The California Legislature launched into its first controversial water bill of the year on Tuesday. A progressive Democrat is looking to ease the burden imposed on wetlands and disadvantaged communities by the Sustainable Groundwater Management Act. But farm advocates countered that exempting those groups from the law would set a higher standard for other pumpers while raising their costs.
With lawmakers gaveling into a new session last week, policy committees are picking up the pieces left over from the last session before moving on to new bills. Assemblymember Damon Connolly of San Rafael stood at the opposite end of agriculture and business interests with much of his legislation last year. Yet his groundwater bill was never taken up for a vote. Connolly instead parked the measure for the year in Assembly Water, Parks and Wildlife Committee.
Now lawmakers are running up against a Friday deadline to vote on bills marked as posing a fiscal cost to the state. That prompted the committee to return to Assembly Bill 828 this week.
Nearly a year after Connolly authored the measure, leadership in both houses has changed significantly. Last year Asm. Robert Rivas of Salinas took over leadership of the Assembly and is now embarking on his first full term as speaker. Rivas reshuffled the committee chairs, swapping out Asm. Rebecca Bauer-Kahan of Orinda in the water committee with Asm. Diane Papan of San Mateo, who is in her second year of office and plans to take a more collaborative approach to water issues than her predecessor.
Rivas has long held a special status within agriculture as well, since he represents a portion of the nation’s lettuce and berry powerhouse and chaired the Assembly Agriculture Committee for two years.
Bauer-Kahan, on the other hand, has been one of the harshest critics of agriculture in the Capitol. She filed a measure last year to increase penalties for illegal diversions, which farm groups opposed over fears of ramping up state regulatory authority while minimizing judicial review and due process. Like Connolly, Bauer-Kahan shelved her bill, but she has not returned to the measure this week, signaling the bill is likely dead.
As committee chair, the Bay Area progressive was a vocal advocate for other aggressive reforms to the state’s water rights system and groundwater laws and opposed efforts to streamline environmental permitting and judicial reviews for water projects.
Papan’s first hearing as chair, however, did not signal a dramatic departure from Bauer-Kahan’s leadership. She carried a more moderate voice in her limited comments yet voted in favor of AB 828, despite the strong opposition.
Connolly presented his bill as “a modest and reasonable step” in protecting safe and affordable drinking water for vulnerable rural communities. He leveled harsh criticism on the groundwater sustainability agencies (GSA) created to implement SGMA and charged that some GSAs failed to protect wetlands in their action plans.
Asm. Diane Papan, D-San Mateo“These important public trust resources continue to face numerous threats, including water availability,” he said. “Unfortunately, only 5% of California's historic wetlands remain.”
The bill, backed by several environmental groups, would grant certain exemptions from SGMA for wetlands as well as small community water systems. He reasoned that those residents are vulnerable to drought and overpumping from their agricultural neighbors.
“A majority of groundwater sustainability plans fail to meaningfully engage vulnerable communities,” said Jennifer Clary, a policy advocate for the environmental justice group Clean Water Action who testified in support of AB 828. “Our concern is that applying a 50% cut to a small water system is not really doable.”
She worried that many of the groundwater basins have to cut their pumping by 50% or more under SGMA and argued that agencies would impose fines on communities if they did not make the cut, creating an affordability issue. AB 828 would not require those communities to limit their pumping and would allow GSAs to only impose fines if the communities exceeded their average amount of use between 2015 and 2020.
Adding her support for the measure was Ellen Wehr, general counsel at the Grassland Water District, which manages water for wetland habit conservation in the San Joaquin Valley.
“Unfortunately, SGMA failed to foresee the potential damage to wetlands that depend on limited groundwater pumping,” said Wehr. “We cannot afford to lose the remaining wetlands if we want to maintain sustainable levels of biodiversity and support outdoor recreation and heritage.”
She warned that GSAs are cutting off water access to wetlands and the owners of those lands have been saddled with steep GSA bills, drawing money away from restoration projects. She explained that wetlands account for about 1% of the land within critically overdrafted subbasins and argued the remaining 99% of pumpers could absorb the costs. She noted that SGMA already exempts domestic well owners, tribes and federal lands and suggested it was an oversight to not exempt wetlands and communities as well.
“AB 828 is necessary because no one is stepping in to protect these important habitats,” said Wehr. “Wetland conservation is one of our success stories here in the Central Valley. But that success is fragile, unless legislators like you take this time to protect our last remaining fragments of California's wetlands.”
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Alexandra Biering, a water policy advocate for the California Farm Bureau, agreed with those intentions but argued AB 828 is not the appropriate platform for addressing those issues, arguing the bill would set up groundwater basins to fail. Biering described the bill as unnecessary, since SGMA already requires every plan to account for all groundwater uses, including communities and wetlands.
Clary had cited the rejection of six groundwater plans as evidence of the need for intervention from the Legislature, while Biering highlighted the example as showing the existing process is working, that the State Water Resources Control Board in reviewing those plans demonstrates how SGMA is forcing GSAs to fix such issues for small communities.
“They actually are even going further in some cases than what was in SGMA, in terms of protecting those things,” she said. “To suggest that these are left to the wolves and just get the dregs, I don't know that's necessarily the case.”
Adding more exemptions to SGMA after dozens of other plans have been approved and begun implementation would undercut their success and put those plans in jeopardy, claimed Biering.
“When you give certain categories of groundwater pumpers a free pass to pump as much as they want, you move the bar higher for everybody else in the basin, who will now have to reduce their pumping even further,” she said, noting that at least 700,000 acres of San Joaquin Valley farmland will go out of production and this bill would only increase the pain for those communities.
The California Chamber of Commerce backed up her arguments. CalChamber policy advocate Brenda Bass added that exempting a subset of groundwater users from fees would force the remaining ratepayers to make up the shortfall. She also charged that AB 828 would prioritize wetlands above communities, conflicting with the state’s law on the human right to water, and that it would put agriculture at the bottom of the list.
Republican Asm. Devon Mathis of Visalia pointed out that lawmakers have already passed legislation helping districts at risk of failing to consolidate into larger districts and maintain services at affordable rates.
Downplaying the concerns, Asm. Steve Bennet of Ventura, who has pushed for more environmental justice oversight in SGMA, said the bill targets just a small portion of the overall groundwater pumping.
“We're not talking about the rape of the groundwater,” said Bennett, referring to agricultural pumping. “We're talking about trying to make adjustments for the smallest, most vulnerable users.”
He saluted Connolly’s recent amendments, which removed a provision in the original text of the bill that would have eliminated fees for communities altogether and added a clause to sunset the provisions after three years. Those changes were enough to sway more Democrats to come on board with the legislation.
Papan concluded that the committee “very much tried to thread the needle” to balance the competing interests and said AB 828 would ensure communities are protected in a reasonable way.
The bill passed along party lines, moving to the appropriations committee, where fiscal bills face a steep fiscal hurdle in advancing amid a massive state budget shortfall.
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