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Gov. Brown Signs Controversial Bills to Manage California’s Groundwater

Governor Jerry Brown has signed a three-bill package paving the way for groundwater regulation in California.  The bills, SB 1168 (Pavley, D-Agoura Hills), SB 1739 (Pavley), and AB 1319 (Dickinson, D-Sacramento), were passed by the legislature late last month. With the bills now law, water agencies at the local and state level face a long road of implementation.

SB 1168 lays out the basic framework for groundwater regulation.  It requires the California Department of Water Resources to classify each basin in the state as a high-, medium-, low-, or very low-priority basin by January 31, 2015.  Basins that are designated as high- or medium-priority and are also found to be in “critical condition of overdraft” must be managed under a “groundwater sustainability plan” by January 31, 2020.  Other high- or medium-priority basins must be managed under such plans two years later, by 2022.  Low- and very low-priority basins may, but are not required to, use sustainability plans.

The sustainability plans are to be designed and implemented by “groundwater sustainability agencies,” which can be any local water agency or agencies, thereby emphasizing local control of groundwater management.  The plans must be able to achieve the stated sustainability goal within 20 years of implementation, though the groundwater sustainability agency may apply for a 5-year extension under certain circumstances.  The bill stipulates that agencies have “discretion as to whether to set measurable objectives and the timeframes for achieving any objectives for undesirable results that occurred before, and have not been corrected by, January 1, 2015.”  As a result, groundwater depletion caused by the current drought does not have to be addressed under these plans.

While SB 1168 is focused on local planning and implementation, AB 1739 fleshes out the role of the state in the regulatory scheme.  AB 1739 stipulates that if certain conditions are not met, the State Water Resources Control Board (“State Board”) can declare a basin to be a “probationary basin.”  This can happen if, for example, there is no groundwater sustainability agency in place by 2017, or if a groundwater sustainability plan or its implementation is found to be inadequate after 2020 or 2022, depending on the classification of the basin.  One exception is if litigation delayed the creation of a groundwater sustainability agency.  If the deficiency is not remedied within 180 days, the State Board may develop an interim management plan for the basin.

There are several other notable provisions in AB 1739.   Cities and counties are required to notify their groundwater sustainability agency of proposed substantive changes to their general plans.  Additionally, people or entities that extract groundwater from parts of basins not covered by a management plan must report their extraction to the state each year.  People who pump less than two acre-feet per year or who meet certain other criteria are not required to report.

Finally, SB 1319 amends several portions of AB 1739.  It requires the state to exclude from probationary status any parts of a basin for which the sustainability plan is adequate for the sustainability goal, even if other parts of the basin are placed on probation.  It also revokes permission for local agencies to continue to implement adequate parts of their plan during probationary periods.  Thirdly, it prohibits the state prior to 2025 from imposing interim plans to remedy situations where groundwater extraction depletes surface waters.

After the signing, supporters of the bills highlighted what they considered its light touch in terms of state intervention and the importance of a concerted response to groundwater depletion.  Governor Brown said of the bills, “We have to learn to manage wisely water, energy, land and our investments,” and added in a signing message, “The state’s primary role is to provide guidance and technical support…and to step in on an interim basis when, and only when, local agencies fail to exercise their responsibilities.” Senator Fran Pavley, who sponsored two of the bills, hailed the signing, saying “the bills take a balanced approach—they protect property rights and incentivize local control,” while Assemblymember Dickinson said, “ensuring a sustainable supply of groundwater is a critical element of addressing the water challenges facing California.”

A variety of organizations also celebrated the signing.  Tim Quinn, Executive Director of the Association of California Water Agencies, said at the ceremony, “I have no doubt that in the near future, we will look back on this day as a turning point in securing reliable, long-term water supplies for California and our vital agricultural economy.”  The California Water Foundation, California Alliance with Family Farmers, and California Climate and Agriculture Network also released statements in support of the bills.

There was also opposition to the signing.  Several members of the legislature decried the bills as state power grabs that were rushed through the back rooms of the Capitol.

Assemblywoman Connie Conway (R-Tulare) released a statement saying the bills “are overly broad, undermine local control, and pave the way for billions in new fees.”  The package “was hastily cobbled together without regard to historical legal precedent and private property water rights,” added Sen. Jim Nielsen (R-Gerber).  Meanwhile, California Farm Bureau Federation President Paul Wenger said his organization will “actively monitor” the implementation of the laws to make sure they do not encroach on rights.

Written by Stratecon Staff