The California Water Commission (CWC) met on July 20 for its monthly briefings, most from Department of Water Resources (DWR) staff, on its various areas of responsibility. After an update from the Executive Officer, commissioners got a presentation on three pieces of federal legislation. We’ve already written at length about the disastrous consequences of one of them, Devin Nunes’s San Joaquin Valley Water Reliability Act (H.R. 1837).
A second, Jim Costa’s More Water for Our Valley Act, 2011 (H.R. 1251) was described as a scaled back version of H.R. 1837. According to the bill’s author, it would (1) provide congressional direction with regard to what constitutes compliance with the Endangered Species Act, (2) restore operational flexibility for California water projects, and (2) provide reasonable protection to threatened species. It would be in effect until March 1, 2015. This bill hasn’t been heard yet but has been referred to subcommittee.
The third bill, H.R. 2354, was authored by Rodney Frelinghuysen of New Jersey and makes 2012 appropriations for energy and water development. It appears to fund 22 of the 23 California water-related projects proposed by President Obama’s budget. Sounds good except for an amendment to rescind the remaining balance of the San Joaquin River Restoration Fund, which would have been used to implement the San Joaquin River Settlement Agreement. This bill has passed the House.
Who’s in charge here? (1)
At its June meeting, the California Water Commission (CWC) amended and approved Agricultural Water Measurement Regulations developed by DWR staff under SBX7-7. This was a tedious and time-consuming process, with the CWC’s Rules and Regulations Committee proposing amendments, the full Commission scrutinizing them, and public comments being taken.
But that wasn’t the end of it. DWR submitted the approved regulations to the Office of Administrative Law (OAL) for final approval. And the OAL said they would reject the entire regulation unless DWR removed a single phrase relating to agricultural measurement of deliveries by federal water contractors. In fact, the OAL “strongly urged DWR to remove the entire provision regarding Central Valley Project contractors.”
These are emergency regulations currently undergoing public review, and DWR submitted them without the offending phrase in order to keep the process moving forward but left the rest of the CVP provision in place.
Commissioners being briefed at the July 20 meeting understood why staff took the action they did, but several commissioners clearly weren’t happy about it. (Good job, they suggested, but don’t do it again.) Commissioner Cogdill commented that if the OAL has this kind of power, why not submit language before the Commission discusses a regulation? Staff counsel replied that the OAL is not required to give preliminary advice.
Obscured by the discussion of process was the revelation that the Office of Administrative Law has apparently determined that SBX7-7 doesn’t apply to federal water suppliers in California. An attorney representing Friant Water Authority argued that CVP contractors are already submitting measurement information to DWR and the Bureau of Reclamation.
Who’s in charge here? (2)
Staff briefed the commissioners on the CWC’s role in eminent domain, reviewing both the land acquisition process and the Resolution of Necessity, a governing authority’s formal decision to acquire real property rights. The CWC is the “governing authority.”
DWR isn’t talking about acquiring land for a peripheral canal or tunnel YET. First they have to do some test borings. In a case argued by attorneys representing Delta landowners, a judge told DWR that they have to go through the eminent domain process to get temporary entry permits to do these boring.
The Water Code says that DWR may acquire property rights through eminent domain IF THE PROJECT HAS BEEN AUTHORIZED AND FUNDED. We’ll be coming back to this point when actual conveyance comes up for discussion.
In the case of the test borings, according to staff counsel, they’ve been authorized by DWR itself, which has “specific authorities relative to the State Water Project.” As for funding, it comes from the State Water Contractors, the Bureau of Reclamation, and . . . well, somewhere. Staff counsel was a bit vague on that point.
And by the way, where is an environmental impact report for these geotechnical activities?
Before approving a Resolution of Necessity, the Commission must consider
Whether the public interest and necessity require the project;
Whether the project and acquisition are planned or located in the manner that is most compatible with the greatest public good and least private injury;
Whether the property to be acquired is necessary for the project; and
Whether the written offer required by the Government Code has been made to the owner, or has not been made because the owner cannot be located.
