BILL ANALYSIS Ó
AB 142
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Date of Hearing: March 23, 2015
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
AB 142
(Bigelow) - As Introduced January 12, 2015
SUBJECT: Wild and scenic rivers: Mokelumne River
SUMMARY: Requires, prior to the designation of the Mokelumne
River, the Secretary of the Natural Resources Agency (NRA) to
conduct a study analyzing the suitability or non-suitability of
the Mokelumne River, its tributaries, or portions of the river
for addition to the Wild and Scenic Rivers System (System). The
study shall include the Secretary's recommendations on whether
the river should be designated.
EXISTING LAW, pursuant to the California Wild and Scenic Rivers
Act (Act):
1)Declares that it is the policy of the state that certain
rivers that possess extraordinary scenic, recreational,
fishery, or wildlife values be preserved in their
"free-flowing" state, together with their immediate
environments, for the benefit and enjoyment of the people of
the state. Declares that such use of these rivers is the
highest and most beneficial use and is a reasonable and
beneficial use of water.
2)Defines "free-flowing" as existing or flowing without
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artificial impoundment, diversion, or other modification of
the river. (The presence of low dams, diversion works, and
other minor structures does not automatically bar a river's
inclusion within the System.)
3)Requires that those rivers or segments of rivers included in
the System be classified as one of the following:
a) Wild rivers, which are those rivers or segments of
rivers that are free of impoundments and generally
inaccessible except by trail, with watersheds or shorelines
essentially primitive and waters unpolluted;
b) Scenic rivers, which are those rivers or segments of
rivers that are free of impoundments, with shorelines or
watersheds still largely primitive and shorelines largely
undeveloped, but accessible in places by roads; or
c) Recreational rivers, which are those rivers or segments
of rivers that are readily accessible by road or railroad,
may have some development along their shorelines, and may
have undergone some impoundment or diversion in the past.
4)Designates several California rivers and segments thereof as
components of the System.
5)Requires the NRA to be responsible for coordinating the
activities of state agencies whose activities affect the
rivers in the System with those of other state, local, and
federal agencies with jurisdiction over matters that may
affect the rivers.
6)Requires the NRA to study and submit to the Governor and
Legislature reports on the suitability or nonsuitability for
addition to the system when the Legislature designates
potential additions to the system. The reports shall include
the following:
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a) Recommendations and proposals with respect to the
designation of a river or segment;
b) Maps and illustrations to show the area included
within the report;
c) Characteristics which do or do not make the area a
worthy addition to the system;
d) Status of land ownership and use;
e) Potential uses which will be enhanced, foreclosed,
or curtailed if included in the System.
THIS BILL:
1)Requires a study by the NRA that analyzes the suitability or
non-suitability of a proposed designation prior to the
designation of the Mokelumne River, its tributaries, or
portions thereof as additions to the System.
2) Requires the study to include:
a) A suitability analysis that includes the potential
effects on the ability of public agencies and utilities
within the watershed to meet current and projected future
water requirements through the development of new water
supplies from the Mokelumne River;
b) Any effects of climate change;
c) Maps and illustrations to show the area included within
the report;
d) Characteristics which do or do not make the area a
worthy addition to the system;
e) Status of land ownership and use;
f) Potential uses which will be enhanced, foreclosed, or
curtailed if included in the System.
3)Requires the NRA's recommendations and proposals with respect
the proposed designation.
FISCAL EFFECT: Unknown
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COMMENTS:
1)Author's Statement:
AB 142 directs the Secretary of the Natural Resources Agency to
conduct a study of the Mokelumne River, prior to a designation
as wild and scenic, to ensure that all environmental and water
supply effects are taken into account. The impacts of climate
change are also to be taken into account.
2)The Act. The Act was passed in 1972 to preserve designated
rivers possessing extraordinary scenic, recreation, fishery,
or wildlife values. With its initial passage, the System
protected segments of the Smith River and tributaries, Klamath
River and tributaries, Scott River, Salmon River, Trinity
River, Eel River, Van Duzen River, and American River. The
System was subsequently expanded by the Legislature to include
the East Carson and West Walker rivers in 1989, the South Yuba
River in 1999, the Albion River and Gualala Rivers in 2003,
and Cache Creek in 2005. In addition, segments of the McCloud
River, Deer Creek, and Mill Creek were protected under the Act
in 1989 and 1995 respectively, although these segments were
not formally designated as components of the System.
