CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 658

Author:(Arambula and Eduardo Garcia)

As Amended Ver:July 11, 2019

Majority vote

SUMMARY:

This bill would allow groundwater sustainability agencies or other local agencies to apply to the State Water Resources Control Board (State Water Board) for temporary five-year permits to divert and store groundwater during high-flow events.

The Senate Amendments:

Senate amendments clarify provisions that if there is an adopted groundwater sustainability plan (or alternative plan), that the proposed diversion to underground storage is consistent with that plan. Other amendments clarify that any proposed change would not harm other user's ability to meet water quality objectives, and make technical and conforming changes.

COMMENTS:

Executive Order B-39-17, signed on April 6, 2017, directed the State Water Board to prioritize temporary water right permits to accelerate approvals for projects that enhance the ability of a local or state agency to capture high-runoff events for local storage or recharge, consistent with water rights priorities and protections for fish and wildlife. The order also suspends the California Environmental Quality Act (CEQA) for State Water Board actions on these types of temporary permits. This bill does not suspend CEQA.

California's water law and policy, Article X, Section 2 of the California Constitution, requires that all uses of the state's water be both reasonable and beneficial. It places a significant limitation on water rights by prohibiting the waste, unreasonable use, unreasonable method of use or unreasonable method of diversion of water. A portion of an appropriative water right that is not used beneficially during a five-year period may be considered abandoned and available for use by others. This bill prevents the reversion of a water right during a five-year period in which the water is used for groundwater recharge beneficial to the aquifer or for later beneficial use.

According to the Author:

The implementation of the Sustainable Groundwater Management Act (SGMA) is going to require groundwater basins to be brought into balanced levels of pumping and recharge. One opportunity for recharge is by capturing high precipitation events using a temporary permit from the State Water Board. AB 658 would allow for diversion of surface water to underground storage for beneficial use that helps meet the sustainability goals of the groundwater basin.

Arguments in Support:

Letters in support connect the implementation of the Sustainable Groundwater Management Act to the content of the bill. They argue that this bill, with appropriate water rights protections in place, would provide a means to encourage surface water diversions to groundwater storage in a manner that benefits water managers while protecting beneficial uses and existing water rights holders. They argue that the water right protections would provide a process for legal water users impacted by the project to file an objection, and that the State Water Board would be required to consider the objection.

Arguments in Opposition:

None on file

FISCAL COMMENTS:

Prior to clarifying amendments in the Senate, according to the Assembly Appropriations Committee, the Department of Fish and Wildlife (DFW) anticipates a significant increased workload (8 positions) and associated costs of $1.7 million annually (General Fund). DFW anticipates numerous agencies applying to store surface water underground to achieve their groundwater sustainability goals under SGMA, among other water rights applications. DFW, as a trustee agency, is required to review and comment on every water right petition.

The Committee estimates minor and absorbable State Water Board costs.

VOTES:

ASM WATER, PARKS, AND WILDLIFE: 10-0-4

YES: Eduardo Garcia, Chu, Friedman, Cristina Garcia, Gloria, Kalra, Levine, Blanca Rubio, Salas, Wood

ABS, ABST OR NV: Gallagher, Bigelow, Choi, Dahle

ASM APPROPRIATIONS: 14-0-4

YES: Gonzalez, Bloom, Bonta, Calderon, Carrillo, Chau, Diep, Eggman, Gabriel, Eduardo Garcia, Maienschein, Petrie-Norris, Quirk, Robert Rivas

ABS, ABST OR NV: Bigelow, Brough, Fong, Obernolte

ASSEMBLY FLOOR: 67-0-13

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Chu, Cooper, Cunningham, Daly, Diep, Eggman, Frazier, Friedman, Gabriel, Cristina Garcia, Gipson, Gloria, Gonzalez, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Obernolte, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Bigelow, Choi, Cooley, Dahle, Flora, Fong, Gallagher, Eduardo Garcia, Gray, Kiley, Melendez, Ting, Voepel

SENATE FLOOR: 40-0-0

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Jones, Leyva, McGuire, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Stone, Umberg, Wieckowski, Wiener, Wilk

UPDATED:

VERSION: July 11, 2019

CONSULTANT: Catherine Freeman / W., P., & W. / (916) 319-2096 FN: 0001746

 THIRD READING  

Bill No: AB 658

Author: Arambula (D) and Eduardo Garcia (D), et al.

Amended: 7/11/19 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 8-0, 7/9/19

AYES: Stern, Jones, Allen, Caballero, Hertzberg, Hueso, Jackson, Monning

NO VOTE RECORDED: Borgeas

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/30/19

AYES: Portantino, Bates, Bradford, Durazo, Hill, Jones, Wieckowski

ASSEMBLY FLOOR: 67-0, 5/28/19 - See last page for vote

SUBJECT: Water rights: water management

SOURCE: Author

DIGEST:

This bill allows groundwater sustainability agencies or other local agencies to apply to the State Water Resources Control Board (board) for temporary five-year permits to divert and store groundwater during high-flow events.

