BILL ANALYSIS
SB 68
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Date of Hearing: September 11, 2009
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared William Huffman, Chair
SB 68 (Steinberg) - As Proposed to Be Amended: September 11,
2009
SENATE VOTE : (vote not relevant)
SUBJECT : Water
SUMMARY : Reforms policy and governance for the Sacramento-San
Joaquin Delta (Delta), establishes statewide conservation
effort, and provides enforcement tools for the State Water
Resources Control Board to enforce existing water rights laws.
Specifically, this bill :
1)Reconstitutes the Delta Protection Commission (DPC).
a) Reduces membership of the DPC from 23 to 15, eliminating
several state agencies.
b) Designates DPC chair as a voting member of the Delta
Stewardship Council (Council).
c) Changes nature of DPC advisory committees
2)Requires DPC to create a regional economic sustainability
plan, including creation of a Delta Investment Fund in the
State Treasury.
3)Authorizes DPC to make recommendations to Council and requires
Council to consider DPC recommendations and determine, in
Council discretion, if recommendations are feasible and
consistent with the objectives of the Delta Plan.
4)Requires the DPC, by July 2010, to prepare and submit to the
Legislature recommendations regarding the potential expansion
of or change to the Delta's primary zone.
5)Creates a new Sacramento-San Joaquin Delta Conservancy
(Conservancy).
a) Authorizes Conservancy, as a primary state agency for
ecosystem restoration, to support efforts that advance
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environmental protection and the economic well-being of
Delta residents, including specified activities;
b) Creates Conservancy board with 11 voting members of the
board, including the Secretary of the Natural Resources
Agency; Director of Finance; one member (or designee) of
each of board of supervisors for Contra Costa, Sacramento,
San Joaquin, Solano, and Yolo County; two public members,
appointed by the Governor; one public member appointed by
the Senate Committee on Rules; and, one public member
appointed by the Speaker.
c) Designates nonvoting members of the board and nonvoting
liaison advisers who would serve in an advisory, nonvoting
capacity;
d) Establishes terms of board members, from "at the
pleasure" (for Governor and boards of supervisors) to four
years (for legislative appointments) with 2-term limit.
e) Requires voting members of the board to elect a
chairperson and vice chairperson, and other officers as
necessary, from among the voting members, but chairperson
must be from among county supervisor members.
f) Provides the Conservancy administrative powers,
including authority to hire staff, adopt rules and
procedures for conduct of the Conservancy's business,
establish advisory committees, and enter into contracts.
6)Establishes and limits the Conservancy's powers and duties,
including:
a) Authorizes Conservancy, as a primary state agency for
ecosystem restoration, to support efforts that advance
environmental protection and the economic well-being of
Delta residents, including specified activities;
b) Limits the jurisdiction and activities of the
Conservancy to the Delta and Suisun Marsh except if the
board makes certain findings;
c) Establishes the Sacramento-San Joaquin Delta Conservancy
Fund in the State Treasury, which may provide funding for
ecosystem restoration projects consistent with the
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Conservancy's strategic plan or for "regional
sustainability" consistent with the DPC's "Regional
Sustainability and Land Use Plan;"
d) Authorizes Conservancy, subject to specified conditions,
to acquire, manage and transfer interests in property and
water rights, with a preference for conservation easements;
e) Authorizes the Conservancy to accept funding from a
broad range of sources, including creation and management
of endowments;
f) Requires the Conservancy to develop a strategic plan
consistent with the Delta Plan, DPC's Regional
Sustainability and Land Use Plan, the Central Valley Flood
Protection Plan, the Suisun Marsh Preservation Act, and the
Habitat Management, Preservation and Restoration Plan for
the Suisun Marsh;
g) Authorizes the Conservancy to collaborate with other
organizations and impose certain conditions on any grants
it makes; and,
h) Prohibits the Conservancy from regulating land-use,
exercising power over water rights held by others, or
exercising the power of eminent domain.
7)Increases consequences for not reporting water diversions or
use.
a) Establishes rebuttable presumption that diversions/use
did not occur in certain State Water Resources Control
Board (SWRCB) proceedings, but would not apply to
diversion/use occurring before January 1, 2009;
b) Creates rebuttable presumption that no use occurred in
certain SWRCB proceedings, but would not apply to
diversion/use occurring before January 1, 2009;
c) Raises current additional penalty for unauthorized
diversions from 100% of amount of fees that would have been
collected had that diversion been reported, to 150%;
d) Authorizes additional penalty for failing to file, or
material statements in, statements of diversion and use of
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150% of the amount of fees that would have been collected;
and,
e) Adds a new penalty for violators of monitoring
requirements or activities, not to exceed five hundred
dollars ($500) for each day in which the violation occurs.
