(1)Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans, except as specified. Existing law defines various terms for purposes of the act.

This bill would add various defined terms for purposes of the act, including the terms managed wetland and small community water system.

(2)Existing law authorizes any local agency or combination of local agencies overlying a groundwater basin to decide to become a groundwater sustainability agency for that basin and imposes specified duties upon that agency or combination of agencies, as provided. Existing law grants a groundwater sustainability agency specified authority and authorizes a groundwater sustainability agency to regulate groundwater extraction using that authority.

This bill would prohibit a groundwater sustainability agency from using that authority regarding the establishment of groundwater extraction allocations for small community water systems serving disadvantaged communities from permitted public water supply wells and to managed wetland extractors, except as specified. The bill would prohibit these provisions from applying to a groundwater basin with a groundwater sustainability plan that has been approved by the department after January 1, 2025.

(3)Existing law requires a groundwater sustainability plan, where appropriate and in collaboration with the appropriate local agencies, to contain certain information, including control of saline water intrusion, wellhead protection areas and recharge areas, a well abandonment and well destruction program, well construction policies, and impacts on groundwater-dependent ecosystems.

This bill would additionally require the information regarding a groundwater sustainability plan to include, among other things, the plans water supply and economic impacts on managed wetlands, managed wetland extractors, and small community water systems serving disadvantaged communities.

(4)Existing law authorizes a groundwater sustainability agency that adopts a groundwater sustainability plan to impose fees on the extraction of groundwater from the basin to fund costs of groundwater management, as specified.

This bill would prohibit a groundwater sustainability agency from imposing a fee upon a small community water system serving a disadvantaged community or imposing a fee for managed wetland purposes, provided the water use for each user does not increase above the extractors average annual extraction from 2015 to 2020, inclusive, as determined by a groundwater sustainability agency using recognized methods to establish average groundwater use. The bill would prohibit these provisions from applying to a groundwater basin with a groundwater sustainability plan that has been approved by the department after January 1, 2025.

(1)Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans, except as specified. Existing law defines various terms for purposes of the act.

This bill would add various defined terms for purposes of the act, including the terms managed wetland and small community water system.

(2)Existing law authorizes any local agency or combination of local agencies overlying a groundwater basin to decide to become a groundwater sustainability agency for that basin and imposes specified duties upon that agency or combination of agencies, as provided. Existing law grants a groundwater sustainability agency specified authority and authorizes a groundwater sustainability agency to regulate groundwater extraction using that authority.

This bill would prohibit a groundwater sustainability agency from using that authority regarding the establishment of groundwater extraction allocations for small community water systems serving disadvantaged communities from permitted public water supply wells and to managed wetland extractors, except as specified. The bill would prohibit these provisions from applying to a groundwater basin with a groundwater sustainability plan that has been approved by the department after January 1, 2025.

(3)Existing law requires a groundwater sustainability plan, where appropriate and in collaboration with the appropriate local agencies, to contain certain information, including control of saline water intrusion, wellhead protection areas and recharge areas, a well abandonment and well destruction program, well construction policies, and impacts on groundwater-dependent ecosystems.

This bill would additionally require the information regarding a groundwater sustainability plan to include, among other things, the plans water supply and economic impacts on managed wetlands, managed wetland extractors, and small community water systems serving disadvantaged communities.

(4)Existing law authorizes a groundwater sustainability agency that adopts a groundwater sustainability plan to impose fees on the extraction of groundwater from the basin to fund costs of groundwater management, as specified.

This bill would prohibit a groundwater sustainability agency from imposing a fee upon a small community water system serving a disadvantaged community or imposing a fee for managed wetland purposes, provided the water use for each user does not increase above the extractors average annual extraction from 2015 to 2020, inclusive, as determined by a groundwater sustainability agency using recognized methods to establish average groundwater use. The bill would prohibit these provisions from applying to a groundwater basin with a groundwater sustainability plan that has been approved by the department after January 1, 2025.

(1)Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans, except as specified. Existing law defines various terms for purposes of the act.

This bill would add various defined terms for purposes of the act, including the terms managed wetland and small community water system.

(2)Existing law authorizes any local agency or combination of local agencies overlying a groundwater basin to decide to become a groundwater sustainability agency for that basin and imposes specified duties upon that agency or combination of agencies, as provided. Existing law grants a groundwater sustainability agency specified authority and authorizes a groundwater sustainability agency to regulate groundwater extraction using that authority.

This bill would prohibit a groundwater sustainability agency from using that authority regarding the establishment of groundwater extraction allocations for small community water systems serving disadvantaged communities from permitted public water supply wells and to managed wetland extractors, except as specified. The bill would prohibit these provisions from applying to a groundwater basin with a groundwater sustainability plan that has been approved by the department after January 1, 2025.

(4)Existing law authorizes a groundwater sustainability agency that adopts a groundwater sustainability plan to impose fees on the extraction of groundwater from the basin to fund costs of groundwater management, as specified.

This bill would prohibit a groundwater sustainability agency from imposing a fee upon a small community water system serving a disadvantaged community or managed wetland purposes, provided the water use for each user does not increase above the extractors average annual extraction from 2015 to 2020, inclusive, as determined by a groundwater sustainability agency using recognized methods to establish average groundwater use. The bill would prohibit these provisions from applying to a groundwater basin with a groundwater sustainability plan that has been approved by the department after January 1, 2025.

(1)Existing law, the Sustainable Groundwater Management Act, requires 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 or coordinated groundwater sustainability plans, except as specified. Existing law defines various terms for purposes of the act.

This bill would add various defined terms for purposes of the act, including the terms managed wetland and small community water system.

(2)Existing law authorizes any local agency or combination of local agencies overlying a groundwater basin to decide to become a groundwater sustainability agency for that basin and imposes specified duties upon that agency or combination of agencies, as provided. Existing law grants a groundwater sustainability agency specified authority and authorizes a groundwater sustainability agency to regulate groundwater extraction using that authority.

This bill would prohibit a groundwater sustainability agency from using that authority regarding the establishment of groundwater extraction allocations for small community water systems serving disadvantaged communities from permitted public water supply wells and to managed wetland extractors, except as specified. The bill would authorize a small community water system serving a disadvantaged community to increase its annual average usage by 10% over its average annual extraction to accommodate population growth without incurring restrictions from a groundwater sustainability agency.

(3)Existing law authorizes a groundwater sustainability agency that adopts a groundwater sustainability plan to impose fees on the extraction of groundwater from the basin to fund costs of groundwater management, as specified.

This bill would prohibit a groundwater sustainability agency from imposing a fee upon a small community water system serving a disadvantaged community or managed wetland purposes, provided the water use for each user does not increase above the extractors average annual extraction from 2015 to 2020, inclusive, as determined by a groundwater sustainability agency using recognized methods to establish average groundwater use. The bill would authorize a small community water system serving a disadvantaged community to increase its annual average usage by 10% over its average annual extraction between 2015 and 2020 to accommodate population growth without incurring fees from a groundwater sustainability agency, provided that it continues to meet the requirements to qualify as a small community water system.

(1)Existing law, the Sustainable Groundwater Management Act, requires 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 or coordinated groundwater sustainability plans by January 31, 2020, and requires all other groundwater basins designated as high- or medium-priority basins to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2022, or coordinated groundwater sustainability plans, except as specified. Existing law defines various terms for purposes of the act.

This bill would add various defined terms for purposes of the act, including the term managed wetland. terms managed wetland and small community water system.

(2)Existing law authorizes any local agency or combination of local agencies overlying a groundwater basin to decide to become a groundwater sustainability agency for that basin and imposes specified duties upon that agency or combination of agencies, as provided. Existing law grants a groundwater sustainability agency specified authority and authorizes a groundwater sustainability agency to regulate groundwater extraction using that authority.

This bill would prohibit a groundwater sustainability agency from using that authority regarding the establishment of groundwater extraction allocations for small community water systems serving disadvantaged communities or from permitted public water supply wells and to managed wetland extractors, except as specified. The bill would authorize a small community water system serving a disadvantaged community to increase its annual average usage by 10% over its average annual extraction to accommodate population growth without incurring restrictions from a groundwater sustainability agency.

(3)Existing law authorizes a groundwater sustainability agency that adopts a groundwater sustainability plan to impose fees on the extraction of groundwater from the basin to fund costs of groundwater management, as specified.

This bill would prohibit a groundwater sustainability agency from imposing a fee upon a small community water system serving a disadvantaged community or on a managed wetland extractor, purposes, provided the water use for each user does not increase above the extractors average annual extraction from 2015 to 2020. 2020, inclusive, as determined by a groundwater sustainability agency using recognized methods to establish average groundwater use. The bill would authorize a small community water system serving a disadvantaged community to increase its annual average usage by 10% over its average annual extraction between 2015 and 2020 to accommodate population growth without incurring fees from a groundwater sustainability agency, provided that it continues to meet the requirements to qualify as a small community water system.

(1)Existing law, the Sustainable Groundwater Management Act, requires 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 or coordinated groundwater sustainability plans by January 31, 2020, and requires all other groundwater basins designated as high- or medium-priority basins to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2022, except as specified. Existing law defines various terms for purposes of the act.

This bill would add various defined terms for purposes of the act, including the term managed wetland.

Existing law, the Sustainable Groundwater Management Act, requires 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 or coordinated groundwater sustainability plans by January 31, 2020, and requires all other groundwater basins designated as high- or medium-priority basins to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2022, except as specified. Existing law defines various terms for purposes of the act.

This bill would make a nonsubstantive change to the latter requirement. add various defined terms for purposes of the act, including the term managed wetland.

Existing law, the Sustainable Groundwater Management Act, requires 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 or coordinated groundwater sustainability plans by January 31, 2020, and requires all other groundwater basins designated as high- or medium-priority basins to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2022, except as specified.

Existing law requires all relevant state agencies, as described, to consider the policies of the act, and any groundwater sustainability plans adopted pursuant to the act, when revising or adopting policies, regulations, or criteria, or when issuing orders or determinations, where pertinent.

This bill would make a nonsubstantive change to the latter requirement.

GOVERNOR'S VETO

GV Bill Id:AB 828

Author:(Connolly)

As Enrolled Ver:August 31, 2024

2/3 vote

SUMMARY

Exempts groundwater use by managed wetlands and small community water systems serving disadvantaged communities (DAC) from specified authorities of groundwater sustainability agencies (GSA) to regulate groundwater pumping and assess fees under the Sustainable Groundwater Management Act (SGMA).

1. Provides the provisions of this bill do not apply to a groundwater basin that has a groundwater sustainability plan (GSP) approved by the Department of Water Resources (DWR) after January 1, 2025.
2. Requires a GSP to include the following additional information:
   1. Its impacts on water supply and economic impacts on managed wetlands and small community water systems serving DACs;
   2. A list of small community water systems that serve DACs and extract water from the basin, the estimated population served by each of those systems, and the water consumption of each of those systems; and
   3. A list of managed wetlands subject to the plan, the acreage of each of the wetlands, and water consumption of each wetland area.
3. Defines the terms "DAC," "managed wetland," "managed wetland extractor," and "small community water system" for purposes of this bill and SGMA implementation.

Governor's Veto Message

"This bill excludes small community water systems serving disadvantaged communities and managed wetlands from Groundwater Sustainability Agency…extraction limits and fees.

Ensuring safe and reliable drinking water for disadvantaged communities remains a key priority for this Administration. In the last five years, we have distributed more than $1 billion in grants to disadvantaged communities to rectify failing drinking water systems. While I appreciate the author's intent to address the needs of small water systems serving these communities, excluding some groundwater extractors from GSAs does not align with the goals of the Sustainable Groundwater Management Act…to analyze groundwater basins comprehensively to ensure future long-term sustainability.

Groundwater accounts for 40 to 60% of our water supplies, and many communities, especially in the Central Valley, are groundwater-dependent. SGMA serves as a critical buffer to protect drinking water supplies against the impacts of drought and climate change. Successful implementation of SGMA is also integral to protecting state infrastructure from the effects of subsidence.

On September 16th, we marked the 10-year anniversary of the enactment of SGMA. While I am proud of all the milestones we have met, and the investments my Administration has made, I also recognize there is still much we need to accomplish. I believe we should continue to implement the SGMA framework as is without creating exceptions for certain groundwater extractors."

COMMENTS

Passed in 2014, SGMA provides a comprehensive framework to manage groundwater resources in overdrafted groundwater basins (i.e., those basins deemed high- or medium-priority by DWR). To comply with SGMA, local agencies in overdrafted basins had to form a GSA by 2017 and develop GSPs by 2020 or 2022 that will lead to sustainable groundwater management over 20 years. SGMA defines sustainable groundwater management as the avoidance of "undesirable results." SGMA's explicit intent is to keep management of groundwater resources at the local level while allowing for state intervention if local agencies are unsuccessful or get off track in meeting their sustainability goals. SGMA also intends for GSAs to have flexibility to address conditions unique to their particular basin and states that it does not alter groundwater rights.

DWR must review GSPs and determine whether GSPs are "adequate" and will lead to sustainable groundwater management. To date, DWR has deemed six critically overdrafted basins (Tule, Tulare Lake, Kern County, Kaweah, Delta-Mendota, and Chowchilla) to be "inadequate," citing various deficiencies. The majority do not adequately address chronic lowering of groundwater levels and land subsidence and several do not use consistent data or definitions of undesirable results. Generally, these inadequate GSPs do not adequately account for groundwater use by small community water systems serving DACs or managed wetlands, but DWR does not identify these as deficiencies that need to be corrected.

There are roughly 220,000 acres of managed wetlands remaining in the Central Valley, according to the 2020 Central Valley Joint Venture (CVJV) Implementation Plan. This number represents less than 5% of the Central Valley's historic wetlands. The CVJV Implementation Plan estimates that wetlands need between 2.5 AF and 7.4 AF per acre annually depending on habitat type (5.1 AF for seasonal wetlands, 7.4 AF for semi-permanent wetlands, 2.5 AF for winter flooding of rice fields, and five AF for rice growing), time of year, and other factors. A lot of this water demand is met with surface water supplied through the federal Central Valley Project as required under Central Valley Project Improvement Act (CVPIA). Under CVPIA, refuges are supposed to receive their historical average supplies ("Level 2") of 422,251 AF annually and incremental ("Level 4") supplies of an additional 133,264 AF. Level 4 supplies usually go unmet, particularly in dry years. What portion of the remaining wetland need is met by surface water and groundwater supplies is not well-defined.

