Beveridge & Diamond
 

California Enacts Significant Statewide Water Supply, and Sacramento Delta Land and Water Use, Reform Package

Beveridge & Diamond, P.C., November 19, 2009

After extensive debate and largely closed-door negotiations, the California Legislature has adopted, and Governor Schwarzenegger has signed into law, a multi-bill package of laws designed to address statewide water supply issues and Sacramento River Delta protection.  The five separate legislative bills:

  • Establish a statewide groundwater elevation monitoring program that will backstop local groundwater elevation monitoring efforts;
  • Increase enforcement activities and penalties for failure to report water diversions from surface waters and certain, limited subterranean streams;
  • Establish benchmarks to achieve a 20-percent reduction in statewide urban water use per capita by the end of 2020, and require agricultural water suppliers to implement efficient water management practices by July 31, 2012;
  • Create a seven-member Delta Stewardship Council tasked with developing a “Delta Plan” to achieve the “Coequal Goals of providing a more reliable water supply for California and protecting, restoring and enhancing the (Sacramento-San Joaquin River) Delta ecosystem;”
  • Approve a $11.14 billion bond to fund the measures.

The creation of the Delta Stewardship Council is among the more controversial portions of the new water law.  The Council, which will consist of seven politically appointed members, will have the authority to adopt a “Delta Plan” that could recommend the highly controversial peripheral canal around the Delta.  Water users in the southern half of the state have long sought approval for construction of the canal, which would allow the state to divert a larger quantity of water from the Delta to users in Southern California than is currently physically possible. 

The Delta Stewardship Council’s land use and water use authority in the Delta region is somewhat indirect.  After the Council adopts the Delta Plan, any public agency that undertakes or approves a specified “covered action” within the geographic boundaries of the Delta Plan must submit to the Council a certification that the action is consistent with the provisions of the Plan.  The Council, however, cannot directly act on that certification, but instead serves as the appellate agency for any challenge brought by “any person” to the adequacy of the public agency’s certification.  The Council must hold a hearing on the challenge, and may deny the challenge or it may, if it finds that the certification is not supported by substantial evidence in the record, remand the certification for further consideration by the public agency.  If the public agency decides to proceed with the covered action, it must file a revised certification of consistency, which apparently may again be challenged, triggering a repeat of the procedure described above.  If no person challenges the certification, “the state or local public agency may proceed to implement the covered action.”  Important procedural rules governing the certification appellate process will be adopted by the Council.

Also controversial is the proposed use of a $11.14 billion bond to fund the conservation, monitoring and enforcement provisions of the bill as well as new water projects including, potentially, the peripheral canal.  Under California law, any bond sale by the State must be approved by the voters.  As a result, the bond will be placed on the next ballot.  If the bond does not pass, the effectiveness of the entire package of laws will be greatly compromised by a lack of funding.

To collect enough votes to pass the package of bills, proponents accepted significant compromises.  For instance, to achieve statewide groundwater elevation monitoring, reformers agreed to add language to the final bill which requires regulators receive landowner permission before conducting monitoring activities on privately owned land.  Additionally, the enforcement and penalty provisions of the bills were substantially weakened at the eleventh hour in response to pushback from those legislators hesitant to vote to increase state power.

As a whole, the bills subject California water users to new conservation and enforcement requirements, and subject certain land use and water diversion projects in the Delta to a new land use/water use planning agency -- the Delta Stewardship Council.  These requirements alter California’s water and Delta protection regimes, which may have the effect of increasing the reliability of the water supply but which will increase regulation and enforcement of water use statewide and of land use within the Delta. 

The fact that proponents of reform finally succeeded in passing the bills through both chambers after years of failure is most likely the result, in part, of increased awareness of water scarcity due to the drought conditions experienced throughout the state over the past few years.  As water resources become more strained in the West it is likely the state will increasingly control water use.  These new laws will foster such increased control of water use.

For further information on the new laws, please contact Kenneth Finney at KFinney@bdlaw.com or Daniel Brian at DBrian@bdlaw.com.  

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