8)Imposes or increases penalties for violating water rights
laws.
a) Increases penalties for unauthorized diversion or use to
sum of $1,000 per day of violation plus $1,000 per acre
foot diverted in violation;
b) Increases penalties for violating a cease and desist
order to not more than sum of $2,500 per day plus $2,500
per acre foot diverted in violation;
c) Adds penalty, not to exceed $500 per day of violation,
for any violation of term or condition of a permit,
license, certificate, or registration, or any order or
regulation adopted by SWRCB under preventing waste or
unreasonable use; and,
d) Requires SWRCB to adjust all maximum penalties for
inflation as measured by the June to June change in the
California CPI.
9)Expands SWRCB authority to enforce water rights laws.
a) Allows SWRCB, in certain investigations, to order any
water diverter or water user to prepare technical or
monitoring program reports under penalty of perjury;
b) Adds violations of unreasonable use regulations and
reporting/monitoring requirements to list of actions for
which SWRCB can issue a cease and desist order.
c) Expands existing legislative intent language to
encourage vigorous enforcement to prevent waste and
unreasonable use and reporting/monitoring requirements.
10)Expands list of filing fees, to include: registrations for
small domestic use or livestock stockpond use; petitions to
change the point of diversion, place of use, or purpose of use
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of a water right that is not subject to a permit or license to
appropriate water; and statements of water diversion and use.
11)Authorizes SWRCB to initiate statutory adjudication to
determine rights of various claimants to the water of a stream
system under its own motion if after a hearing it finds that
the public interest and necessity will be served by a
determination of the rights involved
12)Authorizes SWRCB to issue an interim relief order, after
notice and opportunity for a hearing, to enforce specified
laws, including authority to petition superior court to issue
a temporary restraining order, preliminary injunction, or
permanent injunction, and civil penalty of not more than
$5,000 for each day of violation.
13)Establishes statewide urban water conservation target of 10%
by 2015, and 20% by 2020.
14)Establishes processes for urban water suppliers to meet the
conservation targets:
a) Requires urban retail water suppliers, individually or
on a regional basis, to develop an urban water use target
by December 31, 2010;
b) Provides three methodologies for urban water suppliers
to determine and achieve their water use target:
i) 20% reduction in baseline daily per capita use, or
ii) Combination of efficiency standards for residential
indoor use [55 gallons per capita daily (gpcd)];
residential outdoor use (Model Water Efficient Landscape
Ordinance); and commercial, industrial, and institutional
(CII) use (10 % reduction); or,
iii) 5% reduction in the Department of Water Resources
(DWR) regional targets.
c) Requires minimum 5 % reduction in base water use by 2020
for all urban water suppliers.
d) Allows recycled water to count toward meeting urban
supplier's water use target if recycled water offsets
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potable water demands.
e) Requires urban water suppliers to report in their urban
water management plans due in 2010 the identified targets
in 2010, and to report progress in meeting the targets
every five years in subsequent updates of their urban water
management plans;
f) Allows urban suppliers to consider certain differences
in their local conditions when determining compliance.
g) Requires urban water suppliers to hold public hearings
to allow for community input on the supplier's
implementation plan for meeting their water use target, and
requires the implementation to avoid placing a
disproportionate burden on any customer sector.
h) Prohibits urban suppliers from requiring changes that
reduce use of process water - defined in the bill as water
used in production of a product - and allows urban water
supplier to exclude process water from the calculation of
gross water supply if substantial amount of its water
deliveries are for industrial use.
i) Conditions eligibility for water management grants and
loans on an urban water supplier's compliance with meeting
the requirements established by the bill.
15)Requires DWR review and reporting on urban water management
plans and report to the Legislature by 2016 on progress in
meeting the 20% statewide target, including recommendations on
changes to the standards or targets in order to achieve the
20% target.
16)Creates a CII Task Force to develop best management practices
(BMPs), assess the potential for statewide water savings if
the BMPs are implemented, and report to the Legislature.
17)Re-establishes agricultural water management planning
program.
a) Defines "agricultural water supplier" as one that
delivers water to 10,000 or more of irrigated acres,
excluding recycled water, but exempts suppliers serving
less than 25,000 irrigated areas unless funding is provided
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to the supplier for those purposes.
b) Requires development and implementation of agricultural
water management plans, with specified components by 2012,
with 5-year updates.
c) Requires DWR to review plans and report to the
Legislature on status and effectiveness.
d) Requires two "critical" efficient agricultural water
management practices (measurement and pricing) and - only
if locally cost-effective - 10 additional practices.
e) Conditions eligibility for water management grants and
loans on an agricultural water suppliers' compliance with
meeting the requirements for implementation of efficient
water management practices.
f) Establishes agricultural water supplier reporting
requirements on agricultural efficient water management
practices.
18)Requires DWR to promote implementation of regional water
resource management practices through increased
incentives/removal of barriers and specifies potential
changes.
