BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2759|
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CONSENT
Bill No: AB 2759
Author: Assembly Water, Parks and Wildlife Committee
Amended: As introduced
Vote: 21
SENATE NATURAL RESOURCES AND WATER COMMITTEE : 9-0, 6/10/14
AYES: Pavley, Cannella, Evans, Fuller, Hueso, Jackson, Lara,
Monning, Wolk
SENATE JUDICIARY COMMITTEE : 7-0, 6/24/14
AYES: Jackson, Anderson, Corbett, Lara, Leno, Monning, Vidak
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 73-0, 5/23/14 (Consent) - See last page for
vote
SUBJECT : Interstate water rights
SOURCE : Author
DIGEST : This bill repeals unconstitutional Water Code
provisions and clarifies that the State Water Resources Control
Board (SWRCB) must administer the water rights of the Truckee
and Walker Rivers consistent with federal law.
ANALYSIS : Existing law:
1.Provides that the entire flow of water in any natural stream
which carries water from this state into any other state is
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subject to use in this state, under the laws of this state,
and the rights to such water may be, so far as not already
acquired by use in this state, acquired and held under the
laws of this state. The rights to the use of such water held
under the laws of this state are prior and superior to any
rights to the waters of such streams held under the laws of
any other state.
2.Provides that upon any stream flowing across the state
boundary, an appropriation of water in this state for
beneficial use in another state may be made only when, under
the laws of the latter, water may be lawfully diverted therein
for beneficial use in this state.
3.Provides that upon any stream flowing across the state
boundary a right of appropriation having the point of
diversion and the place of use in another state and recognized
by the laws of that state shall have the same force and effect
as if the point of diversion and the place of use were in this
state if the laws of that state give like force and effect to
similar rights acquired in this state; provided, that this
section shall not apply to the Walker River and its
tributaries or claimed rights of appropriation therefrom in
the State of Nevada, whether heretofore or hereafter
initiated.
4.States that the above provision does not apply to interstate
lakes, or streams flowing in or out of those lakes, except for
an appropriation or change in point of diversion, place of
use, or purpose of use under a right to the use of waters from
the Truckee River if the appropriation or change is made
pursuant to the operating agreement, as described.
This bill:
1.Eliminates certain reciprocity and priority setting provisions
in California law governing interstate rivers and the
appropriation of water across state boundaries and, instead,
provides that if the waters of an interstate water body have
been allocated between California and another state or Indian
tribe by a compact, Supreme Court decree, or other appropriate
method of allocating interstate waters, the state shall
exercise its authority over such waters in a manner consistent
with the rights and responsibilities established under that
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interstate allocation.
2.States that appropriations or changes in water rights
concerning the Walker River and its tributaries are subject to
the provisions of this bill.
Background
California water law includes provisions governing appropriation
of waters that flow out of and into California. One provision
holds that the entire flow of water in any natural stream which
carries water from California into any other state is subject to
use in California. Moreover, the rights to those waters shall
be prior and superior to any rights to the waters of such
streams held under the laws of any other state.
Another set of statutes provides that California will recognize
water rights held by a neighboring State if that State
recognizes water rights held in California. However, those
statutes specifically exclude the Walker River from that
reciprocity.
In 1982, the U.S. Supreme Court, in Sporhase v. Nebraska, found
as unconstitutional Nebraska statutes which were similar to
those California statutes described above. Specifically, the
Court found that the reciprocity requirement of the Nebraska
statute violates the Commerce Clause as imposing an
impermissible burden on interstate commerce; that is, the
reciprocity provision operates as an explicit barrier to
commerce between Nebraska and its adjoining States.
Unconstitutional statutes must be either removed by legislation
or the issue must reach an appellate court that then deems it
unconstitutional.
Comments
According to the author, "[Civil] Code [section] 1410(a) and
[Water Code section] 1230 are unconstitutional in that they
purport to give California jurisdiction, now and in the future,
over waters originating in our state and flowing into another
state unless that state enters into a reciprocity [arrangement]
with us. That is in direct conflict with the [Supreme Court's
decision] in Sporhase v. Nebraska?. This bill would repeal the
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above?[c]ode sections and replace [Water Code Section 1231] with
language specifying that with respect to two interstate waters
in particular - the Truckee River and the Walker River - water
rights decisions will be made consistent with their federal
compact and decree, respectively?. The reason this fix is being
proposed now is that despite the overarching legal deficiencies
in [section] 1410(a) and [section] 1230, a party could still
invoke them and force the State to raise the issue all the way
to the appellate level, which would be a waste of money and
resources."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
ASSEMBLY FLOOR : 73-0, 5/23/14
AYES: Achadjian, Alejo, Allen, Ammiano, Bigelow, Bloom,
Bocanegra, Bonta, Bradford, Brown, Buchanan, Ian Calderon,
Campos, Chau, Chávez, Chesbro, Conway, Cooley, Dababneh,
Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox, Frazier,
Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell,
Gray, Grove, Hagman, Hall, Holden, Jones, Jones-Sawyer,
Levine, Linder, Logue, Lowenthal, Maienschein, Mansoor,
Medina, Mullin, Muratsuchi, Nazarian, Olsen, Pan, Patterson,
Perea, John A. Pérez, Quirk, Quirk-Silva, Rendon,
Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Wagner,
Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, Atkins
NO VOTE RECORDED: Bonilla, Harkey, Roger Hernández, Melendez,
Nestande, V. Manuel Pérez, Vacancy
RM:nl 8/5/14 Senate Floor Analyses
SUPPORT/OPPOSITION: NONE RECEIVED
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