Small community water systems have up to 3,300 service connections or serve a year-long population no greater than 10,000 individuals. There are approximately 2,500 small community water systems in California (Public Policy Institute of California, April 2023) representing more than half of the 4,002 systems regulated for drinking water by the State Water Resources Control Board (State Water Board), though it is unclear how many of these systems serve a DAC. In many of the basins covered by SGMA, it is very likely that small community water systems are serving a DAC and would, therefore, be subject to this bill. It is challenging to estimate how much groundwater a small community water system uses in a basin subject to SGMA. A typical rule of thumb is that one AF of water is sufficient to meet the needs of two average California households for one year; however, water use varies greatly across regions and between rural and urban settings. If a system serves several hundred (or more) connections and relies exclusively on groundwater, it would represent a not insignificant use of groundwater in a basin's overall groundwater budget.

According to the Author

"Wetlands are a critical natural resource for our state, and small, rural communities are being hit the hardest by the state's depleting groundwater resources. These [DACs] usually depend on a single source for their water supply, leaving them vulnerable to drought and affordability challenges. [This bill] brings California closer to protecting safe and clean water accessibility for all California communities."

Arguments in Support

A coalition of environmental and community water organizations writes, "SGMA requires a GSA to consider the interests of environmental users and small drinking water systems1 in GSPs. However, several proposed GSPs did not thoroughly identify managed wetlands and small water systems serving disadvantaged communities, or their water needs, and did not analyze impacts from GSA management actions on those users. Moreover, several GSPs propose a one- size-fits-all cap on groundwater allocations, which will cut supplies for small community water systems and managed wetlands at the same rates as agricultural users. This approach will deprive some small communities of access to safe and affordable water and will cause some of the state's last wetlands to go dry."

Arguments in Opposition

The Valley Ag Water Coalition (Ag Coalition) writes, "[This bill] would prohibit a GSA from imposing a fee upon a small community water system serving a disadvantaged community or on a managed wetland, as specified. This means a GSA would be unable to regulate or impose fees on those uses of water as compared to all other groundwater extractors. Such a move is counterintuitive to the purpose of SGMA, which envisions a comprehensive and well-informed groundwater regulatory framework." The Ag Coalition further states, "[this bill] directly undercuts the ability of a GSA to raise funds to implement their GSPs. Subdivision (d) of Section 10720.1 of the [Water Code] states legislative intent to provide local groundwater agencies with the authority and the technical and financial assistance necessary to sustainably manage groundwater. [This bill], by exempting certain groundwater extractors from paying GSA fees, is contrary to the legislative intent behind SGMA and sets up GSAs to fail. In addition, by exempting certain classes of water users from paying fees, this bill may prevent GSAs from complying with constitutional requirements to assess proportionate charges on all beneficiaries for their services, per Propositions 218 and 26."

FISCAL COMMENTS

According to the Assembly Appropriations Committee, this bill will have the following fiscal impact:

1. Cost savings of an unknown amount to the Department of Fish and Wildlife (DFW). Currently, DFW, in its role as a landowner subject to SGMA, is responsible for paying fees to GSAs for any groundwater that it extracts and uses to flood the wetlands that it manages within the basin. This bill, by providing that a GSA shall not impose a fee on groundwater use by managed wetlands, as specified, will result in cost savings to the department. DFW notes it is difficult to quantify these savings, because SGMA implementation is only recently underway and many GSPs are yet to be finalized. As more GSPs are finalized, DFW anticipates fees to increase.
2. The State Water Board and DWR do not anticipate any costs as a result of this bill.

VOTES

ASM WATER, PARKS, AND WILDLIFE: 8-2-5

YES: Papan, Addis, Bennett, Bonta, Hart, Luz Rivas, Schiavo, Weber

NO: Mathis, Davies

ABS, ABST OR NV: Alanis, Alvarez, Megan Dahle, Garcia, Villapudua

ASM APPROPRIATIONS: 11-3-2

YES: Holden, Arambula, Wood, Calderon, Connolly, Mike Fong, Grayson, Haney, Hart, Lowenthal, Pellerin

NO: Sanchez, Dixon, Ta

ABS, ABST OR NV: Megan Dahle, Villapudua

ASSEMBLY FLOOR: 47-15-18

YES: Aguiar-Curry, Arambula, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Ortega, Papan, Pellerin, Ramos, Rendon, Reyes, Luz Rivas, Santiago, Schiavo, Ting, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO: Alanis, Bains, Chen, Davies, Dixon, Essayli, Flora, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta, Wallis

ABS, ABST OR NV: Addis, Alvarez, Bauer-Kahan, Megan Dahle, Vince Fong, Gallagher, Grayson, Irwin, Stephanie Nguyen, Pacheco, Petrie-Norris, Quirk-Silva, Rodriguez, Blanca Rubio, Soria, Valencia, Villapudua, Waldron

SENATE FLOOR: 29-10-1

YES: Allen, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Gonzalez, Laird, Limón, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NO: Alvarado-Gil, Dahle, Grove, Hurtado, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

ABS, ABST OR NV: Glazer

ASSEMBLY FLOOR: 53-17-9

YES: Addis, Aguiar-Curry, Alvarez, Arambula, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Haney, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Ting, Ward, Weber, Wicks, Wilson, Zbur, Robert Rivas

NO: Alanis, Bains, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron, Wallis

ABS, ABST OR NV: Cervantes, Gallagher, Grayson, Stephanie Nguyen, Ortega, Soria, Valencia, Villapudua, Wood

UPDATED

VERSION: August 31, 2024

CONSULTANT: Pablo Garza / W., P., & W. / (916) 319-2096 FN: 0005172

 THIRD READING  

Bill No: AB 828

Author: Connolly (D)

Amended: 8/20/24 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 7-4, 6/25/24

AYES: Min, Allen, Eggman, Laird, Limón, Padilla, Stern

NOES: Seyarto, Dahle, Grove, Hurtado

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 47-15, 1/29/24 - See last page for vote

SUBJECT: Sustainable groundwater management: managed wetlands

SOURCE: Audubon California

Clean Water Action

DIGEST:

This bill requires a groundwater sustainability plan (GSP) to include, among other things, the plan’s water supply and economic impacts on managed wetlands and small community water systems serving disadvantaged communities (DACs). This bill also temporarily exempts managed wetlands and small community water systems serving DACs from specified authorities of groundwater sustainability agencies (GSA) to regulate groundwater pumping under the Sustainable Groundwater Management Act (SGMA) until a GSP has been approved after January 1, 2025.

Senate Floor Amendments of 8/20/24 are technical in nature to clarify that the definition of a “managed wetland” does not include federally reserved water rights and to clarify that the fee exemption from GSA authority applies to small community water systems serving DACs and managed wetlands.

ANALYSIS:

Existing law:

1. Provides, under SGMA, that local agencies must sustainably manage groundwater in high- or medium-priority basins by 2040.
2. Defines sustainable management of groundwater as the avoidance of the following six “undesirable results:” (a) chronic lowering of groundwater levels; (b) reduction of groundwater storage; (c) seawater intrusion; (d) degraded water quality; (e) land subsidence; and (f) depletions of interconnected surface water. (Water Code (WC) §§10720 et seq.)
3. Requires critically overdrafted groundwater basins to be managed under a GSP by January 31, 2020, and high- or medium-priority groundwater basins to be managed under a GSP by January 31, 2022. (WC §10720.7)
4. Requires a GSA to consider the interests of all beneficial uses and users of groundwater in implementing SGMA. (WC §10723.2)
5. Grants various authorities to GSAs, including the authority to impose spacing requirements on groundwater wells, to regulate, limit, or suspend pumping from groundwater wells, and to establish groundwater allocations and accounting rules for carrying over or transferring groundwater pumping extractions. (WC §10726.4)
6. Requires a GSA in a basin subject to SGMA to develop a GSP that has various components, including a description of the physical setting of the basin, measureable objectives to achieve sustainable management, how groundwater levels and quality will be monitored, and monitoring sites and protocols. (WC §10727)
7. Requires GSAs to encourage the involvement of diverse social, cultural, and economic elements of a basin’s population during development and implementation of a GSP. (WC §10727.8)
8. Provides that a GSA may impose fees on groundwater extraction to fund the costs of groundwater management. (WC §10730.2)
9. Defines “de minimis extractor” as a person who pumps two acre-feet (AF) or less of groundwater annually for domestic purposes. (WC §10721)
10. Defines “small community water system” as a community water system that serves no more than 3,300 service connections or a yearlong population of no more than 10,000 persons. (Health and Safety Code §116275)

This bill:

1. Defines the following terms for the purposes of this bill:
   1. “Disadvantaged community,” consistent with WC Section 79505.5, as a community with an annual median household income that is less than 80% of the statewide annual median.
   2. “Managed wetland” as the portion of public or private property that is flooded to promote habitat and food production and that is designated or administered as any of the following: a state wildlife area or ecological reserve, a national wildlife refuge, a federal Central Valley Project Improvement Act (CVPIA) wetland habitat area, a conservation easement held by a public agency or nongovernmental conservation organization, or a wildlife habitat contract of no less than 10 years in duration administered by specified agencies.
   3. “Managed wetland extractor” as a person who extracts groundwater for managed wetlands.
   4. “Small community water system” as a system serving no more than 3,300 connections or a year-long population of no more than 10,000 individuals, consistent with Health and Safety Code Section 116275.
2. Requires a GSP to include the following information:

• 1. The plan’s impacts on water supply and economic impacts on managed wetlands, managed wetland extractors, and small community water systems serving DACs.
  2. A list of small community water systems that serve DACs and extract water from the basin, the estimated population served by each of those systems, and the water consumption of each of those systems.
  3. A list of managed wetlands subject to the plan, the acreage of each of the wetlands, and water consumption of each wetland area.

1. Exempts, temporarily, managed wetlands and small community water systems serving DACs from specified authorities of GSAs under SGMA. These authorities include regulating groundwater usage through the establishment of groundwater pumping allocations and imposing a fee on groundwater pumping. These exemptions will not apply if any groundwater pumping by these users increases above the average amount of groundwater they pumped annually from 2015 to 2020.

• 1. These temporary exemptions will terminate once either the Department of Water Resources (DWR) approves a GSP or the State Water Resources Control Board (State Water Board) adopts an interim plan after January 1, 2025.

1. Provides that if a GSA reasonably determines that a managed wetland is directly causing undesirable results, including land subsidence or groundwater quality degradation, it may exercise its authority to regulate said managed wetland’s groundwater pumping to implement corrective actions in cooperation with the managed wetland extractor.

Background

Sustainable Groundwater Management Act. Passed in 2014, SGMA provides a comprehensive framework to manage groundwater resources in overdrafted groundwater basins (i.e. those basins deemed high- or medium-priority by the DWR). To comply with SGMA, local agencies in overdrafted basins had to form a GSA by 2017 and develop GSPs by 2020 or 2022 that will lead to sustainable groundwater management over 20 years. SGMA defines sustainable groundwater management as the avoidance of “undesirable results,” as specified. SGMA’s explicit intent is to keep management of groundwater resources at the local level while allowing for state intervention if local agencies are unsuccessful or get off track in meeting their sustainability goals. SGMA also intends for GSAs to have flexibility to address conditions unique to their particular basin and states that it does not alter groundwater rights.

GSPs for critically overdrafted basins. These plans were submitted in January 2020 and DWR deemed the GSPs for 11 basins to be “adequate” (or approved) and the GSPs for six basins (Tule, Tulare Lake, Kern County, Kaweah, Delta-Mendota, and Chowchilla) to be “inadequate.” The inadequate basins have been referred to the State Water Board for further corrections and/or designation as a probationary basin. Of the remaining three critically overdrafted basins, one is being managed pursuant to an approved alternative submittal (Pajaro Valley), one is adjudicated (Los Osos), and the final one is in an adjudication proceeding (Borrego Valley).

DWR cites various deficiencies in the GSPs for the six inadequate basins. The majority of GSPs do not adequately address chronic lowering of groundwater levels and land subsidence. Several GSPs that involve multiple agencies do not use consistent data or definitions of undesirable results. The Chowchilla GSP does not adequately examine whether there are interconnected surface waters in the basin, and the Tule and Tulare GSPs do not adequately address degraded water quality, among other deficiencies.

GSPs for “high” and “medium” priority groundwater basins. These plans were due January 30, 2022. Six GSPs that were submitted in advance of the January 2022 deadline have been deemed “adequate,” and, in July 2023, DWR determined that GSPs for an additional 10 basins are “adequate”. In January of this year, the final round of reviews for 17 plans were released; DWR approved ten plans and deemed seven plans incomplete.

Wetlands in California. Prior to European colonization of the state, around five million acres of wetlands supported lush aquatic vegetation and provided habitat for hundreds of species of fish and wildlife as well as food, clothing, protection from predators, and transportation for native people. Over 90% of the state's wetlands have been drained, mostly for agricultural purposes, and California now only has about 454,000 acres of nonagricultural wetlands. The remaining wetlands are vulnerable to development, roads, farming practices, hydromodification, pollutants, invasive species, climate change, and a host of other potential stressors.

Small community water systems. Community water systems serve at least 15 service connections used by yearlong residents or regularly serve at least 25 yearlong residents. 86% of regulated community water systems in the state are considered “small,” servicing less than 3,300 service connections. There are approximately 2,500 small community water systems in California regulated for drinking water by the State Water Board, serving approximately 8% of the population.

Comments

Groundwater Sustainability Assessments. The co-sponsors of this bill, Audubon California and Clean Water Action, were joint authors of an analysis that found many GSPs for critically overdrafted basins did not adequately account for the groundwater needs of DACs and the environment. The report includes results from their review of 31 GSPs in 2020 and 64 GSPs in 2022 to evaluate how well drinking water users, disadvantaged communities, the environment, stakeholder involvement, and climate change were addressed in GSPs. The report provides recommendations that include requiring all GSAs to analyze the impacts of sustainable management criteria on DACs and the environment as beneficial users of groundwater and certain GSA reporting requirements in annual reports, among others.