19)Requires DWR, in consultation with SWRCB, to develop or
update statewide targets as to recycled water, brackish
groundwater desalination, and urban stormwater runoff.
20)Establishes statewide groundwater monitoring program that
engages local groundwater management interests to volunteer to
monitor groundwater elevations
a) If more than one party volunteers for monitoring, DWR
consults with interested parties to determine who would
monitor, based on certain priorities.
b) Groundwater monitoring starts January 1, 2012, and is
made publicly available.
c) DWR identifies extent of monitoring, by 2012, and
determines, in basins without monitoring, if there was a
local party willing to conduct the monitoring;
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d) If no local party volunteers, DWR determines certain
facts as to need for monitoring, and then monitors
groundwater elevations in critical basins, assessing fee on
well owners to recover direct costs.
e) DWR updates groundwater report by 2012, and thereafter
in years ending in 5 and 0.
21)Repeals the California Bay-Delta Authority Act.
22)Establishes new legal framework for Delta management which:
a) Sets the coequal goals of "providing a more reliable
water supply for California and protecting, restoring, and
enhancing the Delta ecosystem" as the foundation for state
decisions as to Delta management.
b) Sets certain objectives as inherent in the coequal
goals.
c) Sets state policy of reducing reliance on the Delta to
meet future water supply needs through a statewide strategy
of investing in improved regional supplies and
conservation.
d) Requires Council land-use decisions to be guided by
certain findings, policies, and goals.
e) States certain "fundamental goals for managing land use
in the Delta."
f) Describes the longstanding constitutional principle of
reasonable use and the public trust doctrine as the
foundation of state water management policy.
g) Preserves specified statutes and legal doctrines as
unaffected by the new division in the Water Code, including
area-of-origin protections, water rights and public trust
doctrine.
h) Establishes the Council as the successor to the
California Bay-Delta Authority, and provides for the
Council to assume its responsibilities.
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i) Defines certain terms, including the following key
terms:
i) "Coequal goals" means "the two goals of providing a
more reliable water supply for California and protecting,
restoring, and enhancing the Delta ecosystem," but those
goals are achieved in a manner to protect the Delta as an
evolving place.
ii) "Covered action" means a Delta related plan or
program that meet certain conditions, including
significant impact on achievement of the coequal goals.
iii) "Restoration" means achieving a close approximation
of the Delta's ecosystem's natural potential, given past
physical changes and future impact of climate change.
23)Requires the Council, DWR or Department of Fish & Game (DFG)
to take certain "early actions," including:
a) Appointment of Delta Independent Science Board
b) Development of strategy to engage federal government in
the Delta
c) Development of DFG recommendations for instream flow
needs in the Delta
d) Certain Delta ecosystem restoration projects to start
now, before the Delta Plan is completed, including the
"Two-Gates Fish Protection Demonstration Project"
24)Requires SWRCB to develop new flow criteria for the Delta
ecosystem necessary to protect public trust resources.
a) Specifies process and substance of development of flow
criteria.
b) Requires SWRCB approval of change in State Water Project
(SWP) and Central Valley Project (CVP) point of diversion,
as specified, to include flow criteria.
c) Requires SWRCB to enter agreement with SWP/CVP
contractors to pay costs.
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d) Preserves SWRCB authority to review water rights and
impose terms and conditions on water right permits.
25)Requires SWRCB to submit prioritized schedule and costs for
instream flow studies for the Delta and other high priority
streams, with completion by certain dates.
26)Creates Delta Stewardship Council as an independent state
agency.
a) Establishes 7-member Council, with four appointments by
the Governor, two by the Legislature, and the chair of the
Delta Protection Commission, with staggered terms.
b) Provides for Council salaries, hiring of Council staff
and headquarters.
c) Specifies authority of Council, including:
i) Administrative authorities (e.g., contracting).
ii) Performance measurements.
iii) Appeals of state/local agency determinations of
consistency with Delta Plan, including specified
procedures for such appeals.
27)Creates Delta Watermaster as enforcement officer for SWRCB in
the Delta.
28)Creates Delta Independent Science Board (Science Board) and
Delta Science Program.
29)Requires Council to develop, adopt, and commence
implementation of the "Delta Plan" by January 1, 2012, with a
report to the Legislature by March 31, 2012.
a) Requires Council to consider strategies and actions set
forth in the Delta Vision Blue Ribbon Task Force Strategic
Plan (Strategic Plan).
b) Allows Council to identify actions that state or local
agencies may take to implement the subgoals or strategies.
c) Requires consultation and cooperation between the
Council and federal, state and local agencies in developing
the Delta Plan.