ANALYSIS:

Existing law:

1. Requires, pursuant to the California Constitution, that the water resources of the state be put to beneficial use to the fullest extent of which they are capable and that the waste or unreasonable use or unreasonable method of use of water be prevented.
2. Limits the right to water or to the use of water to that amount of water that may be reasonably required for the beneficial use to be served.
   1. Provides for the reversion of water rights to which a person is entitled when the person fails to beneficially use the water for a period of five years.
   2. Provides that the storing of water underground, including the diversion of streams and the flowing of water on lands necessary to the accomplishment of the storage, constitutes a beneficial use of water if the stored water is thereafter applied to the beneficial purposes for which the appropriation for storage was made.
3. Establishes that board administers a water rights program pursuant to which the board grants permits and licenses to appropriate water.
   1. Allows a person who has an urgent need to divert and use water to apply for, and the board to issue, a temporary permit, as prescribed.
   2. Requires an applicant to pay an application fee and a permit fee, if a temporary permit is issued, both computed as specified.
4. Requires, pursuant to the Sustainable Groundwater Management Act (SGMA), all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources that are designated as basins subject to critical conditions of overdraft to be managed under a groundwater sustainability plan (GSP), coordinated GSPs, or approved alternative plans by January 31, 2020.
   1. Requires all other groundwater basins designated as high- or medium-priority basins to be managed under a GSP, coordinated GSP, or approved alternative plan by January 31, 2022, except as specified.
   2. Requires a GSP to be developed and implemented to meet the sustainability goal, established as prescribed in SGMA.
5. Allows a permittee or licensee who has an urgent need to change a point of diversion, place of use, or purpose of use to petition for, and the board to issue, a temporary change order, subject to certain restrictions.

This bill:

1. States that it is the intent of the Legislature in enacting this bill to encourage groundwater recharge projects during times of high-flow events by creating a temporary five-year permit and a temporary five-year change order administered by the board. Further states that this bill is not intended to limit any other permitting of an appropriation of water for any authorized beneficial use under other provisions of law.
2. Authorizes a groundwater sustainability agency (GSA) or local agency to apply for, and the board to issue, a conditional temporary permit for diversion of surface water to underground storage for beneficial use that advances the sustainability goal of a groundwater basin, as specified.
3. Authorizes a GSA or local agency that is a water rights permittee or a licensee to petition for, and the board to issue, a conditional temporary change order that authorizes the diversion of surface water to underground storage for beneficial use that advances the sustainability goal of a groundwater basin, as specified.
4. Requires the board, before issuing a conditional temporary permit or a conditional temporary change under this bill, to make the following findings based upon a preponderance of the evidence:
   1. The proposed diversion is to underground storage for beneficial use that advances the sustainability goal of a groundwater basin.
   2. The water may be diverted and used without injury to any lawful user of water, including the ability to meet water quality objectives.
   3. The water may be diverted and used without unreasonable effects on fish, wildlife, or other instream beneficial uses.
   4. The proposed diversion and use are in the public interest, including findings to support permit conditions imposed to ensure that the water is diverted and used in the public interest.
5. Establishes that a conditional temporary permit or a conditional temporary change order issued under this bill:
   1. Does not create a vested right, even of a temporary nature.
   2. Is subject, at all times, to modification or revocation at the discretion of the board, after the permittee has adequate notice and an adequate opportunity to be heard concerning any proposed modification or revocation.
   3. Automatically expires five years after the authorization takes effect, unless an earlier date is specified or the temporary permit is revoked, and shall be junior in priority to any subsequent appropriation not subject to this bill. The five-year period is a limitation on the authorization to divert and not a limitation on the authorization for beneficial use of the water diverted to underground storage.
6. Authorizes the board to renew a permit issued under this bill if the board, in its judgment, concludes that the applicant has exercised due diligence in applying for a permit under current law, other than that provided by this bill.
7. Excludes from the authorization for conditional temporary permits and conditional temporary change orders under this bill to:
   1. Diversions within the groundwater basins in the Upper Los Angeles River Area or
   2. Diversions within any groundwater basin or portion of a groundwater basin in Inyo County managed pursuant to the terms of the stipulated judgment in City of Los Angeles v. Board of Supervisors of the County of Inyo, et al.
8. Requires the board, by December 31, 2024, to post on their Internet Web site a report concerning the effectiveness of the temporary permitting and change petition provisions enacted by this bill. The report would be required to describe, at a minimum:
   1. The number of temporary permits and temporary change orders issued by the board pursuant to the procedures established by this bill.
   2. The volume of diversions to groundwater storage authorized under temporary permits and change orders issued by the board pursuant to the procedures established by this bill.
   3. The distribution across the state of the temporary permits and change orders issued by the board pursuant to the procedures established by this bill, including, without limitation, the issuance of such permits and orders for groundwater storage in critically overdrafted groundwater basins identified under SGMA.

Comments

Fills a gap in water rights permits. The board has authority under the water code to issue temporary water right permits or approve temporary changes in points of diversion or places of use for up to 180 days. It also has the authority to issue permanent water rights permits or changes in point of diversion or places of use. But, it doesn’t have the authority to issue such permits on an interim basis. This bill is intended to fill that gap.

Who might use this authority? The temporary permits and changes authorized by this bill would probably not be useful to someone who sees that developing atmospheric river events might create an opportunity to divert anticipated high flows onto a dormant orchard for purposes of groundwater recharge. The processing time for the temporary permits and changes authorized by this bill would make that challenging. However, it may be useful to a GSA that wants to establish one or more groundwater recharge projects either as test projects with options to make permanent or as a bridging permit while it works to develop permanent rights or changes to rights.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee:

• The Department of Fish and Wildlife estimates a need for five positions at a cost of $610,000 in fiscal year 2019-20, $1,059,000 in fiscal year 2020-21, and approximately $1 million ongoing (General Fund).
• Minor and absorbable costs for the board.

