All eight of the states in JOW’s primary geographic area were in session this year, and all except California have adjourned. A total of 32 major water bills were introduced. Twelve have passed, 15 did not pass, and 5 remain active.
Three bills on water resource matters surfaced in Arizona this year, with only two passing.
- SB 1147 appropriates unencumbered funds from the Nevada Operating and Resource Subaccounts of the Arizona Water Banking Fund to be used for Southside Replenishment Bank purposes during FY 2016. The Nevada Operating and Resource Subaccounts are funded by payments from Nevada under an interstate water bank agreement. Funds not used to fulfill Arizona’s contractual obligations to Nevada under the agreement can be used for other purposes.
- HB 2393 simplifies the formula used by the Arizona Water Banking Authority to calculate the replenishment obligation in the southside protection zone. The replenishment obligation is a term of the settlement agreement with the Gila River Indian Community that was approved as part of the Arizona Water Settlements Act.
One notable bill by the House but held in the Senate.
- HB 2445 was intended to advance desalination in the state and would have established a committee charged with assembling information on the history and development of desalination in the state, reviewing data from the Yuma Desalting Plant demonstration run, studying additional opportunities for desalination projects and presenting a written report of its findings to the Governor, Legislature and Secretary of State no later than December 31, 2015. (For more on HB 2445, see “Arizona House of Representatives Passes Bill to Advance Desalination in the State,” JOW March 2015).
California has five major water bills under consideration.
- AB 1 would prohibit local governments from imposing fines for failing to water a lawn or for having a brown lawn during a drought emergency. As of June 16, 2015, this bill was pending a third reading in the Senate.
- AB 606 would require the Department of General Services and Caltrans to reduce water consumption and increase water efficiency for landscaping they install or replace by using drought-tolerant plants, drip irrigation, or recycled water. The bill was passed by the Assembly on May 26, 2015 and is currently under consideration in the Senate Governmental Organization Committee.
- AB 617 would make amendments to the Sustainable Groundwater Management Act passed last year. Specifically, the bill would revise the definition of “groundwater recharge” to include in-lieu recharge in which water is delivered to someone that would otherwise extract groundwater, would allow mutual water companies to join with local agencies to form a groundwater sustainability agency, would allow groundwater sustainability agencies to contract with private parties for implementation of a groundwater sustainability plan, would revoke the requirement that groundwater sustainability agencies submit their groundwater sustainability plans to receive authorization to implement the act, would provide means of appeal if a groundwater sustainability agency finds that a state agency is not working cooperatively regarding implementation of its sustainability plan, would allow litigation that prevented a groundwater sustainability plan from being implemented to be considered “good cause” for the purpose of granting an extension on the implementation timeline, and would require the State Board to exclude from probationary status any portion of a basin that has adopted a sustainability plan that is likely to achieve the sustainability goal. This bill is currently under consideration in the Senate Natural Resources & Wildlife Committee.
- AB 965 would change the membership of the California-Mexico Border Relations Council to include the Secretary of State and Consumer Services and to allow the U.S. EPA Regional Administrator for Region 9 to appoint a representative as an ex-officio non-voting member, would require the council to establish the New River Water Quality, Public Health, and River Parkway Development Program to fund and implement recommendations and projects from a strategic plan required under previous existing law, would include reduction of water quality impairment and non-point source pollution and the establishment of parkways that provide flood control and water quality benefits to the measures that can be used to meet urban creek protection, restoration and enhancement under the Urban Streams Restoration Program, and would require DWR to coordinate with the council to develop criteria for funding projects that improve cross-border urban creek conditions.
- SB 226 would establish a timely and comprehensive method for adjudicating groundwater rights. The bill was introduced in anticipation of the need for adjudication of groundwater rights in order to meet conservation requirements under the Sustainable Groundwater Management Act (“SGMA”) and out of concern for the long amount of time often needed to complete and adjudication. Specific terms included in SB 226 would require that the Court use the Code of Civil Procedure when adjudicating groundwater rights, allow an adjudication to occur in any court of competent jurisdiction, deem that an action requesting an adjudication of groundwater rights to be “provisionally complex” as defined in the California Rules of the Court, require the court to make its ruling in a manner that causes no harm as specified in the SGMA, require basin boundaries to be as defined in the Department of Water Resources’ (“DWR”) Bulletin 118, specify service and notice procedures, and require that certain disclosures be made to the other parties. To the extent possible, the terms of this bill would also apply to Indian tribes and the federal government. SB 226 is under consideration in the Assembly Water, Parks & Wildlife and Judiciary Committees.
