BILL ANALYSIS
-----------------------------------------------------------------
| |
| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
| |
-----------------------------------------------------------------
BILL NO: SB 261 HEARING DATE: April 28, 2009
AUTHOR: Dutton URGENCY: No
VERSION: April 22, 2009 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Water use.
BACKGROUND AND EXISTING LAW
Article X, Section 2 of the California Constitution, in part,
"requires that the water resources of the State be put to
beneficial use to the fullest extent of which they are capable,
and that the waste or unreasonable use or unreasonable method of
use of water be prevented, and that the conservation of such
waters is to be exercised with a view to the reasonable and
beneficial use thereof in the interest of the people and for the
public welfare." The section also provides that it is
self-executing, and that the Legislature may enact laws in the
furtherance of the policy contained in that section.
Section 1011 of the Water Code provides that if a water rights
holder fails to use all or part of the water provided by that
right because of water conservation efforts, that conserved
water is considered a beneficial use and therefore not subject
to forfeiture due to non-use. The section further provides that
such conserved water may be sold, leased, or otherwise
transferred to another water user consistent with existing law.
The Urban Water Management Planning Act requires urban water
suppliers to prepare and submit Urban Water Management Plans to
the Department of Water Resources (DWR) every five years on or
before December 31, in years ending in five and zero. Among
other things, the plans are required to:
Describe the service area of the supplier, including current
and projected population, climate, and other demographic
factors affecting the supplier's water management planning.
The projected population estimates shall be in five-year
1
increments to 20 years.
Describe the reliability of the water supply by water year
type (average, single dry year, etc.)
Quantify, to the extent records are available, past, current,
and projected water use, identifying the uses among water use
sectors (residential, commercial, etc.).
Describe each water demand management measure currently being
implemented, or scheduled for implementation, including:
A schedule of implementation for all water demand
management measures in the plan.
A description of the methods to be used to evaluate the
effectiveness of water demand management measures in the
plan.
An estimate of conservation savings on water use within
the supplier's service area, and the effect of the savings
on the supplier's ability to further reduce demand.
An evaluation of each listed water demand management
measure that is not being implemented or scheduled for
implementation.
Existing law makes the terms of, and eligibility for, a water
management grant or loan made to an urban water supplier and
awarded or administered by the department, state board, or
California Bay-Delta Authority or its successor agency
conditioned on the implementation of the water demand management
measures identified in the Urban Water Management Planning Act.
Under the Integrated Regional Water Management Planning Act,
regional water management groups may form to prepare integrated
regional water management plans. Regional water management
groups are groups of three or more local agencies, at least two
of which have statutory authority over water supply or water
management. At a minimum, integrated regional water management
plans are to address:
Protection and improvement of water supply reliability,
including identification of feasible agricultural and urban
water use efficiency strategies.
Identification and consideration of the drinking water quality
of communities within the area of the plan.
Protection and improvement of water quality within the area of
the plan, consistent with the relevant basin plan.
Identification of any significant threats to groundwater
resources from overdrafting.
Protection, restoration, and improvement of stewardship of
aquatic, riparian, and watershed resources within the region.
Protection of groundwater resources from contamination.
Identification and consideration of the water-related needs of
2
disadvantaged communities in the area within the boundaries of
the plan.
On February 28, 2008, Governor Schwarzenegger sent a letter to
Senators Perata, Steinberg, and Machado in response to their
concerns that his administration was unilaterally beginning work
on a "peripheral canal." In that letter, the Governor
identified administrative actions he was considering as part of
a comprehensive solution in the Delta. Included in that letter
was the following "key element":
"1. A plan to achieve a 20 percent reduction in per capita
water use statewide by 2020. Conservation is one of the
key ways to provide water for Californians and protect and
improve the Delta ecosystem. A number of efforts are
already underway to expand conservation programs, but I
plan to direct state agencies to develop this more
aggressive plan and implement it to the extent permitted by
current law. I would welcome legislation to incorporate
this goal into statute."
