Introduction

It would be a vast understatement to say the package of water bills approved by the California Legislature and signed by Gov. Arnold Schwarzenegger last November was anything but a significant achievement. During a time of fierce partisan battles and the state’s long-standing political gridlock with virtually all water policy, pundits at the beginning of 2009 would have given little chance to lawmakers being able to reach com­promise on water legislation.

But 2009 was not like previous years, when lawmakers struggled to reach consensus on water policy. Gripped by a third year of drought and reduced water exports, lawmakers acted with a sense of urgency in tackling a slew of water legislation. Meanwhile, controversy erupted over concerns the Bay Delta Conservation Plan (BDCP) – designed to reconcile water exports with species protections – was a means to build the so-called “Peripheral Canal” that is the root of so much Delta controversy.

Ultimately, lawmakers deliberated on and sent to the governor a package of four policy bills and an $11 billion general obligation bond measure. The laws create a Delta Stewardship Council and Delta Conservancy, enhance the role of the Delta Protection Commission, mandate water use reductions, require the State Water Resources Control Board (State Water Board) to increase its enforcement activities and to establish flow criteria for the Delta, and establish a statewide groundwater elevation monitoring reporting program.

The package was no small feat, especially for the California Legislature, which for the last few years has been overwhelmed by the financial crisis that has dealt a severe blow to the state’s economy. Throw in the fact that lawmakers were taking up water and the potential existed for a great deal of talking with nothing to show for it. But according to observers, the message of getting something done finally hit home this time.

“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,” water lawyers Daniel Brian and Kenneth Finney with Beveridge and Diamond in San Francisco wrote in the wake of the bill’s passage.

The bond slated for the November ballot would provide funds for a long list of local and regional projects and for increased surface storage, which has been long sought by the water user community. In a sluggish economy with a chronic state budget deficit, proponents acknowledge the difficult task of getting voters to approve the bond and a Feb. 10 poll conducted by Tulchin Research showed 55 percent of the people polled against the bond, 34 percent in favor and 11 percent undecided. The poll surveyed 600 likely voters and has a margin of error of 4 points.

“The need for storage is becoming increasingly apparent,” said Tim Quinn, executive director of the Association of California Water Agencies (ACWA). “The bond, if passed, continuously appropriates $3 billion on a competitive basis for new storage projects that help the system accomplish the co-equal goals” of a reliable water supply and healthy Delta ecosystem.

As is the nature of the legislative process, support for the package was gained through compromise, omissions and amendments. In a state with such a varied constituency, legislators representing different interests – north state, south state, in-Delta, agriculture, urban centers – managed to coalesce around the issues important to them while seeking the consensus that would move the measures through the Assembly and Senate to the governor.

“This is maybe the most bipartisan effort I’ve seen in the last four to five years,” said Lester Snow, former director of the California Department of Water Resources (DWR) and current secretary of the Natural Resources Agency.

For Schwarzenegger, the signing ceremony marked a personal triumph in his bid to put his mark on water infrastructure improvements before leaving office. “For decades this state was in a literal war over water, with old and deep divisions, Northern California vs. Southern California, Democrat vs. Republican, farmer vs. environmentalist, business vs. labor,” he said at his Jan. 6 State of the State address. “We here in this room made history with the most comprehensive water package in nearly half a century.”

Leading the effort to pass the legislation was Senate President Darrell Steinberg, D–Sacramento, who in September boldly predicted its passage. At the Nov. 4 State Capitol press conference, Steinberg acknowledged the arduous process of getting the bills passed as well as the legacy of stalemate that gripped past legislatures. “None of this was easy. If it was easy it would have gotten done a long time ago,” he said.

Assemblymember Jared Huffman, D-San Rafael, was one of the chief architects of the new water policy, chairing many meetings and contributing to the negotiations process. He called the Delta Stewardship Council “a huge advance from the status quo,” but noted it needs its own dedicated funding source to free it from the whims of the general fund. “This needs to happen ASAP if we expect the council to be successful in developing and implementing the Delta Plan,” he said.

As called for in the package, the Delta Plan, to be created by the Council during the next two years, is foreseen as a blueprint for the beleaguered estuary, guiding state and local actions in a manner that furthers the co-equal goals of ecosystem restoration (based on recovery rather than avoid­ing extinction for imperiled species) and water supply reliability.

Jeff Kightlinger, general manager of the Metropolitan Water District of Southern California (MWD), said establishing the co-equal goals “may well emerge as a bedrock of California water policy that will stand the test of time,” and that “the task ahead is to ensure that all actions in the Delta have these two co-equal goals in mind.”

The water package was opposed by several lawmakers out of concern that the package did not sufficiently protect the Delta. At the University of California, Davis Winter Water Seminar, Sen. Lois Wolk, D-Davis, said the package contained the “fatal flaw” of not establishing the Stewardship Council with the power to control the agencies “that have abrogated their roles” as Delta stewards.

“Many, including myself, were disappointed that this latest effort once again fails to correct the dysfunctional governmental institutions that have led us to this crisis,” she said.

Another Delta legislator, Assemblymember Mariko Yamada, D-Davis, criticized “the raw political power” used to move the package forward “without engaging those most affected by the changes.” She noted not a single Delta representative’s name is to be found on any of the legislation. “I think that’s a message,” she said at the California Water Law Symposium Jan. 30 in San Francisco. “For some reason, we were not included in the policy and the process.”

