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: SB 460 HEARING DATE: April 28, 2009
AUTHOR: Wolk URGENCY: No
VERSION: April 22, 2009 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Water management plans.
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
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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.
The Agricultural Water Management Planning Act, currently in
statute but inoperative, required agricultural water suppliers
that supply more than 50,000 acre-feet of water annually to
develop agricultural water management plans by 1992, but not
after. To the extent information was available, the reports were
to address the following:
The quantity and source of water delivered to, and by, the
supplier.
Other sources of water used within the service area, such as
groundwater and other diversions.
A general description of the supplier's water delivery system
and service area.
Total irrigated acreage within the service area.
The amount of acreage of trees and vines grown within the
service area.
An identification of all of the following:
Current water conservation and reclamation practices
being used.
Plans for changing current water conservation plans.
Conservation educational services being used.
Whether the supplier, through improved irrigation water
management, has a significant opportunity to do one or both of
the following:
Save water by means of reduced evapotranspiration,
evaporation, or reduction of flows to unusable water bodies
that fail to serve further beneficial uses.
Reduce the quantity of highly saline or toxic drainage
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water.
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.
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:
Require urban water suppliers to provide additional
information in their urban water management plans, including:
A description and analysis of a long-term plan to reduce
water use, including commitments to achieving quantified
water use reduction objectives by 2020.
A full implementation of best management practices that
are locally cost effective and technically feasible, and
implementation of local resource projects.
Per capita use reduction objectives for residential
water use.
Maximum efficiency gains for commercial, industrial, and
institutional use.
Require that the urban water suppliers, in developing their
urban water management plans, to consider:
The water-energy interface to maximize energy efficiency
gains associated with changing water use.
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Changes in patterns of beneficial uses, both indoors and
outdoors, that maintain quality of life while helping
achieve long-term goals.
Require agricultural water suppliers, undefined, to prepare
and adopt agricultural water management plans, pursuant to the
Agricultural Water Management Planning Act, by an unspecified
date.
Require agricultural water suppliers to include additional
information in their agricultural water management plans,
including:
A description and analysis of a long-term plan to reduce
water use through use of water use efficiency measures.
A full implementation plan for efficient management
practices that are locally cost effective, appropriate, and
technically feasible, and for local resource projects.
Maximum efficiency gains for agricultural use.
Require that the agricultural water suppliers, in developing
their agricultural water management plans, consider the
water-energy interface to maximize energy efficiency gains
associated with changing water use.
Require that the water suppliers submit their urban or
agricultural water management plans and annual progress
reports to an unspecified entity.
Water suppliers that fail to submit a plan to the unnamed
unspecified entity would be ineligible for grants provided
under Proposition 204, Proposition 13, or drought assistance.
Create a new, unspecified entity to:
Develop an open and transparent process for the
collection and analysis of the data submitted to it by the
water suppliers,
Create and maintain a statewide database on water use,
conservation, and water use efficiency.
Provide recommendations for improvements to water
suppliers' plans to meet a statewide goal.
Submit an annual report to the Legislature.
Provide that data and reports prepared pursuant to this bill,
and any failure to comply with the milestones established by
this bill, would be inadmissible as evidence that any person
has failed to comply with the provisions of Section 2 of
Article X of the California Constitution or other provisions
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of law.
Make numerous findings and statements of Legislative intent
regarding water conservation planning.
ARGUMENTS IN SUPPORT
According to the Association of California Water Agencies
(ACWA):
"While still a work in progress, SB 460 would state the
Legislature's intent to enact legislation that would achieve a
20% reduction in per capita water use, which translates into a
statewide aggregate savings of 1.74 million acre feet. SB 460
would provide a legitimate framework for meeting the ultimate
goal of using water more efficiently in California.
Additionally, the bill would require that a water supplier
develop a plan that would establish a water use objective that
it would achieve by the year 2020 to help accomplish the
statewide aggregate goal. ACWA believes that success will only
be achieved if local water suppliers are responsible for
designing and implementing water conservation and water use
efficiency programs. The plans would require the full
implementation of best management practices for urban water
suppliers."
