BILL ANALYSIS �
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2013-2014 Regular Session |
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BILL NO: SB 1199 HEARING DATE: April 22, 2014
AUTHOR: Hancock URGENCY: No
VERSION: April 3, 2014 CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Wild and scenic rivers: Mokelumne River.
BACKGROUND AND EXISTING LAW
Federal law and California law have existing "wild and scenic
rivers" acts.
After several rounds of amendments since its original passage in
1972, California law now considers segments of the Smith River
and tributaries, Klamath River and tributaries, Scott River,
Salmon River, Trinity River, Eel River, Van Duzen River, North
Fork of the American River, East Carson and West Walker Rivers,
South Yuba River, Albion and Gualala Rivers, and Cache Creek.
Segments of the McCloud River, Deer Creek, and Mill Creek are
also protected under the state act although not formally
designated. The Cache Creek designation, which covers 31 miles
of that stream, was the most recent designation, in 2005.
Sec. 5093.50 of the Public Resources Code establishes the policy
of California to protect the designated segments of these rivers
in their free-flowing state for the benefit and enjoyment of the
people of the state. The law contains a declaration that such
use of these rivers is the highest and most beneficial use of
these rivers and constitutes a reasonable and beneficial use
within the meaning of the state constitution. Consequently,
these segments are considered fully appropriated by the
California Division of Water Rights. Those who obtain new water
rights may not "impair" the designated segments of wild and
scenic rivers.
Several dozen points of diversion for water supply have been
allowed on wild and scenic rivers. As one example, there are
nearly 50 water supply diversions on the Eel River and the Cache
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Creek designation specifically excludes existing water rights of
several public agencies.
"Free-flowing" is defined as "existing or flowing without
artificial impoundment, diversion or other modification of the
river." However, dams above or below designated wild and scenic
segments of rivers are fairly common.
"Rivers" includes the water, bed, shoreline, and other
attributes "up to the first line of permanently established
vegetation." This latter term was added in 1982 to reduce the
land area originally included in wild and scenic river
designations.
Rivers in the wild and scenic system are classified based on
their relative degrees of access and development. Each river
segment is classified as "wild" or "scenic" or "recreational."
Wild segments, the most pristine, have no dams or impoundments
and are generally inaccessible by cars. Scenic segments are also
without dams or impoundments, but may have limited roadway
access. Recreational segments likely have roadway access and
some development.
In 1982, there were several amendments to the state act
including provisions that eliminated the requirement of
management plans and for the Secretary for Resources to manage
designated river segments to protect these rivers and the
underlying reasons they were initially designated as wild and
scenic. Several other amendments were made that year as well.
A 1986 amendment established a study process to consider future
additions to the state wild and scenic river system. Segments
have been added to the system as a result of such studies, but
also by legislative action without such studies.
Sec. 5093.67 and sec. 5093.55 prohibit new dams or diversion
facilities on any river segment included in the wild and scenic
river system except when necessary for local water supplies and
when there will be no adverse effect on the free-flowing
condition of the river segment. The Secretary for Resources is
authorized to make a determination on new diversions in such
river segments.
Other provisions require local governments to exercise their
land use authority in a manner consistent with the wild and
scenic river act provisions. State agencies are required to
protect designated segments in the course of their normal
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statutory duties. Designation of river segments does not affect
the state's jurisdiction or responsibility over fish and
wildlife.
The river supports a system of water storage dams and
hydroelectric power plants, operated by East Bay Municipal
Utility District and PG&E which would not be included in the
segments designated as wild and scenic by this bill.
Federal law. In 1968, Congress passed the federal wild and
scenic river act, and delegated management of federally
designated segments to the state. State-designated rivers may be
added to the federal system upon the request of the governor and
approval of the Secretary of the Interior. Only the Smith,
Klamath, Scott, Salmon, Trinity, Eel, Van Duzen, and lower
American are federally listed as well as state-listed.
Among other distinctions from state law, the federal act has a
more expansive definition of river corridor (generally extending
from each side of the river) and requires a federal management
plan.
Federal agencies. The U.S. Forest Service (1990) and the Bureau
of Land Management (2007) have each completed studies of the
Mokelumne and found the river to be free flowing and possess
outstanding recreation, scenery, cultural, historical, and water
quality values.
PROPOSED LAW
This bill would include specified segments of the North Fork of
the Mokelumne River and the main stem of the Mokelumne River in
the California Wild and Scenic River statute. For the North
Fork, 20 miles would be wild, while 9 would be recreational. For
the main stem of the river, 3 miles would be scenic, and 4.6
would be recreational. The designation of the main stem would
terminate at the upper extent of Pardee Reservoir downstream of
Highway 49, as the reservoir exists on January 1, 2015. A total
of nearly 37 river miles would be included.
ARGUMENTS IN SUPPORT
This bill is co-sponsored by two non-profit groups, Friends of
the River, and the Foothills Conservancy.
