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 681 HEARING DATE: April 28, 2009
AUTHOR: Pavley URGENCY: No
VERSION: April 20, 2009 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Water diversion and use.
BACKGROUND AND EXISTING LAW
During its 2005-2006 Regular Session, the Legislature passed and
the Governor signed Assembly Bill 1200 (Laird), Senate Bill 1574
(Kuehl), and Assembly Bill 1803 (Committee on Budget).
Together, these bills required an assessment of the potential
impacts on water supplies of catastrophic failures in the Delta,
identification and evaluation of options to protect water
supplies and the ecosystem of the Delta, the development of a
vision for a sustainable Delta, and a strategic plan to achieve
a sustainable Sacramento-San Joaquin Delta.
Specifically, SB 1574 created a Delta Vision Committee to
develop the vision and strategic plan. The Committee is
composed of the Secretary of the Resources Agency as chair, and
the Secretaries of the Business, Transportation and Housing
Agency, Department of Food and Agriculture, and the California
Environmental Protection Agency, and the President of the Public
Utilities Commission.
On September 28, 2006, the Governor issued an Executive Order
that, among other things, established a Blue Ribbon Task Force
and directed the Task Force to:
Develop a vision for the sustainable management of the Delta,
Report to the to the Delta Vision Committee and Governor its
findings and recommendations on its vision for the Delta by
January 1, 2008, and
Develop a strategic plan to implement the delta vision by
October 31, 2008.
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The Executive Order further directed the Delta Vision Committee
to report to the Governor and the Legislature by December 31,
2008 with recommendations for implementing the Delta Vision and
Strategic Plan.
In October, 2008, the Blue Ribbon Task Force published its Delta
Vision Strategic Plan and on January 5, 2009, the Delta Vision
Committee submitted its final Implementation Plan to Gov. Arnold
Schwarzenegger. The implementation plan recommended management
actions in the California Delta to fulfill the report's
recommended two co-equal goals of water supply reliability and
ecosystem restoration. The implementation plan sets priorities
based on the Delta Vision Strategic Plan developed by the
Governor's Delta Vision Blue Ribbon Task Force.
Among the recommended actions requiring new authority were the
following:
Water Rights Accountability - Enact legislation in 2010 to
enhance and expand the State Water Resources Control Board's
water rights administrative accountability. These
recommendations are not intended to adversely affect the current
water right priority system, including area-of-origin priorities
but rather to strengthen the current administrative system.
Appropriate enforcement will protect existing water rights.
The State Water Resources Control Board needs authority to
collect and disseminate accurate information on all surface
water diversions in the state. Consequently, all statutory
exemptions from water diversion and use reporting should be
repealed and enforcement authority extended, and a streamlined
process implemented requiring complete, timely, and accurate
information from all diverters. The gathering and submittal of
this information should be as easy as possible, as described
below.
The Water Board needs authority to require interim remedies,
after opportunity for hearing, to prevent irreparable harm to
the environment and other water right holders, while
underlying proceedings continue. Interim remedies could
include requiring the diverter to take appropriate action to
mitigate potential harm or to provide necessary information.
As with courts, Water Board evidentiary proceedings can take
many years. Unlike courts, however, the Water Board currently
has no authority to issue interim orders designed to prevent
irreparable harm.
Further, the Water Board needs to clarify existing water
rights in many parts of the State in light of poorly defined
or unreported riparian and appropriative water right claims
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and the unquantified needs of fish and wildlife. The Board
needs the authority to initiate stream adjudications and
collect adjudication costs from the parties diverting water.
This process will respect area of origin rights.
Many existing water right permit terms and conditions are not
directly enforceable, and the law should be amended to correct
this problem.
Water Use Reporting - Ensure the sustainability of water
supplies by improving water diversion and use reporting,
strengthening water rights accountability, and increasing water
use efficiency. Enact legislation to streamline and simplify
water diversion and use reporting requirements to reduce the
reporting burden on local agencies and improve the quantity and
quality of water diversion and use data. The legislation should
mandate electronic submission of water diversion and use data to
a central database. In addition, a pilot project should be
mandated to install real-time telemetered monitoring devices on
surface water diversions in the Delta and its tributaries. The
pilot project should be extended to all diversions above a
specified size upon successful completion of the pilot.