SUPPORT: (Verified 8/28/19)

California Association of Professional Scientists

California Farm Bureau Federation

Environmental Defense Fund

Groundwater Resources Association

Metropolitan Water District of Southern California

Santa Clara Water District

Sustainable Conservation

Valley Ag Water Coalition

OPPOSITION: (Verified 8/28/19)

None received

ARGUMENTS IN SUPPORT: According to the author, “California recently faced one of the worst droughts in its history, of which effects continue to be felt throughout the State. Climatologists predict that more frequent and severe droughts will occur. The best way to minimize damage during periods of drought is to prepare and capture water in times of high flows. Droughts combined with the Sustainable Groundwater Management Act (SGMA) are going to vastly change the landscape of our farming and urban communities if we do not adequately prepare. AB 658 looks to create a process of temporary permits in law and deems that groundwater recharge is a beneficial use under these new 5 year temporary permits.”

ASSEMBLY FLOOR: 67-0, 5/28/19

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Chu, Cooper, Cunningham, Daly, Diep, Eggman, Frazier, Friedman, Gabriel, Cristina Garcia, Gipson, Gloria, Gonzalez, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Bigelow, Choi, Cooley, Dahle, Flora, Fong, Gallagher, Eduardo Garcia, Gray, Kiley, Melendez, Ting, Voepel

Prepared by: Dennis O'Connor / N.R. & W. / (916) 651-4116

9/1/19 10:53:31

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 658 (Arambula) - Water rights: water management

Bill Summary:

This bill would allow groundwater sustainability agencies or other local agencies to apply to the State Water Resources Control Board (SWRCB) for temporary five-year permits to divert and store groundwater during high-flow events.

Fiscal Impact:

• DFW estimates a need for five positions at a cost of $610,000 in fiscal year 2019-20, $1,059,000 in fiscal year 2020-21, and approximately $1 million ongoing (General Fund).
• Minor and absorbable costs for the SWRCB.

Background:

1. California's system for surface water rights recognizes both riparian rights and appropriative rights. Riparian rights are based on applying water from a stream or watercourse to the adjoining land. Appropriative rights allow a person to acquire a right to divert, store and use water regardless of whether the land it is used on is adjacent.

An appropriative water right is based on the concept of "first in time is first in right" and is generally subject to the issuance of a permit by the State Water Board with the exception of pre-1914 appropriative rights (those water rights initiated before 1914 when the Water Commission Act took effect).

Groundwater storage or recharge refers to the injection of surface water into the aquifer.

Temporary Permits. Executive Order B-39-17, signed on April 6, 2017, directed the State Water Board to prioritize temporary water right permits to accelerate approvals for projects that enhance the ability of a local or state agency to capture high-runoff events for local storage or recharge, consistent with water rights priorities and protections for fish and wildlife. The order also suspends CEQA for State Water Board actions on these types of temporary permits. This bill does not suspend CEQA.

Reasonable and Beneficial Use. California's water law and policy, Article X, Section 2 of the California Constitution, requires that all uses of the state's water be both reasonable and beneficial. It places a significant limitation on water rights by prohibiting the waste, unreasonable use, unreasonable method of use or unreasonable method of diversion of water.

A portion of an appropriative water right that is not used beneficially during a five-year period may be considered abandoned and available for use by others.

Proposed Law:

This bill would:

1. State that it is the intent of the Legislature in enacting this measure to encourage groundwater recharge projects during times of high-flow events by creating a temporary five-year permit and a temporary five-year change order administered by the State Water Resources Control Board.

Further state that this measure is not intended to limit any other permitting of an appropriation of water for any authorized beneficial use under other provisions of law.

1. Authorize a groundwater sustainability agency (GSA) or local agency to apply for, and the board to issue, a conditional temporary permit for diversion of surface water to underground storage for beneficial use that advances the sustainability goal of a groundwater basin, as specified.
2. Authorize a GSA or local agency that is a water rights permittee or a licensee to petition for, and the board to issue, a conditional temporary change order that authorizes the diversion of surface water to underground storage for beneficial use that advances the sustainability goal of a groundwater basin, as specified.
3. Require the board, before issuing a conditional temporary permit or a conditional temporary change under this Act, to make the following findings based upon a preponderance of the evidence:
   1. The proposed diversion is to underground storage for beneficial use that advances the sustainability goal of a groundwater basin.
   2. The water may be diverted and used without injury to any lawful user of water.
   3. The water may be diverted and used without:
      1. Unreasonable effects on fish, wildlife, or other instream beneficial uses; or
      2. Significant adverse effects on ability to meet water quality objectives.
   4. The proposed diversion and use are in the public interest, including findings to support permit conditions imposed to ensure that the water is diverted and used in the public interest.
4. Establish that a conditional temporary permit or a conditional temporary change order issued under this Act:
   1. Does not create a vested right, even of a temporary nature.
   2. Is subject, at all times, to modification or revocation at the discretion of the board, after the permittee has adequate notice and an adequate opportunity to be heard concerning any proposed modification or revocation.
   3. Automatically expires five years after the authorization takes effect, unless an earlier date is specified or the temporary permit is revoked, and shall be junior in priority to any subsequent appropriation not subject to this Act. The five-year period is a limitation on the authorization to divert and not a limitation on the authorization for beneficial use of the water diverted to underground storage.
5. Authorize the board to renew a permit issued under this Act if the board, in its judgment, concludes that the applicant has exercised due diligence in applying for a permit under current law, other than that provided by this Act.
6. Exclude from the authorization for conditional temporary permits and conditional temporary change orders under this Act to:
   1. Diversions within the groundwater basins in the Upper Los Angeles River Area or
   2. Diversions within any groundwater basin or portion of a groundwater basin in Inyo County managed pursuant to the terms of the stipulated judgment in City of Los Angeles v. Board of Supervisors of the County of Inyo, et al.
7. Require the board, by December 31, 2024, to post on their internet website a report concerning the effectiveness of the temporary permitting and change petition provisions enacted by this bill. The report would be required to describe, at a minimum:
   1. The number of temporary permits and temporary change orders issued by the board pursuant to the procedures established by this Act.
   2. The volume of diversions to groundwater storage authorized under temporary permits and change orders issued by the board pursuant to the procedures established by this Act.
   3. The distribution across the state of the temporary permits and change orders issued by the board pursuant to the procedures established by this Act, including, without limitation, the issuance of such permits and orders for groundwater storage in critically overdrafted groundwater basins identified under SGMA.