"SB 461 would call for efficient water management practices for
agricultural suppliers, where locally cost effective,
appropriate, and technically feasible. ACWA supports continued
improvements to the EWMPs as a tool for enhancing agricultural
water use efficiency and additional measures (including
exploration of innovative water pricing mechanisms) that will
result in system losses when a net savings to the system
results. The overriding goal is to achieve more-efficient water
management than currently exists to meet local water supply
reliability goals and assist in statewide water management."
ARGUMENTS IN OPPOSITION: None
COMMENTS
Where's The Beef? The provisions regarding urban water use are
mostly a restatement of existing requirements under the Urban
Water Management Planning Act. Nothing in the bill requires
anyone to take any water conservation or water use efficiency
action not already required by existing law. Instead, there are
vague references to "achieving quantified water use reduction
objectives" or "per capita use reduction objectives," but
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nowhere does the bill define such terms.
If, as suggested in the Legislative findings, the purpose of the
bill is to "Establish a statewide, transparent process to
accomplish the Governor's goal of a 20 percent per capita
reduction in water usage by 2020," the bill ought to identify
how the independent actions of urban water suppliers will
somehow lead to a 20 percent statewide reduction in per capita
water use. It does not. Nowhere in the operative part of the
bill does it even mention the 20 percent reduction goal, let
alone describe how the state would get there. At a minimum, the
bill ought to require urban water suppliers to either (1) commit
to a 20 percent reduction in per capita water use or (2) justify
why the 20 percent reduction is not appropriate for that agency
and to propose and justify an alternative reduction target.
(See Amendment 1)
Agricultural Water Suppliers. As noted in the Background and
Existing Law, the existing, though dormant, provisions of the
Agricultural Water Management Planning Act required agricultural
water suppliers to fully describe their service area, quantity
and quality of water resources, water management practices, etc.
Agricultural water suppliers were defined as a supplier
providing more than 50,000 acre-feet of water annually for
agricultural purposes. However, this bill has a blank for the
definition of agricultural water suppler. The agricultural
water planning provisions of this bill raise two significant
questions: (1) What is the appropriate definition of an
agricultural water supplier? (2) Are the provisions of the
Agricultural Water Management Planning Act still appropriate?
Regarding the definition of agricultural water supplier, there
are a number of approaches one might take. One might be able to
determine, based on an analysis of water agency operations,
financial and technical capacity, etc., the minimum size of an
agency that would not only be technically able to conduct the
analysis but where the results of the analysis would be
commensurate with the costs of the analysis. This is probably
neither a simple nor uncontroversial approach. Another approach
would be to focus on establishing parity with urban water
management plans. Such an analysis would consider the percent
of agricultural water that would be covered by agricultural
water plans as compared to the percent of urban water covered by
urban water management plans. While probably easier
computationally, it may result in picking only the low hanging
fruit.
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Regarding the appropriateness of the Agricultural Water
Management Planning Act, those provisions were initially enacted
in 1986, and last amended in 1991. By comparison, various
provisions of the Urban Water Management Planning Act are
usually updated at least once a session, reflecting changes in
current thinking in water management planning. This suggests
that if this bill is going to rely on at least some of the
provisions of the Agricultural Water Management Planning Act,
additional attention to those provisions are probably warranted.
What's Wrong With DWR? Under existing law, urban water
management plans and agricultural water management plans are to
be submitted to DWR. DWR is then to summarize the plans and
submit a report to the Legislature. This bill, though, proposes
that the reports be provided to an unnamed entity, possibly a
new state agency, who will then evaluate the plans to determine
if the state will reach an unstated goal and recommend
modifications of those plans to meet that unstated goal.
If the objective is to use the existing urban and agricultural
water management planning processes, that process is already
established. Urban water management reports, for example, are
to be adopted by December 31 in years ending in 5 and 0, they
are due to DWR 30 days later, etc. With a few minor changes to
the Agricultural Water Management Planning Act, a similar system
could be established on the agricultural water management side.
If the objective is something different, the objective and its
justification needs to be made much more clear.