PROPOSED LAW
This bill would enact the recommendations of the Delta Vision
Committee on water rights and water use reporting. It would:
Streamline the State Water Board's waste and unreasonable use
authority and improve enforcement for failure to meet water
conservation requirements, resulting in water conservation
improvements.
Improve monitoring and reporting, including authority to
collect and disseminate information on all surface water
diversions in the state, eliminate exemptions from
requirements for filing of statements of diversion and use,
and establish enforcement authority for monitoring and
reporting violations.
Establish a pilot program for real-time telemetered monitoring
of Delta diversions, although it does not specify whether the
State Water Board or the Department of Water Resources is
responsible for the program.
Improved enforcement, including authority to directly enforce
water right terms and conditions, interim relief authority,
and increased administrative penalties.
Authority to initiate stream system adjudications and collect
adjudication costs.
ARGUMENTS IN SUPPORT
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According to the author, "At our recent hearing on Delta vision,
I was shocked to find out that the State Water Resources Control
Board had concluded that water users have been promised 8.4
times the average annual unimpaired flows in the Delta
watershed! Not only that, the face value of these permits is 3.4
times more than the highest annual unimpaired flows! Then, at
our subsequent hearing on California Water Rights law, we found
out that pending water right applications would divert an
additional 4.2 million acre-feet of water within the Delta
watershed. The author also stated that, "We learned that the
Blue Ribbon Task Force, led by Phil Isenberg, and the Delta
Vision Committee, led by Secretary Mike Chrisman, have done the
state a great service in both identifying critical problems with
our state's water rights system and recommending solutions to
those problems."
ARGUMENTS IN OPPOSITION
Responding to the previous version of this bill, that dealt only
with statutory adjudication, the Association of California Water
Agencies wrote, "SB 681 would authorize the SWRCB to undertake
such investigations and determinations of water rights on its
own motion. The SWRCB would be able to initiate adjudications
of any streams it found interesting and then charge water users
for the full costs of them - including salaries - under Water
Code sections 2851-2852. This bill would open the door for the
SWRCB to fund the Division of Water rights through charges on
water-users without working on any applications or petitions
that water users themselves have filed."
COMMENTS
Needs Vetting. This is a technically complicated bill that was
only recently amended to include its full provisions. In
addition to the important policy issues raised by this bill,
there are likely to be important technical legal issues as well.
Should this bill move forward, the author has committed to
engage interested parties in a more robust discussion of the
legal issues posed by this bill.
Interim Relief. While the policy implications of the other
provisions of this bill might be somewhat clear, those regarding
interim relief might not. In a July 31, 2008 letter to the
Delta Vision Blue Ribbon Task Force, the State Water Board
explained "why interim relief authority would be helpful to the
Board in water right matters and why the Board believes that its
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existing water right authority is insufficient to impose interim
relief. For purposes of this discussion, interim relief refers
to expedited procedures, similar to those followed by a court in
issuing a preliminary injunction, for issuance of an order
providing protection on an interim basis pending completion of
administrative proceedings applying and enforcing water right
law."
The letter continued: "The State Water Board is responsible for
establishing and maintaining a stable system of water rights in
California to best develop, conserve and utilize in the public
interest the water resources of the State, while protecting
vested rights, water quality and the public trust. Effective
water right administration depends, in part, on adequate and
timely enforcement. The State Water Board and the courts have
concurrent jurisdiction over actions to enforce water right law,
including proceedings brought in response to violations of water
right permits and licenses, violations of the public trust
doctrine, or waste or unreasonable use of water. But only the
courts can take immediate relief action, typically in the form
of a temporary restraining order or a preliminary injunction,
without opportunity for a full evidentiary hearing. In addition,
unlike the Board, the courts are not required to comply with the
California Environmental Quality Act (CEQA) before taking
action."
"In some cases it is necessary to take prompt action to prevent
irreparable harm to water right holders or instream uses.
Without the capacity to impose interim relief, activities that
damage the environment can continue during the length of an
adjudicative proceeding, without any requirement that the
violator take steps to avoid or reduce the damage. The ability
to provide for interim relief pending the completion of an
evidentiary hearing would allow urgent decisions to be made in a
timely manner, eliminate the need for duplicative proceedings in
court, and better protect the state's water resources."
SUGGESTED AMENDMENTS: None
SUPPORT
None Received
OPPOSITION
Association of California Water Agencies
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