Somach Simmons and Dunn, Attorneys at Law Somach Simmons & Dunn | Attorneys at Law

September 2, 2014  |  Written by Aaron A. Ferguson

Groundwater Legislation Moves to Governor’s Desk

On August 29, 2014, the California Legislature cast the final votes necessary to move three companion groundwater management bills to the Governor’s desk.  Assembly Bill 1739, and Senate Bills 1168 and 1319 impose significant new groundwater management responsibilities upon local agencies, and also provide expansive new authority for the State Water Resources Control Board (SWRCB) to exercise jurisdiction over groundwater extractions.

Local Management

SB 1168 would require all basins designated by the Department of Water Resources (DWR) as either high or medium priority basins, that are subject to critical conditions of overdraft, to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2020.  High and medium priority basins that are not subject to critical conditions of overdraft must be managed pursuant to a groundwater sustainability plan by January 31, 2022.

SB 1168 would allow a local agency, which is defined as “a local public agency that has water supply, water management, or land use responsibilities within a groundwater basin,” to elect to be a groundwater sustainability agency (GSA).  A combination of local agencies may form a GSA using a joint powers agreement or memorandum of agreement.  If there is an area overlying a groundwater basin that is not within the management area of a GSA, the county within which the unmanaged area lies will be presumed to be the GSA for that area, unless the county opts out.

A GSA that adopts a groundwater sustainability plan consistent with the new requirements in SB1168 would have broad groundwater management powers.  Specifically, SB 1168 would authorize GSAs to require groundwater well registration, measurement of groundwater extractions, and the filing of annual extraction reports.  SB 1168 would also authorize GSAs to regulate groundwater extractions by imposing well spacing requirements, limiting extractions, and establishing extraction allocations.  SB 1168 would require groundwater sustainability plans to include specific information, most notably, measurable objectives to achieve the “sustainability goal” in the basin within 20 years of implementation.  SB 1168 defines the sustainability goal as the implementation of one or more groundwater sustainability plans that achieve sustainable groundwater management by ensuring the applicable basin is operated within the sustainable yield.  SB 1168 further defines “sustainable yield” as the maximum quantity of water that can be withdrawn over a period of years without causing an “undesirable result.”  An “undesirable result” means one or more of the following effects caused by groundwater conditions occurring throughout the basin:   (1) chronic lowering of groundwater levels, (2) significant and unreasonable reduction of groundwater storage, (3) significant and unreasonable seawater intrusion, (4) significant and unreasonable degraded water quality, (5) significant and unreasonable land subsidence that substantially interferes with surface land uses, and (6) depletions of interconnected surface water that have significant and unreasonable adverse impacts on beneficial uses of the surface water.

State Oversight

AB 1739 proposes to task DWR with review of groundwater sustainability plans to ensure they conform to the requirements set forth in SB 1168.  Further, AB 1739 would require DWR to adopt regulations for evaluating groundwater sustainability plans, the implementation of groundwater sustainability plans, and coordination agreements pursuant to this chapter.  AB 1739 would also require DWR to review groundwater sustainability plans every five years.

AB 1739 and SB 1319 work in tandem to establish new regulatory authorities for the SWRCB.  Specifically, these bills would allow the SWRCB to designate groundwater basins as probationary basins under certain circumstances.  Once designated a probationary basin, the SWRCB may adopt an interim plan for regulation of groundwater extractions.  These bills would allow the SWRCB to designate a basin as probationary if:  (1) after June 30, 2017, no local agency has elected to be a GSA for the basin; (2) after January 31, 2020, a high or medium priority basin in a “critical condition of overdraft” (as designated by DWR in Bulletin 118) has not adopted a groundwater sustainability plan for the entire basin; (3) after January 31, 2020, for any high or medium priority basin in a critical condition of overdraft, DWR and the SWRCB determine that a groundwater sustainability plan is inadequate or a groundwater sustainability program is not being implemented in a manner that is likely to achieve the sustainability goal; (4) after January 31, 2022, a high or medium priority basin that is not subject to critical conditions of overdraft has not adopted a groundwater sustainability plan for the entire basin; (5) after January 31, 2022, for any high or medium priority basin that is not subject to critical conditions of overdraft, DWR and the SWRCB determine that a groundwater sustainability plan is inadequate and the SWRCB determines a basin is in a “condition of long-term overdraft” (as defined in proposed Section 10735(a)); or (6) after January 31, 2025, DWR and the SWRCB determine that a groundwater sustainability plan is inadequate and the SWRCB determines that the basin is in a condition where groundwater extractions result in significant depletions of interconnected surface waters.

If the SWRCB establishes an interim plan for a probationary basin, the interim plan must identify actions necessary to correct conditions of long-term overdraft or a condition where extractions result in significant depletions of interconnected surface waters.  The interim plan must also set a time schedule for the actions to be taken, and a description of the necessary monitoring.  The plan may also include restrictions on groundwater extraction, a physical solution, and principles for the administration of rights to surface water connected to the basin.

Conclusion

The Governor has until September 30, 2014 to sign or veto these bills.  There remains substantial opposition to these bills.  However, given the active involvement of the Governor’s office in development of these bills, it appears that he is likely to sign them.

For additional information on this groundwater legislation, please contact Aaron Ferguson ataferguson@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.