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d) Requires Council to review the Delta Plan every five
years, allowing the Council to request state agency
recommendations for revisions.
e) Requires Council to develop the Plan consistent with
federal statutes, including the Coastal Zone Management
Act, Clean Water Act and the Reclamation Act.
30)Requires Delta Protection Commission (DPC) to develop
proposal to protect, enhance, and sustain the unique cultural,
historical, recreational, agricultural, and economic values of
the Delta as an evolving place, for consideration by the
Council as part of Delta Plan, including proposals for:
a) Federal/state designation of the Delta as a place of
special significance.
b) Regional economic plan to increase investment in
agriculture, recreation, tourism and other resilient land
uses in the Delta, including administration of Delta
Investment Fund.
c) Expansion of state recreation areas in the Delta.
d) Market incentives and infrastructure to support Delta
agriculture.
31)Requires Delta Plan to further the coequal goals of Delta
ecosystem restoration and a reliable water supply.
a) Limits geographic scope of ecosystem restoration
projects to the Delta (defined separately as legal Delta,
Suisun Marsh and Yolo Bypass), except for ecosystem
projects outside the Delta that contribute to achievement
of coequal goals.
b) Requires Delta Plan to promote specified characteristics
and include specified strategies for a healthy Delta
ecosystem.
32)Requires Delta Plan to promote a more reliable water supply
to:
a) Assists in meeting the needs of reasonable and
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beneficial uses of water.
b) Sustains the economic vitality of the state.
c) Improves water quality to protect human health and the
environment.
33) Requires Delta Plan to promote statewide water conservation,
water use efficiency, and sustainable use of water, as well as
improvements to water conveyance/storage and operation of both
to achieve the coequal goals.
34)Requires Delta Plan to attempt to reduce risks to people,
property, and state interests in the Delta by promoting
effective emergency preparedness, appropriate land uses, and
strategic levee investments.
a) Allows Delta Plan to include actions outside the Delta
that reduce flood risks, and local plans of flood
protection.
b) Allows Council, in consultation with the Department of
Transportation, to address climate change effects on state
highways in the Delta in the Delta Plan.
c) Allows Council, in consultation with the California
Energy Commission, to address the needs of Delta energy
development, storage and distribution in the Delta Plan.
35)Requires Delta Plan to meet the following requirements:
a) Be based on best available scientific information and
advice from the Delta Independent Science Board.
b) Includes quantified targets for achieving the objectives
of the Delta Plan.
c) Utilizes monitoring and analysis to determine progress
toward targets.
d) Describes methods to measure progress.
e) Includes adaptive management strategy for ecosystem
restoration and water management.
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36)Requires DWR to prepare proposal to coordinate flood and
water supply operations of the State Water Project and Central
Valley Project, for Council consideration.
37)Requires Council to consider including the Bay Delta
Conservation Plan (BDCP) under certain circumstances,
including:
a) Conditions BDCP incorporation into Delta Plan and state
funding for BDCP public benefits on compliance with the
Natural Community Conservation Planning (NCCP) Act and
California Environmental Quality Act (CEQA).
b) Requires certain analyses as part of CEQA compliance:
i) reasonable range of flow criteria, rates of
diversion and other operational criteria required to
satisfy NCCP Act.
ii) reasonable range of Delta conveyance alternatives,
and capacity/design options for a lined canal, an unlined
canal, and pipelines.
iii) potential effects of climate change on conveyance
and habitat restoration activities.
iv) potential effects on migratory fish and aquatic
resources.
v) potential effects on Sacramento River/San Joaquin
River flood management.
vi) resilience/recovery of conveyance alternatives in
event of natural disaster.
vii) potential effects of each conveyance alternative on
Delta water quality.
c) Requires Department of Water Resources (DWR) to consult
with Council and Science Board during development of BDCP.
d) Requires Council to have at least one public hearing and
incorporate BDCP into Delta Plan if DFG approves BDCP as
NCCP.
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e) Requires annual report to Council on BDCP
implementation.
f) Allows Council to make recommendations to BDCP
implementing agencies.
g) Requires BDCP to include a transparent, real-time
operational decisionmaking process in which fishery
agencies ensure applicable biological performance measures
are achieve in a timely manner.
h) Specifies that BDCP chapter does not amend or create any
additional legal obligation or cause of action under NCCP
Act or CEQA.
38)Allows Council to incorporate other completed Delta-related
plans into Delta Plan.
39)Makes legislative findings regarding the Delta and California
water.
40)Conforms certain laws to provide for creation of the Council.
EXISTING LAW
1)Establishes a Delta Protection Commission and regional
conservancies in various regions.
2)Establishes water rights and requires SWRCB to
administer/enforce surface water rights.
3)Requires "urban water suppliers" to prepare urban water
management plans that consider water conservation, and
conditions state funding on certain urban water conservation
measures.
4)Required agricultural water suppliers to prepare agricultural
water management plans by 1992.