Related Legislation:

AB 2649 (Arambula, 2018) – Would have authorized the board to issue temporary permits for to divert water to underground storage or recharge during for high-precipitation events, and further provides that such a an authorized diversion of water is a diversion of water for beneficial use if the diverted water is put to beneficial use. Was gut & amended in the final days of session to become a bill regarding State Water Project contracts.

Staff Comments:

According to DFW, this bill would likely increase the submission rate for project applications that appropriate surface water for groundwater storage. Much of the increase in the submission rate for those project applications would come from groundwater sustainability agencies. This increased submission rate would increase the workload of DFW staff who participate in SWRCB processes for considering applications for temporary water rights permits and temporary changes to water rights.

Projects involving groundwater storage and extraction are complex and involve close coordination among multiple disciplines within the DFW. These include water rights, Lake and Streambed Alteration Program, CEQA and California Endangered Species Act, the Sustainable Groundwater Management Act, fisheries, Instream Flow Program, hydrological engineers, engineering geologists and administration.

As groundwater sustainability agencies are established (currently there are over 260) and groundwater sustainability plans are finalized (currently over 100 have submitted Initial Notifications), groundwater sustainability agencies will likely apply for permits (under this bill) to appropriate surface water to put to beneficial use by storing that water underground to protect groundwater water quality, recover groundwater levels or extract later for other beneficial uses.

By 2024, the Department of Water Resources will have reviewed groundwater sustainability plans submitted by basins that are currently designated as critically over-drafted, medium or high-priority. The development, adoption and approval by the SWRCB of groundwater sustainability plans (based on the Department of Water Resources’ recommendations) is expected to increase the number of temporary permits and permit renewals, and temporary change orders and temporary change renewals submitted for Department review by an unknown amount. In addition to the groundwater sustainability agencies, other local agencies may apply for these permits and change orders, thus increasing the workload further.

DFW estimates for the positions necessary to carry out the increased workload is based on regional input of estimated hours to complete a project and the number of projects expected in each region. Estimating that the DFW would initially receive approximately 15 water right submissions relating to groundwater storage annually and that each submission requires consultation and notification from the DFW, each region is expected to need an additional four Senior Environmental Scientist Specialists and an additional Senior Engineering Geologist.

-- END --

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Henry Stern, Chair

2019 - 2020 Regular

Bill No: AB 658 Hearing Date: July 9, 2019

Subject: Water rights: water management

BACKGROUND AND EXISTING LAW

1. The California Constitution requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable and that the waste or unreasonable use or unreasonable method of use of water be prevented.
2. Limits the right to water or to the use of water to that amount of water that may be reasonably required for the beneficial use to be served.
   1. Provides for the reversion of water rights to which a person is entitled when the person fails to beneficially use the water for a period of 5 years.
   2. Provides that the storing of water underground, including the diversion of streams and the flowing of water on lands necessary to the accomplishment of the storage, constitutes a beneficial use of water if the stored water is thereafter applied to the beneficial purposes for which the appropriation for storage was made.
3. Establishes that the State Water Resources Control Board (board) administers a water rights program pursuant to which the board grants permits and licenses to appropriate water.
   1. Allows a person who has an urgent need to divert and use water to apply for, and the board to issue, a temporary permit, as prescribed.
   2. Requires an applicant to pay an application fee and a permit fee, if a temporary permit is issued, both computed as specified.
4. The Sustainable Groundwater Management Act (SGMA), requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources (DWR) that are designated as basins subject to critical conditions of overdraft to be managed under a groundwater sustainability plan (GSP), coordinated GSPs, or approved alternative plans by January 31, 2020.
   1. Requires all other groundwater basins designated as high- or medium-priority basins to be managed under a GSP, coordinated GSP, or approved alternative plan by January 31, 2022, except as specified.
   2. Requires a GSP to be developed and implemented to meet the sustainability goal, established as prescribed in SGMA.
5. Allows a permittee or licensee who has an urgent need to change a point of diversion, place of use, or purpose of use to petition for, and the board to issue, a temporary change order, subject to certain restrictions.

PROPOSED LAW

This bill would:

1. State that it is the intent of the Legislature in enacting this measure to encourage groundwater recharge projects during times of high-flow events by creating a temporary five-year permit and a temporary five-year change order administered by the State Water Resources Control Board.

Further state that this measure is not intended to limit any other permitting of an appropriation of water for any authorized beneficial use under other provisions of law.