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

SUPPORT: (Verified 8/20/24)

Audubon California (co-source)

Clean Water Action (co-source)

American Rivers

Backcountry Hunters and Anglers, California Chapter

Ban Single Use Plastic

Cal-ore Wetlands and Waterfowl Council

California Bowmen Hunters/State Archery Association

California Coastkeeper Alliance

California Democratic Party

California Hawking Club

California Houndsmen for Conservation

California Rural Legal Assistance Foundation

California Waterfowl Association

Civicwell

Cleanearth4kids.org

Community Water Center

Delta Waterfowl

East Grasslands Wetland Association

Environmental Working Group

Facts: Families Advocating for Chemical & Toxics Safety

Friends of the River

Grassland Water District

Leadership Counsel for Justice & Accountability

League of Women Voters of California

North County Watch

Point Blue Conservation Science

Restore Hetch Hetchy

San Diego County Wildlife Federation

Sea and Sage Audubon Society

Sustainable Conservation

The Black Brant Group

The Nature Conservancy

Tulare Basin Wetlands Association

Tuolumne River Trust

University of California Santa Barbara Department of Anthropology

OPPOSITION: (Verified 8/20/24)

Association of California Water Agencies

Cal Chamber

California Association of Wheat Growers

California Association of Winegrape Growers

California Bean Shippers Association

California Farm Bureau

California Grain & Feed Association

California Municipal Utilities Association

California Seed Association

Elsinore Valley Municipal Water District

Kern County Water Agency

Kings River Conservation District

Modesto Irrigation District

Pacific Egg & Poultry Association

South San Joaquin Irrigation District

Valley Ag Water Coalition

Western Growers Association

ARGUMENTS IN SUPPORT: According to the author, “Wetlands are a critical natural resource for our state, and small, rural communities are being hit the hardest by the state’s depleting groundwater resources. These disadvantaged communities usually depend on a single source for their water supply, leaving them vulnerable to drought and affordability challenges. AB 828 brings California closer to protecting safe and clean water accessibility for all California communities.”

A coalition of environmental and community water organizations writes, “SGMA requires a GSA to consider the interests of environmental users and small drinking water systems1 in GSPs. However, several proposed GSPs did not thoroughly identify managed wetlands and small water systems serving disadvantaged communities, or their water needs, and did not analyze impacts from GSA management actions on those users. Moreover, several GSPs propose a one- size-fits-all cap on groundwater allocations, which will cut supplies for small community water systems and managed wetlands at the same rates as agricultural users. This approach will deprive some small communities of access to safe and affordable water and will cause some of the state’s last wetlands to go dry.”

ARGUMENTS IN OPPOSITION: The Valley Ag Water Coalition writes, “AB 828 would prohibit a GSA from imposing a fee upon a small community water system serving a disadvantaged community or on a managed wetland, as specified. This means a GSA would be unable to regulate or impose fees on those uses of water as compared to all other groundwater extractors. Such a move is counterintuitive to the purpose of SGMA, which envisions a comprehensive and well-informed groundwater regulatory framework.” The Coalition further states, “AB 828 directly undercuts the ability of a GSA to raise funds to implement their GSPs. Subdivision (d) of Section 10720.1 of the WC states legislative intent to provide local groundwater agencies with the authority and the technical and financial assistance necessary to sustainably manage groundwater. AB 828, by exempting certain groundwater extractors from paying GSA fees, is contrary to the legislative intent behind SGMA and sets up GSAs to fail. In addition, by exempting certain classes of water users from paying fees, this bill may prevent GSAs from complying with constitutional requirements to assess proportionate charges on all beneficiaries for their services, per Propositions 218 and 26.”

ASSEMBLY FLOOR: 47-15, 1/29/24

AYES: Aguiar-Curry, Arambula, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Ortega, Papan, Pellerin, Ramos, Rendon, Reyes, Luz Rivas, Santiago, Schiavo, Ting, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Alanis, Bains, Chen, Davies, Dixon, Essayli, Flora, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta, Wallis

NO VOTE RECORDED: Addis, Alvarez, Bauer-Kahan, Megan Dahle, Vince Fong, Gallagher, Grayson, Irwin, Stephanie Nguyen, Pacheco, Petrie-Norris, Quirk-Silva, Rodriguez, Blanca Rubio, Soria, Valencia, Villapudua, Waldron

Prepared by: Paul Jacobs / N.R. & W. / (916) 651-4116

8/21/24 16:12:20

**** END ****

 THIRD READING  

Bill No: AB 828

Author: Connolly (D)

Amended: 7/1/24 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 7-4, 6/25/24

AYES: Min, Allen, Eggman, Laird, Limón, Padilla, Stern

NOES: Seyarto, Dahle, Grove, Hurtado

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 47-15, 1/29/24 - See last page for vote

SUBJECT: Sustainable groundwater management: managed wetlands

SOURCE: Audubon California

Clean Water Action

DIGEST:

This bill requires a groundwater sustainability plan (GSP) to include, among other things, the plan’s water supply and economic impacts on managed wetlands and small community water systems serving disadvantaged communities (DACs). This bill also temporarily exempts managed wetlands and small community water systems serving DACs from specified authorities of groundwater sustainability agencies (GSA) to regulate groundwater pumping under the Sustainable Groundwater Management Act (SGMA) until a GSP has been approved after January 1, 2025.

ANALYSIS:

Existing law:

1. Provides, under SGMA, that local agencies must sustainably manage groundwater in high- or medium-priority basins by 2040.
2. Defines sustainable management of groundwater as the avoidance of the following six “undesirable results:” (a) chronic lowering of groundwater levels; (b) reduction of groundwater storage; (c) seawater intrusion; (d) degraded water quality; (e) land subsidence; and (f) depletions of interconnected surface water. (Water Code (WC) §§10720 et seq.)
3. Requires critically overdrafted groundwater basins to be managed under a GSP by January 31, 2020, and high- or medium-priority groundwater basins to be managed under a GSP by January 31, 2022. (WC §10720.7)
4. Requires a GSA to consider the interests of all beneficial uses and users of groundwater in implementing SGMA. (WC §10723.2)
5. Grants various authorities to GSAs, including the authority to impose spacing requirements on groundwater wells, to regulate, limit, or suspend pumping from groundwater wells, and to establish groundwater allocations and accounting rules for carrying over or transferring groundwater pumping extractions. (WC §10726.4)
6. Requires a GSA in a basin subject to SGMA to develop a GSP that has various components, including a description of the physical setting of the basin, measureable objectives to achieve sustainable management, how groundwater levels and quality will be monitored, and monitoring sites and protocols. (WC §10727)
7. Requires GSAs to encourage the involvement of diverse social, cultural, and economic elements of a basin’s population during development and implementation of a GSP. (WC §10727.8)
8. Provides that a GSA may impose fees on groundwater extraction to fund the costs of groundwater management. (WC §10730.2)
9. Defines “de minimis extractor” as a person who pumps two acre-feet (AF) or less of groundwater annually for domestic purposes. (WC §10721)
10. Defines “small community water system” as a community water system that serves no more than 3,300 service connections or a yearlong population of no more than 10,000 persons. (Health and Safety Code §116275)

This bill:

1. Defines the following terms for the purposes of this bill:
   1. “Disadvantaged community,” consistent with WC Section 79505.5, as a community with an annual median household income that is less than 80% of the statewide annual median.
   2. “Managed wetland” as the portion of public or private property that is flooded to promote habitat and food production and that is designated or administered as any of the following: a state wildlife area or ecological reserve, a national wildlife refuge, a federal Central Valley Project Improvement Act (CVPIA) wetland habitat area, a conservation easement held by a public agency or nongovernmental conservation organization, or a wildlife habitat contract of no less than 10 years in duration administered by specified agencies.
   3. “Managed wetland extractor” as a person who extracts groundwater for managed wetlands.
   4. “Small community water system” as a system serving no more than 3,300 connections or a year-long population of no more than 10,000 individuals, consistent with Health and Safety Code Section 116275.
2. Requires a GSP to include the following information:

• 1. The plan’s impacts on water supply and economic impacts on managed wetlands, managed wetland extractors, and small community water systems serving DACs.
  2. A list of small community water systems that serve DACs and extract water from the basin, the estimated population served by each of those systems, and the water consumption of each of those systems.
  3. A list of managed wetlands subject to the plan, the acreage of each of the wetlands, and water consumption of each wetland area.

1. Exempts, temporarily, managed wetlands and small community water systems serving DACs from specified authorities of GSAs under SGMA. These authorities include regulating groundwater usage through the establishment of groundwater pumping allocations and imposing a fee on groundwater pumping. These exemptions will not apply if any groundwater pumping by these users increases above the average amount of groundwater they pumped annually from 2015 to 2020.

• 1. These temporary exemptions will terminate once either the Department of Water Resources (DWR) approves a GSP or the State Water Resources Control Board (State Water Board) adopts an interim plan after January 1, 2025.

1. Provides that if a GSA reasonably determines that a managed wetland is directly causing undesirable results, including land subsidence or groundwater quality degradation, it may exercise its authority to regulate said managed wetland’s groundwater pumping to implement corrective actions in cooperation with the managed wetland extractor.

Background

Sustainable Groundwater Management Act. Passed in 2014, SGMA provides a comprehensive framework to manage groundwater resources in overdrafted groundwater basins (i.e. those basins deemed high- or medium-priority by the DWR). To comply with SGMA, local agencies in overdrafted basins had to form a GSA by 2017 and develop GSPs by 2020 or 2022 that will lead to sustainable groundwater management over 20 years. SGMA defines sustainable groundwater management as the avoidance of “undesirable results,” as specified. SGMA’s explicit intent is to keep management of groundwater resources at the local level while allowing for state intervention if local agencies are unsuccessful or get off track in meeting their sustainability goals. SGMA also intends for GSAs to have flexibility to address conditions unique to their particular basin and states that it does not alter groundwater rights.

GSPs for critically overdrafted basins. These plans were submitted in January 2020 and DWR deemed the GSPs for 11 basins to be “adequate” (or approved) and the GSPs for six basins (Tule, Tulare Lake, Kern County, Kaweah, Delta-Mendota, and Chowchilla) to be “inadequate.” The inadequate basins have been referred to the State Water Board for further corrections and/or designation as a probationary basin. Of the remaining three critically overdrafted basins, one is being managed pursuant to an approved alternative submittal (Pajaro Valley), one is adjudicated (Los Osos), and the final one is in an adjudication proceeding (Borrego Valley).

DWR cites various deficiencies in the GSPs for the six inadequate basins. The majority of GSPs do not adequately address chronic lowering of groundwater levels and land subsidence. Several GSPs that involve multiple agencies do not use consistent data or definitions of undesirable results. The Chowchilla GSP does not adequately examine whether there are interconnected surface waters in the basin, and the Tule and Tulare GSPs do not adequately address degraded water quality, among other deficiencies.

GSPs for “high” and “medium” priority groundwater basins. These plans were due January 30, 2022. Six GSPs that were submitted in advance of the January 2022 deadline have been deemed “adequate,” and, in July 2023, DWR determined that GSPs for an additional 10 basins are “adequate”. In January of this year, the final round of reviews for 17 plans were released; DWR approved ten plans and deemed seven plans incomplete.

Wetlands in California. Prior to European colonization of the state, around five million acres of wetlands supported lush aquatic vegetation and provided habitat for hundreds of species of fish and wildlife as well as food, clothing, protection from predators, and transportation for native people. Over 90% of the state's wetlands have been drained, mostly for agricultural purposes, and California now only has about 454,000 acres of nonagricultural wetlands. The remaining wetlands are vulnerable to development, roads, farming practices, hydromodification, pollutants, invasive species, climate change, and a host of other potential stressors.

Small community water systems. Community water systems serve at least 15 service connections used by yearlong residents or regularly serve at least 25 yearlong residents. 86% of regulated community water systems in the state are considered “small,” servicing less than 3,300 service connections. There are approximately 2,500 small community water systems in California regulated for drinking water by the State Water Board, serving approximately 8% of the population.

Comments

Groundwater Sustainability Assessments. The co-sponsors of this bill, Audubon California and Clean Water Action, were joint authors of an analysis that found many GSPs for critically overdrafted basins did not adequately account for the groundwater needs of DACs and the environment. The report includes results from their review of 31 GSPs in 2020 and 64 GSPs in 2022 to evaluate how well drinking water users, disadvantaged communities, the environment, stakeholder involvement, and climate change were addressed in GSPs. The report provides recommendations that include requiring all GSAs to analyze the impacts of sustainable management criteria on DACs and the environment as beneficial users of groundwater and certain GSA reporting requirements in annual reports, among others.

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

SUPPORT: (Verified 8/12/24)

Audubon California (co-source)

Clean Water Action (co-source)

American Rivers

Backcountry Hunters and Anglers, California Chapter

Ban Single Use Plastic

Cal-ore Wetlands and Waterfowl Council

California Bowmen Hunters/State Archery Association

California Coastkeeper Alliance

California Democratic Party

California Hawking Club

California Houndsmen for Conservation

California Rural Legal Assistance Foundation

California Waterfowl Association

Civicwell

Community Water Center

Delta Waterfowl

East Grasslands Wetland Association

Environmental Working Group

Facts: Families Advocating for Chemical & Toxics Safety

Friends of the River

Grassland Water District

Leadership Counsel for Justice & Accountability

League of Women Voters of California

North County Watch

Point Blue Conservation Science

Restore Hetch Hetchy

San Diego County Wildlife Federation

Sea and Sage Audubon Society

Sustainable Conservation

The Black Brant Group

The Nature Conservancy

Tulare Basin Wetlands Association

Tuolumne River Trust

University of California Santa Barbara Department of Anthropology

OPPOSITION: (Verified 8/12/24)

Association of California Water Agencies

Cal Chamber

California Association of Wheat Growers

California Association of Winegrape Growers

California Bean Shippers Association

California Farm Bureau

California Grain & Feed Association

California Municipal Utilities Association

California Seed Association

Elsinore Valley Municipal Water District

Kings River Conservation District

Modesto Irrigation District

Pacific Egg & Poultry Association

South San Joaquin Irrigation District

Valley Ag Water Coalition

Western Growers Association

ARGUMENTS IN SUPPORT: According to the author, “Wetlands are a critical natural resource for our state, and small, rural communities are being hit the hardest by the state’s depleting groundwater resources. These disadvantaged communities usually depend on a single source for their water supply, leaving them vulnerable to drought and affordability challenges. AB 828 brings California closer to protecting safe and clean water accessibility for all California communities.”