5)Federal law requires contractors of the federal Central Valley
Project to prepare water conservation plans.
6)Establishes California Bay-Delta Authority to oversee
implementation of the CALFED Bay-Delta Program, and authorizes
more than 200 state and local agencies to govern the Delta.
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7)Requires the Secretary of the Natural Resources Agency to
develop a strategic plan for the Delta, and authorizes various
state agencies, including the California Bay-Delta Authority,
to implement Delta projects under the CALFED Bay-Delta Program
FISCAL EFFECT :Unknown
COMMENTS : This bill combines the contents of the final
conference reports for AB 39 (Huffman), AB 49 (Feuer/Huffman),
SB 12 (Simitian), SB 229 (Pavley) and SB 458 (Steinberg). It
constitutes a comprehensive package of reforms to California
water policy arising out of the recommendations from the "Delta
Vision" process. This bill addresses three topics, which are
related: Delta governance and planning, statewide water
conservation, and SWRCB enforcement of existing water rights
laws. This bill, and therefore these comments, are organized by
the order the language appears in the Public Resources Code and
the Water Code.
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DELTA PROTECTION COMMISSION & CONSERVANCY
Delta Protection Commission : This bill makes a limited number
of changes to the DPC, making it more clearly a local voice for
the Delta in the bill's other fundamental changes to Delta
governance (SB 12/Simitian). The key DPC changes include:
removing state agency members, DPC development of a Delta
economic sustainability plan, its duties as a commenter to the
Delta Stewardship Council, and study of expanding the Delta's
primary zone where DPC oversees local land-use decisions.
Conservancy Authority : This bill creates the Delta Conservancy
as a "state agency to work in collaboration and cooperation with
local governments and interested parties." The Legislature
created most state conservancies with the primary purpose of
conserving, restoring or enhancing natural resources. Delta
Vision recommends creation of a conservancy "for implementing
and coordinating Delta ecosystem enhancement and related
revitalization projects." This bill makes the conservancy "a
primary state agency" for ecosystem restoration, but does not
set ecosystem restoration as the conservancy's primary mission.
WATER LAW ENFORCEMENT TOOLS
Failing to File :This bill increases consequences for failing to
file required reports on water diversion and use, in order to
increase compliance. State law has required such reports for
decades, but many diverters do not comply, because penalties for
non-compliance are minimal. In short, under current law, it may
make more economic sense to pay a small fine - if the violator
is ever discovered - than file the required reports. The Delta
Vision Strategic Plan, while not speaking directly on increased
consequences for failing to file required reports, did emphasize
the importance of more complete information on water diversion
and use.
This bill imposes the consequence of a "rebuttable presumption"
that the diversion or use did not occur if there was no report
of it occurring. That is, the person who did not file the
required reports would be allowed to prove that such diversion
or use did occur, but they would have the burden of proof.
The issue of better information on diversion and use is also
addressed in AB 900 (De Leon), albeit in a different though
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complementary way. AB 900 would eliminate a number of current
exemptions from filing reports of diversion and use. AB 900 and
this bill do not conflict.
Water Rights Enforcement : This bill provides new and increased
penalties for violating water rights law and expands SWRCB's
authority to enforce existing water rights laws. The bill does
not change existing water rights law or expand SWRCB
jurisdiction. In effect, these changes would level the playing
field to support better enforcement of water rights laws. These
penalties have not been increased in decades and fail to reflect
the economic value of compliance. In some cases, there is no
penalty at all, such as violation of permit terms. While SWRCB
may be able to issue a cease-and-desist order, such actions set
a high bar for enforcement and fail to recover enforcement
costs.
Delta Vision Committee Implementation Report (a.k.a. the
Chrisman Report), dated December 31, 2008, while not commenting
on this precise set of penalties and enforcement authorities,
called for legislation to enhance and expand the SWRCB's water
rights administrative accountability. These recommendations do
not adversely affect the current water right priority system,
including area-of-origin priorities, but rather strengthen the
current administrative system. As the Chrisman Report suggested,
"appropriate enforcement will protect existing water rights."
Statutory Adjudication : Currently, SWRCB is authorized to
conduct stream adjudications only upon petition. This bill
would further authorize SWRCB to conduct such adjudications upon
its own motion, after conducting a hearing and finding that such
adjudication would be in the public interest. In some
situations, when water rights holders seek to avoid any
adjudication, the loser is the environment, which may have no
advocate for clarifying water rights in the context of
protecting the public trust. This provision would allow the
SWRCB to identify such a problem and begin the clarification
process on its own.
