BILL ANALYSIS Ķ
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: AB 1649 Hearing Date: June 28,
2016
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|Author: |Salas | | |
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|Version: |May 27, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Dennis O'Connor |
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Subject: State water policy: priority: surface water storage
projects and joint powers authorities
BACKGROUND AND EXISTING LAW
On November 4, 2014, the voters ratified Proposition 1, which
authorized $7.12 B in general obligation bonds to fund a variety
of water related programs and projects.
Among Prop. 1's provisions was Chapter 8. Statewide Water System
Operational Improvement and Drought Preparedness. That chapter
provides a $2.7 B continuous appropriation to the California
Water Commission (CWC) for public benefits associated with water
storage projects that improve the operation of the state water
system, are cost effective, and provide a net improvement in
ecosystem and water quality conditions.
Chapter 8 includes provisions that:
Require the CWC to select projects through a competitive
public process that ranks potential projects based on the
expected return for public investment as measured by the
magnitude of the public benefits provided, pursuant to
specified criteria.
Limits eligible project to:
Surface storage projects identified in the CALFED
Bay-Delta Program Record of Decision, dated August 28,
2000, except for specified prohibited projects.
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Groundwater storage projects and groundwater
contamination prevention or remediation projects that
provide water storage benefits.
Conjunctive use and reservoir reoperation projects.
Local and regional surface storage projects that improve
the operation of water systems in the state and provide
public benefits.
Prohibit the CWC from allocating funds for a project before
December 15, 2016, and until the CWC approves the project
based on the CWC's determination that all of the following
have occurred:
The CWC has adopted the regulations for quantifying
public benefits and specifically quantified and made public
the cost of the public benefits associated with the
project.
The project applicant has entered into a contract with
each party that will derive benefits, other than public
benefits, from the project that ensures the party will pay
its share of the total costs of the project. The benefits
available to a party shall be consistent with that party's
share of total project costs.
The project applicant has entered into a contract with
each public agency that administers the public benefits,
after that agency makes a finding that the public benefits
of the project for which that agency is responsible meet
all the requirements of this chapter, to ensure that the
public contribution of funds pursuant to this chapter
achieves the public benefits identified for the project.
The CWC has held a public hearing for the purposes of
providing an opportunity for the public to review and
comment on the information required to be prepared pursuant
to this subdivision.
Further prohibit the CWC from allocating funds to a project
until of the following additional conditions are met:
Feasibility studies have been completed.
The commission has found and determined that the project
is feasible, is consistent with all applicable laws and
regulations, and will advance the long-term objectives of
restoring ecological health and improving water management
for beneficial uses of the Delta.
All environmental documentation associated with the
project has been completed, and all other federal, state,
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and local approvals, certifications, and agreements
required to be completed have been obtained.
Allow funds allocated for surface storage projects to be
provided to local joint powers authorities (JPAs) formed by
irrigation districts and other local water districts and local
governments within the applicable hydrologic region to design,
acquire, and construct those projects. Such JPSs shall own,
govern, manage, and operate a surface water storage project,
subject to the requirement that the ownership, governance,
management, and operation of the surface water storage
project.
Declare, that "In approving the Water Quality, Supply, and
Infrastructure Improvement Act of 2014, the people were
informed and hereby declare that the provisions of this
chapter are necessary, integral, and essential to meeting the
single object or work of the Water Quality, Supply, and
Infrastructure Improvement Act of 2014. As such, any amendment
of the provisions of this chapter by the Legislature without
voter approval would frustrate the scheme and design that
induced voter approval of this act. The people therefore find
and declare that any amendment of the provisions of this
chapter by the Legislature shall require an affirmative vote
of two-thirds of the membership in each house of the
Legislature and voter approval."
PROPOSED LAW
This bill would require the Department of Water Resources (DWR),
by April 30, 2017, to develop a state water policy that gives
priority to the formation of joint powers authorities that are
formed to address critical surface water storage needs and to
the funding of the joint powers authorities' surface water
storage projects.
The bill also makes a number of findings regarding the need for
new surface storage, and explicitly finds:
Of the water storage projects available, the Temperance
Flat Dam and Sites Reservoir will meet statewide goals and
provide all of these public benefits to the greatest
extent.
ARGUMENTS IN SUPPORT
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According to the author, "This bill urges the state to expedite
water storage projects. As California continues to combat
historic drought conditions, we should be doing everything we
can to update our water storage infrastructure. Had investments
been made decades ago, we would be prepared to capture the
rainfall from recent El Niņo storms. Expanding and improving
California's water storage capacity is long overdue."
ARGUMENTS IN OPPOSITION
The Association of California Water Agencies (ACWA) object to
the declaration that of the water storage projects available,
the Temperance Flat Dam and Sites Reservoir will meet statewide
goals and provide all of these public benefits to the greatest
extent. ACWA writes that while they advocated for the inclusion
of funding for surface storage projects, they also advocated
that there be no earmarks. Finally, it writes "In 2015 and
2016, ACWA has been consistent in taking negative positions on
bills that were attempting to rewrite Proposition 1 after its
enactment."