A coalition of environmental and community water organizations writes, “SGMA requires a GSA to consider the interests of environmental users and small drinking water systems1 in GSPs. However, several proposed GSPs did not thoroughly identify managed wetlands and small water systems serving disadvantaged communities, or their water needs, and did not analyze impacts from GSA management actions on those users. Moreover, several GSPs propose a one- size-fits-all cap on groundwater allocations, which will cut supplies for small community water systems and managed wetlands at the same rates as agricultural users. This approach will deprive some small communities of access to safe and affordable water and will cause some of the state’s last wetlands to go dry.”

ARGUMENTS IN OPPOSITION: The Valley Ag Water Coalition writes, “AB 828 would prohibit a GSA from imposing a fee upon a small community water system serving a disadvantaged community or on a managed wetland, as specified. This means a GSA would be unable to regulate or impose fees on those uses of water as compared to all other groundwater extractors. Such a move is counterintuitive to the purpose of SGMA, which envisions a comprehensive and well-informed groundwater regulatory framework.” The Coalition further states, “AB 828 directly undercuts the ability of a GSA to raise funds to implement their GSPs. Subdivision (d) of Section 10720.1 of the WC states legislative intent to provide local groundwater agencies with the authority and the technical and financial assistance necessary to sustainably manage groundwater. AB 828, by exempting certain groundwater extractors from paying GSA fees, is contrary to the legislative intent behind SGMA and sets up GSAs to fail. In addition, by exempting certain classes of water users from paying fees, this bill may prevent GSAs from complying with constitutional requirements to assess proportionate charges on all beneficiaries for their services, per Propositions 218 and 26.”

ASSEMBLY FLOOR: 47-15, 1/29/24

AYES: Aguiar-Curry, Arambula, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Ortega, Papan, Pellerin, Ramos, Rendon, Reyes, Luz Rivas, Santiago, Schiavo, Ting, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Alanis, Bains, Chen, Davies, Dixon, Essayli, Flora, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta, Wallis

NO VOTE RECORDED: Addis, Alvarez, Bauer-Kahan, Megan Dahle, Vince Fong, Gallagher, Grayson, Irwin, Stephanie Nguyen, Pacheco, Petrie-Norris, Quirk-Silva, Rodriguez, Blanca Rubio, Soria, Valencia, Villapudua, Waldron

Prepared by: Paul Jacobs / N.R. & W. / (916) 651-4116

8/19/24 13:51:21

**** END ****

 THIRD READING  

Bill No: AB 828

Author: Connolly (D)

Amended: 7/1/24 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 7-4, 6/25/24

AYES: Min, Allen, Eggman, Laird, Limón, Padilla, Stern

NOES: Seyarto, Dahle, Grove, Hurtado

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 47-15, 1/29/24 - See last page for vote

SUBJECT: Sustainable groundwater management: managed wetlands

SOURCE: Audubon California

Clean Water Action

DIGEST:

This bill requires a groundwater sustainability plan (GSP) to include, among other things, the plan’s water supply and economic impacts on managed wetlands and small community water systems serving disadvantaged communities (DACs). This bill also temporarily exempts managed wetlands and small community water systems serving DACs from specified authorities of groundwater sustainability agencies (GSA) to regulate groundwater pumping under the Sustainable Groundwater Management Act (SGMA) until a GSP has been approved after January 1, 2025.

ANALYSIS:

Existing law:

1. Provides, under SGMA, that local agencies must sustainably manage groundwater in high- or medium-priority basins by 2040.
2. Defines sustainable management of groundwater as the avoidance of the following six “undesirable results:” (a) chronic lowering of groundwater levels; (b) reduction of groundwater storage; (c) seawater intrusion; (d) degraded water quality; (e) land subsidence; and (f) depletions of interconnected surface water. (Water Code (WC) §§10720 et seq.)
3. Requires critically overdrafted groundwater basins to be managed under a GSP by January 31, 2020, and high- or medium-priority groundwater basins to be managed under a GSP by January 31, 2022. (WC §10720.7)
4. Requires a GSA to consider the interests of all beneficial uses and users of groundwater in implementing SGMA. (WC §10723.2)
5. Grants various authorities to GSAs, including the authority to impose spacing requirements on groundwater wells, to regulate, limit, or suspend pumping from groundwater wells, and to establish groundwater allocations and accounting rules for carrying over or transferring groundwater pumping extractions. (WC §10726.4)
6. Requires a GSA in a basin subject to SGMA to develop a GSP that has various components, including a description of the physical setting of the basin, measureable objectives to achieve sustainable management, how groundwater levels and quality will be monitored, and monitoring sites and protocols. (WC §10727)
7. Requires GSAs to encourage the involvement of diverse social, cultural, and economic elements of a basin’s population during development and implementation of a GSP. (WC §10727.8)
8. Provides that a GSA may impose fees on groundwater extraction to fund the costs of groundwater management. (WC §10730.2)
9. Defines “de minimis extractor” as a person who pumps two acre-feet (AF) or less of groundwater annually for domestic purposes. (WC §10721)
10. Defines “small community water system” as a community water system that serves no more than 3,300 service connections or a yearlong population of no more than 10,000 persons. (Health and Safety Code §116275)

This bill:

1. Defines the following terms for the purposes of this bill:
   1. “Disadvantaged community,” consistent with WC Section 79505.5, as a community with an annual median household income that is less than 80% of the statewide annual median.
   2. “Managed wetland” as the portion of public or private property that is flooded to promote habitat and food production and that is designated or administered as any of the following: a state wildlife area or ecological reserve, a national wildlife refuge, a federal Central Valley Project Improvement Act (CVPIA) wetland habitat area, a conservation easement held by a public agency or nongovernmental conservation organization, or a wildlife habitat contract of no less than 10 years in duration administered by specified agencies.
   3. “Managed wetland extractor” as a person who extracts groundwater for managed wetlands.
   4. “Small community water system” as a system serving no more than 3,300 connections or a year-long population of no more than 10,000 individuals, consistent with Health and Safety Code Section 116275.
2. Requires a GSP to include the following information:

• 1. The plan’s impacts on water supply and economic impacts on managed wetlands, managed wetland extractors, and small community water systems serving DACs.
  2. A list of small community water systems that serve DACs and extract water from the basin, the estimated population served by each of those systems, and the water consumption of each of those systems.
  3. A list of managed wetlands subject to the plan, the acreage of each of the wetlands, and water consumption of each wetland area.

1. Exempts, temporarily, managed wetlands and small community water systems serving DACs from specified authorities of GSAs under SGMA. These authorities include regulating groundwater usage through the establishment of groundwater pumping allocations and imposing a fee on groundwater pumping. These exemptions will not apply if any groundwater pumping by these users increases above the average amount of groundwater they pumped annually from 2015 to 2020.

• 1. These temporary exemptions will terminate once either the Department of Water Resources (DWR) approves a GSP or the State Water Resources Control Board (State Water Board) adopts an interim plan after January 1, 2025.

1. Provides that if a GSA reasonably determines that a managed wetland is directly causing undesirable results, including land subsidence or groundwater quality degradation, it may exercise its authority to regulate said managed wetland’s groundwater pumping to implement corrective actions in cooperation with the managed wetland extractor.

Background

Sustainable Groundwater Management Act. Passed in 2014, SGMA provides a comprehensive framework to manage groundwater resources in overdrafted groundwater basins (i.e. those basins deemed high- or medium-priority by the DWR). To comply with SGMA, local agencies in overdrafted basins had to form a GSA by 2017 and develop GSPs by 2020 or 2022 that will lead to sustainable groundwater management over 20 years. SGMA defines sustainable groundwater management as the avoidance of “undesirable results,” as specified. SGMA’s explicit intent is to keep management of groundwater resources at the local level while allowing for state intervention if local agencies are unsuccessful or get off track in meeting their sustainability goals. SGMA also intends for GSAs to have flexibility to address conditions unique to their particular basin and states that it does not alter groundwater rights.

GSPs for critically overdrafted basins. These plans were submitted in January 2020 and DWR deemed the GSPs for 11 basins to be “adequate” (or approved) and the GSPs for six basins (Tule, Tulare Lake, Kern County, Kaweah, Delta-Mendota, and Chowchilla) to be “inadequate.” The inadequate basins have been referred to the State Water Board for further corrections and/or designation as a probationary basin. Of the remaining three critically overdrafted basins, one is being managed pursuant to an approved alternative submittal (Pajaro Valley), one is adjudicated (Los Osos), and the final one is in an adjudication proceeding (Borrego Valley).

DWR cites various deficiencies in the GSPs for the six inadequate basins. The majority of GSPs do not adequately address chronic lowering of groundwater levels and land subsidence. Several GSPs that involve multiple agencies do not use consistent data or definitions of undesirable results. The Chowchilla GSP does not adequately examine whether there are interconnected surface waters in the basin, and the Tule and Tulare GSPs do not adequately address degraded water quality, among other deficiencies.

GSPs for “high” and “medium” priority groundwater basins. These plans were due January 30, 2022. Six GSPs that were submitted in advance of the January 2022 deadline have been deemed “adequate,” and, in July 2023, DWR determined that GSPs for an additional 10 basins are “adequate”. In January of this year, the final round of reviews for 17 plans were released; DWR approved ten plans and deemed seven plans incomplete.

Wetlands in California. Prior to European colonization of the state, around five million acres of wetlands supported lush aquatic vegetation and provided habitat for hundreds of species of fish and wildlife as well as food, clothing, protection from predators, and transportation for native people. Over 90% of the state's wetlands have been drained, mostly for agricultural purposes, and California now only has about 454,000 acres of nonagricultural wetlands. The remaining wetlands are vulnerable to development, roads, farming practices, hydromodification, pollutants, invasive species, climate change, and a host of other potential stressors.

Small community water systems. Community water systems serve at least 15 service connections used by yearlong residents or regularly serve at least 25 yearlong residents. 86% of regulated community water systems in the state are considered “small,” servicing less than 3,300 service connections. There are approximately 2,500 small community water systems in California regulated for drinking water by the State Water Board, serving approximately 8% of the population.

Comments

Groundwater Sustainability Assessments. The co-sponsors of this bill, Audubon California and Clean Water Action, were joint authors of an analysis that found many GSPs for critically overdrafted basins did not adequately account for the groundwater needs of DACs and the environment. The report includes results from their review of 31 GSPs in 2020 and 64 GSPs in 2022 to evaluate how well drinking water users, disadvantaged communities, the environment, stakeholder involvement, and climate change were addressed in GSPs. The report provides recommendations that include requiring all GSAs to analyze the impacts of sustainable management criteria on DACs and the environment as beneficial users of groundwater and certain GSA reporting requirements in annual reports, among others.

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

SUPPORT: (Verified 8/12/24)

Audubon California (co-source)

Clean Water Action (co-source)

American Rivers

Backcountry Hunters and Anglers, California Chapter

Ban Single Use Plastic

Cal-ore Wetlands and Waterfowl Council

California Bowmen Hunters/State Archery Association

California Coastkeeper Alliance

California Democratic Party

California Hawking Club

California Houndsmen for Conservation

California Rural Legal Assistance Foundation

California Waterfowl Association

Civicwell

Community Water Center

Delta Waterfowl

East Grasslands Wetland Association

Environmental Working Group

Facts: Families Advocating for Chemical & Toxics Safety

Friends of the River

Grassland Water District

Leadership Counsel for Justice & Accountability

League of Women Voters of California

North County Watch

Point Blue Conservation Science

Restore Hetch Hetchy

San Diego County Wildlife Federation

Sea and Sage Audubon Society

Sustainable Conservation

The Black Brant Group

The Nature Conservancy

Tulare Basin Wetlands Association

Tuolumne River Trust

University of California Santa Barbara Department of Anthropology

OPPOSITION: (Verified 8/12/24)

Cal Chamber

California Association of Wheat Growers

California Association of Winegrape Growers

California Bean Shippers Association

California Farm Bureau

California Grain & Feed Association

California Seed Association

Elsinore Valley Municipal Water District

Kings River Conservation District

Modesto Irrigation District

Pacific Egg & Poultry Association

South San Joaquin Irrigation District

Valley Ag Water Coalition

Western Growers Association

ARGUMENTS IN SUPPORT: According to the author, “Wetlands are a critical natural resource for our state, and small, rural communities are being hit the hardest by the state’s depleting groundwater resources. These disadvantaged communities usually depend on a single source for their water supply, leaving them vulnerable to drought and affordability challenges. AB 828 brings California closer to protecting safe and clean water accessibility for all California communities.”

A coalition of environmental and community water organizations writes, “SGMA requires a GSA to consider the interests of environmental users and small drinking water systems1 in GSPs. However, several proposed GSPs did not thoroughly identify managed wetlands and small water systems serving disadvantaged communities, or their water needs, and did not analyze impacts from GSA management actions on those users. Moreover, several GSPs propose a one- size-fits-all cap on groundwater allocations, which will cut supplies for small community water systems and managed wetlands at the same rates as agricultural users. This approach will deprive some small communities of access to safe and affordable water and will cause some of the state’s last wetlands to go dry.”

ARGUMENTS IN OPPOSITION: The Valley Ag Water Coalition writes, “AB 828 would prohibit a GSA from imposing a fee upon a small community water system serving a disadvantaged community or on a managed wetland, as specified. This means a GSA would be unable to regulate or impose fees on those uses of water as compared to all other groundwater extractors. Such a move is counterintuitive to the purpose of SGMA, which envisions a comprehensive and well-informed groundwater regulatory framework.” The Coalition further states, “AB 828 directly undercuts the ability of a GSA to raise funds to implement their GSPs. Subdivision (d) of Section 10720.1 of the WC states legislative intent to provide local groundwater agencies with the authority and the technical and financial assistance necessary to sustainably manage groundwater. AB 828, by exempting certain groundwater extractors from paying GSA fees, is contrary to the legislative intent behind SGMA and sets up GSAs to fail. In addition, by exempting certain classes of water users from paying fees, this bill may prevent GSAs from complying with constitutional requirements to assess proportionate charges on all beneficiaries for their services, per Propositions 218 and 26.”

