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California Legislature Passes New Delta and Water Policy Legislation November 6, 2009 by Daniel Kelly dkelly@somachlaw.com |
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Earlier this week, the California Legislature sent the Governor a package of bills touted as a “comprehensive solution” to what is viewed by many as California’s current water crisis. This package, passed in the 2009-2010 Seventh Extraordinary Session, consists of four policy bills and one bond bill. The policy bills are Senate Bills 1, 6, 7, and 8, with Senate Bill 2 being the bond bill. A brief overview of each bill is provided below, with a more detailed analysis to follow in the near future. Senate Bill 1 Senate Bill 1 (SB 1) is focused on the Delta, establishing new policy for the Delta, providing for a new governance structure, and calling for various near-term or early actions to address ecosystem and water supply-related problems in the Delta. To that end, SB 1 reconstitutes the Delta Protection Commission and provides the Commission with a role in developing an economic sustainability plan for the Delta region. The Commission can also act as a facilitating agency for implementing joint habitat restoration or enhancement programs within the primary zone of the Delta. The Commission can also comment and provide recommendations on matters before the newly established Delta Stewardship Council (discussed below) related to cultural, recreational, and agricultural values in the Delta. The Commission is also directed to make recommendations to the Legislature, prior to July 1, 2010, for expanding the primary zone of the Delta in several enumerated areas. SB 1 also creates the “Sacramento-San Joaquin Delta Conservancy” (Conservancy). The Conservancy is a new State agency within the Resources Agency, whose board is comprised of voting and non-voting members from the State and local levels. The Conservancy is tasked with promoting and supporting the environmental protection of the Delta and the economic well-being of Delta residents, and is identified as the primary State agency to implement ecosystem restoration projects in the Delta. SB 1 establishes the Delta Stewardship Council, which is comprised mainly of members appointed by the Governor and Legislature, with one local Delta representative, the chair of the Delta Protection Commission. The Council’s main function is the creation of the new “Delta Plan.” The Delta Plan is a new, long-term management plan for the Delta, with the ultimate goals to restore the Delta ecosystem and provide a reliable water supply for certain parts of California. Most activities within the Delta and some significant activities impacting the Delta would be measured against this new plan for “consistency.” To aid in its functions, the Council is also tasked with creating the new Delta Independent Science Board, which replaces the CALFED Independent Science Board. SB 1 also contemplates incorporation of the Bay Delta Conservation Plan (BDCP) into the Delta Plan, so long as specific criteria are met. In so doing, many Delta-related activities may eventually be measured for consistency with the BDCP. SB 1 also mandates certain early actions. Included in these early actions is the development of new Delta flow criteria for Delta waterways, and the rapid consideration of certain physical restoration and water supply projects thought to provide real immediate environmental and water supply benefits. The Legislature also directed the State Water Resources Control Board (SWRCB) to set a schedule for completing instream flow studies for the Delta and all major rivers and streams in the Delta watershed. Some of these studies must be completed by 2012 with flows set for all major rivers and streams by 2018. In addition, SB 1 establishes the “Delta Watermaster,” which will act as an extension of the SWRCB in the Delta. The Delta Watermaster will possess the SWRCB’s enforcement powers in the Delta, and will likely be the primary enforcer of water rights. Senate Bill 6 Senate Bill 6 (SB 6) establishes a new groundwater monitoring program geared towards establishing a system of centralized information gathering for groundwater elevations in all basins and subbasins throughout the State. Monitoring can be done locally, either by existing local agencies with groundwater management authority, or by newly developed local “cooperative groundwater monitoring associations.” If no local agency or voluntary association performs groundwater monitoring, the Department of Water Resources is required to conduct the monitoring. The Legislature expressly prohibited a local agency or the Department from entering private property without the owner’s consent and from requiring monitoring and reporting from private property owners. Where the Department is required to conduct the monitoring itself, SB 6 denies, except in limited circumstances, State administered water grants and loans for those areas failing to voluntarily conduct the monitoring. Senate Bill 7 Senate Bill 7 (SB 7) addresses water conservation. It generally requires a 20% reduction in urban water usage per capita by 2020 and requires the development of agricultural water management plans by 2012. With certain exceptions, urban retail water suppliers are required to develop urban water use targets, using specified criteria. The intent of the Legislature is that the urban water use targets cumulatively achieve a 20% reduction from the baseline daily per-capita water use. The legislation attempts to address circumstances where local agencies have already taken significant steps to reduce per-capita usage, and recognizes climatic and population density differences throughout the State, as well as different levels of commercial and industrial water use in different parts of the State. Certain agricultural water suppliers, under SB 7, are required to develop Agricultural Water Management Plans, which will generally describe the area within which water is provided and outline water supplies and use within that area. These agricultural water suppliers are also required to measure volumes of water delivered to customers with sufficient accuracy to enable charging for water based at least in part on quantities of water delivered. Additional efficient water management practices are required where those practices are locally cost effective and technologically feasible. Agricultural water suppliers that are required but fail to comply with SB 7 will be denied State water grants and loans. Senate Bill 8 Senate Bill 8 (SB 8) addresses a current gap in information on water diversion and use, primarily water diverted and used under pre-1914 and riparian water rights. While pre-1914 and riparian water right holders have long been required to fill out and file a statement of diversion and use, those statements were for informational purposes only and the Water Code expressly provided that there were no legal consequences associated with the failure to file. SB 8 removes these provisions, making the reporting of all surface water diversion and use mandatory. SB 8 provides monetary penalties for failing to file and for providing false information when reporting. SB 8 also increases the budget of the Division of Water Rights by $3,750,000 in order to fund 25 permanent positions in support of water rights enforcement. Senate Bill 2 Senate Bill 2 (SB 2) authorizes the issuance of $11,140,000,000 in bonds for various water-related projects throughout the State. Most notably, SB 2 directs $455,000,000 to drought relief projects, $1,050,000,000 to water supply reliability projects through the Integrated Regional Water Management Plans, $2,250,000,000 for Delta sustainability projects, $1,785,000,000 for ecosystem and watershed protection projects, $1,000,000,000 for water recycling projects, and $3,000,000,000 for storage projects. Some bond funds are subject to a 50% cost share and only $5,570,000,000 can be sold prior to July 1, 2015, in order to limit the state’s outstanding debt. Somach Simmons & Dunn will provide a more detailed analysis of each of these bills and will post them to the firm’s website at www.somachlaw.com/Delta. Somach Simmons & Dunn will regularly post information and new developments on Delta-related activities on its website, so check back often. If you have any questions about the new Delta and water policy legislation, please contact Daniel Kelly at 916-446-7979 or by email at dkelly@somachlaw.com. Disclaimer: Somach Simmons & Dunn provides these updates and the materials on its website for its clients and non-client internet users for informational purposes only. These updates and the firm's website are not a substitute for legal advice. Please consult with legal counsel for specific advice and/or information. |
