BILL ANALYSIS
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
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BILL NO: AB 2483 HEARING DATE: June 22, 2010
AUTHOR: Coto URGENCY: No
VERSION: June 16, 2010 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: Local Government FISCAL: Yes
SUBJECT: Santa Clara Valley Water District.
BACKGROUND AND EXISTING LAW
The Santa Clara Valley Water District (district) is a special
district that provides wholesale water supply and flood
management services to Santa Clara County. Increasingly, it is
also undertaking environmental restoration and management
programs and projects. The district serves approximately 1.8
million people and 200,000 commuters in the 15 cities and
unincorporated areas of the 1,300 square mile county in the
southern San Francisco Bay Area.
The district is authorized and operates under the Santa Clara
Valley Water District Act (Act), enacted by the Legislature in
1951. The Act has been amended numerous times over the years as
the district merged with other entities, assumed additional
duties, and adapted to new conditions and issues. There has not
been a comprehensive revision of the Act since it was originally
enacted in 1951.
PROPOSED LAW
This bill revises and recasts the Santa Clara Valley Water
District Act. Specifically, this bill :
1)Repeals the current uncodified Act.
2)Completely rewrites and reorganizes the Act and places it in a
new division of the Water Code.
3)Adds legislative findings and declarations regarding the need
for an integrated approach to flood protection and water
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supply.
4)Adds legislative findings that this Act shall not be construed
to provide the district with any of the following:
Regulatory authority that conflicts with authority
already exerted by the State Department of Public Health,
the State Water Resources Control Board, the California
regional water quality control boards, or the Public
Utilities Commission to require water conservation
measures.
Jurisdiction over water conservation measures that
conflict with measures that have been imposed by cities in
Santa Clara County, the County of Santa Clara, or water
retailers. or,
Unilateral authority to impose measures on other
agencies to mitigate climate change or increase the
production of renewable or alternative energy.
1)States the intent of the Legislature that:
The district lead, assist, and oversee water
conservation efforts and regulate only in the absence of
other effective efforts, or as necessary to ensure
continued delivery of water under the district's state and
federal contracts.
This Act should not conflict with any provisions of the
California Constitution, or impact existing water rights.
1)Adds succession language.
2)Defines terms, including:
"Abandoned well" - any well that has not been used for
one year or more, unless the owner demonstrates intention
for future use of the well as prescribed.
"Conjunctive management" - the coordinated and planned
management by the district of all available water
resources, including groundwater, surface water, treated
water, recycled water, and other water resources to
optimize the availability, reliability, and quality of
water supplies and to meet other overall water resource
management objectives.
"Groundwater" - all water beneath the earth's surface
whether or not flowing through known and definite channels.
"Habitat" - the specific area or environment in which a
particular type of plant or animal lives. To be complete,
an organism's habitat must provide all of the basic
requirements of life for that organism.
"Integrated water management" - a holistic approach to
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flood, water resources, and environmental activities.
"Operator" - the person operating a water-producing
facility. The owner of such a facility shall be
conclusively presumed to be the operator unless
satisfactory showing is made to the district that the
water-producing facility actually is operated by some other
person.
"Recycled water" - wastewater that is suitable for
beneficial use as a result of treatment.
"Stewardship" - the careful and responsible management
of the environment and natural resources for the current
and future benefit of the greater community.
"Water conservation" - technological or behavioral
improvements that lower demand or lower per capita water
use.
1)Authorizes the district, in addition to its current
responsibilities, to do any of the following:
Protect against land subsidence.
Plan for and adapt to climate change in a cost efficient
manner. and,
Encourage the integration of energy and water policies.
1)Recasts the district's eminent domain authorities, providing
the district, upon payment of just compensation, the following
authorities:
To exercise the power of eminent domain, either within
or outside the district, in connection with the purposes
and activities authorized by this part.
To exercise the power of eminent domain to acquire
surface water or extract groundwater, from a person with
the legal right to use that water.
1)Provides the district with the power to construct, manage, and
maintain all district flood protection facilities, including
levees, modified channels, bypasses, culverts, floodwalls,
detention basins, diversion structures, all appurtenances and
other structures, as well as to utilize nonstructural methods,
for the purpose of containing or conveying flood waters.
2)Authorizes the district to participate in the market of
credits or other benefits related to reduction of
environmental impacts or improved integrated resource
management.
3)Provides that district with the power to enact regulations to
protect against the diminution of the water supplies of the
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district for the benefit of its inhabitants, including
reasonable regulation of existing and proposed wells against
acts destructive of the watershed, and of exportation of water
from the district, or from a zone, or between district charge
zones.