ASSEMBLY FLOOR: 47-15, 1/29/24

AYES: Aguiar-Curry, Arambula, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Ortega, Papan, Pellerin, Ramos, Rendon, Reyes, Luz Rivas, Santiago, Schiavo, Ting, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Alanis, Bains, Chen, Davies, Dixon, Essayli, Flora, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta, Wallis

NO VOTE RECORDED: Addis, Alvarez, Bauer-Kahan, Megan Dahle, Vince Fong, Gallagher, Grayson, Irwin, Stephanie Nguyen, Pacheco, Petrie-Norris, Quirk-Silva, Rodriguez, Blanca Rubio, Soria, Valencia, Villapudua, Waldron

Prepared by: Paul Jacobs / N.R. & W. / (916) 651-4116

8/14/24 14:03:09

**** END ****

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Dave Min, Chair

2023 - 2024 Regular

Bill No: AB 828 Hearing Date: June 25, 2024

Subject: Sustainable groundwater management: managed wetlands

SUMMARY

This bill would exempt groundwater use by managed wetlands and small community water systems serving disadvantaged communities (DAC) from specified authorities of groundwater sustainability agencies (GSA) to regulate groundwater pumping under the Sustainable Groundwater Management Act (SGMA).

BACKGROUND AND EXISTING LAW

Background:

Sustainable Groundwater Management Act. Passed in 2014, SGMA provides a comprehensive framework to manage groundwater resources in overdrafted groundwater basins (i.e. those basins deemed high- or medium-priority by the Department of Water Resources (DWR)). To comply with SGMA, local agencies in overdrafted basins had to form a GSA by 2017 and develop groundwater sustainability plans (GSPs) by 2020 or 2022 that will lead to sustainable groundwater management over 20 years. SGMA defines sustainable groundwater management as the avoidance of “undesirable results,” as specified. SGMA’s explicit intent is to keep management of groundwater resources at the local level while allowing for state intervention if local agencies are unsuccessful or get off track in meeting their sustainability goals. SGMA also intends for GSAs to have flexibility to address conditions unique to their particular basin and states that it does not alter groundwater rights.

One of the first steps GSAs have had to take is to identify groundwater users and uses in their basins and develop a corresponding groundwater budget. In many instances GSAs have developed, or are still developing, groundwater pumping allocations that apportion an allowable amount of groundwater pumping to groundwater users in the basin that the GSA manages. GSPs vary, but in many cases the groundwater pumping allocation represents the amount of groundwater a user may pump in a given year without incurring fees or penalties. Oftentimes, a user may pump and use more groundwater than their allocation, but the GSA will typically charge a pumper a significant fee per acre-foot (AF) of water pumped in excess of their allocation in order to dissuade groundwater pumpers from exceeding their pumping allocations (in some GSPs, certain groundwater users have received a pumping allocation of zero and typically have to pay fees for every AF of groundwater pumped and used). In some cases, GSAs also permit the trade or sale of groundwater pumping extractions amongst users in their basin. A groundwater pumping allocation does not represent a given landowner’s groundwater rights.

GSPs for critically overdrafted basins. These plans were submitted in January 2020 and DWR deemed the GSPs for 11 basins to be “adequate” (or approved) and the GSPs for six basins (Tule, Tulare Lake, Kern County, Kaweah, Delta-Mendota, and Chowchilla) to be “inadequate.” The inadequate basins have been referred to the State Water Resources Control Board (State Water Board) for further corrections and/or designation as a probationary basin. Of the remaining three critically overdrafted basins, one is being managed pursuant to an approved alternative submittal (Pajaro Valley), one is adjudicated (Los Osos), and the final one is in an adjudication proceeding (Borrego Valley).

DWR cites various deficiencies in the GSPs for the six inadequate basins. The majority of GSPs do not adequately address chronic lowering of groundwater levels and land subsidence. Several GSPs that involve multiple agencies do not use consistent data or definitions of undesirable results. The Chowchilla GSP does not adequately examine whether there are interconnected surface waters in the basin, and the Tule and Tulare GSPs do not adequately address degraded water quality, among other deficiencies.

GSPs for “high” and “medium” priority groundwater basins. These plans were due January 30, 2022. Six GSPs that were submitted in advance of the January 2022 deadline have been deemed “adequate,” and, in July 2023, DWR determined that GSPs for an additional 10 basins are “adequate”. In January of this year, the final round of reviews for 17 plans were released; DWR approved ten plans and deemed seven plans incomplete.

Wetlands in California. A wetland encompasses a wide variety of land types and includes desert playas, washes, and oases, marshes, meadows, bogs, fens, sag ponds, vernal pools, tidal flats, tidal marshes, and even wastewater treatment ponds. Generally, wetlands are lower elevation lands that are covered, either seasonally or permanently, with shallow water. Wetlands occur in all regions of California and in both coastal (brackish or saline water) and inland areas (typically freshwater). Wetlands form where rainfall or water runoff accumulates and where groundwater saturates the topsoil.

Prior to European colonization of the state, around 5 million acres of wetlands supported lush aquatic vegetation and provided habitat for hundreds of species of fish and wildlife as well as food, clothing, protection from predators, and transportation for native people. Over 90% of the state's wetlands have been drained, mostly for agricultural purposes, and California now only has about 454,000 acres of nonagricultural wetlands.^[1] The remaining wetlands are vulnerable to development, roads, farming practices, hydromodification, pollutants, invasive species, climate change, and a host of other potential stressors.^[2]

California's wetlands have significant environmental and economic value for humans and wildlife. These benefits include water storage, groundwater recharge, pollution control, nutrient cycling, shoreline protection, maintenance of biodiversity, recreation, education, and carbon sequestration. While at the time of statehood, wetlands were perceived more negatively and terms such as “swamp” or “mire” were used to describe wetland areas, wetlands have come to be increasingly valued for the many benefits they provide to society.

According to the 2020 Central Valley Joint Venture (CVJV) Implementation Plan, roughly 220,000 acres of managed wetlands remain in the Central Valley. This number represents less than 5% of the Central Valley’s historic wetlands. The Implementation Plan estimates that wetlands need between 2.5 AF and 7.4 AF per acre of water annually depending on habitat type (5.1 AF for seasonal wetlands, 7.4 AF for semi-permanent wetlands, 2.5 AF for winter flooding of rice fields, and 5 AF for rice growing), time of year, and other factors. A lot of this water demand is met with surface water supplied as required through the federal Central Valley Project Improvement Act (CVPIA). Under CVPIA, refuges are supposed to receive their historical average supplies (“Level 2”) of 422,251 AF annually and incremental (“Level 4”) supplies of an additional 133,264 AF. Level 4 supplies usually go unmet, particularly in dry years. What portion of the remaining wetland need is met by surface water and groundwater supplies is not well-defined.

The CVJV Implementation Plan notes that SGMA implementation is likely to pose challenges for wetland managers, particularly in the southern San Joaquin Valley as these wetlands “rely on groundwater as a source – and for some the only source – of water supply…. Implementation of SGMA in these areas is likely to reduce groundwater availability to a fraction of what is needed to manage wetlands.” Finally, the CVJV Implementation Plan contends that it will be difficult for wetland managers to compete with other users (e.g., agriculture) in the groundwater trading programs that many GSPs are proposing.

Small community water systems. Community water systems serve at least 15 service connections used by yearlong residents or regularly serve at least 25 yearlong residents. Eighty-six percent of regulated community water systems in the state are considered “small,” servicing less than 3,300 service connections. There are approximately 2,500 small community water systems in California regulated for drinking water by the State Water Board, serving approximately 8% of the population.

According to the State Water Board report, Communities that Rely on Contaminated Groundwater, released in January 2013, 682 community public water systems, which serve nearly 21 million people, rely on contaminated groundwater as a primary source of drinking water. The report points out that an additional two million Californians rely on groundwater from either a private domestic well or a smaller groundwater-reliant system that is not regulated by the state, the water quality of which is uncertain. The findings from State Water Board report, and a 2012 University of California at Davis study, Addressing Nitrate in California's Drinking Water, suggest that drinking water contamination in California disproportionally affects small, rural, and low-income communities that depend mostly on groundwater as their drinking water source.

Three of the most commonly detected pollutants in contaminated water in California are arsenic, perchlorate, and nitrates. While arsenic is naturally occurring, perchlorate contamination is generally a result of military and industrial uses. High concentrations of nitrate in groundwater are primarily caused by human activities, including fertilizer application (synthetic and manure), animal operations, industrial sources (wastewater treatment and food processing facilities), and septic systems. Agricultural fertilizers and animal wastes applied to cropland are by far the largest regional sources of nitrate in groundwater.

AB 685 (Eng, Chapter 524, Statutes of 2012) declares it state policy that every human has the right to safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitary purposes. The State Water Board administers two programs that provide financial assistance to water systems so that they can make capital and other improvements to provide safe drinking water—the Drinking Water State Revolving Fund and the Safe and Affordable Funding for Equity and Resilience Drinking Water Program.

Existing law:

1. Provides, under SGMA, that local agencies must sustainably manage groundwater in high- or medium-priority basins by 2040. Defines sustainable management of groundwater as the avoidance of the following six “undesirable results:” (a) chronic lowering of groundwater levels; (b) reduction of groundwater storage; (c) seawater intrusion; (d) degraded water quality; (e) land subsidence; and (f) depletions of interconnected surface water. Water Code (WC) §§10720 et seq..
2. Requires critically overdrafted groundwater basins to be managed under a GSP by January 31, 2020, and high- or medium-priority groundwater basins to be managed under a GSP by January 31, 2022. WC §10720.7.
3. Requires a GSA to consider the interests of all beneficial uses and users of groundwater in implementing SGMA. WC §10723.2.
4. Grants various authorities to GSAs, including the authority to impose spacing requirements on groundwater wells, to regulate, limit, or suspend pumping from groundwater wells, and to establish groundwater allocations and accounting rules for carrying over or transferring groundwater pumping extractions. WC §10726.4.
5. Requires a GSA in a basin subject to SGMA to develop a GSP that has various components, including a description of the physical setting of the basin, measureable objectives to achieve sustainable management, how groundwater levels and quality will be monitored, and monitoring sites and protocols. WC §10727.
6. Requires GSAs to encourage the involvement of diverse social, cultural, and economic elements of a basin’s population during development and implementation of a GSP. WC §10727.8.
7. Provides that a GSA may impose fees on groundwater extraction to fund the costs of groundwater management. WC §10730.2.
8. Defines “de minimis extractor” as a person who pumps two AF or less of groundwater annually for domestic purposes. WC §10721.
9. Defines “small community water system” as a community water system that serves no more than 3,300 service connections or a yearlong population of no more than 10,000 persons. Health and Safety Code §116275.

PROPOSED LAW

This bill would:

1. Provide that a GSA’s authority to regulate groundwater usage through the establishment of groundwater pumping allocations shall not apply to small community water systems serving DACs with water from a permitted public water supply well nor to managed wetland extractors. Provide, however, that a GSA may regulate any groundwater pumping by these users if their groundwater use increases above the average amount of groundwater they pumped annually from 2015 to 2020.
2. Provide that a small community water system serving a DAC or managed wetland extractor may receive a groundwater recharge credit established by a GSA.
3. Provide that if a GSA reasonably determines that a managed wetland is directly causing undesirable results, including land subsidence or groundwater quality degradation, it may exercise its authority to regulate said managed wetland’s groundwater pumping to implement corrective actions in cooperation with the managed wetland extractor.
4. Provide that a GSA shall not impose a fee on groundwater pumping for small community water systems serving DACs or managed wetland purposes unless pumping for either of these purposes exceeds its average annual groundwater use from 2015 to 2020.
5. Define the following terms for the purposes of this bill:
   1. “Disadvantaged community,” consistent with WC §79505.5, as a community with an annual median household income that is less than 80% of the statewide annual median.
   2. “Managed wetland” as the portion of public or private property that is flooded to promote habitat and food production and that is designated or administered as any of the following: a state wildlife area or ecological reserve, a national wildlife refuge, a CVPIA wetland habitat area, a conservation easement held by a public agency or nongovernmental conservation organization, or a wildlife habitat contract of no less than 10 years in duration administered by specified agencies;
   3. “Managed wetland extractor” as a person who extracts groundwater for managed wetlands; and
   4. “Small community water system” as a system serving no more than 3,300 connections or a year-long population of no more than 10,000 individuals, consistent with Health and Safety Code §116275.
6. Sunset the provisions of this bill on January 1, 2028.

ARGUMENTS IN SUPPORT

According to the author, “Wetlands are a critical natural resource for our state, and small, rural communities are being hit the hardest by the state’s depleting groundwater resources. These disadvantaged communities usually depend on a single source for their water supply, leaving them vulnerable to drought and affordability challenges. AB 828 brings California closer to protecting safe and clean water accessibility for all California communities.”

A coalition of environmental and community water organizations writes, “SGMA requires a Groundwater Sustainability Agency (GSA) to consider the interests of environmental users and small drinking water systems1 in Groundwater Sustainability Plans (GSPs). However, several proposed GSPs did not thoroughly identify managed wetlands and small water systems serving disadvantaged communities, or their water needs, and did not analyze impacts from GSA management actions on those users. Moreover, several GSPs propose a one- size-fits-all cap on groundwater allocations, which will cut supplies for small community water systems and managed wetlands at the same rates as agricultural users. This approach will deprive some small communities of access to safe and affordable water and will cause some of the state’s last wetlands to go dry.”

“Small community water systems in disadvantaged communities are especially vulnerable to drought and over-pumping by neighboring water users. They are also often faced with affordability challenges to accessing water, which will be aggravated if GSAs can sharply curtail their water allocations and charge high fees to communities just trying to meet their basic water needs.”

“Managed wetlands are of special concern because California has lost over 90% of its historic wetlands, resulting in steep population declines of migratory birds on the Pacific Flyway. These declines are projected to worsen due to ongoing habitat loss and climate change. Managed wetlands provide essential habitat for birds and other wildlife and recreational and economic opportunities throughout the state. AB 828 applies only to managed wetlands on public lands or administered under an easement held by a public agency.”

“The bill was amended in the Assembly Water Parks and Wildlife committee to include a sunset for the exemption. The bill author and sponsors have worked with the committee to better define the sunset and add language to DWR’s review of SGMA to protect managed wetlands and small community water systems serving disadvantaged communities. As amended, AB 828 offers a measured and reasonable approach to protect safe and clean water accessibility for all California communities and safeguard the dwindling managed wetland acreage from the implementation of SGMA.”