Colorado passed two major water bills this year.
- HB 1013 requires the Colorado Water Conservation Board and the State Engineer to select two pilot projects—one near Gilcrest or LaSalle, the other near Sterling—to test methods for lowering the groundwater table in areas that have experienced damage from high groundwater levels. The bill also requires the State Engineer to approve or propose changes to the operation and design of a recharge structure that have been proposed as part of an augmentation plan so that recharge done to offset out-of-priority depletions does not injure nearby property.
- HB 1016 makes changes to a 10-year precipitation harvesting pilot program to encourage more applicants to participate. The program was implemented under legislation passed in 2009 which allows up to 10 new residential or mixed used developments to collect precipitation from rooftops for non-potable use. This bill makes redevelopment agencies eligible for the program, reduces the amount of water needed for project’s temporary substitute water supply plan and permanent augmentation plan, directs the Colorado Water Conservation Board (“CWCB”) to update project criteria and guidelines, and specifies that a projects temporary retention of stormwater is not subject to State Engineer orders as long as the project is in compliance with CWCB’s criteria and guidelines and state water quality laws.
The Colorado legislature also considered two major water bills that were postponed indefinitely in committee.
- HB 1038, the flexible water markets or “flex water” bill, would have established a 10-year proof-of-concept for flexible water markets. The bill would have allowed irrigators who conserved water without permanent dry-up of their land to apply for a change-of-use permit for up to 50% of their water to any beneficial use without designating a particular beneficial use, streamlining the process for irrigators to market their conserved water. (For more on HB 1038, see “Colorado General Assembly Again Fails To Pass Flex Water Bill,” JOW March 2015)
- SB 64 would have prohibited the U.S. Forest Service (“USFS”) and the federal Bureau of Land Management (“BLM”) from imposing conditions on special use permits or rights-of-way on federal land that would require a water right owner to assign partial or joint ownership of the water right to USFS or BLM, impose limitations or restrictions that would prevent the water right owner from receiving the full market value for the water right, impose restrictions on the alienation of the water right, or impose conditions that would give USFS or BLM control over the use of the water right.
Nevada considered two notable water bills this year. Neither was passed.
- SB 65 would have redefined the definition of “wasting” water to include water flow that prevents the beneficial use of said water whether that occurs by permitting the water to be unnecessarily discharged or through misuse. In addition, SB 65 sets requirements for the State Engineer concerning the announcement and requirements of taking proofs of appropriation, the availability of the order of determination, and the State Engineer’s ability to set approvals, denials, and certificates relating to the appropriation of water.
- SB 81 would have renamed the classification of “area of active management” to “critical management area” while keeping all former designation requirements. In addition, the bill would have clarified that the State Engineer is required to oversee all groundwater and wells, even domestic well that do not require a permit, would have only required signatures from appropriators of record and owners of domestic wells who account for at least 60 percent of the appropriated groundwater. Lastly, the bill would have allowed the State Engineer to hold hearings concerning a basin at a location close to the basin assuming that this location could fulfill the needs of a hearing, in addition to previous possible locations.
New Mexico also had two notable bills that were not passed.
- HB 157 would have required that 20% of the water project fund’s loans and grants be used to fund water conservation projects. Requirements that 10% is allocated to the State Engineer for water rights adjudications and that 20% of the fund be given to the administrative offices of the courts so that the court’s costs of the mentioned adjudications can be covered remain the same.
- SB 63 would have allowed the New Mexico Finance Authority to make loans or grants from the water project fund to various cities and towns across the state.
The Texas legislature was by far the most active when it comes to important water legislation, considering 10 noteworthy bills. A total of three bills passed.
- HB 30 requires that the Texas Water Development Board confirm that regional water planning groups consider large-scale seawater and brackish groundwater when developing regional water plans in brackish groundwater production zones as well as designate and investigate production impacts in these zones. Also, the bill requires that TWDB assess additional water sources for over-allocation.