4)Provides the district with the following additional powers
with regard to protection of water quality:
To conduct investigations of the quality of surface
water or groundwater within the district to determine if
water is being degraded, contaminated, or polluted.
To expend funds to provide a replacement water supply
for contaminated water, to perform any cleanup,
containment, abatement, prevention, remedial work, public
notification, or educational public outreach which, in the
determination of the board, is necessary because of the
need for prompt action to prevent, abate, or contain any
threatened or existing contamination of or pollution to the
surface water or groundwater of the district. This action
may be taken in addition to work by the contaminator or
polluter, or if the contaminator or polluter fails to take
action. The district may perform the work, itself, by
contract, or in cooperation with any other governmental
entity. The work shall be performed in an economical and
efficient manner.
To hold the contaminator or polluter liable for costs
if, the district provides a replacement water supply or
causes contamination or pollution to be cleaned up or
contained, the effects abated, or other necessary remedial
action is taken to address actual or threatened
contamination or pollution. and,
To prevent land surface subsidence, where credible,
fact-based scientific evidence demonstrates that water
quality is in danger of being adversely affected.
1)Authorizes the district to provide for the protection,
enhancement, and restoration of watercourses, watersheds,
wetlands, riparian functions, habitat, and natural resources
in connection with carrying out the purposes set forth in this
part.
2)Specifies that the district may impose groundwater management
charges to cover the costs of groundwater management
activities, including conjunctive use, for the production of
water from the groundwater supplies within a zone of the
district that benefits from recharge of imported water, or
from the extraction of groundwater from all water extraction
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facilities within the district.
3) States that the district does not have the power to supersede
the land use planning authority of a city, county, or any
other entity to which land use planning authority has been
delegated.
4)Requires the district to have a member of a public water
utility that operates within the district be a member of an
advisory board established by the district, so long as such
representation is allowed under applicable conflict of
interest laws.
5)Requires the district to follow a prescribed process when
adopting, amending, or repealing an ordinance.
6)Establishes an administrative appeal process through which a
person aggrieved by a decision of the district may appeal that
decision to the chief executive officer, and if necessary,
ultimately the Board.
7)Specifies that groundwater management within the boundaries of
the district is a primary purpose for which the district was
established and is empowered.
8)Requires the district to conjunctively manage its groundwater
and surface water resources to optimize water supply
reliability for the benefit of the county as a whole and to
protect infrastructure from subsidence. This includes
actively recharging groundwater basins using local and
imported water supplies as well as in-lieu recharge methods,
including, but not limited to, treated water deliveries,
recycled water development, water banking, and water
conservation programs.
9)Authorizes the district, in order to improve groundwater
supplies, to do all of the following:
Impose reasonable registration and measurement device
requirements and performance standards on water-producing
facilities to minimize impact on water resources.
Require the owner or operator of each water-producing
facility to install and maintain a water meter or, if a
meter is not required, to submit a sworn statement to the
district regarding groundwater production.
Require urban water conservation practices and measures,
including the imposition of rate structures to promote
water conservation, such as tiered rates or other methods
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aimed at discouraging the wasteful use of water.
Require efficient water management practices from
agricultural water users that are consistent with state
requirements.
Regulate ground water extractions to the extent
necessary to prevent groundwater overdraft and minimize the
risk of land subsidence.
1)Specifies that a water retailer or other entity that has
adopted and is implementing an urban water management plan or
an equivalent conservation plan, is not subject to additional
water conservation requirements imposed by the district, if
the water retailer has adopted, and is implementing, an urban
water management plan, unless those additional requirements
are a precondition for the continued delivery of imported
water to the district as established by state or federal law.
2)Requires the district to annually assess and report on the
district's efforts toward protection and augmentation of the
water supplies of the district. The public report shall serve
as the basis for proposing any increase or decrease in an
existing charge or fee or for the imposition of a new charge
or fee and shall include all of the following information:
Information describing the district's activities in the
protection and augmentation of the water supplies of the
district.
Information describing in detail the present and future
water requirements of the district.
Expected future capital improvement and maintenance and
operating requirements.
The estimated costs for the fiscal year, and the long
term, of managing, protecting, operating, maintaining,
augmenting, and financing water supplies for each zone,
including a detailed basis upon which the costs are
calculated and the reasons that any particular groundwater
management charge is proposed to be increased, unchanged,
or reduced.
Information specifying the services provided within each
zone where a groundwater management charge has been imposed
and collected, or is recommended to be imposed. The
methodology for ascribing a particular cost or portion of
cost to a particular zone shall be specifically identified.
If any groundwater management charge increase is
recommended for a zone, a proposal of a rate or rates per
acre-foot for agricultural water, and a rate or rates per
acre-foot for all water other than agricultural water shall
be stated in the report.
