“What’s really interesting, going back to the authority issue, is that when you read the Delta Reform Act on its face, it talks about the Council’s jurisdiction, it talks about what the Delta Plan should be looking at. The jurisdiction is the legal Delta as described and the Suisun Marsh. They’ve used this description to say, well, if anything is going to happen in the Delta, we can look at what you’re doing in other places, so for Southern California, we can look at the water management decisions you are making when you decide to do anything in the Delta. We think that is an expansion of their authority,” she said. In looking at the legislative history, there are comments from Mr. Huffman and Mr. Steinberg that talk about what they meant and proposed by different sections of the Delta Reform Act which support their position that the Council was given limited authorities, she said.
Yesterday afternoon, I received an email from Tina Cannon Leahy, Principal Consultant for the Assembly Water, Parks & Wildlife Committee, who contacted me to clarify what Mr. Huffman’s legislative intentions really were.
Ms. Leahy said that in June of 2012, Mr. Huffman, then the Chair of the Assembly Water, Parks and Wildlife Committee, was concerned about accusations of the Council “overreaching” in their efforts to require reduced reliance on the Delta, and sent Ms. Leahy to the next Delta Stewardship Council meeting to read the following letter into the record:
Dear Chair Isenberg and members of the Council:
As the United States Supreme Court has often repeated, you “must presume that a legislature says in a statute what it means and means in a statute what it says there.” Only if it is ambiguous do you need to look farther.
Almost three years ago the Legislature and the Governor acknowledged, in an unambiguous manner, that the Sacramento-San Joaquin Delta Estuary was in crisis and that existing Delta policies were not sustainable. In adopting the Delta Reform Act of 2009, the law unequivocally stated that the “policy of the State of California is to reduce reliance on the Delta in meeting California’s future water supply needs through a statewide strategy of investing in improved regional supplies, conservation, and water use efficiency.”
As one of the legislators who helped write that Act, and who specifically insisted on the inclusion of the “reduce reliance” provision, let me be clear: the Act means what it says. Reduce means reduce — it means use less Delta water. Equally plain, it does not and cannot mean use more Delta water, even if technical justifications are offered based on per capita water use or other complex rationales.
There are those who seek to creatively reinterpret the word “future” to mean that all present reliance was somehow grandfathered in and that the goal of lessening our pressure on an oversubscribed Delta Estuary was somehow limited to some as-yet-unknown additional pressure.
These are inaccurate, self-serving interpretations of the Act by interests who knew full well in 2009 what the letter and spirit of the Act required. Having declared in 2009 that the level of reliance on the Delta was “unsustainable,” it would make no sense to enshrine that unsustainable reliance as a means of fixing the Delta.
Let’s be clear: in 2009 the year 2012 was the future. It is now the present. And it is past time to reduce our reliance on unsustainable Delta diversions.
It bears noting that had the legislature intended to grandfather-in existing levels of diversions, to apply the “reduce reliance” policy only to future additionaldemands, to apply it only to per capita water use, or to maintain existing contractual or “average” levels of Delta exports, the Act would have said so. It does not say any of those things and even the most tortured post-hoc interpretation cannot credibly bend the words of the Act to mean these things.
Finally, for those within the Delta watershed who seek to over-complicate the Act by arguing they are incapable of a reduction in reliance because they cannot “improve their regional self-reliance,” that is an equally tortured interpretation. The statute does not say they must eliminate reliance on the Delta. Instead, it calls for water use efficiency, water recycling, advanced water technologies, local and regional water supply projects, and improved regional coordination of local and regional water supply efforts. There are many approaches in that portfolio that would lead to a reduction in the use of Delta water and hence reduced reliance on Delta diversions.
In closing, I urge the Council not to weaken Water Reliability Policy 1 in the Delta Plan but to instead hold all parties accountable for reducing their reliance on the Delta. To do otherwise will fundamentally undermine your own ability to achieve the coequal goals. It is only by reaching a more realistic expectation of what the Delta can sustainably provide, and moving aggressively to implement technologies that will enhance other water supply sources, that Californian’s will enjoy a more reliable water supply and improved ecosystem health in the Delta.
Jared Huffman, Chair Assembly Committee on Water, Parks & Wildlife
Thank you, Tina Cannon Leahy, for sending that in!