PROPOSED LAW
This bill would do two main things:
1. Require each urban water supplier, or regional water
management group acting on behalf of the urban water supplier,
to develop and implement a water use efficiency and efficient
water resources management plan.
Urban water suppliers achieving extraordinary water use
efficiency would be exempt from these requirements.
Extraordinary water use efficiency would be defined as:
The use of less than 70 gallons per person per day for
indoor residential uses and
The use of less than 70 percent of reference
evapotranspiration for outdoor residential uses.
The plans would be required to accomplish one or more of the
following:
Reduce residential per capita potable water use by 20
percent by 2020 as compared to water use in 2000.
Reduce total residential potable water use by 2020 by a
total of 20 percent as compared to the 2020 projection in
the agency's 2005 urban water management plan, which
reduction shall include water conservation measures already
included in the 2005 urban water management plan.
Achieve, by 2020, extraordinary water use.
3
The plan would be required to include interim milestones for
each even-numbered year for progress towards achieving the
2020 target, and each reporting agency would report its
progress toward reaching the 2020 target to an unspecified
person or agency, using whatever metrics the reporting agency
considers to be most appropriate for its circumstances.
If an urban water supplier fails to meet an interim milestone
identified in its plan, it would be:
Required to report its failure to DWR on the following
March 1.
Required, within 90 days, to submit a plan to DWR to
meet the next interim milestone.
Subject to a penalty of 20 percent of available points
in any competitive grant or loan program awarded or
administered by DWR, the State Water Resource Control Board
(SWRCB), or the California Bay-Delta Authority until such
time the urban water supplier satisfies the interim
milestones.
2. Enact the Comprehensive Urban Water Efficiency Act of 2009.
This act would:
Authorize a regional water management group to submit
specified water use efficiency information that is required to
be included in an urban water management plan.
Require DWR and SWRCB to award preference points totaling 20
percent of the total available points to regional water
management groups in an integrated regional water management
planning competitive grant program administered by DWR or
SWRCB.
Require DWR and SWRCB, by April 1, 2010, to convene a task
force to develop best management practices for commercial,
industrial, and institutional (CII) water uses.
The intent is to result in a statewide target of at
least a 10-percent reduction in potable water use in the
CII sector by 2020 as compared to statewide water use by
that sector in 2000.
The task force would be composed of representatives of
DWR, SWRCB, urban water suppliers, trade groups
representing the CII sector, and environmental groups.
Operations of the task force could be funded by the
participants, or by the California Urban Water Conservation
Council.
4
The task force would be required to submit a report to
DWR and SWRCB no later than April 1, 2011.
Any recommendation of the task force shall be endorsed
by all members of the task force.
The task force report shall include a discussion of
numerous subjects, including metrics, appropriate
quantities of water needed for various CII activities,
potential use of stormwater, recycled water, treated water,
desalinated water, or other alternative sources of water,
and an evaluation of whether it is feasible to reduce water
use statewide in the CII sector by at least 10 percent by
2020.
Make numerous findings and statements of Legislative intent
regarding water conservation planning.
ARGUMENTS IN SUPPORT
According to the author, "California's growing population,
periodic and serious drought conditions, and court-ordered
supply reductions require that Californians adopt reasonable
water efficiency measures that improve water supply reliability.
In addition, the Governor has issued an executive order calling
for a permanent reduction in per capita use by 20 percent by
2020."
"SB 261 seeks to address these issues by moving California
towards achieving the 20 percent reduction goal in a manner that
(1) encourages and builds upon existing water use efficiency
efforts, (2) provides flexibility to local and regional water
suppliers, (3) recognizes the varying climatic conditions across
the state, and (4) protects water rights. SB 261 also seeks to
reflect real water use efficiency by separating out indoor and
outdoor residential uses, utilizing key principles as reflected
in AB 1881 (Laird) and the landscape model ordinance.
Additionally, SB 261 recognizes the need to develop targets for
commercial, industrial and institutional water use that are
separate from those used to measure residential use; to that
end, SB 261 would establish a task force to develop best
management practices for the different sectors included in CII."