- HB 163 replaces the Multi-State Water Resources Planning Commission with the Southwestern Water Commission. The new commission will advise the governor and legislature on cross-boundary water issues and initiate discussions with other states.
- HB 3405, expands the authority of the Barton Springs-Edwards Aquifer Conservation District so that the district has authority over groundwater and any wells drawing from any aquifer other than the Edwards Aquifer in the territory shared with the Edwards Aquifer Authority and over any aquifer in its territory that is not shared. (HB 3405 is one of four bills introduced to halt a controversial water project in Hays County. The other three bills—HB 1191, HB 3406 and HB 3407—did not pass. For more on the water project, see “Hays County Residents Fight Water Project,” JOW May 2015).
The remaining seven bills were considered but did not pass.
- HB 928 would have implemented recommendations in the report “Improve State and Local Drought Planning to More Effectively Manage Water Resources.” More specifically, this bill would have required the Water Conservation Advisory Council to oversee and create strategies for drought response and drought contingency plan evaluations.
- HB 1191 would have established a buffer zone extending five miles from the boundary of a priority groundwater management area. Anyone drilling or operating a well for commercial purposes in the buffer zone would have been required to file for a permit from the Texas Water Development Board and any groundwater conservation district with jurisdiction over the land. HB 1191 was left in committee with no action taken. The well-field at the heart of the Electro-Purification, LLC water project that is under fire in Hays County would have fallen into a buffer zone.
- HB 2031 would have created an exemption for surface water rights for a water supply entity using marine seawater. In addition, it would have created an expedited process for approval of plans for marine seawater desalination facilities while eliminating the possibility of a contested case hearing for bed and banks permits as well as discharge permits for marine seawater.
- HB 3406 would have expanded the Hays Trinity Groundwater Conservation District (“HTGCD”) and given the district jurisdiction over wells drawing from any aquifer other than the Edwards Aquifer in the territory shared with the Edwards Aquifer Authority and over any aquifer in its territory that is not shared. HB 3406 was left pending in committee.
- HB 3407, as originally written, would have stripped the Goforth Special Utility District of its eminent domain power. A committee substitute would have eased the restriction so that the district could still use eminent domain power for projects that it owns and operates. HB 3407 was reported out of committee but was not taken up on the House floor. The district is using its eminent domain power to acquire easements along the pipeline route for the Electro Purification, LLC water project in Hays County.
- HCR 74, if it had been passed through committee, would have directed the Texas Water Development Board and the Texas Commission on Environmental Quality to aid the Region C Water Planning Group in development of a potable-water recycling and reuse project.
- SB 78 would have amended the state water plan requirements. Additions would have included an assessment of the best available science related to factors affecting future water availability trends and future water use trends.
Utah considered one notable house bill, which did not pass, and one notable senate bill, which passed, this year.
- SB 281 created the Water Infrastructure Restricted Account. $5,000,000 was appropriated into the General Fund of this account. These funds can be used to develop the state’s share of the Bear and Colorado Rivers as well as repair, replace, or improve federal water projects for local sponsors when federal funds are not available. In order to allocate these funds, the Water Infrastructure Restricted Account must make rules to specify and require certain criteria and conditions before allocation.
- HB 47 would have declared all waters in Utah under property of the public. Under this declaration the public recreational use on private property would not have changed but the legislature would have governed the use of the public water for beneficial purposes.
Wyoming considered four bills, all of which passed.
- SF 0051 allows the Wyoming Water Development Commission (WWDC) to enter into contracts and agreements with the federal government in order to receive federal funds for Wyoming’s water resources. Also, this bill sets up provisions for a Memorandum of Agreement between New Mexico, Utah and Wyoming concerning the allocation of revenues for the Colorado River Storage Project.
- SF 0055 authorizes and provides funding for water development projects.
- SF 0126 clarifies the water quality standards under the Wyoming Environmental Quality Act. Specifically, it prevents valid water rights from being superseded or abrogated and recognizes that diversion of water is an allowable practice. Lastly, this bill requires that the Water Quality Division develop water quality standards concerning water rights as well as diversion or hydrologic modification within current water quality standards.
- HB 0070 outlines the authorized water development projects that will be allocated funding.
Written by Marta L. Weismann and Stratecon Staff