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1)States that the district must comply with Article XIII D of
the California Constitution when proposing to impose or
increase property related groundwater management charges.
including providing a notice and protest process.
2)Specifies that a previously approved charge remains in effect
until reduced or increased.
3)Specifies that the district may impose a different groundwater
management rate for water to be used for agricultural
purposes.
4)Expands the district's authority on what groundwater
management charges can be used for to include the following
activities:
Managing water supplies for the current and future
benefit of the district, including demand management
activities and watershed stewardship activities related to
the preservation and improvement of the quality of
groundwater supplies in the zone where the charge is
levied.
Actions and programs to conserve, store, extract,
inject, recharge, recycle, protect, treat, transfer,
exchange, or distribute water for the current and future
benefit of the district.
1)Establishes a specific process for imposing and collecting
groundwater management charges.
2)States that it is the intent of the district to ensure that
the public is informed about proposed capital projects and
their funding sources, that broad environmental considerations
are included at the earliest possible phase of planning, and
that adequate opportunities are afforded the public to
participate in the decision making process.
3)Establishes a public process for reviewing engineering reports
for capital projects.
4)Reaffirms existing authorities for enforcement of this Act.
5)States that the provisions of this measure are severable.
6)Declares that a special law for the district is necessary
because of the unique and special surface water, groundwater,
and floodwater problems in the area included in the district.
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ARGUMENTS IN SUPPORT
According to the district, "Increasing pressures on the
Bay-Delta system, the source of half of Santa Clara County's
water supplies, make it imperative that the district have clear
authority to promote water conservation and protect local
groundwater supplies. While this revision in authority will
position the district to better implement new state policy
direction regarding conservation and management of our
increasing scare water supply, it also presents an opportunity
to bring the entirety of the Act current."
"In 2008, the district held a series of meetings throughout
Santa Clara County to solicit public input into potential
changes t the Act. That input guided this proposed legislation.
It called for:
a.greater accountability and transparency in the operation
of the district by providing clearer notices to the
public and greater opportunity for public input, and by
making the groundwater charge-setting process more
transparent,
b.clarifying confusing, redundant and ambiguous language
and creating a cohesive statutory approach that is
understandable to the public,
c.strengthening the district's ability to manage local
water resources by providing stronger, more proactive
conservation tools, amplifying water quality protection
authority and providing a permit system to regulate
detrimental exportation of water
d.Modernizing the Act by adding climate change language and
updating it to reflect current realities."
ARGUMENTS IN OPPOSITION
A coalition of agricultural interests state: "Recent amendments
do not address all our concerns therefore our respective
organizations remain opposed to this measure for the following
reasons:
1.The bill would interfere with current powers, duties and
authorities of state and local agencies with respect to
agricultural operations.
2.The bill's groundwater definition is not consistent with the
Department of Water Resources Bulletin 118.
3.Allows a taking of private property groundwater rights by
eminent domain.
4.Significantly expands the district's authority to regulate
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water quality from irrigated lands, conflicting with regional
water quality control boards' Irrigated Lands Regulatory
Program.
5.Significantly expands the district's authority over land use,
including open space and grazing activities.
6.The district's Agricultural Water Advisory Committee was not
given the opportunity to review the proposal and properly
analyze impacts to agriculture."
The California Water Association CWA asserts "AB 2483 broadly
expand the powers and authority of the Santa Clara Valley Water
District, taking it from a wholesale water agency to a
regulatory agency, without providing critical public and
procedural safeguards." CWA further asserts "As a bill intended
to 'specify the districts purposes and powers relating to water
supply,' AB 2483 lacks clearly defines 'purposes and powers.'"
Additionally, Great Oaks Water Company contends that "AB 2483
violates Article XIIID of the California Constitution
(Proposition 218)."
COMMENTS
Modernizing Current Act Is A Worthy Effort. The current Act is
poorly organized, archaic in its language, and does not reflect
much of the evolution of water law over the past 50+ years.
This bill breaks up long and confused paragraphs in the current
Act, and attempts to convert the stale legalese of the current
Act into more modern and accessible language. Further, it
reorganizes the Act into chapters to try to provide a more
logical structure to the Act.
The new and expanded powers in the proposed Act are intended to
reflect the recent trend towards more fully integrating planning
and management of water resources, flood management, and
groundwater management together.
The bill would further provide the district with authorities
intended to help it to respond to the challenges climate change
presents to managing water and natural resources.