Interim Relief : The bill would authorize SWRCB to require
interim remedies as specified, but does not expand SWRCB
jurisdiction. SWRCB currently has authority to adjudicate
complaints against water diverters, based on the public trust
doctrine or the California Constitution's "reasonable use"
restrictions (Art X, 2). Interim remedies are designed to
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prevent or halt potentially permanent harm while allowing the
full evidentiary process to continue. It protects due process
and restores the status quo, so that adjudication of the
conflict may proceed without further damage to the environment.
It again levels the playing field for enforcement of water
rights law. This provision is patterned after a preliminary
injunction proceeding in court, where the court can stop
"irreparable" damage while litigation proceeds. It also allows
SWRCB to require a violator to pay the costs of developing
sufficient information to resolve the conflict.
Groundwater Monitoring : This bill would establish a statewide
groundwater monitoring program to ensure that groundwater
elevations in all groundwater basins and subbasins be regularly
and systematically monitored locally and that the resulting
groundwater information be made readily and widely available.
In the past five years, the Legislature has approved three bills
to improve the State's access to groundwater information, but
the Governor vetoed all three. In intervening years,
groundwater problems have grown worse, largely because
California is the last western state without any state
groundwater management - and very little information about the
conditions of the state's groundwater basins. Excessive pumping
in the last century has led to substantial subsidence, as much
as 55 feet in some areas. Recently, for example, on the west
side of the San Joaquin Valley, where allocations of Delta water
from the federal Central Valley Project were minimal, farmers
responded by pumping more groundwater. DWR then reported that
the State Water Project's canal, which passes through the area
on its way south, may suffer cracks because of the high level of
pumping and resulting slumping of the ground under the canal.
WATER CONSERVATION
Urban Water Conservation : This bill would establish a statewide
target to reduce urban per capita water use by 20 percent by
2020. This target is consistent with the Governor's February
2008 proposal. The Delta Vision Strategic Plan also recommended
legislation requiring "Urban water purveyors to implement
measures to achieve a 20 percent reduction in urban per capita
water use statewide throughout California by December 31, 2020."
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While most interest groups agree with the goal of improving
efficient water use and water resources management, there is a
dispute as to how best to do so. This bill focuses on achieving
the goal by greater water use efficiency - reducing demand.
This bill would require urban retail water suppliers,
individually or on a regional basis, to develop an urban water
use target by December 31, 2010, would require each urban water
supplier to meet their target by 2020, and to meet an interim
target (half of their 2020 target) by 2015. This bill is
"performance-based" - setting the standard and requiring local
agencies to determine how best to achieve that standard, which
is a concept that DWR Director Lester Snow has described
favorably.
Flexibility . This bill provides options for how water agencies
can achieve higher levels of water conservation but requires
those options to meet a per capita reduction in water use. The
bill sets the "20 by 2020" target (and the interim 2015 target)
for the entire state and then allows water agencies to choose
one of three methods for determining their own water-use target
for 2020. Water suppliers also can choose to join with a
broader group of suppliers to meet the targets regionally.
Finally the bill provides urban water suppliers with the option
of shifting more water use to recycled water to meet their
targets.
Commercial, Industrial and Institutional (CII) Water Management :
AB 49 restricts urban water suppliers from imposing
conservation requirements on process water. While this
addressed some CII water user concerns other CII interest groups
still have concerns that the process water protections in the
bill do not go far enough to protect CII from water conservation
requirements. They assert that existing law, Water Code Section
375, which provides broad authority for water agencies to
implement water conservation programs and adopt regulations, is
sufficient. This bill was not intended to weaken urban water
agencies broad authorities under existing law, but to motivate
advancement of reasonable and equitable conservation measures.
The Legislature may consider revisiting the process water
restriction in future legislation if urban water suppliers take
actions that violate those restrictions.
Other sections address other CII concerns, including requiring
urban water suppliers to avoid disproportionate impacts on any
one sector and requiring an open transparent process for all
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water customers to review and provide input into the water
supplier implementation plan. There are also no mandated
conservation requirements or targets in the bill for CII. One
of the options for a supplier to develop a water use target
includes a methodology for estimating reductions in each sector
- which includes a 10% reduction in CII. This 10% reduction is
part of the target development and does not dictate the method
of implementing or meeting the target.
Agricultural Water Management : For agriculture, this bill
relies on implementation of efficient water management practices
(EWMPs) for water use, which have been developed, at least in
part, by the Agricultural Water Management Council (AWMC). The
bill creates two EWMP categories: "critical" that all
agricultural water suppliers (i.e. water management services and
pricing structures) must implement and "additional" EWMPs that
must be implemented if the measures are locally cost effective
and technically feasible. The mandatory EWMPs are the same 6
measures currently required of all federal water contractors
(e.g. Westlands WD and Friant WA) since 1992 under the Central
Valley Project Improvement Act (CVPIA).
Agricultural Water Management Plans : This bill reauthorizes
dormant provisions of the Water Code that required agricultural
water suppliers to prepare agricultural water management plans.
