bulletin 118 based on relevant technical information.

The Unified Bill provides for a local agency or agencies to form a groundwater sustainability agency (GSA).  The Unified Bill would authorize a GSA that adopts a GSP to require groundwater well registration, extraction measurement, and annual extraction statements.  Further, a GSA would be authorized to impose well spacing requirements and extraction allocations.  The Unified Bill would also require a GSP to contain specific technical information, as well as components related to monitoring and management of groundwater levels and quality, mitigation of overdraft, and a monitoring plan summary and associated response protocols.  A GSA would have fee-raising authority to cover the costs associated with implementation of these provisions.

The Unified Bill would further require a GSP  to contain measurable objectives, as well as interim milestones, to achieve the “sustainability goal” in the basin within 20 years of  GSP implementation.  The Unified Bill defines a “sustainability goal” as one or more plans that achieve “sustainable groundwater management” through measures targeted to ensure that a basin is operated within its “sustainable yield.”  The Unified Bill defines “sustainable groundwater management” as the management of groundwater during the planning and implementation horizon without causing “undesirable results.”  “Sustainable yield” is defined as the maximum quantity of water that can be extracted without causing an “undesirable result.”

Sustainable groundwater management under the Unified Bill would revolve around actions intended to avoid undesirable results.  “Undesirable results” are defined as:  (1) chronic lowering of groundwater levels; (2) significant and unreasonable reductions in groundwater storage; (3) significant seawater intrusion; (4) significant and unreasonable degraded groundwater quality; (5) significant land subsidence; and (6) surface water depletions that have significant adverse impacts on beneficial uses.   In short, the Unified Bill would impose a significant planning obligation on local agencies, effectively requiring GSAs to perform water balances and manage extractions so as to avoid these undesirable results.

State Review

The Unified Bill provides for state-level review of GSPs.  The Unified Bill would require a GSA to certify that its plan complies with the aforementioned substantive provisions by January 31, 2020, and every five years thereafter.  A GSA would be required to submit its certification to DWR, and within two years, DWR must issue an assessment with potential recommended corrective actions.  The bill would provide DWR fee-raising authority to cover its costs associated with plan review.

In addition to review by DWR, the Unified Bill would authorize the SWRCB to develop an “interim plan” for a basin/subbasin under specified circumstances.  An “interim plan” would essentially put the SWRCB in the shoes of a GSA where:  (1) no local agency has elected to serve as a GSA by January 1, 2017; (2) no GSA has adopted a GSP by January 31, 2020; or (3) either DWR has determined that a GSA’s sustainable groundwater management program is inadequate, or the basin is in a condition of long-term overdraft or in a condition where groundwater extractions result in significant depletions of interconnected surface waters.

The Unified Bill characterizes an interim plan as an enforceable plan that contains recommended actions to remedy overdraft or depletions of interconnected surface waters.  An interim plan may contain a time schedule, and require monitoring, pumping restrictions or a physical solution.  The Unified Bill provides for rescission of an interim plan when a GSA shows that an adequate GSP exists.  The Unified Bill would provide the SWRCB fee-raising authority to implement an interim plan.

Conclusion

The Unified Bill would significantly expand the tools available to local agencies to manage groundwater.  It would simultaneously expand the state’s regulatory authority beyond the initial intent of helping chronically depleted basins.  Debate over this bill is likely to become increasingly contentious as parties stake out their positions on some of the more controversial elements, including SWRCB oversight.  The Unified Bill is likely to appear as a revised AB 1739 during the week of August 4th.

For more information, please contact Aaron Ferguson at aferguson@somachlaw.com.

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