1. Authorize a groundwater sustainability agency (GSA) or local agency to apply for, and the board to issue, a conditional temporary permit for diversion of surface water to underground storage for beneficial use that advances the sustainability goal of a groundwater basin, as specified.
2. Authorize a GSA or local agency that is a water rights permittee or a licensee to petition for, and the board to issue, a conditional temporary change order that authorizes the diversion of surface water to underground storage for beneficial use that advances the sustainability goal of a groundwater basin, as specified.
3. Require the board, before issuing a conditional temporary permit or a conditional temporary change under this Act, to make the following findings based upon a preponderance of the evidence:
   1. The proposed diversion is to underground storage for beneficial use that advances the sustainability goal of a groundwater basin.
   2. The water may be diverted and used without injury to any lawful user of water.
   3. The water may be diverted and used without:
      1. Unreasonable effects on fish, wildlife, or other instream beneficial uses; or
      2. Significant adverse effects on ability to meet water quality objectives.
   4. The proposed diversion and use are in the public interest, including findings to support permit conditions imposed to ensure that the water is diverted and used in the public interest.
4. Establish that a conditional temporary permit or a conditional temporary change order issued under this Act:
   1. Does not create a vested right, even of a temporary nature.
   2. Is subject, at all times, to modification or revocation at the discretion of the board, after the permittee has adequate notice and an adequate opportunity to be heard concerning any proposed modification or revocation.
   3. Automatically expires five years after the authorization takes effect, unless an earlier date is specified or the temporary permit is revoked, and shall be junior in priority to any subsequent appropriation not subject to this Act. The five-year period is a limitation on the authorization to divert and not a limitation on the authorization for beneficial use of the water diverted to underground storage.
5. Authorize the board to renew a permit issued under this Act if the board, in its judgment, concludes that the applicant has exercised due diligence in applying for a permit under current law, other than that provided by this Act.
6. Exclude from the authorization for conditional temporary permits and conditional temporary change orders under this Act to:
   1. Diversions within the groundwater basins in the Upper Los Angeles River Area or
   2. Diversions within any groundwater basin or portion of a groundwater basin in Inyo County managed pursuant to the terms of the stipulated judgment in City of Los Angeles v. Board of Supervisors of the County of Inyo, et al.
7. Require the board, by December 31, 2024, to post on their internet website a report concerning the effectiveness of the temporary permitting and change petition provisions enacted by this bill. The report would be required to describe, at a minimum:
   1. The number of temporary permits and temporary change orders issued by the board pursuant to the procedures established by this Act.
   2. The volume of diversions to groundwater storage authorized under temporary permits and change orders issued by the board pursuant to the procedures established by this Act.
   3. The distribution across the state of the temporary permits and change orders issued by the board pursuant to the procedures established by this Act, including, without limitation, the issuance of such permits and orders for groundwater storage in critically overdrafted groundwater basins identified under SGMA.

ARGUMENTS IN SUPPORT

According to the author, “California recently faced one of the worst droughts in its history, of which effects continue to be felt throughout the State. Climatologists predict that more frequent and severe droughts will occur. The best way to minimize damage during periods of drought is to prepare and capture water in times of high flows. Droughts combined with the Sustainable Groundwater Management Act (SGMA) are going to vastly change the landscape of our farming and urban communities if we do not adequately prepare. AB 658 looks to create a process of temporary permits in law and deems that groundwater recharge is a beneficial use under these new 5 year temporary permits.”

ARGUMENTS IN OPPOSITION: None received

COMMENTS

Fills A Gap In Water Rights Permits. The board has authority under the water code to issue temporary water right permits or approve temporary changes in points of diversion or places of use for up to 180 days. It also has the authority to issue permanent water rights permits or changes in point of diversion or places of use. But, it doesn’t have the authority to issue such permits on an interim basis. This bill is intended to fill that gap.

Who Might Use This Authority? The temporary permits and changes authorized by this bill would probably not be useful to someone who sees that developing atmospheric river events might create an opportunity to divert anticipated high flows onto a dormant orchard for purposes of groundwater recharge. The processing time for the temporary permits and changes authorized by this bill would make that challenging. However, it may be useful to a GSA that wants to establish one or more groundwater recharge projects either as test projects with options to make permanent or as a bridging permit while it works to develop permanent rights or changes to rights.

Without Significant Adverse Effect. Environmental Defense Fund (EDF), in taking a support if amended position, raised issues with language in §1433.1(b)(3) (page 6, line 22) and similar language in §1443.1(b)(4) (page 12, line 35). Specifically, they objected to the requirement that before the board approves a temporary permit or change, that the board must find the water may be diverted and used “without significant adverse effect on the ability to meet water quality objectives.” EDF asserts that it introduces a new standard in water rights that is not found elsewhere in the water rights portion of the Water Code. Further, they assert that that language is not necessary as §1433.1(b)(2)(ii) already provides sufficient protection: it prevents the board from approving the diversion unless the “[u]nregulated flow in the source waterbody will be sufficient below the proposed point of diversion to meet instream flow requirements and water quality objectives.” (emphasis added)

A series of e-mail exchanges suggests Westlands Water Agency has a different perspective. For consistency with other language in the bill, their request is to change the phrase to read “without significant adverse effect on the ability to meet water quality objectives.”

Staff has yet another suggestion. It might make sense to remove the entire phrase from that paragraph, thereby leaving the paragraph focused solely fish, wildlife, or other instream beneficial uses, and instead amending §1433.1(b)(2) to read:

(2) The water may be diverted and used without injury to any lawful user of water including the ability to meet water quality objectives. This finding may be satisfied by demonstrating both of the following:

There has been insufficient time to vet this last suggestion with all the interested parties. However, as this appears to be the only remaining controversy with the bill, it seems likely that the author will be able to resolve it before this bill would be heard in the Senate Appropriations Committee, presuming this committee decides to pass the bill.