“For these reasons, we urge an “Aye” vote on AB 828.”

ARGUMENTS IN OPPOSITION

The Valley Ag Water Coalition writes, “AB 828 would prohibit a GSA from imposing a fee upon a small community water system serving a disadvantaged community or on a managed wetland, as specified. This means a GSA would be unable to regulate or impose fees on those uses of water as compared to all other groundwater extractors. Such a move is counterintuitive to the purpose of SGMA, which envisions a comprehensive and well-informed groundwater regulatory framework.” The Coalition further states, “AB 828 directly undercuts the ability of a GSA to raise funds to implement their groundwater sustainability plans (GSPs). Subdivision (d) of Section 10720.1 of the Water Code states legislative intent to provide local groundwater agencies with the authority and the technical and financial assistance necessary to

sustainably manage groundwater. AB 828, by exempting certain groundwater extractors from paying GSA fees, is contrary to the legislative intent behind SGMA and sets up GSAs to fail. In addition, by exempting certain classes of water users from paying fees, this bill may prevent GSAs from complying with constitutional requirements to assess proportionate charges on all beneficiaries for their services, per Propositions 218 and 26.”

The Coalition discusses inappropriate preferences by stating, “Medium- and high-priority basins, as determined by DWR, have many beneficial uses designated by the State Water Resources Control Board, including agricultural, municipal and industrial, and wildlife habitat, among others. AB 828 would set two beneficial use designations above all others. And in placing wetlands above agricultural use, AB 828 would be inconsistent with state policy enumerated under Section 106 of the Water Code. By prioritizing two uses of groundwater above all other designated beneficial uses of water, AB 828 assumes reductions in groundwater extractions should only apply to agriculture and places the use of groundwater to grow food and fiber at the bottom of the priority list, which threatens food security, on-farm investment, investment in the storage and delivery systems that provide agricultural water supply, farmworker jobs, and the overall socioeconomic health of rural communities by reducing property tax revenue that supports public schools, police officers, and firefighters in those communities. This reprioritization of water use is in direct conflict with Section 106 of the Water Code, which specifies that domestic water use has the highest priority and irrigation the second highest.”

In conclusion the Coalition states, “VAWC believes that everyone who pumps groundwater, with the exception of the existing de minimus pumpers, should contribute to the cost of achieving sustainability in our groundwater basins. SGMA requires GSAs to implement their plans upon adoption. The work of imposing fees on groundwater extractors is complete in many areas and underway in others. AB 828 would greatly complicate the implementation of SGMA at a critical time when GSAs are undertaking the hard work to become sustainable over the next 16 to 18 years.”

COMMENTS

Groundwater Sustainability Assessments. The co-sponsors of this bill, Audubon California and Clean Water Action, were joint authors of an analysis that found many GSPs for critically overdrafted basins did not adequately account for the groundwater needs of DACs and the environment.^[3] The report includes results from their review of 31 GSPs in 2020 and 64 GSPs in 2022 to evaluate how well drinking water users, disadvantaged communities, the environment, stakeholder involvement, and climate change were addressed in GSPs. The report provides recommendations to DWR on how to protect vulnerable drinking water users and DACs as SGMA is being implemented.

Among other things, the report evaluated whether GSPs provided a description of direct and indirect impacts on disadvantaged communities and drinking water users and groundwater dependent ecosystems and instream habitats within interconnected surface waters when defining undesirable results and minimum thresholds for chronic lowering of groundwater levels and degraded water quality. The authors did this by reviewing GSPs, DWR determination letters, and State Water Board comment letters. Their review found that almost all GSPs (except two) failed to consider impacts of their sustainable management criteria on DACs and the environment. DWR evaluations and State Water Board comment letters noted similar deficiencies in consideration of beneficial users. These deficiencies were also identified as required corrective actions by DWR in determination letters for incomplete basins.

However, the report found that DWR’s determinations were broad and lacked details for issues relating to disadvantaged communities, drinking water users, and the environment. Without specific guidance to consider these users in future plans, the report concludes that it is unclear whether these issues will be addressed in future GSPs. Finally, the report provides recommendations that include requiring all GSAs to analyze the impacts of sustainable management criteria on DACs and the environment as beneficial users of groundwater and certain GSA reporting requirements in annual reports, among others.

SGMA is all-inclusive. SGMA requires that a GSA must consider and conduct outreach to a broad range of stakeholders, such as beneficial users of water, environmental interests, DACs, tribes, and others. SGMA was created to ensure groundwater basins throughout the state are managed to reliably meet the needs of all users, while mitigating changes in the quality and quantity of groundwater. While the report discussed above found that GSPs are not sufficiently addressing the impacts of certain vulnerable groundwater users, exempting certain users from the original design of an all-inclusive management strategy might not be the best pathway to resolve these issues. Additionally, SGMA was given a long lead time for implementation and has only started to implement the state agency review requirements. This consideration makes it too early to conclude that SGMA has completely failed these water users without any other options other than exemptions.

It appears to be too early to pursue exemptions ahead of other solutions, particularly those that were articulated as recommendations in the report. While the Assembly Water Parks and Wildlife Committee imposed a sunset on the exemptions introduced in this bill, it is clear that the intent of the sponsors is to acquire a long-term exemption from the Legislature and a sunset extension will likely be pursued at a later date. Rather than pursuing the strategy of exemptions, implementing the recommendations from the report mentioned above may be a better pathway to address the issues and findings from their report.

Committee amendments. The Committee may wish to consider the following amendments:

• Require GSPs to include water supply and economic impacts on managed wetlands and small community water systems serving disadvantaged communities. Clarifying that the impacts on these vulnerable groundwater users needs to be included in a GSP supports the recommendation of the Groundwater Sustainability Assessments report that will also result in both DWR and the State Water Board including these impacts in their reviews. To be clear, this is not adding a new priority or preference to the list of items needing to be addressed in GSPs, it is just clarifying impacts that should have already been addressed but arguably have not been. See Amendment 1 (m).
• Change the exemptions sunset to a short-term flexible timeline based on adequate approvals of GSPs. One aspect the Committee may wish to consider is that it is understandable that the needs of DAC and managed wetlands groundwater users remain vulnerable under SGMA until their impacts are incorporated and addressed according to Amendment 1 articulated above. In that regard, the Committee may wish to maintain a short-term exemption until either DWR approves a GSP or the State Water Board adopts an interim plan for a probationary basin. See Amendment 2.
• Require GSAs to report on details relating to small community water systems and managed wetlands. It is challenging to estimate how much groundwater small community water systems or managed wetlands use in a basin subject to SGMA. This requirement will give GSAs and the Legislature a better understanding on water use by these users. See Amendment 1 (n) and (o).

SUGGESTED AMENDMENTS

AMENDMENT 1:

10727.4 (m) The plan’s impacts on, but not limited to, the following:

(1) Water supply and economic impacts on managed wetlands and managed wetland extractors.

(2) Water supply and economic impacts on small community water systems serving disadvantaged communities.

(n) A list of small community water systems that serve disadvantaged communities and extract water from the basin, the estimated population served by each of those systems, and the water consumption of each of those systems.

(o) A list of managed wetlands subject to the plan, the acreage of each of the wetlands, and water consumption of each wetland area.

AMENDMENT 2: Strike section 10721 (b) and sections 3, 5 and 7 in their entirety.

Section 10726.4 (f) This section shall remain in effect only until January 1, 2028, and as of that date is repealed. Subdivisions (b), (c), and (d) shall not apply to a groundwater basin with a groundwater sustainability plan that has been approved by the department pursuant to Chapter 10 (commencing with Section 10733) or, if applicable, with an interim plan pursuant to Chapter 11 (commencing with Section 10735).

Section 10730.2 (g) This section shall remain in effect only until January 1, 2028, and as of that date is repealed. Subdivision (e) shall not apply to a groundwater basin with a groundwater sustainability plan that has been approved by the department pursuant to Chapter 10 (commencing with Section 10733) or, if applicable, with an interim plan pursuant to Chapter 11 (commencing with Section 10735).

SUPPORT

Audubon California (co-sponsor)

Clean Water Action (co-sponsor)

American Rivers

Backcountry Hunters and Anglers, California Chapter

Ban SUP (Single Use Plastic)

Black Brant Group

Cal-ore Wetlands and Waterfowl Council

California Bowmen Hunters/State Archery Association

California Coastkeeper Alliance

California Democratic Party

California Hawking Club

California Houndsmen for Conservation

California Rural Legal Assistance Foundation

California Rural Legal Assistance Foundation (CRLA Foundation)

California Waterfowl Association

Civicwell

Community Water Center

Delta Waterfowl

East Grasslands Wetland Association

Environmental Working Group

Facts: Families Advocating for Chemical & Toxics Safety

Friends of the River

Grassland Water District

Leadership Counsel for Justice & Accountability

League of Women Voters of California

North County Watch

Point Blue Conservation Science

Restore Hetch Hetchy

San Diego County Wildlife Federation

Sea and Sage Audubon Society

Sustainable Conservation

The Black Brant Group

The Nature Conservancy

Tulare Basin Wetlands Association

Tuolumne River Trust

UC Santa Barbara Department of Anthropology

OPPOSITION

Cal Chamber

California Association of Wheat Growers

California Association of Winegrape Growers

California Bean Shippers Association

California Farm Bureau

California Grain & Feed Association

California Seed Association

Elsinore Valley Municipal Water District

Kings River Conservation District

Modesto Irrigation District

Pacific Egg & Poultry Association

South San Joaquin Irrigation District

Valley Ag Water Coalition

Western Growers Association

-- END --

1. According to the US Fish and Wildlife Service: https://www.fws.gov/sites/default/files/documents/National-Water-Summary-Wetland-Resources-california.pdf ↑

2. See California Wetland Program Plan, 2023-2028: https://www.epa.gov/system/files/documents/2023-07/CA%20WPP_2023_Final_Signed.pdf ↑

3. Arthur, S., N. Atume, J.P. Ortiz-Partida, M.M. Rohde. 2022. Groundwater Sustainability Assessments: A Review of the Department of Water Resources’ Determinations on Groundwater Sustainability Plans in Critically Overdrafted Basins. Groundwater Leadership Forum. https://cleanwater.org/sites/default/files/docs/publications/2022%20California%20-%20NGO-DWR-Determinations-Analysis-2022.pdf ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 828

Author:(Connolly)

As Amended Ver:January 11, 2024

Majority vote

SUMMARY

Exempts groundwater use by managed wetlands and small community water systems serving disadvantaged communities (DAC) from specified authorities of groundwater sustainability agencies (GSA) to regulate groundwater pumping under the Sustainable Groundwater Management Act (SGMA).

Major Provisions

1. Provides that a GSA's authority to regulate groundwater usage through the establishment of groundwater pumping allocations shall not apply to small community water systems serving DACs with water from a permitted public water supply well nor to managed wetland extractors. Provides, however, that a GSA may regulate any groundwater pumping by these users if their groundwater use increases above the average amount of groundwater they pumped annually from 2015 to 2020.
2. Provides that if a GSA reasonably determines that a managed wetland is directly causing problems associated with groundwater overdraft (i.e., "undesirable results" such as land subsidence), it may exercise its authority to regulate said managed wetland's groundwater pumping to implement corrective actions in cooperation with the managed wetland extractor.
3. Provides that a GSA shall not impose a fee on groundwater pumping for small community water systems serving DACs or managed wetland purposes unless pumping for either of these purposes exceeds its average annual groundwater use from 2015 to 2020.
4. Sunsets the provisions of this bill on January 1, 2028.

COMMENTS

Passed in 2014, SGMA provides a comprehensive framework to manage groundwater resources in overdrafted groundwater basins (i.e., those basins deemed high- or medium-priority by Department of Fish and Wildlife (DWR)). To comply with SGMA, local agencies in overdrafted basins had to form a GSA by 2017 and develop groundwater sustainability plan (GSPs) by 2020 or 2022 that will lead to sustainable groundwater management over 20 years. SGMA defines sustainable groundwater management as the avoidance of "undesirable results." SGMA's explicit intent is to keep management of groundwater resources at the local level while allowing for state intervention if local agencies are unsuccessful or get off track in meeting their sustainability goals. SGMA also intends for GSAs to have flexibility to address conditions unique to their particular basin and states that it does not alter groundwater rights.

One of the first steps GSAs have had to take is to identify groundwater users and uses in their basins and develop a corresponding groundwater budget. In many instances GSAs have developed, or are still developing, groundwater pumping allocations that apportion an allowable amount of groundwater pumping to groundwater users in the basin that the GSA manages. GSPs vary, but in many cases the groundwater pumping allocation represents the amount of groundwater a user may pump in a given year without incurring fees or penalties. Oftentimes, a user may pump and use more groundwater than their allocation, but the GSA will typically charge a pumper a significant fee per AF of water pumped in excess of their allocation in order to dissuade groundwater pumpers from exceeding their pumping allocations (in some GSPs, certain groundwater users have received a pumping allocation of zero and typically have to pay fees for every AF of groundwater pumped and used).

GSPs for critically overdrafted basins were submitted in January 2020 and DWR deemed the GSPs for 11 basins to be "adequate" (or approved) and the GSPs for six basins (Tule, Tulare Lake, Kern County, Kaweah, Delta-Mendota, and Chowchilla) to be "inadequate." The inadequate basins have been referred to the State Water Resources Control Board for further corrections and/or designation as a probationary basin. Of the remaining three critically overdrafted basins, one is being managed pursuant to an approved alternative submittal (Pajaro Valley), one is adjudicated (Los Osos), and the final is in an adjudication proceeding (Borrego Valley).

DWR cites various deficiencies in the GSPs for the six inadequate basins. The majority do not adequately address chronic lowering of groundwater levels and land subsidence; several that involve multiple agencies do not use consistent data or definitions of undesirable results; the Chowchilla GSP does not adequately examine whether there are interconnected surface waters in the basin; and the Tule and Tulare GSPs do not adequately address degraded water quality, among other deficiencies. Generally, these inadequate GSPs do not adequately account for groundwater use by small community water systems serving DACs or managed wetlands, but DWR does not identify these as deficiencies that need to be corrected in the GSPs either.