Unfortunately, This Effort Earns An Incomplete. While the
proposed act is well intentioned, there are still major
unresolved issues. Further, given the systemic nature of many
of these issues throughout the proposed Act, there does not
appear to be a simple fix. These issues include:
Conflicts with existing state authorities
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Definitions inconsistent with statutes
Incomplete integration with existing statutes
Other drafting issues
Issues outside this committee's jurisdiction
Conflicts With Existing State Authorities. This Act states that
it should not be construed to provide the district with
regulatory authority that conflicts with those exerted by the
State Department of Public Health, the State Water Resources
Control Board, the California regional water quality control
boards, or the Public Utilities Commission over water quality
measures - But it does.
The definition of groundwater would give the district
authority over groundwater "whether or not flowing through
known and definite channels" - since 1914, granting and
enforcing water rights to those waters have been the
jurisdiction of the State Board..
The bill gives the district authority over groundwater quality
- the Porter-Cologne Act gives the state and regional board
broad and authority over prevention and remediation of
groundwater contamination. As noted below, Senate
Environmental Quality Committee staff have not fully analyzed
the bill, but they have expressed concerned that this bill
will usurp the authorities of the regional board.
The bill provides the district with the authority to "require
urban water conservation practices and measures, including the
imposition of rate structures to promote water conservation,
such as tiered rates or other methods aimed at discouraging
the wasteful use of water." The Public Utilities Commission
regulates water rates of investor owned water suppliers.
There are a number of PUC regulated water suppliers that could
be caught in this conflict.
Definitions Inconsistent With Statutes. This bill defines a
number of terms different from that used in the water code. It
is difficult to ensure there are no conflicts between this act
and authorities granted to other state agencies, when the two
sets of law use different terms. In particular, this bill uses
non-statutory definitions of the following:
Groundwater
Recycled water
Abandoned wells
Incomplete Integration With Existing Statutes. Over the last
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dozen years or so, the Legislature has passed a number of bills
designed to integrate water resources planning and management
more fully into retail and wholesale water supply operations.
The proposed Act does not fully reflect this evolution in state
water law. In particular, it does not fully incorporate or
cross-reference current law regarding such things as:
Groundwater Management Act
Groundwater monitoring provisions of SBX7 6
Urban Water Management Planning Act
Agricultural Water Management Planning Act
Water conservation provisions of SBX7 7
Well protection provisions under the Water Code
Other Drafting Issues. The bill has a number of other drafting
issues, including:
Groundwater & Eminent Domain. The eminent domain language is
awkward at best. The language suggests that the district
would have the authority to acquire groundwater rights.
However, it is not clear how one would exercise the power of
eminent domain to extract groundwater from a person with the
legal right to use that water, at least in the case of an
overlying groundwater right.
The district asserts that this is simply a rewording of a power
that is in the current district Act. The language simply
attempts to make clear that the district can divert surface
water or extract groundwater to the detriment of a person with
legal rights to that water, only after the proper exercise of
eminent domain and the payment of just compensation.
Inconsistent Use Of Terms. For example, the Act appears to
use the term "water resources stewardship" and "watershed
stewardship" interchangeably. Generally, if one uses
different terms, it implies there are different meanings.
Redundant Language. For example 100051 (b)(11) is 100051
(a)(9) verbatim. Other parts of the Act, though not verbatim,
are essentially restatements of other parts.
Some Concepts Not Well Defined. For example, the definition
of habitat is such that an apartment could be considered
"habitat" for a house cat or ficus plant.
Issues outside of this committee's jurisdiction. This bill has
been referred to this committee and the Senate Local Government
Committee. It was not further referred to the Senate
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Environmental Quality Committee (EQ), which has jurisdiction
over water pollution prevention and cleanup issues. In
conversations about this bill, EQ staff have raised a number
concerns about the potential for conflicts with the Porter
Cologne Act.
Should this bill pass this committee, the Senate Local
Government Committee staff will raise their own concerns
regarding this bill. However, issues raised by the Assembly
Local Government Committee may be instructive.
The Assembly Local Government Committee raised concerns about
the financial provisions and compliance with requirement of
Prop. 218, particularly in light of ongoing litigation. Sen.
Local Gov will discuss whether or not amendments have resolved
the Proposition 218 issues.
Assembly Local Government also raised concerns about the
proposed process for adopting or amending an ordinance.
SUGGESTED AMENDMENTS: None
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SUPPORT
Santa Clara Valley Water District (Sponsor)
American Federation of State, County and Municipal Employees
(AFSCME)
Association of California Water Agencies (ACWA)
California Special Districts Association
Professional and Technical Engineers, IFPTE Local 21
Sierra Club California
Private Citizen (1)
OPPOSITION
California Cattlemen's Association
California Chamber of Commerce
California Farm Bureau Federation
California Water Service Company
Great Oaks Water Company
San Jose Water Company
Silicon Valley Taxpayers' Association
Western Growers
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