Consistency With GSPs Or Approved Alternative Plans. It might make sense to require that diversion to underground storage be consistent with GSPs or approved alternative plans. Such plans would have gone through a local vetting process, among other things, and consistency with such plans would likely reduce the number of objections to the temporary permits or changes. (See amendment 1)

Technical Amendment. The bill should also be amended to include the SGMA definition of “basin,” where basin is defined as a basin or subbasin. (See amendment 2)

Related bills: AB 2649 (Arambula, 2018) – Would have authorized the board to issue temporary permits for to divert water to underground storage or recharge during for high-precipitation events, and further provides that such a an authorized diversion of water is a diversion of water for beneficial use if the diverted water is put to beneficial use. Was gut & amended in the final days of session to become a bill regarding State Water Project contracts.

SUGGESTED AMENDMENTS

AMENDMENT 1

On page 6, after line 31, insert “(5) If there is an adopted groundwater sustainability plan, an interim plan, or an alternative under Section 10733.6 for the basin, the proposed diversion to underground storage is consistent with that plan or alternative.”

On page 13, after line 8, insert “(5) If there is an adopted groundwater sustainability plan, an interim plan, or an alternative under Section 10733.6 for the basin, the proposed diversion to underground storage is consistent with that plan or alternative.”

AMENDMENT 2

On page 5, line18, insert “(1) ‘Basin’ has the same meaning as defined in Section 10721.”

On page 11, line 33, insert “(1) ‘Basin’ has the same meaning as defined in Section 10721.”

SUPPORT

California Association of Professional Scientists

California Farm Bureau Federation

Groundwater Resources Association

Metropolitan Water District of Southern California

Valley Ag Water Coalition

OPPOSITION

None Received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 658

Author:(Arambula and Eduardo Garcia)

As Amended Ver:April 2, 2019

Majority vote

SUMMARY:

This bill allows groundwater sustainability agencies or other local agencies to apply to the State Water Resources Control Board (State Water Board) for temporary five-year permits to divert and store groundwater during high-flow events.

Major Provisions

This bill: 1) requires the State Water Resources Control Board (State Water Board) to prioritize permits for projects that enhance the capture of water during high-precipitation events for water storage or recharge; 2) requires the temporary permit be consistent with water rights priorities and protections for fish and wildlife; 3) requires the State Water Board to set a reduced application fee for an applicant of the temporary permit; 4) conditions the temporary permit to require the State Water Board to prohibit the diversion of water at any time natural flow is insufficient to meet senior water rights, instream flow, and water quality objectives or standards; and, 5) provides the diversion of water to underground storage, including the diversion of water for groundwater recharge, constitutes a diversion for beneficial use, if consistent with an applicable permit or license. Provides that the forfeiture period of a water right does not apply to water being beneficially used or being held in storage for a later use.

COMMENTS:

According to the author, the implementation of the Sustainable Groundwater Management Act (SGMA) will require groundwater basins to be brought into balanced levels of pumping and recharge. One opportunity for recharge is by capturing high precipitation events using a temporary permit from the State Water Board. This bill authorizes a groundwater sustainability agency or local agency to apply for a new five-year temporary permit. The permit would allow diversion of surface water to underground storage for beneficial use that helps meet the sustainability goals of the groundwater basin.

Executive Order B-39-17, signed on April 6, 2017, directed the State Water Board to prioritize temporary water right permits to accelerate approvals for projects that enhance the ability of a local or state agency to capture high-runoff events for local storage or recharge, consistent with water rights priorities and protections for fish and wildlife. The order also suspends the California Environmental Quality Act (CEQA) for State Water Board actions on these types of temporary permits. This bill does not suspend CEQA.

California's water law and policy, Article X, Section 2 of the California Constitution, requires that all uses of the state's water be both reasonable and beneficial. It places a significant limitation on water rights by prohibiting the waste, unreasonable use, unreasonable method of use or unreasonable method of diversion of water. A portion of an appropriative water right that is not used beneficially during a five-year period may be considered abandoned and available for use by others. This bill prevents the reversion of a water right during a five-year period in which the water is used for groundwater recharge beneficial to the aquifer or for later beneficial use.

According to the Author:

The implementation of the Sustainable Groundwater Management Act (SGMA) is going to require groundwater basins to be brought into balanced levels of pumping and recharge. One opportunity for recharge is by capturing high precipitation events using a temporary permit from the State Water Board. AB 658 would allow for diversion of surface water to underground storage for beneficial use that helps meet the sustainability goals of the groundwater basin.

Arguments in Support:

Letters in support connect the implementation of the Sustainable Groundwater Management Act to the content of the bill. They argue that this bill, with appropriate water rights protections in place, would provide a means to encourage surface water diversions to groundwater storage in a manner that benefits water managers while protecting beneficial uses and existing water rights holders. They argue that the water right protections would provide a process for legal water users impacted by the project to file an objection, and that the State Water Board would be required to consider the objection.

Arguments in Opposition:

None on file

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, the Department of Fish and Wildlife (DFW) anticipates a significant increased workload (8 positions) and associated costs of $1.7 million annually (General Fund). DFW anticipates numerous agencies applying to store surface water underground to achieve their groundwater sustainability goals under SGMA, among other water rights applications. DFW, as a trustee agency, is required to review and comment on every water right petition.

The Committee estimates minor and absorbable State Water Board costs.

VOTES:

ASM WATER, PARKS, AND WILDLIFE: 10-0-4

YES: Eduardo Garcia, Chu, Friedman, Cristina Garcia, Gloria, Kalra, Levine, Blanca Rubio, Salas, Wood

ABS, ABST OR NV: Gallagher, Bigelow, Choi, Dahle

ASM APPROPRIATIONS: 14-0-4

YES: Gonzalez, Bloom, Bonta, Calderon, Carrillo, Chau, Diep, Eggman, Gabriel, Eduardo Garcia, Maienschein, Petrie-Norris, Quirk, Robert Rivas

ABS, ABST OR NV: Bigelow, Brough, Fong, Obernolte

UPDATED:

VERSION: April 2, 2019

CONSULTANT: Catherine Freeman / W., P., & W. / (916) 319-2096 FN: 0000489

Date of Hearing: April 24, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 658

Author:(Eduardo Garcia) – As Amended Ver:April 2, 2019

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill allows groundwater sustainability agencies or other local agencies to apply to the State Water Resources Control Board (State Water Board) for temporary five-year permits to divert and store groundwater during high-flow events.