"SB 261 represents a reasonable and valid approach to attaining
the Governor's statewide per capita water use reduction goal and
to improving California's water use efficiency."
ARGUMENTS IN OPPOSITION: None
5
COMMENTS
Will It Achieve 20% By 2020? Probably not, but it depends in
part on how you interpret the Governors' call for "A plan to
achieve a 20 percent reduction in per capita water use statewide
by 2020." This bill contends that the 20 percent statewide
reduction should reasonably apply only to residential water use,
and even then within limits. Others have suggested that it
applies to all urban water uses, also sometimes within limits.
While no one has introduced a bill that asserts this next point,
one could argue that the 20 percent applies to all water use
statewide.
Another complication is the question of a base year. That is, a
20 percent reduction compared to when? The Governor first went
on record calling for the 20 percent reduction in February 2008.
So, one could reasonably argue that 2008 should be the basis
for comparison. Others argue that since urban water management
plans were last updated in 2005, and urban water management
plans include an officially adopted detailed analysis of local
urban water use, that 2005 should be the base year. Still
others suggest that an average of 1995 - 2005 should be the
base, as DWR generally has 10 years of data from its voluntary
survey of urban water agencies covering those years.
Each year, Californians automatically improve their water use
efficiency by some amount by things such as replacing out of
date water fixtures, upgrading irrigation systems, etc.
Consequently, the further back in time the base year, the less
efficient the water use in the base year.
This bill uses both 2005 and 2000 as base years. In the absence
of strong policy arguments to the contrary, for consistency
purposes, one year should be selected. As this bill uses urban
water management plans as the vehicle for the analysis, and 2005
was the most recent year that urban water management plans were
updated, 2005 should get the nod. (See Amendments 1 & 2)
Why 10% for CII? The sponsors acknowledge that 10 percent
reduction goal for CII was an arbitrary figure. The Governor's
goal is for a 20 percent reduction in per capita water use in
2020. This recommendation was carried forward in the Delta
Vision reports as well. As the bill already requires the CII
task force to evaluate of whether it is feasible to achieve the
statewide conservation target in the CII sector by 2020, for
consistency purposes the CII target should be changed to 20
percent. (See Amendments 3 & 4)
6
What About Ag? While a number water conservation bills include
provisions for agricultural water users, (e.g., see related
bills, below) this bill does not. The sponsors acknowledge that
this was deliberate.
10664 Is Problematic. There are two problems with this
section. First, subdivision (a) (page 22, lines 18- 24) appears
duplicative with the various provisions of Section 10631(l),
e.g., paragraphs (1) (page 17, starting on line 35) and (4)
(page 18, lines 18-23).
Second, subdivision (b) (page 22, lines 25- 33) awards regional
water management groups preference points equal to 20 percent of
the total available points in an integrated regional water
management planning competitive grant program without
qualification, simply for applying.
It is not clear why either of these subdivisions are necessary
or desirable. (See Amendment 5)
10675 Is Also Problematic. The body of this section states
Legislative intent that "this Act be implemented so as to fully
protect the water rights of agencies subject to this Act and
that this Act not be used to reallocate water away from those
persons holding water rights as of the effective date of this
Act." However, this Act, meaning the new Chapter 5 added by
this bill, does nothing to change the behaviors or actions of
water agencies, water users, or water rights holders. Instead,
it states intent and makes findings, defines some terms, and
establishes a task force.
Moreover, the provisions established in subdivisions (a), (b),
and (c) to implement that intent are of particular concern.
Inadmissible Evidence. Subdivisions (b) and (c) would provide
that data related to water use efficiency, reports prepared
pursuant to this chapter, or failure to achieve the water
conservation or efficiency goals pursuant to this bill is
inadmissible as evidence that a water supplier is not
complying with the Constitutional and statutory requirements
for putting water to reasonable and beneficial use. There are
a number of reasons why this is ill advised. Article X
Section 2, and its prohibition of waste or unreasonable use,
has been called the fundamental expression of California's
7
water policy. It is hard to see how excluding those data or
reports as evidence, thereby shielding from prosecution not
just legitimate water users, but also those wasting or
unreasonably using water, is good policy. It is also
difficult to see how such language would further the policy
expressed in Article X Section 2. If the exclusion does not
further that policy, it seems likely that the courts would
find that the Constitution prevents the Legislature from
enacting such content.