Inadmissible Evidence. This bill 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 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
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find that the Constitution prevents the Legislature from
enacting such content. (See Amendment 2 & 3)
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. This bill, perhaps inadvertently, 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 might 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 appear unreasonably broad. That said, it does seem
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 4 & 5)
Penalties. The bill provides that urban and agricultural water
suppliers that fail to submit plan to the unnamed unspecified
entity would be ineligible for grants provided under Proposition
204, Proposition 13, or drought assistance. This language
appears to be patterned after an older section of the Urban
Water Management Planning Act. The penalties in this bill
should reflect any funding source for state funds. (See
Amendment 6 & 7)
Per Capita Water Use & Population Growth. Currently, urban
water use is about 8.7 million acre-feet per year. In
developing the findings, the sponsors took that number,
multiplied it by 20 percent (reflecting the policy of reducing
per capita water use by 20 percent by 2020), and then concluded
that the conservation target is 1.74 million acre-feet by 2020.
This would be appropriate if the population remains constant
from now to 2020. However, California's population is projected
to grow by around 13? percent between 2010 and 2020. While 1.74
million acre-feet reflects a 20 percent reduction in per capita
water use based on today's population, it would represent only
about an 11? percent reduction in per capita water use based on
2020 population. A 20 percent reduction in per capita water use
by 2020 would therefore reduce urban water use by significantly
more than the 1.74 million acre-feet amount identified in the
findings. (See Amendment 8)
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Work in Progress. This analysis suggest a number of amendments
to resolve critical issues in the current version of this bill.
However, even with those amendments, this bill will include a
lot of blank spaces, undefined terms, and uncertain processes.
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:
Filling in all the blanks
Defining terms, such as "appropriate" in the phrase on page 7,
line 2, "practices that are locally cost effective,
appropriate , and technically feasible"
Providing additional details to ensure that the 20 percent
reduction goal in urban per capita water use is achieved
More fully integrating the Urban Water Management Planning Act
and the Agricultural Water Management Planning Acts and
updating those acts as appropriate
Resolving the reporting, monitoring, and evaluation provisions
Related Bills: Each of the following bills addresses achieving
a 20% reduction in urban per capita water use in by 2020.
SB 261(Dutton & Ducheny) Requires urban water supplier to
develop and implement a water use efficiency and efficient
water resources management plan to reduce per capita
residential water use by 20 percent and creates a task
force to develop best management practices for commercial,
industrial, and institutional (CII) water uses.
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 Page 4, end of line 32, insert:
"Commitments to achieving quantified water use reduction
objectives" means either of the following:
(A) A commitment, approved by the governing board of the
urban water agency, to achieving a 20 percent reduction in
per capita water use.
(B) A commitment, approved by the governing board of the
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urban water agency, to achieving a specified percent
reduction in per capita water use that is less than 20
percent that includes a justification why the 20 percent
reduction is not appropriate for that agency.
AMENDMENT 2 On page 5, delete lines 18 through 31
AMENDMENT 3 On page 7, delete lines 19 through 33
AMENDMENT 4 On page 5, delete lines 15 through 17 and
insert:
10928. Nothing in this article shall be construed to
diminish or otherwise limit the protections of water rights
provided by Section 1011 or any other provision of law.
AMENDMENT 5 On page 7, delete lines 16 through 18 and
insert:
10939. Nothing in this article shall be construed to
diminish or otherwise limit the protections of water rights
provided by Section 1011 or any other provision of law.
AMENDMENT 6 On page 5, delete lines 34 through 37 and
insert:
to receive funds made available pursuant to any program
administered by the board, the department, or the
California Bay-Delta Authority or its successor agency
until the plan is submitted pursuant to this chapter.
AMENDMENT 7 On page 7, delete lines 36 through 39 and
insert:
ineligible to receive funds made available pursuant to any
program administered by the board, the department, or the
California Bay-Delta Authority or its successor agency
until the plan is submitted pursuant to this chapter.
AMENDMENT 8 On page 2, delete lines 25 through 27 and
insert:
By 2020.
SUPPORT
Association of California Water Agencies
Pacific Coast Federation of Fishermen's Associations
OPPOSITION
None Received
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