FISCAL EFFECT:

1. The Department of Fish and Wildlife (DFW) anticipates a significant increased workload (8 PY) and associated costs of $1.7 million annually (General Fund).

DFW anticipates numerous agencies applying to store surface water underground to achieve their groundwater sustainability goals under the Sustainable Groundwater Management Act (SGMA), among other water rights applications.

DFW, as a trustee agency, is required to review and comment on every water right petition.

1. Minor and absorbable State Water Board costs.

COMMENTS:

1. Purpose. According to the author, the implementation of the Sustainable Groundwater Management Act (SGMA) will require groundwater basins to be brought into balanced levels of pumping and recharge. One opportunity for recharge is by capturing high precipitation events using a temporary permit from the State Water Board. This bill authorizes a groundwater sustainability agency or local agency to apply for a new five-year temporary permit. The permit would allow diversion of surface water to underground storage for beneficial use that helps meet the sustainability goals of the groundwater basin.
2. Background. California's system for surface water rights recognizes both riparian rights and appropriative rights. Riparian rights are based on applying water from a stream or watercourse to the adjoining land. Appropriative rights allow a person to acquire a right to divert, store and use water regardless of whether the land it is used on is adjacent.

An appropriative water right is based on the concept of "first in time is first in right" and is generally subject to the issuance of a permit by the State Water Board with the exception of pre-1914 appropriative rights (those water rights initiated before 1914 when the Water Commission Act took effect).

Groundwater storage or recharge refers to the injection of surface water into the aquifer.

1. Temporary Permits. Executive Order B-39-17, signed on April 6, 2017, directed the State Water Board to prioritize temporary water right permits to accelerate approvals for projects that enhance the ability of a local or state agency to capture high-runoff events for local storage or recharge, consistent with water rights priorities and protections for fish and wildlife. The order also suspends CEQA for State Water Board actions on these types of temporary permits. This bill does not suspend CEQA.
2. Reasonable and Beneficial Use. California's water law and policy, Article X, Section 2 of the California Constitution, requires that all uses of the state's water be both reasonable and beneficial. It places a significant limitation on water rights by prohibiting the waste, unreasonable use, unreasonable method of use or unreasonable method of diversion of water.

A portion of an appropriative water right that is not used beneficially during a five-year period may be considered abandoned and available for use by others.

This bill prevents the reversion of a water right during a five-year period in which the water is used for groundwater recharge beneficial to the aquifer or for later beneficial use.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: March 26, 2019

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Eduardo Garcia, Chair

ABPCA Bill Id:AB 658 (

Author:Eduardo Garcia) – As Introduced Ver:February 15, 2019

SUBJECT: Water rights: water management

SUMMARY: This bill codifies an executive order to allow temporary permits for water storage or recharge during high-precipitation events and allows stored groundwater to be declared a beneficial use for purposes of water rights, as specified. Specifically, this bill:

1. Requires the State Water Resources Control Board (State Water Board) to prioritize permits for projects that enhance the capture of water during high-precipitation events for water storage or recharge.
2. Requires the temporary permit be consistent with water rights priorities and protections for fish and wildlife.
3. Requires the State Water Board to set a reduced application fee for an applicant of the temporary permit.
4. Conditions the temporary permit to require the State Water Board to prohibit the diversion of water at any time natural flow is insufficient to meet senior water rights, instream flow, and water quality objectives or standards.
5. Provides the diversion of water to underground storage, including the diversion of water for groundwater recharge, constitutes a diversion for beneficial use, if consistent with an applicable permit or license. Provides that the forfeiture period of a water right does not apply to water being beneficially used or being held in storage for a later use.

EXISTING LAW:

1. Recognizes that water resources belong to the people of the state but that individuals can hold rights to use water. [Water Code (WAT)] §102)
2. California Constitution Article X, §2, requires that all uses of the state's water be both reasonable and beneficial. It places a significant limitation on water rights by prohibiting the waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of water.
3. Recognizes two primary forms of water rights:
   1. Riparian rights, which are based on applying water from a stream or watercourse to adjoining land; and,
   2. Appropriative water rights, which attach when an entity, whether or not it borders a water course, is the first in time to divert the water and use it in a way that is both reasonable and beneficial. (WAT §101)
4. Specifies that any portion of an appropriative water right that is not used beneficially during a five-year period may be considered abandoned. Technically, it means that volume of water reverts back to the public and may be available for use by others. (WAT §1241)
5. Allows water that is stored underground to be considered to have been beneficially used if the following three things happen:
   1. The purpose for which the water was later used was identified at the time of storage;
   2. The use that was identified was considered beneficial; and,
   3. The water was actually applied to that use. (WAT §1242)

FISCAL EFFECT: Unknown. This bill is keyed fiscal.

COMMENTS: According to the author, the implementation of the Sustainable Groundwater Management Act (SGMA) is going to require groundwater basins to be brought into balanced levels of pumping and recharge. One opportunity for recharge is by capturing high precipitation events using a temporary permit from the SWRCB. This bill would authorize a groundwater sustainability agency or local agency to apply for a new five year temporary permit. The permit would allow diversion of surface water to underground storage for beneficial use that helps meet the sustainability goals of the groundwater basin.