A coalition of environmental interests similarly objects to
giving priority to the JPAs formed to fund the propose
Temperance Flat Dam and Sites Reservoir. Specific objections
include:
"AB 1649 picks 'winners and losers" among water storage
projects. This contravenes the original intent of the
Legislature and assurances given California voters that
Proposition 1 funding would be competitively allocated. Of the
41 concept papers for water storage projects recently
submitted to the California Water Commission, only four are
proposed by JPAs."
"Without any substantiating evidence, AB 1649 flatly states
that the controversial Temperance Flat Dam and the Sites
Reservoir "will meet statewide goals" and provide "public
benefits to the greatest extent." There are few public
documents available to confirm this statement."
"In fact, the Temperance Flat Dam fails to meet statewide
goals to increase water supply reliability and provide real
public benefits. Based on existing federal environment review
documents and public and regulatory agency comments, the
proposed dam will cost billions of dollars, produce a paltry
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1/10th of 1% increase in the state's water supply, provide no
substantial public benefits, and result in unacceptable
environmental harm to the San Joaquin River. In addition,
this project has not been subject to environmental review
under the California Environmental Quality Act (CEQA), which
is required under Prop. 1."
"Quantifiable water supply and public benefits that may be
provided by the Sites Reservoir project are largely
speculative at this point and highly dependent on how the
project is operated. No complete CEQA analysis or feasibility
report has been released by CDWR or the Sites JPA for review
and comment by the public and regulatory agencies.
Conservationists are concerned that potential adverse impacts
to the Sacramento River caused by Sites diversions are being
ignored or glossed over. There is simply no evidence in the
public record at this time that Sites deserves prioritized
state attention and funding over other projects."
COMMENTS
Bill Won't Do What The Author Desires. While the author intends
to give a boost to the Temperance Flat Dam and Sites Reservoir,
the bill's approach won't do that. Prop. 1 continuously
appropriated funds to the CWC and gave it specific rules
governing how it was to allocate those funds. This bill tells
DWR to develop a policy. That presents a problem.
A policy developed by DWR can't, in and of itself, affect how
the CWC allocates its funds. To change the rules for how the
CWC allocates the storage funds, one would need to amend Chapter
8 of Proposition 1. And, by the provisions of Chapter 8, any
amendment to that chapter by the Legislature requires an
affirmative vote of two-thirds of the membership in each house
of the Legislature and voter approval.
What About Future Bonds? A future bond might be affected by a
policy developed by DWR that gives priority to the funding of
the joint powers authorities' surface water storage projects.
However, it would be simplest just to write the bond measure
with the desired priorities and considerations in it. Some
would argue that is precisely what the legislature did when
writing Proposition 1.
How Would DWR Do This? DWR is not well suited to developing
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such a policy. The CWC advises the Director of DWR, approves
rules and regulations, and monitors and reports on the
construction and operation of the State Water Project. In
2009, comprehensive water legislation was enacted to give the
Commission new responsibilities regarding the distribution of
public funds for water storage projects, and the development of
regulations for the quantification and management of the public
benefits associated with the projects. Because of its
regulatory authority, the Commission is in a better position to
adopt regulations on funding surface water storage projects.
Additionally, establishing a state policy on funding JPA
projects would likely be subject to the regulatory process in
the Administrative Procedures Act (APA). Typically, it takes
about 18 months to adopt and approve regulations through the
Office of Administrative Law. Even with an APA exemption, the
60-day timeline in this bill will have significant costs.
Lastly, DWR does not have expertise or authority over joint
powers authorities which typically are formed between public
agencies under contractual agreement. DWR would likely require
outside legal counsel to formulate the policy and the 60-day
deadline would not allow sufficient time for public input.
Would Mostly Benefit Sites. While the findings call out both
Temperance Flat Dam and Sites Reservoir, assuming for the sake
of argument that this bill did result in an actionable policy
that prioritized JPAs for funding, only Sites is proposed to be
constructed and operated by a JPA. If Temperance Flat Dam is
build, the U.S. Bureau of Reclamation would almost certainly be
the project sponsor, as the Bureau issued the Draft Feasibility
Report and the Draft Environmental Impact Statement, the dam
would inundate federal lands, and it would be directly upstream
of the Bureaus Friant Dam.
SUGGESTED AMENDMENTS: None
SUPPORT
Fresno Chamber of Commerce
Madera County Board of Supervisors
OPPOSITION
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American Rivers
Association of California Water Agencies
American Whitewater
The Bay Institute
Big Sandy Rancheria Western Mono Indians
Butte Environmental Council
California Sportfishing Protection Alliance
California Wilderness Coalition
Clean Water Action
Foothill Conservancy
Friends of the River
Natural Resources Defense Council
Planning and Conservation League
Revive the San Joaquin River
Sacramento River Preservation Trust
Sierra Club California
South Yuba River Citizens League
Winnemem Wintu Tribe
Private Citizen (1)
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