BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2759 (Committee on Water, Parks and Wildlife)
As Introduced
Hearing Date: June 24, 2014
Fiscal: Yes
Urgency: No
TH
SUBJECT
Interstate Water Rights
DESCRIPTION
This bill would eliminate certain reciprocity and priority
setting provisions in California law governing interstate rivers
and the appropriation of water across state boundaries and,
instead, provide that if the waters of an interstate water body
have been allocated between California and another state or
Indian tribe by a compact, United States Supreme Court decree,
or other appropriate method of allocating interstate waters, the
state shall exercise its authority over such waters in a manner
consistent with the rights and responsibilities established
under that interstate allocation.
This bill would state that appropriations or changes in water
rights concerning the Walker River and its tributaries are
subject to the provisions of this bill.
BACKGROUND
Since at least the 1940s, California law governing water rights
for interstate rivers has generally required reciprocal
recognition of rights between California and other states.
Under existing law, water may be diverted from a stream in
California for later use in another state only if the other
state allows diversion from its streams for use in California.
Similarly, water rights from another state that allow water to
be diverted from a river that flows into or out of California,
when the water is used in the other state, are recognized by
California only if the other state gives the same recognition to
(more)
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similar California water rights.
In 1982, the U.S. Supreme Court struck down a Nebraska
transboundary water rights reciprocity requirement similar to
California's in Sporhase v. Nebraska (1982), 458 U.S. 941.
Despite the fact that the Court's ruling effectively renders
California's reciprocity requirements unconstitutional, they
remain codified in California law and must be followed by state
agencies until declared unconstitutional by a California
appellate Court. (See Cal. Const., art. III, Sec. 3.5.)
Accordingly, this bill would strike the reciprocity and priority
setting provisions currently in California law governing
interstate rivers and the appropriation of water across state
boundaries that were rendered unconstitutional by the Court's
decision in Sporhase v. Nebraska. This bill would instead
provide that where the waters of an interstate water body have
been allocated between California and another state or Indian
tribe by a compact, United States Supreme Court decree, or other
appropriate method of allocating interstate waters, the state
shall exercise its authority in a manner consistent with the
rights and responsibilities established under that interstate
allocation. This bill would also subject appropriations or
changes in water rights on the Walker River and its tributaries
to the above provision, as specified.
CHANGES TO EXISTING LAW
1.Existing law provides that the entire flow of water in any
natural stream which carries water from the State of
California into any other state is subject to use in the State
of California, under the laws of the State of California, and
the rights to such water may be, so far as not already
acquired by use in the State of California, acquired and held
under the laws of the State of California. The rights to the
use of such water held under the laws of the State of
California are prior and superior to any rights to the waters
of such streams held under the laws of any other state. (Civ.
Code Sec. 1410a.)
This bill would strike the above provision.
2.Existing law provides that upon any stream flowing across the
state boundary, an appropriation of water in this state for
beneficial use in another state may be made only when, under
the laws of the latter, water may be lawfully diverted therein
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for beneficial use in this state. (Wat. Code Sec. 1230.)
This bill would strike the above provision and provide instead
that if the waters of an interstate body of water have been
allocated between California and another state or Indian tribe
by a compact, United States Supreme Court decree, or other
appropriate method of allocating interstate waters, the state
shall exercise its authority over such water in a manner
consistent with the rights and responsibilities of the State
of California under that interstate allocation.
3.Existing law provides that upon any stream flowing across the
state boundary a right of appropriation having the point of
diversion and the place of use in another state and recognized
by the laws of that state shall have the same force and effect
as if the point of diversion and the place of use were in this
state if the laws of that state give like force and effect to
similar rights acquired in this state; provided, that this
section shall not apply to the Walker River and its
tributaries or claimed rights of appropriation therefrom in
the State of Nevada, whether heretofore or hereafter
initiated. (Wat. Code Sec. 1231.)
Existing law further states that the above provision does not
apply to interstate lakes, or streams flowing in or out of
those lakes, except for an appropriation or change in point of
diversion, place of use, or purpose of use under a right to
the use of waters from the Truckee River if the appropriation
or change is made pursuant to the operating agreement
described in Section 205 (a) of Public Law 101-618. (Wat.
Code Sec. 1232.)
This bill would recast and make technical amendments to the
above provisions and would state that those provisions apply
to a right to the use of waters from the Walker River and its
tributaries if the appropriation or change is not inconsistent
with the decree entered in United States v. Walker River
Irrigation District, et. al. United States District Court for
the District of Nevada Equity No. C-125, filed April 15, 1936,
including any amendments to that decree entered before or
after January 1, 2015.
COMMENT
1. Stated need for the bill
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The author writes:
[Civil] Code [section] 1410(a) and [Water Code section] 1230
are unconstitutional in that they purport to give California
jurisdiction, now and in the future, over waters originating
in our state and flowing into another state unless that state
enters into a reciprocity [arrangement] with us. That is in
direct conflict with the [Supreme Court's decision] in
Sporhase v. Nebraska . . . This bill would repeal the above .
. . [c]ode sections and replace [Water Code Section 1231] with
language specifying that with respect to two interstate waters
in particular - the Truckee River and the Walker River - water
rights decisions will be made consistent with their federal
compact and decree, respectively. . . . The reason this fix is
being proposed now is that despite the overarching legal
deficiencies in [section] 1410(a) and [section] 1230, a party
could still invoke them and force the State to raise the issue
all the way to the appellate level, which would be a waste of
money and resources.