The Act provides a number of legal protections for rivers
included within the System, beginning with the following
legislative declaration:
It is the policy of the State of California that
certain rivers which possess extraordinary scenic,
recreational, fishery, or wildlife values shall be
preserved in their free-flowing state, together with
their immediate environments, for the benefit and
enjoyment of the people of the state. The Legislature
declares that such use of these rivers is the highest
and most beneficial use and is a reasonable and
beneficial use of water within the meaning of Section
2 of Article X of the California Constitution.
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The Act defines "free-flowing" as "existing or flowing without
artificial impoundment, diversion, or other modification of
the river." The existence of minor structures, or even major
dams located upstream or downstream of a specific segment,
does not preclude a river from designation. Several rivers,
such as the Klamath, Trinity, Eel, and lower American, are
included in the System despite substantial flow modifications
by existing upstream dams and impoundments.
No dam, reservoir, diversion, or other water impoundment
facility may be constructed on any river segment included in
the System. However, there are exemptions, which include
temporary flood storage facilities on the Eel River and
temporary recreational impoundments on river segments with a
history of such impoundments. NRA cannot authorize these
temporary recreational impoundments without first making a
number of findings.
A cornerstone of the Act is the non-degradation clause, which
prohibits new projects and activities from adversely affecting
the free-flowing condition and natural character of river
segments included in the System.
The Act was patterned after the 1968 National Wild and Scenic
Rivers Act. The state and federal acts share similar criteria
and definitions in regard to the purpose of protecting rivers,
the identification of free flowing rivers and extraordinary or
outstanding values suitable for protection, establishing a
study process to include rivers in the system, as well as an
identical classification system. The primary purpose of both
the state and federal acts is to prohibit new water
impoundments on designated rivers.
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3)The Mokelumne River. Located in the Central Sierra, the
Mokelumne is a hard-working river with dams and diversions
providing irrigation water for agriculture in the Central
Valley while also generating hydro-electricity for more than
200,000 homes. The water quality found in the North Fork and
main stem of the Mokelumne River has been found to be
extremely high. The East Bay Municipal Utilities District
serves approximately 1.4 million residents of the East Bay
with drinking water from this river segment.
The river is home to diverse wildlife populations, rare
wildlife, and a trout fishery. It also features deep granite
canyons, the massive Devil's Nose and Calaveras Dome,
cascading waterfalls, dramatic gorges, and mature riparian
forests that afford increasingly rare opportunities to view
isolated, primitive mid-Sierra natural beauty. The river is
enjoyed by many for recreation such as swimming, whitewater
kayaking and rafting, and hiking.
4)Studies. While Section 5093.547 of the Public Resources Code
does require the NRA to study potential additions to the
system, no study has been conducted in over 20 years. AB 3101
(Sher, 1986) and AB 653 (Sher, 1993) required studies by the
NRA, which included a proposed designation, interim
protections while the study was conducted, and a due date for
the study.
Rivers have been added to the system by the Legislature
without studies. The Legislature added the South Yuba River in
1999, the Albion River and Gualala Rivers in 2003, and Cache
Creek in 2005 to the System without a study.
AB 142 does not propose a designation on the Mokelumne River
to be studied. Therefore, the Secretary will not actually
conduct a wild and scenic study of the Mokelumne River unless
another bill proposes a designation or if the Secretary
proposes a designation. The author and committee may wish to
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amend the bill to propose a designation on the Mokelumne
upstream from the upper extent of Pardee Reservoir.
AB 142 requires extra consideration beyond what is already
considered in a wild and scenic study for the impacts to water
supply projects and climate change. While climate change was
not considered in prior wild and scenic studies, potential
uses, such as water supply development, are already required
to be considered. This creates confusion and may require the
study to consider the impact of unneeded projects that could
not realistically be built. The author and committee may wish
to amend the bill to define "projected future water
requirements" to be "feasible projects to meet foreseeable
demands."
