Sweeping Changes to California Water Law and Policy

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In the final days before adjourning the 2013-2014 California Legislative Session, legislators passed the most sweeping changes to California water law and policy in over 100 years.

CLFP joined a long list of agricultural and business organizations in opposition to Senate Bill 1168 (Pavley) and Assembly Bill 1739 (Dickinson). These measures set up a regulatory regime for groundwater extraction across California to meet diverse and undefined rehabilitative goals that impair long-established principles of groundwater allocation established by the California Supreme Court.

In brief, these bills require the adoption of a "groundwater sustainability plan" (GSP) by January 31, 2020, for all high or medium priority basins that are subject to critical conditions of overdraft and by January 31, 2022, for all other high and medium priority basins unless the basin is legally adjudicated or the local agency establishes it is otherwise being sustainably managed. These bills allow any local agency or combination of agencies to establish a groundwater sustainability agency (GSA) for the purpose of developing and implementing a GSP. 

The genesis of this legislation was an overarching desire to remedy the chronic long term overdraft of aquifers in specified areas of the state. However, in its final form this legislation morphed into a much broader policy package addressing issues well beyond the mitigation of overdraft. While CLFP agrees that sound groundwater management by local entities to maintain basin use within safe yields is a worthy, compelling goal, this legislation goes substantially beyond that goal and severely threatens existing water rights.

Some of the major concerns that CLFP and the larger agricultural and business coalition have with AB 1739 and SB 1168 include:

• Over $1 Billion in New Fee Authority – The legislation requires fees be collected for the State Water Resource Control Board activities. Additionally, locals are to collect fees for plan development and fees for plan implementation. 
 
• Creating Conflict and Years of Litigation – Vague terms regarding surface water connectivity, groundwater dependent ecosystems, and habitats are tailor-made to ensure decades of litigation over alleged environmental impacts of water use.  Clear language using historical groundwater terms is important to minimizing future conflict.

• No Streamlined Adjudication – These measures have no provisions for streamlining adjudications. The ability to efficiently determine groundwater rights is essential to certainty and efficiency, which should be done by improving groundwater adjudications in a way that improves the process without fundamentally changing groundwater law.

• Fails to Protect Privacy – These measures fail to protect individuals’ sensitive information on well characteristics – well location, capacity, volume pumped – from public inspection. 

CLFP and the broader agricultural community worked to introduce SB 757 (Berryhill) as an alternative proposal that focused on local control over groundwater resources, reasonable state "backstop" provisions, and a focus on groundwater and the law governing groundwater – not expansive new terms that have not been litigated and defined.   SB 757 addressed the challenges facing groundwater through a far more tailored and less costly approach, and it would have spurred far less litigation as it focused on the problem basins.  Unfortunately, SB 757 never received a hearing.

The Governor has until September 30 to sign or veto legislation.  Based on the Governor’s involvement in the development of AB 1739 and SB 1168, it is highly likely he will sign both bills.

Article written by Trudi Hughes, Government Affairs Director, California League of Food Processors

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