2. Constitutionality of Reciprocity Requirements
In 1982, the U.S. Supreme Court struck down a transboundary
water rights reciprocity requirement similar to California's in
Sporhase v. Nebraska (1982), 458 U.S. 941. That case concerned
a Nebraska statute restricting the interstate transfer of ground
water and whether it impermissibly interfered with interstate
commerce, in violation of Article I, Section 8, of the U.S.
Constitution. Under Nebraska state law, a permit to transfer
ground water across state lines could only be approved "if the
state in which the water is to be used grants reciprocal rights
to withdraw and transport ground water from that state for use
in the State of Nebraska." (Neb. Rev. Stat. � 46-613.01.) The
Court ruled that Nebraska's act of conditioning the interstate
transfer of water on reciprocal recognition of water rights in
another state violated the Dormant Commerce Clause of the U.S.
Constitution. According to the Supreme Court:
Where [a] statute regulates evenhandedly to effectuate a
legitimate local public interest, and its effects on
interstate commerce are only incidental, it will be upheld
unless the burden imposed on such commerce is clearly
excessive in relation to the putative local benefits. If a
legitimate local purpose is found, then the question becomes
one of degree. And the extent of the burden that will be
tolerated will of course depend on the nature of the local
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interest involved, and on whether it could be promoted as well
with a lesser impact on interstate activities. (Pike v. Bruce
Church, Inc. (1970), 397 U.S. 137, 142 [citations omitted].)
Examining the Nebraska statute in light of its Dormant Commerce
Clause precedent, the Court stated:
We therefore are not persuaded that the reciprocity
requirement -- when superimposed on the first three
restrictions in the statute [that the withdrawal of the ground
water requested is reasonable, is not contrary to the
conservation and use of ground water, and is not otherwise
detrimental to the public welfare] -- significantly advances
the State's legitimate conservation and preservation interest;
it surely is not narrowly tailored to serve that purpose. The
reciprocity requirement does not survive the "strictest
scrutiny" reserved for facially discriminatory legislation.
(Sporhase v. Nebraska, 458 U.S. at 958.)
Like Nebraska's ground water statute, California's transboundary
water rights reciprocity and priority setting statutes are
probably not narrowly tailored enough to overcome a challenge
that they impermissibly interfere with interstate commerce, and
are likely unconstitutional. However, they remain codified in
California law more than 30 years after the Sporhase decision
was handed down. Further, administrative agencies of the State
of California, like the State Water Resources Control Board, are
required to still follow these statutes because Article III,
Section 3.5 of the California Constitution restricts the
authority of an administrative agency to declare an
unconstitutional statute unenforceable in the absence of an
appellate court determination ruling on the statute's
constitutionality.
This inability to avoid enforcing California's reciprocity and
priority setting statutes may interfere with the state's ability
to properly administer and oversee transboundary water basins,
such as those encompassing the Truckee and Walker Rivers on the
Nevada border. This bill would remove these problematic
statutes and replace them with a directive that instead requires
state agencies to administer transboundary waters in a manner
consistent with interstate or tribal compacts, United States
Supreme Court decrees, or other appropriate methods of
allocating interstate waters.
3. Impact on pending litigation
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While the Committee has been informed that the state is party to
pending litigation concerning the administration of water rights
on the Walker River, the normal concerns about legislation
impacting pending litigation do not apply in this case. The
statutes affected by this bill are likely unenforceable as a
matter of law. Indeed, this bill arguably helps conserve scarce
judicial resources by saving the state courts from having to
expend resources to declare these reciprocity and priority
setting statutes unconstitutional, and avoids the possibility
that a party would purposely invoke these statutes in litigation
for a dilatory purpose.
The provisions this bill would insert in place of the existing
reciprocity and priority setting statutes are also unlikely to
have a material impact on pending litigation. In those places
where this bill does not simply strike existing law, it would
either recast and make technical amendments to existing law, or
declare that the state must follow interstate or tribal
compacts, United States Supreme Court decrees, or other
appropriate methods of allocating interstate waters in its
management of transboundary waters. Staff notes that requiring
the state to follow terms set in an interstate or tribal compact
would not alter existing law since "[i]nterstate compacts . . .
are formal agreements among and between states that have the
characteristics of both statutory law and contractual
agreements." (In re C.B. (Cal.App.4th Dist. 2010) 188
Cal.App.4th 1024, 1031.)
Support : None Known
Opposition : None Known
HISTORY
Source : Committee on Water, Parks and Wildlife
Related Pending Legislation : None Known
Prior Legislation : AB 1327 (Leslie, Ch. 7, Stats. 2002)
exempted any change in point or place of diversion or use of
Truckee River water made in accordance with the Truckee River
Operating Agreement from the statutory prohibition on
recognition of another state's water rights when those rights
are to water from an interstate lake or a river that flows out
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of an interstate lake.
Prior Vote :
Senate Committee on Natural Resources and Water (Ayes 9, Noes 0)
Assembly Floor (Ayes 73, Noes 0)
Assembly Appropriations (Ayes 17, Noes 0)
Assembly Committee on Water, Parks and Wildlife (Ayes 14, Noes
0)
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