Prior study bills also included public input, a due date by
which the study should be complete, and interim protections
for the river proposed for designation. This bill does not
contain any of those components. The author and committee may
wish to amend the bill to take public input from a broad range
of stakeholders, include a due date of December 31, 2016 and
have interim protections including a prohibition on
construction of any dam, reservoir, diversion, or other water
impoundment facility and a prohibition on the state assistance
or funding for projects that could adversely impact the
free-flowing condition of the river.
Proponents of the bill have concerns that interim protections
may impact their water right application before the State
Water Resources Control Board (SWRCB). Last year SB 1199
included a provision saying wild and scenic designation could
have no impact on this water right. However, it is unclear
how wild and scenic status has affected water rights
historically. The author and committee may wish to amend the
bill to protect Amador Water Agency's (AWA) water right
application pending before the SWRCB and include in the study
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how wild and scenic status has affected water rights
historically to better understand the impacts of designation.
5)Prior legislation. Last year, SB 1199 attempted to designate a
37 mile portion of the Mokelumne River in Calaveras and Amador
Counties in the Sierra Nevada as a wild and scenic river. SB
1199 was held in the Assembly Appropriation Committee.
The AWA opposed SB 1199 last year. Chief among their concerns
was the scope of the anti-degradation provision, which, as
stated above, requires future diversion projects to have no
adverse effect on the free-flowing condition and natural
character of the river and segment. The analysis of SB 1199
pointed out that there are no known cases where the
anti-degradation provision has been invoked to preclude a
diversion project. However, AWA was concerned about the plain
meaning of the provision and the uncertainty it creates for
future projects.
6)Support. AWA supports AB 142, "because Amador County has very
limited amounts of groundwater, the Mokelumne River has always
been the principal source of water for AWA to meet the needs
of Amador County. Dependence on the river will only increase.
Moreover, California's ongoing drought condition has helped
heighten awareness in the region of a critical need to
shore-up existing supplies with supplemental storage at
existing facilities to meet current and future demands."
7)Opposition. Friends of the River and the Foothill Conservancy
raise concerns that "AB 142 would thwart state protection of
the river if wild and scenic designation might possibly result
in any negative impact on undefined future local water supply
or complications due to climate change." They also point out
that "the Mokelumne has been the subject of two federal Wild
and Scenic River studies, a watershed assessment, and most
recently, an interregional water planning process that has
cost nearly $900,000--all paid for by the taxpayers."
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REGISTERED SUPPORT / OPPOSITION:
Support
Amador County Board of Supervisors
Amador Water Agency
Association of California Water Agencies
Calaveras County Republican Party
Calaveras County Taxpayers Association
Calaveras County Water District
Calaveras Public Utility District
City of Jackson
City of Plymouth
City of Sutter Creek
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First Mace Water Association
Jackson Valley Irrigation District
Mountain Counties Water Resources Association
Pine Grove Community Services District
Rabb Park Community Services District
Opposition
Amador Olive Oil
American River Touring Association
American Whitewater
AquAlliance
Bear Yuba Land Trust
Butte Environmental Council
California Canoe & Kayak
California League of Conservation Voters
California Outdoors
California River Watch
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California Sportfishing Protection Alliance
California Water Impact Network
California Wilderness Coalition
Center for Sierra Nevada Conservation
Chico Paddleheads
Clean Water Action
Coast Action Group
Community Action Project
Defenders of Wildlife
East Bay Municipal Utility District (unless amended)
Ebbetts Pass Forest Watch
El Dorado Chapter of Trout Unlimited
Environmental Water Caucus
Foothill Conservancy
Forest Issues Group
Friends of Hope Valley
Friends of the River
Mariposans for the Environment and Responsible Government
Natural Heritage Institute
Northcoast Environmental Center
North Coast Rivers Alliance
O.A.R.S Companies
Planning and Conservation League
Protect American River Canyons
Restore the Delta
Safe Alternatives for Our Forest Environment
San Francisco Crab Boat Owners' Association
Save the American River Association
Sierra Club California
Sierra Foothills Audubon Society
Sierra Nevada Adventure Co.
Sierra Nevada Alliance
South Yuba River Citizens League
Terre Rouge and Easton Wines
The Fish Sniffer
The River Store and Current Adventures
Tuolumne River Trust
West Point News & Upcountry News
Winnemem Wintu Tribe
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Analysis Prepared by:Michael Jarred / NAT. RES. / (916) 319-2092