by Sheila Kuehl
December 4, 2009

This is the third in a series of four essays describing the five separate pieces of water legislation recently passed by the California legislature and signed by the Governor.  In total, the legislation amended the oversight structure of the Sacramento/San Joaquin Delta, extended water conservation mandates, set up some groundwater measurement procedures, amended penalties for illegal diversion of water, authorized the use of funds from a past water bond and set up a new bond for voter approval next year.

In the first essay, I provided an overview of some of the problems created by the legislation, and described the bill affecting the monitoring of groundwater.  In the second, I described the central role of the Delta and the bill that crafted a new governance and oversight structure.

This essay presents two more bills: one dealing with water rights, penalties for illegal diversion of water and expenditures authorized from an existing bond, and one dealing with urban water conservation.  In the fourth, and last, essay, I will present and analyze the proposed 11.14 billion dollar bond to be placed on the November 2, 2010 ballot.

Who Actually Owns California's Water?

Although some think water is owned by the companies that sell it and some think it belongs to the federal government, in actuality the fresh water in California belongs to the people of California, and the right to use it is by permit and grant.  Use includes "diverting" water from its source and using it personally, or charging others for delivering it.  Even the federal government must abide by California water law and must have licenses and permits for use from the State Water Resources Board.

Water rights have been established in different ways throughout the long history of our state.  If you had a right to divert and use water before 1914, you still have it, at the same place of diversion and place of use.  The City and County of San Francisco had such early rights.  The City of Los Angeles had rights to the Owens Valley tributaries.  With these early rights, the amount that can be taken is limited by flow rate.  For instance, you might be allowed 1,000 cubic feet per second from a particular river from April through August.  After 1914, the grants of water rights were more limited and under the thumb of the Water Resources Board.

Another kind of early water right, harking back to English law, is a riparian right.  This means you own property that abuts a river and have the right to drain some of the river into that property (but not into another watershed).  The Sacramento Valley and the San Joaquin Valley have lots of landowners with riparian rights.

Since 1964, anyone with a pre-1914 right or a riparian right has been required to report to the State Water Board on how much water they were using.  There were a number of exemptions, however, to this reporting requirement, and the new bill removed the exemption only for those who divert water in the Delta.  All other users who were historically exempt from reporting still don't have to report.

In addition, there is a penalty if you lie on your report or if you divert more water than your permit allows or don't comply with the conditions of your permit, or, of course, if you don't have a permit at all and divert water.  This penalty was increased in the bill from $250 to $500 a day for each illegal diversion.

Crafting the Bills and Getting the Votes

There were two very interesting pieces to this whole water bill process.  One of them involved taking the final versions of the bills out of the hands of the usual committees, and, instead, putting the language together in "Big Five"...a meeting of the Governor and the four legislative leaders...and then presenting them to members on the Floor for a vote without a committee hearing.   I will talk more about this in my last essay.

The second interesting development on this water package concerned the fact that some of the bills had to be "watered down" (no pun intended) in order to pass, because a number of Northern California Senators refused to vote for the whole package and votes had to be garnered from moderate Democrats and Republicans, who demanded less regulation and lower penalties for violations.  The result was a bit counter-intuitive.  The enactment of the various bills was made contingent on each other, meaning that all would go into effect or none would.  This led some northern Senators, who didn't like the possibility of an Alternative Conveyance, to feel they had to vote against every bill in order to keep the ones that concerned them from being enacted.  However, by refusing to vote for bills that put stronger measures into place, "enviro" legislators may have actually forced the weakening of the bills.  This was the case with the bill under discussion here.

SBX7 5: Covered all diverters, had stronger penalties...and failed

One of the bills in the original package, SBX7 5, would have removed the reporting exemption for all diverters, even those who had their rights before 1914 and those with riparian rights.  It would have authorized the Water Board to require anyone who diverts water to submit monitoring reports.  In addition, where the water was being illegally diverted, the penalty would have been set at the market rate of the illegally diverted water, which was much more than the $500 per day in the final bill.  SBX7 5 was not enacted, and, in order to get the necessary votes without the northern Senators, the somewhat weaker provisions that were signed into law were put into SBX7 8.

SBX7 8: Exempted only the Delta diverters, limited penalties, and also allocated monies from an existing water bond, already passed.

As indicated above, the only exemption from diversion reporting ended by the bill was for those in the Delta and the penalties for illegal diversion were raised only to $500 a day.  This bill also allocated more bond money from a previous bond, Prop 84, a sort of Plan B, in case the Water Bond proposed for November 2010 fails.

Proposition 84 had been previously passed by the voters and, as with all bonds, sales are dribbled out over a number of years.  This bill added a new category for which Prop 84 monies could be used: $250 million for "projects that reduce dependence on the Delta for water supply".  Other categories, already in the bond were continued:  $202 million to reduce the potential for levee failures that jeopardize water conveyance, $70 million for grants for storm water projects and $24 million for grants to local agencies to support the development and implementation of Natural Community Conservation Plans in or around the Delta.

A Non Controversial Bill Mandated Urban Water Conservation

SBX7 7 applies to urban retail water suppliers (the ones to whom people who live in cities pay their bills).  It is advertised as mandating a 20% reduction in use but, since so many jurisdictions have already done a good deal of conservation, the bill provides a panoply of lesser possibilities.

20% Reduction From What?

An urban retail water supplier must calculate a base amount from which it is expected to reduce by gallons/per capita/ per day over a ten year period.  That period can start no earlier than December 31, 2004 and end no later than December 31, 2010.  So what are you going to pick?  Your highest ten years, of course, because you might have already reached your goal of a 20% reduction by now.  In a way, this is fairer to those cities that have been conserving all along, but it is contrary to the advertisement that we will save another 20%.

Four Ways to Meet the Reduction Mandate

In addition, a twenty percent reduction per capita is only one of four ways you can meet the requirements of this bill.

One: Pick a high-use ten year period and reduce 20% from that; or:

Two: Break your water customers up into categories and pick these goals: 55 gal per day per capita for indoor use; have a water efficient landscape ordinance in place; and reduce commercial and industrial use by 10%; or:

Three: Have a water use amount that is within 95% of an "appropriate target" set in a Department of Water Resources report, already in existence.  Or:

Four: The Department of Water Resources will come up with some different method by which you can set your goals.

Hmm, Is There Some Reason I Have Yet To See the Word "Agriculture"?

Very good question.  Of the developed water in California, approximately 70% goes to agriculture.  The only burden placed on agriculture by this bill (though it is a giant step) is that they must develop water management plans, describing how they will be more efficient in their use of water.  No goals.  No penalties. But it's a start.

Next and Final Essay on Water:  the Proposed Bond