This places agricultural water suppliers on an equal footing
with urban suppliers who have been required to prepare and
submit water management plans for approximately 15 years. The
Legislature previously approved this concept in three bills by
former Senator Kuehl (2005-07). Although the Governor vetoed
those bills, his reasons were not related to this concept.
One key difference between this bill, the dormant provisions of
current law, and previous years' bills is the definition of
"agricultural water suppliers" - the agencies that would be
required to comply with these provisions. This bill defines
agricultural water suppliers as those with 10,000 acres of
irrigated land. The previous definition was a supplier
providing more than 50,000 acre-feet of water for agricultural
purposes. The definition for federal water contractors served
by the Central Valley Project is 2,000 acres or acre-feet
served. Agricultural interests oppose the lower threshold of
2,000 stating that Bureau of Reclamation essentially does all
the work for those smaller agencies. The definition of "urban
water supplier" puts the threshold at 3000 connections or 3000
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acre-feet of deliveries. Previous years' bills provided for
DWR to determine the appropriate threshold for imposing
requirements.
Sustainable Water Management : One of the tensions among
different interest groups is whether the water use efficiency
program should include both demand reduction and increased water
supplies and what type of mandates or incentives should be used
to motivate compliance. This bill begins to address those
tensions by requiring DWR to develop incentives for sustainable
water management and alternative water supplies such as brackish
water desalination and stormwater recovery.
THE DELTA
For several years, the Delta has suffered a crisis - ecosystem,
water supply, levee stability, water quality, policy, program,
and litigation. In June 2004, a privately owned levee failed
and the State spent nearly $100 million to fix it and save an
island whose property value was far less. In August 2005, the
Department of Fish & Game (DFG) reported a trend showing severe
decline in the Delta fishery. In 2006, the Legislature
reorganized Delta programs and funding under the Resources
Agency Secretary. In 2007, a federal judge, acting under the
federal Endangered Species Act, declared illegal certain federal
biological opinions about near-extinct fish and restricted water
exports from the Delta, to the San Francisco Bay Area, the San
Joaquin Valley and Southern California. The Governor shortly
thereafter called the Legislature into an extraordinary session
on water.
Delta Vision :Through this enduring Delta crisis, the Legislature
and the Governor initiated, in 2006, a process to develop a new
long-term vision for the Delta. SB 1574 (Kuehl) of 2006
required a cabinet committee to present recommendations for a
Delta vision. The Governor created a Delta Vision Blue-Ribbon
Task Force to advise the Cabinet Committee. The Task Force
produced an October 2008 Strategic Plan, which the Cabinet
Committee largely adopted and submitted the recommendations to
the Legislature on January 3, 2009. This year, the Legislature
held numerous hearings on Delta Vision and a set of five bills,
including this one. In August, policy committees in both houses
held hearings on the topics in these bills, and considered
"pre-print" versions. Conference Committee substantially
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amended the pre-prints.
Legal Framework for Delta :Since statehood, California has asked
much of the Delta. Conflicting demands have led to crisis and
conflict - between and among agencies, stakeholders and natural
resources. The Delta Vision process spent more than 18 months,
investigating the Delta, engaging agencies and stakeholders, and
thinking carefully about the Delta's challenges and prospects
for change. The Task Force's first recommendation was to change
the fundamental legal framework for the State to make decisions
as to its activities in the Delta - encapsulated in two "coequal
goals" of "restoring the Delta ecosystem and creating a more
reliable water supply for California." This bill sets a new
legal and governance framework for the Delta's future,
explicitly stating for the first time how the state should
approach resolving the inherent conflicts in managing Delta
resources. This framework includes legislative findings,
policies and definitions, which provides the foundation for new
governance in the Delta.
Protection for Existing Law :When the August pre-print versions
of the Delta bills came out, some questioned whether the Delta
bills would change existing legal protections for water
rights/quality and the environment. This bill includes a
"savings" section that protects certain statutes, water rights
and other legal protections from any implied changes by this
bill.
Early Actions : This bill identifies a series of actions that
existing and new agencies need to take as soon as possible -
before the Council completes its new Delta Plan. Some actions
are administrative. Others are substantive projects for the
Delta ecosystem and/or water supply reliability. The early
actions part communicates the urgency of responding to the Delta
crisis, without waiting for the completion of the new Delta
plan.
Council Membership : The foundation of this bill's change is the
new Delta Stewardship Council, which this bill creates with
seven members. Council members would be required to possess
diverse expertise and reflect a statewide perspective. However,
this bill would also designate the chair of the Delta Protection
Commission as a voting member of the Council ex officio.