GSPs for non-critically overdrafted groundwater basins were due January 30, 2022. To date, DWR has deemed that 26 GSPs for these basins are "adequate." DWR has determined that seven of GSPs for non-critically overdrated basins are "incomplete;" these basins have six months to correct deficiencies identified by DWR.

There are roughly 220,000 acres of managed wetlands remaining in the Central Valley, according to the 2020 Central Valley Joint Venture (CVJV) Implementation Plan. This number represents less than 5% of the Central Valley's historic wetlands. The Implementation Plan estimates that wetlands need between 2.5 AF and 7.4 AF per acre annually depending on habitat type (5.1 AF for seasonal wetlands, 7.4 AF for semi-permanent wetlands, 2.5 AF for winter flooding of rice fields, and 5 AF for rice growing), time of year, and other factors. A lot of this water demand is met with surface water supplied through the federal Central Valley Project as required under CVPIA. Under CVPIA, refuges are supposed to receive their historical average supplies ("Level 2") of 422,251 AF annually and incremental ("Level 4") supplies of an additional 133,264 AF. Level 4 supplies usually go unmet, particularly in dry years. What portion of the remaining wetland need is met by surface water and groundwater supplies is not well-defined.

This bill exempts small community water systems if they serve a DAC from certain regulatory authorities of GSAs. These systems have up to 3,300 service connections or serve a year-long population no greater than 10,000 individuals. There are approximately 2,500 small community water systems in California (Public Policy Institute of California, April 2023) representing more than half of the 4,002 systems regulated for drinking water by the State Water Resources Control Board, though it is unclear how many of these systems serve a DAC. In many of the basins covered by SGMA, it is very likely that small community water systems are serving a DAC and would, therefore, be subject to this bill. It is challenging to estimate how much groundwater a small community water system uses in a basin subject to SGMA. A typical rule of thumb is that one AF of water is sufficient to meet the needs of two average California households for one year; however, water use varies greatly across regions and between rural and urban settings. If a system serves several hundred (or more) connections and relies exclusively on groundwater, it would represent a not insignificant use of groundwater in a basin's overall groundwater budget.

According to the Author

The author argues that, generally speaking, GSPs have not done an adequate job identifying managed wetlands and small community water systems in their basins, the groundwater needs of these users, or the adverse impacts that GSP management actions will have on these users. The co-sponsors of this bill, Audubon California and Clean Water Action, were joint authors of an analysis (Groundwater Sustainability Assessments, August 2022) that finds that many GSPs for critically overdrafted basins did not adequately account for the groundwater needs of DACs and the environment.

The author asserts that this is problematic because the value of "California's managed wetlands and their contribution to vital ecosystems cannot be understated" and that GSAs "should recognize these important regions in their plans as well as the impact their plans are having on our small, rural water systems." The author maintains that this bill will help to ensure that the groundwater needs of managed wetlands and small, rural water systems are better-accounted for in GSPs going forward.

Arguments in Support

Audubon California and Clean Water Action are co-sponsors of this bill and argue that SGMA requires that a GSA considers the interests of all groundwater users, including environmental users and disadvantaged communities, in its implementation of a GSP, but that in practice, many GSAs are falling short of this requirement. The co-sponsors maintain that small water systems are often solely dependent on groundwater and face affordability and technical challenges and need to be accounted for in GSPs. Likewise, the co-sponsors assert that less than 5% of the state's historic wetlands remain and, given the many public benefits these wetlands provide, the state cannot afford to lose more. The co-sponsors contend that this bill "protects small community water systems and managed wetlands from pumping reductions and fines under [SGMA] to ensure that vulnerable communities and wildlife have safe and affordable water supplies."

Arguments in Opposition

The Valley Ag Water Coalition (Coalition) opposes this bill arguing that it is premature and problematic given that basins have already submitted their GSPs and are working diligently to implement those GSPs, including six basins that are working with the State Water Board and DWR to correct deficiencies in their GSPs. The Coalition also maintains that this bill is not necessary given that SGMA already requires GSAs to consider the interests of small community water systems and groundwater dependent ecosystems in their GSPs. Finally, the Coalition maintains that this bill "places the use of groundwater to grow food and fiber at the bottom of the priority list, which threatens food security, on-farm investment, investment in the storage and delivery systems that provide agricultural water supply, farmworker jobs, and the overall socioeconomic health of rural communities."

FISCAL COMMENTS

According to the Assembly Appropriations Committee, this bill will have the following fiscal impact:

1. Cost savings of an unknown amount to the Department of Fish and Wildlife (DFW). Currently, DFW, in its role as a landowner subject to SGMA, is responsible for paying fees to GSAs for any groundwater that it extracts and uses to flood the wetlands that it manages within the basin. This bill, by providing that a GSA shall not impose a fee on groundwater use by managed wetlands, as specified, will result in cost savings to the department. DFW notes it is difficult to quantify these savings, because SGMA implementation is only recently underway and many GSPs are yet to be finalized. As more GSPs are finalized, DFW anticipates fees to increase.
2. The State Water Resources Control Board (State Water Board) and the Department of Water Resources (DWR) do not anticipate any costs as a result of this bill.

VOTES

ASM WATER, PARKS, AND WILDLIFE: 8-2-5

YES: Papan, Addis, Bennett, Bonta, Hart, Luz Rivas, Schiavo, Weber

NO: Mathis, Davies

ABS, ABST OR NV: Alanis, Alvarez, Megan Dahle, Garcia, Villapudua

ASM APPROPRIATIONS: 11-3-2

YES: Holden, Arambula, Wood, Calderon, Connolly, Mike Fong, Grayson, Haney, Hart, Lowenthal, Pellerin

NO: Sanchez, Dixon, Ta

ABS, ABST OR NV: Megan Dahle, Villapudua

UPDATED

VERSION: January 11, 2024

CONSULTANT: Pablo Garza / W., P., & W. / (916) 319-2096 FN: 0002607

Date of Hearing: January 18, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 828

Author:(Connolly) – As Amended Ver:January 11, 2024

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

SUMMARY:

This bill exempts, until January 1, 2028, groundwater use by managed wetlands and small community water systems serving disadvantaged communities (DACs) from specified authorities of groundwater sustainability agencies (GSAs) to regulate groundwater pumping under the Sustainable Groundwater Management Act (SGMA).

Specifically, this bill, among other things:

1. Provides that a GSA’s authority to regulate groundwater extraction through the establishment of groundwater extraction allocations shall not apply to small community water systems serving DACs from permitted water supply wells nor to managed wetland extractors.
2. Provides that if a small water community water system or a managed wetland extractor increases its extraction of groundwater over the average amount extracted annually from 2015 to 2020, a GSA has the authority to regulate usage above that amount.
3. Provides that a small community water system serving a DAC or managed wetland extractor may receive a groundwater recharge credit established by a GSA.
4. Provides that if a GSA reasonably determines that groundwater extraction for a managed wetland is directly causing undesirable results, a GSA may exercise its authority to implement corrective actions, in cooperation with the affected managed wetland extractor.
5. Provides that a GSA shall not impose a fee on groundwater extraction on a small community water system serving a DAC or managed wetland purposes, provided the water use for each user does not increase above the extractor’s average annual extraction from 2015 to 2020.
6. Sunsets on January 1, 2028.

FISCAL EFFECT:

1) Cost savings of an unknown amount to the Department of Fish and Wildlife (DFW). Currently, DFW, in its role as a landowner subject to SGMA, is responsible for paying fees to GSAs for any groundwater that it extracts and uses to flood the wetlands that it manages within the basin. This bill, by providing that a GSA shall not impose a fee on groundwater use by managed wetlands, as specified, will result in cost savings to the department. DFW notes it is difficult to quantify these savings, because SGMA implementation is only recently underway and many Groundwater Sustainability Plans (GSPs) are yet to be finalized. As more GSPs are finalized, DFW anticipates fees to increase.

2) The State Water Resources Control Board (State Water Board) and the Department of Water Resources (DWR) do not anticipate any costs as a result of this bill.

COMMENTS:

1) Purpose. According to the author:

Wetlands are a critical natural resources for our state, and small, rural communities are being hit the hardest by the state’s depleting groundwater resources. These disadvantaged communities usually depend on a single source for their water supply, leaving them vulnerable to drought and affordability challenges. AB 828 brings California closer to protecting safe and clean water accessibility for all California communities.

2) Background. SGMA. Signed into law in 2014, SGMA established a statewide framework to help protect groundwater resources over the long term. SGMA requires local agencies to form GSAs for medium- and high-priority basins as designated by DWR. A GSA, which is made up of one or more local agencies overlying a groundwater basin, is required to develop and implement a GSP. GSPs provide a roadmap for how groundwater basins will reach long-term sustainability without causing specific undesirable results. DWR has issued determinations regarding the adequacy of GSPs for critically overdrafted basins and a handful of medium- and high- priority basins. DWR has approved some of the plans and found others to be inadequate, thereby triggering state intervention. State intervention is a process that could result in the State Water Board temporarily managing groundwater resources until local agencies are able and willing to do so adequately. 

Wetlands and Small Community Water Systems. According to the supporters of the bill, while SGMA requires a GSA to consider the interests of environmental users and small drinking water systems in its GSP, in practice, many GSAs are falling short of this requirement. They note that several GSPs propose a one-size-fits-all cap on groundwater allocations, which will cut supplies for small community water systems and managed wetlands at the same rates as agricultural users – thereby depriving some small communities of access to safe and affordable water and causing some of the state’s last wetlands to go dry.

Fees. SGMA authorizes a GSA that adopts a GSP to impose fees on the extraction of groundwater from the basin to fund the costs of groundwater management. One of the first steps GSAs have had to take under SGMA is to identify groundwater users and uses in their basins and develop corresponding groundwater budgets. In many instances, GSAs have developed, or are still developing, groundwater pumping allocations that apportion an allowable amount of groundwater pumping to groundwater users in the basin that the GSA manages. Oftentimes, a user may pump and use more groundwater than their allocation, but the GSA will typically charge a pumper a significant fee per acre-foot of water pumped in excess of their allocation in order to dissuade pumpers from exceeding their allocations. This bill prohibits a GSA from imposing a fee on a small community water system serving a DAC or managed wetland purposes, provided the water use for each user does not increase above the extractor’s average annual extraction from 2015 to 2020.

As noted earlier, the State Water Board may place a basin in probation if DWR finds that the GSA is failing to sustainably manage its groundwater. As part of the state intervention process, the State Water Board is required to recover its programmatic costs. Most groundwater pumpers in basins subject to state intervention will be required to pay the State Water Board fees. This bill does not impact fees imposed by the State Water Board.

As part of the fiscal year (FY) 2023-24 budget, the State Water Board received $4.8 million to support 19 new positions in response to an increase in workload resulting from DWR determining that six basins have inadequate GSPs, thereby triggering State Water Board authority for those basins. However, fee revenues are difficult to predict and depend on many factors, and the State Water Board may not receive SGMA fees for two years or more after its state intervention work begins – thereby necessitating General Fund support to begin its work. While it is theoretically possible that exempting small community water systems serving DACs and managed wetlands from a GSA’s authority to establish groundwater extraction allocations could increase the likelihood that a GSP that would otherwise have been deemed adequate by DWR is – because of the exemptions in this bill – deemed inadequate (thereby triggering state intervention and, in turn, increased General Fund workload costs for the State Water Board), this scenario seems unlikely. While it is not clear precisely how much groundwater is used by small community water systems serving DACs or managed wetlands, the overwhelming majority of groundwater in basins subject to SGMA is used for irrigated agriculture.

Opposition. Writing in opposition, a coalition of business and agricultural groups argue that prohibiting GSAs from regulating certain uses of water and prioritizing two uses of groundwater above all other beneficial uses is “counterintuitive to the purpose of SGMA, which envisioned a comprehensive and well-informed groundwater regulatory framework.” They further argue that exempting certain groundwater pumpers from paying GSA fees undercuts the ability of GSAs to raise funds to implement their GSPs. Finally, the opposition contends that by exempting certain classes of water users from the fee base, this bill may prevent GSAs from complying with constitutional requirements to assess proportionate and fair charges on all beneficiaries of their services, per Propositions 218 and 26. The coalition notes: “This means that the remaining water users, such as agricultural uses and municipal uses not covered by the narrow definition of a small community water system, would face disproportionately high fees.”

Analysis Prepared by: Nikita Koraddi / APPR. / (916) 319-2081

Date of Hearing: January 9, 2024

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Diane Papan, Chair

ABPCA Bill Id:AB 828 (

Author:Connolly) – As Amended Ver:January 3, 2024

SUBJECT: Sustainable groundwater management: managed wetlands

SUMMARY: Exempts groundwater use by managed wetlands and small community water systems serving disadvantaged communities (DAC) from specified authorities of groundwater sustainability agencies (GSA) to regulate groundwater pumping under the Sustainable Groundwater Management Act (SGMA). Specifically, this bill:

1. Provides that a GSA’s authority to regulate groundwater usage through the establishment of groundwater pumping allocations shall not apply to small community water systems serving DACs with water from a permitted public water supply well nor to managed wetland extractors. Provides, however, that a GSA may regulate any groundwater pumping by these users if their groundwater use increases above the average amount of groundwater they pumped annually from 2015 to 2020.
2. Provides that a small community water system serving a DAC or managed wetland extractor may receive a groundwater recharge credit established by a GSA.
3. Provides that a small community water system serving a DAC may increase its annual average groundwater usage by 10% over its extraction allocation to accommodate growth.
4. Provides that if a GSA reasonably determines that a managed wetland is directly causing undesirable results, including land subsidence or groundwater quality degradation, it may exercise its authority to regulate said managed wetland’s groundwater pumping to implement corrective actions in cooperation with the managed wetland extractor.
5. Provides that a GSA shall not impose a fee on groundwater pumping for small community water systems serving DACs or managed wetland purposes unless pumping for either of these purposes exceeds its average annual groundwater use from 2015 to 2020. A small community water system serving a DAC may increase its average usage by 10% annually to accommodate population growth without incurring a groundwater pumping fee.
6. Defines the following terms for the purposes of this bill:
   1. “Disadvantaged community,” consistent with Water Code §79505.5, as a community with an annual median household income that is less than 80% of the statewide annual median.
   2. “Managed wetland” as the portion of public or private property that is flooded to promote habitat and food production and that is designated or administered as any of the following: a state wildlife area or ecological reserve, a national wildlife refuge, a Central Valley Project Improvement Act (CVPIA) of 1992 wetland habitat area, a conservation easement held by a public agency or nongovernmental conservation organization, or a wildlife habitat contract of no less than 10 years in duration administered by specified agencies;
   3. “Managed wetland extractor” as a person who extracts groundwater for managed wetlands; and
   4. “Small community water system” as a system serving no more than 3,300 connections or a year-long population of no more than 10,000 individuals consistent with Health and Safety Code §116275.