Staff told the Commission that DWR will negotiate and work with landowners. One Delta landowner provided specific details about the failure of DWR to work with her in a reasonable way; they inconvenienced her and her clients, didn’t return phone calls, didn’t show up when they said they would. She said that DWR refused to negotiate at every point. The Supervising Land Agent said that this case “had not been brought to his attention.”
The immediate matter on which the CWC will be asked to provide a Resolution of Necessity is the test borings. But Delta folks making public comments may surely be forgiven for raising the issue of the peripheral canal, since that is clearly the direction the State is headed. One Delta landowner took the opportunity to give the commissioners a report on dredging. We already have a transfer system, he noted. DWR deems it broken because of silting, the result of a failure to dredge and maintain waterways in the Delta.
Commissioner’s, too, had questions about acquiring property for a tunnel. And there were lots of questions about the process.
Melinda Terry of the North Delta Water Agency addressed the Commission and followed her remarks with a letter. She asked the Commission to
formalize a clear process that makes it clear how and when landowners can provide information, evidence, and comments regarding eminent domain actions on their property that the Commission will follow prior to making a decision on any Resolutions of Necessity. For instance, it seems appropriate for a procedure in such a process to include having DWR make a presentation on the specific measures, including each contact and consequent negotiations that occurred with landowners for each property brought to the Commission for the approval of a Resolution of Necessity, rather than a “trust us, we made every effort to work with the landowner, and we were professional.”
In this matter of eminent domain, as in the matter of approving regulations, it will take considerable vigilance to ensure that the California Water Commission isn’t just providing a rubber stamp for actions taken by the Department of Water Resources at the behest of the State Water Contractors.
Executive Officer Sue Sims suggested that the commissioners might want to get out and see where the borings are proposed and what they look like. Chair Saracino said that having begun his career as a geologist, he had seen plenty of test borings and didn’t need to see any more.
The South Delta’s Rogene Reynolds noted later that some of these people clearly have no sense of what it means to have your land be part of who you are.
On to storage issues
Water Commission staff have scheduled two Water Storage Workshops this fall. Panels for the first workshop, on September 14, will provide the Commission with a historical perspective on water storage projects in California and will give an overview of project types, benefits, and fiscal and climate issues.
Panels for the second workshop, on October 25, will discuss operation and management issues and methods for evaluating public benefits. Both workshops will be held in Sacramento at the Ca-EPA Building, Klamath Room, 1001 I Street.
Who’s in charge here? (3)
Natural Resources Secretary John Laird has told Restore the Delta in a letter that “The BDCP management and executive committees that have been meeting for the past few years have had their functions merged into a single group. Meetings of the merged committee, now called the BDCP management committee, are open to the public. Meeting days, times and locations will be posted in advance on the BDCP Web site. A public comment period will take place at the end of each of these BDCP management committee meetings.”
But as we noted in our last newsletter, this laudable transparency doesn’t extend to financing. Metropolitan Water District general manager Roger Patterson told the MWD board last month that state and federal contractors are working on a finance plan for conveyance, and that certainly isn’t public. It would be interesting to know whether the finance committee includes engineering firms, as earlier finance committees have apparently done.
Even the new subject area working groups are only sort of public. According to Jerry Meral, state and federal contractors are discussing the permittee issue, and when they’ve finished their discussions, another meeting of the Governance working group will be convened. But as Osha Meserve, representing Local Agencies of the North Delta (LAND), told Meral,
The “permittee issue” is critical to the content of the Governance chapter and more broadly to the entire BDCP project. Decisions regarding named permittees should not be made in private without the input of local and other affected interests. Having the water contractors also be named as permittees would be an overreaching of their authority as recipients of water they contract for from the Projects and would marginalize the interests of local communities affected by BDCP and the public in general.
As soon as the State agrees to make a process transparent, the Water Contractors invent a new process that they can go forward with out of public view.
At the MWD meeting, the subject of the water bond came up. One MWD director said that it will take a push from the water industry to get the Brown administration to put the water bond on the 2012 ballot.
So while you may be thinking of water as a fundamental constituent of life, the medium in which fish and other creatures live, a vital resources for growing food and sustaining us all, these folks are thinking of water as an industry.