Delta Vision suggested the Council should have no slots set
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aside for persons with specific characteristics, all appointed
by the governor. Others suggest that there must be slots for
persons with specific characteristics, such as representation or
expertise. This bill appears to be a hybrid of the two
approaches, with membership appointed by several different
entities and one regional representative from the Delta, but no
other specified slots. This approach relies on the Senate
confirmation process to ensure the Governor's appointments
fairly balance different interests and reflect different
expertise. This bill provides the Senate and Assembly an
additional method to ensure balance, at least from the Senate
and Assembly's perspectives, by allowing each to appoint a
member.
Delta Water Master :This bill includes a provision that requires
SWRCB to appoint a Delta Watermaster. This version, however, is
much narrower than the proposal in the August pre-print version,
which had broader authority. The Watermaster in this bill acts
by delegation of authority from the SWRCB. It is the
enforcement officer for the board, with specified delegated
authorities. This version also narrows its geographic
jurisdiction to the Delta.
Science Board/Program :This bill establishes a Science Board as
well as a science program under the leadership of a Lead
Scientist. This language was developed in cooperation with
Professor Jeff Mount, former chair of the CALFED Independent
Science Board.
Federal Government Participation :In order to encourage federal
government participation under the State's leadership, AB 39
requires the Delta Plan to be developed consistent with certain
statutes that allow for certain state discretion over federal
activities. These statutes include the Coastal Zone Management
Act (CZMA), the Reclamation Act of 1902 (which governs the
Bureau of Reclamation's Central Valley Project), and the Clean
Water Act. If the Council decides to adopt the Delta Plan
pursuant to the CZMA, then the bill requires submission to the
Secretary of Commerce for approval, so the State may exercise
certain authority over federal agency actions. It is widely
anticipated that California may need Congress to enact laws to
protect the Delta consistent with the State's plan - perhaps a
"Delta Zone Management Act." This bill allows for that
eventuality, by providing for submission of the Delta Plan to
whatever federal official a subsequent federal statute
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identifies.
Delta Plan/Balancing Coequal Goals : Recent amendments added
substantive detail as to the nature of the Delta Plan, focusing
on balancing the two coequal goals of ecosystem restoration and
water supply reliability. The amendments to the pre-print
versions of the predecessor bills narrowed the focus of the
ecosystem restoration to the Delta, and not its entire
watershed, and eliminated authority of the Council to direct
other state agencies to contribute to the Delta Plan.
Levees/Flood Protection : The bill requires the Delta Plan to
reduce risks to people, property and state interests in the
Delta with emergency preparedness, appropriate land uses and
strategic levee investments. The Delta Plan will include
recommendations for priorities for state investments in levees.
These recommendations, in combination with the Council's
authority to ensure that state agencies act consistently with
the Delta Plan (in SB 12), will ensure that levee spending by
DWR and the Central Valley Flood Protection Board (CVFPB)
reflects these priorities. The Legislature generally does not
appropriate funding to specific Delta levee projects, and has
not succeeded in imposing priorities on state levee spending in
the Delta. Instead, the State Budget leaves the discretion to
DWR and the CVFPB to determine how to spend state money on both
levees in the State Plan of Flood Control and non-project
levees. These priorities will affect both the Delta levee
subvention program (non-project levees) and the special projects
program (levees with a State interest).
Bay Delta Conservation Plan :This bill conditions State funding
and incorporation of BDCP into the larger Delta Plan on its
approval as a Natural Community Conservation Plan by DFG and
completion of robust investigation and analysis pursuant to
CEQA. While some agencies have asserted that BDCP would be an
NCCP, the December 2006 planning agreement specifically provided
that the signatories were not committed to achieving the higher
standard for an NCCP under state Endangered Species Act. This
bill sets the higher NCCP standard ("the gold standard") as the
threshold for state funding of the public benefits of BDCP
activities, which is a significant step forward, while relying
on existing law. The specified issues that will be analyzed
under CEQA also add credibility to the outcome of BDCP, but also
rely on the context of existing CEQA law.
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REGISTERED SUPPORT / OPPOSITION :
Support
Audubon California
CA Water Association
Defenders of Wildlife
Environmental Defense Fund
Metropolitan Water District of So. Cal.
Natural Resources Defense Council
Pacific Coast Fed. of Fishermen's Ass'ns
State Building & Construction Trades
Council of CA
The Bay Institute
The Nature Conservancy
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Opposition
CA Central Valley Flood Control Ass'n
City of Sacramento
Contra Costa County
Desert Water Agency
East Valley Water District
El Dorado Irrigation District
Newhall County Water District
Reclamation District No. 2068
Regional Council of Rural Counties
Sacramento Area Council of Governments
Sacramento County
Sacramento Reg. County Sanitiation Dist.
San Joaquin County
Sierra Club California
Solano County
Valley Ag Water Coalition
Yolo County
Analysis Prepared by : Alf W. Brandt / W., P. & W. / (916)
319-2096