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Friends of the River notes that the bill would preserve
recreational opportunities for the public, generate economic
activity for the local communities, and preserve the right to
future water development as provided by existing law. It argues
that because of the natural resource value of these segments of
the river, it is clearly eligible to be protected in perpetuity.
Other supporters point out the numerous hiking, kayaking, and
whitewater rafting opportunities on this river.
Calaveras County is in support and has adopted a resolution
because of the importance of the designation to the economy,
businesses, and people of that county.
ARGUMENTS IN OPPOSITION
The County of Amador and the Jackson Valley Irrigation District
oppose the bill in part because they read existing law as
requiring a study by the Secretary for Natural Resources prior
to designation.
The irrigation district, along with the county, are concerned
about future water development and the effect any designation
may have on future water development.
The Amador Water Agency seeks clarification that its pending
proposal for water rights at the State Water Resources Control
Board is not adversely affected.
COMMENTS
1. East Bay Municipal Utility District and the author and
supporters are in discussion to ensure that the date that would
apply to the upper extent of Pardee Reservoir is correct. A
proposed amendment reflects what staff believes is the accurate
definition for Pardee Reservoir.
2. There are also ongoing discussions to ensure that the local
water agencies about present and future water development are
addressed.
A reasonable accommodation of those concerns seems possible. The
prohibition on new dams or diversions in section 5093.56 is not
absolute and extends only to projects that "could have an
adverse effect on the free-flowing condition and natural
character5 of the river and segments thereof designated?in the
system." Related issues were raised when the Yuba and Cache
Creek designations occurred and could serve as a model for the
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Mokelumne.
3. There are also discussions with PG&E to ensure that the
designation appropriately excludes certain power plants and
related impoundments.
4. Staff does not concur with the opposition argument that a
designation of a river segment must be preceded by a study
conducted by the Resources Agency secretary. That section,
5093.547, directs the secretary to undertake reports on the
suitability or nonsuitability for additions to the wild and
scenic rivers system. However, it is not framed as the exclusive
way for new designations to occur, and that section makes it
clear that any such designation is a legislative determination.
As a practical matter, such studies have not been a
pre-condition of any listing determination by the Legislature.
In fact, the most recent additions to the wild and scenic river
system (Yuba, Cache Creek, Albion and Gualala Rivers) had no
study by the Resources Agency secretary.
The second proposed amendment is re-states the geographic
boundary of one of the proposed recreational segments of the
proposed designation.
Amendments that reflect comments 2 and 3 may be proposed as
author's amendments. In any event, assuming the bill moves
forward, the author should commit to working with the Committee
to draft any necessary language that addresses these comments.
SUGGESTED AMENDMENTS:
AMENDMENT 1
Purpose: To clarify for the benefit of the East Bay Municipal
Utility District that the wild and scenic river designation ends
above the Pardee Reservoir high water mark.
Pg. 22, starting on line 9:
Electra Powerhouse to the upper extent of Pardee Reservoir
downstream of Highway 49, as the reservoir exists of January 1,
2015 the gross normal pool of Pardee Reservoir at 568 feet mean
sea level (National Geodetic Vertical Datum of 1929 - NGVD29).
AMENDMENT 2
Purpose: To close a break in the designation of the river and to
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clarify that the confluence mentioned is the confluence with the
Middle Fork (according to maps).
Pg. 21, starting with line 36:
(E) From 1,400 feet upstream of the South Fork Mokelumne River
confluence to the
South Fork Mokelumne River confluence From the southern boundary
of Section 12, T6N, R12E to the Middle Fork Mokelumne River
Confluence
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SUPPORT
Friends of the River
Foothills Conservancy
County of Calaveras
Environmental Water Caucus
Restore the Delta
California Sportfishing Protection Alliance
Planning and Conservation League
Sierra Club California
Sierra Club Bay Chapter
Pacific Coast Federation of Fishermen's Associations
California Coastkeeper Alliance
Environmental Justice Coalition for Water
Center for Biological Diversity
Karuk Tribe
Winnemem Wintu Tribe
California Valley Miwok Tribe
Southern California Watershed Alliance
Lower Sherman Island Duckhunters Association
Butte Environmental Council
Earth Law Center
Sacramento River Preservation Trust
Clean Water Action of California
Institute for Fisheries Resources
Citizens Water Watch of Northern California
Food and Water Watch
Klamath Riverkeeper
Desal Response Group
Sierra Nevada Alliance
Fish Sniffer
California Striped Bass Association
Golden West Women Flyfishers
MyValleySprings.com
Natural Heritage Institute
Amador County Democratic Central Committee
American Rivers
Delta Fly Fishers
Sierra Business Council
South Yuba River Citizens League
Central Sierra Environmental Resource Center
17 individuals/businesses
OPPOSITION
County of Amador
Jackson Valley Irrigation District
Amador Water Agency
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