EXISTING LAW:

1. Provides, under SGMA, that local agencies must sustainably manage groundwater in high- or medium-priority basins by 2040. Defines sustainable management of groundwater as the avoidance of the following six “undesirable results:” (a) chronic lowering of groundwater levels; (b) reduction of groundwater storage; (c) seawater intrusion; (d) degraded water quality; (e) land subsidence; and (f) depletions of interconnected surface water (Water Code § 10720 et seq.).
2. Requires critically overdrafted groundwater basins to be managed under a groundwater sustainability plan (GSP) by January 31, 2020 and high- or medium-priority groundwater basins to be managed under a GSP by January 31, 2022 (Water Code § 10720.7).
3. Requires a GSA to consider the interests of all beneficial uses and users of groundwater in implementing SGMA (Water Code § 10723.2).
4. Grants various authorities to GSAs including the authority to impose spacing requirements on groundwater wells, to regulate, limit, or suspend pumping from groundwater wells, and to establish groundwater allocations and accounting rules for carrying over or transferring groundwater pumping extractions (Water Code § 10726.4).
5. Requires a GSA in a basin subject to SGMA to develop a GSP that has various components including, a description of the physical setting of the basin, measureable objectives to achieve sustainable management, how groundwater levels and quality will be monitored, and monitoring sites and protocols (Water Code § 10727).
6. Requires GSAs to encourage the involvement of diverse social, cultural, and economic elements of a basin’s population during development and implementation of a GSP (Water Code § 10727.8).
7. Provides that a GSA may impose fees on groundwater extraction to fund the costs of groundwater management (Water Code § 10730.2).
8. Defines “de minimis extractor” as a person who pumps two acre-feet (AF) or less of groundwater annually for domestic purposes (Water Code § 10721).
9. Defines “small community water system” as a community water system that serves no more than 3,300 service connections or a yearlong population of no more than 10,000 persons (Health and Safety Code § 116275).

FISCAL EFFECT: Unknown. This bill is keyed fiscal.

COMMENTS:

1. Purpose of this bill. Nearly 10 years have passed since the enactment of SGMA and local agencies around the state have begun SGMA implementation in earnest. The deadlines for GSP submittal were in January 2020 for critically overdrafted basins and January 2022 for the remaining high- and medium- priority basins. At this point, DWR has issued determinations regarding the adequacy of GSPs for critically overdrafted basins and a handful of medium- and high- priority basins. Despite meeting this important milestone, the author argues that, generally speaking, GSPs did not do a thorough job identifying managed wetlands and small community water systems in their basins, the groundwater needs of these users, or the adverse impacts that GSP management actions will have on these users. The co-sponsors of this bill, Audubon California and Clean Water Action, were joint authors of an analysis (Groundwater Sustainability Assessments, August 2022) that finds that many GSPs for critically overdrafted basins did not adequately account for the groundwater needs of DACs and the environment.
   
   The author asserts that this is problematic because the value of “California’s managed wetlands and their contribution to vital ecosystems cannot be understated” and that GSAs “should recognize these important regions in their plans as well as the impact their plans are having on our small, rural water systems.” The author maintains that this bill will help to ensure that the groundwater needs of managed wetlands and small, rural water systems are better-accounted for in GSPs going forward.
   
2. Background. Passed in 2014, SGMA provides a comprehensive framework to manage groundwater resources in overdrafted groundwater basins (i.e., those basins deemed high- or medium-priority by DWR). To comply with SGMA, local agencies in overdrafted basins had to form a GSA by 2017 and develop GSPs by 2020 or 2022 that will lead to sustainable groundwater management over 20 years. SGMA defines sustainable groundwater management as the avoidance of “undesirable results” (see #1, above, under Existing Law). SGMA’s explicit intent is to keep management of groundwater resources at the local level while allowing for state intervention if local agencies are unsuccessful or get off track in meeting their sustainability goals. SGMA also intends for GSAs to have flexibility to address conditions unique to their particular basin and states that it does not alter groundwater rights.
   
   One of the first steps GSAs have had to take is to identify groundwater users and uses in their basins and develop a corresponding groundwater budget. In many instances GSAs have developed, or are still developing, groundwater pumping allocations that apportion an allowable amount of groundwater pumping to groundwater users in the basin that the GSA manages. GSPs vary, but in many cases the groundwater pumping allocation represents the amount of groundwater a user may pump in a given year without incurring fees or penalties. Oftentimes, a user may pump and use more groundwater than their allocation, but the GSA will typically charge a pumper a significant fee per AF of water pumped in excess of their allocation in order to dissuade groundwater pumpers from exceeding their pumping allocations (in some GSPs, certain groundwater users have received a pumping allocation of zero and typically have to pay fees for every AF of groundwater pumped and used). In some cases, GSAs also permit the trade or sale of groundwater pumping extractions amongst users in their basin. A groundwater pumping allocation does not represent a given landowner’s groundwater rights.
   
   GSPs for critically overdrafted basins. These plans were submitted in January 2020 and DWR deemed the GSPs for 11 basins to be “adequate” (or approved) and the GSPs for six basins (Tule, Tulare Lake, Kern County, Kaweah, Delta-Mendota, and Chowchilla) to be “inadequate.” The inadequate basins have been referred to the State Water Resources Control Board for further corrections and/or designation as a probationary basin. Of the remaining three critically overdrafted basins, one is being managed pursuant to an approved alternative submittal (Pajaro Valley), one is adjudicated (Los Osos), and the final is in an adjudication proceeding (Borrego Valley).
   
   DWR cites various deficiencies in the GSPs for the six inadequate basins. The majority do not adequately address chronic lowering of groundwater levels and land subsidence; several that involve multiple agencies do not use consistent data or definitions of undesirable results; the Chowchilla GSP does not adequately examine whether there are interconnected surface waters in the basin; and the Tule and Tulare GSPs do not adequately address degraded water quality, among other deficiencies. Generally, these inadequate GSPs do not adequately account for groundwater use by small community water systems serving DACs or managed wetlands, but DWR does not identify these as deficiencies that need to be corrected in the GSPs either.
   
   GSPs for “high” and “medium” priority groundwater basins. These plans were due January 30, 2022. Of these, six GSPS that were submitted in advance of the January 2022 deadline have been deemed “adequate” and DWR determined that GSPs for an additional 10 basins are “adequate” in July 2023. DWR must release determinations for the remaining non-critically overdrafted basins by the end of January.
   
   Central Valley wetlands. According to the 2020 Central Valley Joint Venture (CVJV) Implementation Plan, roughly 220,000 acres of managed wetlands remain in the Central Valley. This number represents less than 5% of the Central Valley’s historic wetlands. The Implementation Plan estimates that wetlands need between 2.5 AF and 7.4 AF per acre annually depending on habitat type (5.1 AF for seasonal wetlands, 7.4 AF for semi-permanent wetlands, 2.5 AF for winter flooding of rice fields, and 5 AF for rice growing), time of year, and other factors. A lot of this water demand is met with surface water supplied through the federal Central Valley Project as required under CVPIA. Under CVPIA, refuges are supposed to receive their historical average supplies (“Level 2”) of 422,251 AF annually and incremental (“Level 4”) supplies of an additional 133,264 AF. Level 4 supplies usually go unmet, particularly in dry years. What portion of the remaining wetland need is met by surface water and groundwater supplies is not well-defined.
   
   The CVJV Implementation Plan does note that SGMA implementation is likely to pose challenges for wetland managers, particularly in the southern San Joaquin Valley as these wetlands “rely on groundwater as a source – and for some the only source – of water supply…. Implementation of SGMA in these areas is likely to reduce groundwater availability to a fraction of what is needed to manage wetlands.” Finally, the CVJV Implementation Plan contends that it will be difficult for wetland managers to compete with other users (e.g., agriculture) in the groundwater trading programs that many GSPs are proposing.
   
   Small community water systems. This bill exempts these systems if they serve a DAC from certain regulatory authorities of GSAs. These systems have up to 3,300 service connections or serve a year-long population no greater than 10,000 individuals. There are approximately 2,500 small community water systems in California (Public Policy Institute of California, April 2023) representing more than half of the 4,002 systems regulated for drinking water by the State Water Resources Control Board, though it is unclear how many of these systems serve a DAC. In many of the basins covered by SGMA, it is very likely that small community water systems are serving a DAC and would, therefore, be subject to this bill. It is challenging to estimate how much groundwater a small community water system uses in a basin subject to SGMA. A typical rule of thumb is that one AF of water is sufficient to meet the needs of two average California households for one year; however, water use varies greatly across regions and between rural and urban settings. If a system serves several hundred (or more) connections and relies exclusively on groundwater, it would represent a not insignificant use of groundwater in a basin’s overall groundwater budget.
3. Proposed committee amendments. The current version of this bill represents a significant policy change to SGMA. To ensure that this bill is narrowly directed at achieving its goals of better protecting small community water systems and managed wetlands, limit the scope of this bill to the current groundwater use of small community water systems and managed wetlands, and allow GSAs more time to adequately ensure these groundwater users are adequately accounted for in their GSPs, the Committee may wish to consider the following amendments:

Amendment 1

As currently drafted, this bill is somewhat ambiguous. It provides that small community water systems serving DACs and managed wetlands are exempt from a GSA’s authority to establish “groundwater extraction allocations” but references Water Code §10726.4(a) which grants a number of authorities, including the imposition of well-spacing requirements, the establishment of trading programs, and the establishment of accounting rules, among others. The sponsors maintain that their intent is only to exempt these users from a GSA’s authority relating to the establishment of groundwater allocations. In order to be more precise and avoid confusion as to the application of this bill, amend proposed Water Code §10726.4(b) of this bill as follows:

On page 9, line 25 following “Subdivision (a)” insert: (2).

Amendment 2

To limit the exceptions in this bill to the average annual use by a small community water system during a baseline period of 2015 to 2020 and ensure that any increase in groundwater use above this baseline is subject to all authorities of a GSA, amend proposed Water Code §10726.4(c) this bill as follows:

On page 9, line 39, strike the following:

(c) A small community water system serving a disadvantaged community may increase its annual average usage by 10 percent over its average annual extraction to accommodate population growth without incurring restrictions from a groundwater sustainability agency.

(d)

Amendment 3

Similar to Amendment 2, in order to ensure a GSA can assess fees on increases in groundwater use by a small community water system serving a DAC above the 2015 to 2020 baseline, amend proposed Water Code§10730.2(f) of this bill as follows:

On page 11, beginning on line 19, strike the following:

(f) A small community water system serving a disadvantaged community may increase its annual average usage by 10 percent over its average annual extraction between 2015 and 2020 to accommodate population growth without incurring fees from a groundwater sustainability agency, provided that it continues to meet the requirements to qualify as a small community water system.

(g)  

Amendment 4

To encourage GSAs to better account for the groundwater needs of small community water systems and managed wetlands in their GSPs, sunset the provisions of this bill after three years on December 31, 2027.

1. Arguments in support. Audubon California and Clean Water Action are co-sponsors of this bill and argue that SGMA requires that a GSA considers the interests of all groundwater users, including environmental users and disadvantaged communities, in its implementation of a GSP, but that in practice, many GSAs are falling short of this requirement. The co-sponsors maintain that small water systems are often solely dependent on groundwater and face affordability and technical challenges and need to be accounted for in GSPs. Likewise, the co-sponsors assert that less than 5% of the state’s historic wetlands remain and, given the many public benefits these wetlands provide, the state cannot afford to lose more. The co-sponsors contend that this bill “protects small community water systems and managed wetlands from pumping reductions and fines under [SGMA] to ensure that vulnerable communities and wildlife have safe and affordable water supplies.”
2. Arguments in opposition. The Valley Ag Water Coalition (Coalition) opposes this bill arguing that it is premature and problematic given that basins have already submitted their GSPs and are working diligently to implement those GSPs, including six basins that are working with the State Water Board and DWR to correct deficiencies in their GSPs. The Coalition also maintains that this bill is not necessary given that SGMA already requires GSAs to consider the interests of small community water systems and groundwater dependent ecosystems in their GSPs. Finally, the Coalition maintains that this bill “places the use of groundwater to grow food and fiber at the bottom of the priority list, which threatens food security, on-farm investment, investment in the storage and delivery systems that provide agricultural water supply, farmworker jobs, and the overall socioeconomic health of rural communities.”
3. Related legislation. AB 321 (Mathis), Chapter 67, Statutes of 2017, clarifies the definition of “agricultural users” to include “farmers, ranchers, and dairy professionals” for the purposes of defining the beneficial users of groundwater that a GSA must consider in the implementation of SGMA.

REGISTERED SUPPORT / OPPOSITION:

Support

Audubon California (co-sponsor)

Clean Water Action (co-sponsor)

American Rivers
Ban SUP (Single Use Plastic)
Black Brant Group, The
CAL-ORE Wetlands and Waterfowl Council
California Bowmen Hunters/State Archery Association
California Coastkeeper Alliance
California Hawking Club
California Houndsmen for Conservation
California Rural Legal Assistance Foundation (CRLA Foundation)
California Waterfowl Association
Civicwell
Communitiy Water Center
Delta Waterfowl
Environmental Working Group
Friends of the River
Grassland Water District
Leadership Counsel for Justice & Accountability
North County Watch
Point Blue Conservation Science
Restore Hetch Hetchy
San Diego County Wildlife Federation
Sustainable Conservation
The Nature Conservancy
Tulare Basin Wetlands Association
Tuolumne River Trust
UC Santa Barbara Department of Anthropology

Opposition

California Chamber of Commerce
California Association of Wheat Growers
California Association of Winegrape Growers
California Bean Shippers Association
California Farm Bureau
California Grain & Feed Association
California Seed Association
Kings River Conservation District
Modesto Irrigation District
Pacific Egg & Poultry Association
Valley Ag Water Coalition
Western Growers Association

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