Author’s Statement:

California recently faced one of the worst droughts in its history, of which effects continue to be felt throughout the State. Climatologists predict that more frequent and severe droughts will occur. The best way to minimize damage during periods of drought is to prepare and capture water in times of high flows. Droughts combined with the Sustainable Groundwater Management Act (SGMA) are going to vastly change the landscape of our farming and urban communities if we do not adequately prepare. AB 658 looks to create a process of temporary permits in law and deems that groundwater recharge is a beneficial use under these new 5 year temporary permits.

Background: Groundwater Storage in California. Recent actions related to groundwater have focused on applying a growing body of science to the law. Groundwater remains the greatest water storage asset in the state. According to the Department of Water Resources (DWR), storage from all major reservoirs in the state totals less than 50 million acre-feet (AF). Groundwater capacity is estimated at between 850 million and 1.4 billion AF. As has been widely reported, however, this capacity figure is reduced by water quality issues. Salinity, chemical concentrations, and degradation of groundwater basins is a challenge to utilizing groundwater to the fullest extent possible.

Beneficial Use Doctrine. Beneficial use is a fundamental principal of water rights law. It defines and limits, on an ongoing basis, the scope of an appropriative water right. It is the difference between a "paper" water right – a document asserting that an individual has the right to a specific amount of water, whether they have used it or not – and a "wet" water right, meaning a water right of continuing validity because the amount of water described has been reasonably, beneficially, and continuously used.

The difference between the two does matter. California is an arid state. The beneficial use concept was born out of recognition that economic opportunities, from gold mining to farming, are tied to the availability of water. It rewards those intrepid individuals who are "first in time" to put the water to use and gives them water rights senior to all others who come after. Later, the doctrine was modified to prohibit the squandering or hoarding of water by limiting the legal right to only that portion that is used reasonably and continuously.

The seniority of a water right is important. In times of shortage the most senior water rights holder receives all of his or her allocation, and then the next most senior, and so on and so forth. The most junior water rights holders might receive nothing. Some junior water rights holders during the recent extended drought were required to cease withdrawals so that senior water rights holders would be kept whole.

Temporary Permits—Achieving a Streamline Process for High-Flow Diversions to Groundwater Recharge. According to the SWRCB, the ongoing statewide drought and implementation of SGMA have triggered increased interest in capturing high surface water flows for the purpose of recharging groundwater basins. As part of the Executive Order Governor Brown issued in November 2015, the SWRCB was directed to expedite temporary permits for capturing high precipitation events for local storage or recharge, consistent with both water right priorities and with protection of fish and wildlife; the order also suspended CEQA for these types of projects. In water year 2015-16, two temporary permits were issued. A great deal of interest has been invoked with the option of a temporary permit. This bill would give the SWRCB the authority to issue temporary diversion permits on an interim basis—a new authority.

Those working on this bill have outlined several objectives to be met regarding the temporary permits. In addition to other issues, these objectives include:

• No injury to existing water-right holders.
• Consistent with protection of public trust resources.
• Easily defined application with available data, information and monitoring gages.
• Various standards related to eligibility that ensure that the temporary permits are consistent with existing agreements.

Recent Public Policy Institute of California (PPIC) Report. In April 2018, the PPIC released a report titled Replenishing Groundwater in the San Joaquin Valley. The report surveyed valley water districts’ current recharge efforts and “revealed strong interest in the practice, and a number of constraints.” These include:

• Clarifying rules on water availability for recharge. “The SWRCB needs to develop an expeditious process for enabling water users to capture surface water when it is available.”
• Evaluate infrastructure capacity—essentially evaluating conveyance and storage capacity in various regions of the valley.
• Improve recharge on farmland—increasing active recharge on farmland which will “require addressing a suite of technical issues and establishing incentives.”
• Addressing regulatory barriers. “State and federal agencies need to improve processes for improving construction of new recharge projects, moving recharge water through their conveyance facilities, and enabling more flexibility in where water is stored.
• Water managers and growers also need guidelines from the state for implementing on-farm recharge in ways that are consistent with water quality rules.
• Strengthen groundwater accounting.

Finally, the report cites a concern among farmers regarding beneficial use of recharge. Specifically the report includes the following remarks from a manager, “Under the California Water Code, recharge is not a ‘reasonable and beneficial use’ of water. Our water right is limited to water for irrigation only. To engage in a practice that is not permitted under our water right would jeopardize our water right. That needs to be addressed.”

Progress Working on this Policy. This bill is substantially similar to a bill from 2018 (AB 2649, Arambula) that was ultimately changed to another purpose. AB 2649 was heavily negotiated between those opposed to the original purpose of the bill (allowing groundwater recharge to be considered a beneficial use under certain circumstances). Discussions between members of the Association of California Water Agencies (ACWA) and the State Water Board have been fruitful, and both sides are close to a final compromise on language. The author’s office should continue to work with both committee staff and the interested parties, to finalize the bill before a vote on the floor of the Assembly. These changes should include:

Remove Section 1 making groundwater recharge a beneficial use for purposes of water rights.

Add protections for adjudicated basins.

Clarify the role of the Department of Fish and Wildlife.

Ensure the public process is adhered to through public meetings and procedures.

Prior and Related Legislation: This bill is substantially similar to AB 2649 (Arambula, 2018) which ultimately was changed to another purpose.

Committee Amendments: None suggested.

REGISTERED SUPPORT / OPPOSITION:

Support

None received.

Opposition

None received.

Analysis Prepared by: Catherine Freeman / W., P., & W. / (916) 319-2096