Yamada’s criticism reflects the difficult proposition faced as legislators sought a statewide water solution while accounting for the Delta’s unique ecological and cultural legacy. State leaders such as Wolk and Yamada and locally elected officials balked at policy proposals they viewed as insufficiently attentive of their constituents’ concerns. To the contrary, supporters of the package said enormous deference is given to the Delta along with assur­ances of the full involvement of its representatives.

This issue of Western Water looks at some of the pieces of the 2009 water legislation, including the Delta Stewardship Council, the new requirements for groundwater monitoring and the proposed water bond. For more information on the Delta, see the Foundation’s Layperson’s Guide to the Delta, which is now being updated.

Click here to purchase a complete copy of this article.

Editor’s Desk

The Water Education Foundation has long had a front-row seat for the Delta debate. The heated discussions over fish protection, water exports, flood risks and in-Delta water use (just to name a few issues) have led to both litigation and legislation. Litigation continues, and a plethora of lawsuits have been filed in state and federal courts.

Last year, the Legislature adopted a five-bill package (including an $11 billion water bond) designed to address a multitude of issues related to the Delta. The laws create a Delta Stewardship Council and Delta Conservancy, enhance the role of the Delta Protection Commission, mandate water use reductions, require the State Water Resources Control Board to increase its enforcement activities and to establish flow criteria for the Delta, and establish a statewide groundwater elevation monitoring reporting program. Meanwhile, if the bond is approved by voters in November, it would provide funds for a long list of local and regional projects and for increased surface storage, which has been long sought by the water user community.

As Writer Gary Pitzer explains in this article, just getting the bills through the Assembly and Senate and onto the Governor’s desk was a significant achievement. People on all sides of the Delta equation have praised and criticized the bills and their individual components, which were the result of some intense negotiations under the Capitol dome.

What happens now is the key. Gov. Arnold Schwarzenegger will soon announce the members of the new Delta Stewardship Council and various state agencies are taking steps to implement portions of the bills. The bond’s future is uncertain. An early poll conducted by Tulchin Research showed 55 percent opposed, 34 percent in favor and 11 percent undecided. But the election is eight months away and things could change.

As we have for more than 30 years, the Foundation will be on hand to observe and analyze the actions and activities undertaken to implement the legislation, as well as other Delta-related developments. Our goal, as always, will be to encourage information sharing and presentations from all sides of the water spectrum – and to provide the most up-to-date information possible.

A panel discussion on the Delta will be included at our annual Executive Briefing, March 25-26 in Sacramento. And if you really want to learn about the Delta in detail, make plans now to attend our Bay-Delta Tour, set for July 14-16. Visit our Events page to learn more about the Briefing and the tour.

In addition to these events, we plan to create a special water bond page on our Aquafornia water news website to provide you with more information about the bond and the bond campaign (pro and con), as well as how the rest of the main components of this milestone Delta legislative package are implemented.

-  Rita Schmidt Sudman

In the News

Klamath Pact Charts Course for Dam Removal, Habitat Restoration

The long and winding saga of farms and fish in the Klamath River Basin took a significant turn Feb. 18 with the signing of formal agreements to remove four dams by 2020. As implemented, the Klamath Basin Restoration Agreement and Klamath Hydroelectric Settlement Agreement would be the largest dam removal and river restoration project in U.S. history.

Part of the $450 million removal cost is to be paid from the water bond California voters will decide on in November.

One of the U.S. Bureau of Reclamation’s first projects, the Klamath River Basin provided a vivid illustration of the harsh reality of the struggle for water in the West. The multi-faceted conflict, complicated by the debate over endangered species protection, exploded into full-fledged crisis in the summer of 2001, cap­turing the nation’s attention. Local farmers literally saw their livelihood shut off because of the need to provide water to endangered fish.

In 2002, irrigation flows were restored but resulted in a massive fish kill where as many as 68,000 adult salmon died before spawning. PacifiCorp, the power company that owns the dams, applied for a new 50-year federal operating license in 2004 but made no provision for fish passage. As a result, pressure built for dam removal after West Coast commercial salmon fisheries collapsed in 2006.

“The Klamath River, which for years was synonymous with controversy, is now a stunning example of how cooperation and partnership can resolve difficult conflicts,” said Interior Secretary Ken Salazar. “The agreements provide a path forward to meet the needs of local communities, tribes, farmers, fishermen and other stakeholders while restoring a beautiful river and its historic salmon runs.”

The agreements were signed by Salazar, Oregon Gov. Theodore R. Kulongoski, California Gov. Arnold Schwarzenegger, PacifiCorp Chef Executive Greg Abel and more than 30 groups representing tribes, farmers, fishermen and environmentalists. The agreement is opposed by some who question the amount of water dedicated to salmon and the likelihood of dam removal.

Steve Evans, conservation director with Friends of the River, said the final drafted version of the Hydroelectric Settlement Agreement has so many prerequi­sites to dam removal that it will likely never result in the removal of any dams.

“Millions of dollars in taxpayer subsidies and liberal liability protection for PacifiCorp is simply too much to pay for just the possibility that the dams will be removed,” said Evans. “The settlement partners need to develop an agreement that fairly apportions costs and liability to all partners, including PacifiCorp, and that guarantees dam removal by 2020.”

Interior will undertake a “rigorous, science-based analysis,” as well as a full analysis under the National Environmental Policy Act, and make a final determi­nation by March 31, 2012 whether the benefits of removing the dams will advance restoration of salmon in the Klamath Basin and be in the public interest, according to a statement.

– Gary Pitzer