Section 1011. As noted in the Background and Existing Law,
Section 1011 provides that if a water rights holder fails to
use all or part of the water provided by that right because of
water conservation efforts, that conserved water is considered
a beneficial use and therefore not subject to forfeiture due
to non-use. Subdivision (a) provides that any improvements in
water use efficiency achieved by implementing the provisions
of this bill shall be deemed conserved water subject to the
protections of Section 1011. This would include conserving
water that may be found to currently meet the definition of
waste or unreasonable use. Under existing law, one cannot
have a right to water that is wasted or unreasonably used.
Consequently, the provisions of this bill regarding Section
1011 protections appear unreasonably broad.
Until such time as the provisions of Chapter 5 change to require
specific actions on the part of water agencies, water users, or
water rights holders, this section is unnecessary. That said,
should the provisions of Chapter 5 change to require specific
actions on the part of water agencies, water users, or water
rights holders, it may be reasonable to ratify that nothing in
this bill is intended to diminish or otherwise limit the
protections of water rights provided by Section 1011.(See
Amendment 6)
Technical Amendments . There are a couple of technical
amendments to correct inadvertent drafting errors. (See
Amendments 7 & 8)
Work in Progress. This analysis suggest a number of amendments
to resolve both critical and technical issues in the current
version of this bill. However, even with those amendments, this
bill will include a number of unresolved issues. Should this
bill move forward, the Committee may wish to ask the author to
commit to working with Committee staff to resolve such issues as
the bill progresses, including:
8
Identifying how do you demonstrate and to whom do you report
that you have "engaged in extraordinary water use efficiency?"
Determining what happens if a water agency is currently
engaged in extraordinary water use efficiency, but lapses in
the future?
Identifying to whom each reporting agency is to report its
progress towards the 2020 water use efficiency and efficient
water resources management target.
Refining what information is to be included in the various
reports
Clarifying funding of the task force
Insuring metrics deemed most appropriate for each circumstance
results in apples-to-apples comparisons.
Determining whether in addition to consensus recommendations
the task force report can include majority or minority reports
Related Bills: Each of the following bills addresses achieving
a 20% reduction in urban per capita water use in by 2020.
SB 460(Wolk). Requires urban water suppliers and agricultural
water suppliers to include additional information in their
water management planning reports, including for each plan
a detailed description and analysis of a long-term plan to
reduce water use; requires the water suppliers submit
their reports to an unspecified entity; and creates an
unspecified entity to collect and analyze the reports.
AB 49 (Feuer & Huffman). Requires the state to achieve a 20%
reduction in urban per capita water use in by 2020, with
incremental progress of at least 10% by 2015, requires
agricultural water suppliers to implement certain
"critical" best management practices, and requires
agricultural water suppliers to implement additional best
management practices if locally cost effective and
technically feasible.
SUGGESTED AMENDMENTS
AMENDMENT 1 On page 18, delete lines 5 and 6
AMENDMENT 2 On page 22, line 39, delete "2000" and insert
"2005"
AMENDMENT 3 On page 22, line 37, delete "10" and insert
"20"
9
AMENDMENT 4 On page 24, line 5, delete "10" and insert
"20"
AMENDMENT 5 On page 22, delete lines 18 through 33
AMENDMENT 6 On page 24, delete lines 19 through 40,
continuing on though page 25 lines 4
AMENDMENT 7 On page 20, line 39, delete "is" and insert
"are"
AMENDMENT 8 On page 21, line 39, delete "either of the
following:" and insert "residential water use that meets
both of the following criteria:"
SUPPORT
Santa Ana Watershed Project Authority (Sponsor)
Elsinore Valley Municipal Water District
OPPOSITION
None Received
10