May 5, 2022

The groundwater management wars are heating up at the Capitol. AB 2201 (Bennet) started as a bill to require a groundwater sustainability agency (GSA) in a critically over-drafted basin to establish and implement a process to issue permits for groundwater extraction facilities by July 1, 2023. This would have applied to all facilities except for those where the groundwater being used for domestic, environmental, existing, or renewable energy purposes. CSAC engaged with the author and committee to discuss implications of shifting well permitting away from the counties, and were in negotiations when the Governor released his Executive Order on well permitting.

Executive Order (EO) N-7-22, issued on March 28, 2022, extends the existing drought emergency and requires state and local agencies to take various actions to respond to the drought conditions present across the state.  The Order prohibits a local or public agency from permitting a new groundwater well, or the alteration of an existing well, in a groundwater basin subject to the Sustainable Groundwater Management Act (SGMA) without first obtaining written verification from the managing GSA.  The GSA must verify that groundwater extraction by the proposed well would not be inconsistent with any sustainable groundwater management program and would not decrease the likelihood of achieving a sustainability goal for the basin.  Furthermore, the EO requires that a proposed new well, or modification of an existing well, would not interfere with nearby wells or harm infrastructure.  While the EO takes a different approach than AB 2201, its aim is to get at the same issue that the bill attempts to remedy.

In its hearing before the Assembly Water, Parks and Wildlife Committee, the committee took a drastic action to gut and amend AB 2201 to roughly mirror the EO. Specifically, the committee’s amendments would codify the EO and make its requirements permanent rather than just during a drought emergency.  

CSAC, along with colleagues at the Rural County Representatives of California, CalChamber, and some agricultural interests, are opposing the revised bill for multiple reasons. First, these efforts fundamentally change the nature of the original intent of SGMA—to allow for flexible local control based on local hydrologic conditions. Second, the bill requires a GSA to allow for a 30-day public comment period before making a determination about a proposed new well. This makes all permit actions de facto discretionary, which either adds a new duplicative public comment process to those already established under the California Environmental Quality Act (CEQA) or makes well permitting decisions subject to CEQA.In all, this increases the risks for litigation, both within the CEQA context and in relation to groundwater.

Finally, the EO is current law and practice until it is rescinded. Questions remain about how the EO should be interpreted in areas that are not priority basins. Should every well, even in previously adjudicated basins or well-managed basins, be subject to a determination of no harm? Should we not wait to see how major issues of CEQA and litigation are sorted before we codify this major change to well permitting?

Stay tuned. AB 2201 is currently awaiting a hearing before the Assembly Appropriations Committee where the fiscal impacts of the bill will be considered.