NEWS WORTH NOTING: Governor vetoes Gray’s fair water rights hearing legislation (AB 313); DWR releases 2017-18 Lake Oroville flood season operations plan; Reclamation and USFWS announce availability of grants to help listed species

Governor Vetoes Gray’s Fair Water Rights Hearing Legislation

From Assemblyman Adam Gray’s office:

Assemblyman Adam C. Gray (D-Merced) expressed frustration and disappointment today upon learning that the Governor had vetoed Gray’s fair water rights hearing legislation.

“For more than half a century, the State Water Resources Control Board has kept a dirty little secret,” said Gray. “They are the judge, the jury, and the prosecution in the water world. They have zero accountability to the people of California, yet their decisions impact the daily lives of millions of people.”

Gray’s bill, AB 313, would have inserted checks and balances back into water rights enforcement. Rather than allowing the Water Board to write the rules and then unilaterally decide who breaks them as is done now, the bill would have required water rights enforcement hearings to occur at the Office of Administrative Hearings under the direction of an administrative law judge.

“I am disappointed that AB 313 was not signed by the governor,” said Senator Anthony Cannella. “For too long the water users believed that the process was stacked against them. This bill would have inserted a nominal step to make the process more fair. Those of us who represent the valley will not stop fighting for a fair process.”

Under current law, the State Water Board issues complaints against water users for allegedly violating water rights and provides 20 days for the water user to request an appeals hearing. The hearing occurs at the Water Board itself, with Water Board staff acting as the prosecution and a member of the Water Board acting as the judge. A legislative report found that out of more than 2,500 cases in the last decade, the Water Board has only overturned a single complaint.

“It’s no wonder the Water Board wins 99.9% of its cases when they are essentially being asked whether or not they agree with themselves,” said Gray.

“I’m disappointed that the Governor wasn’t able to sign AB 313 and help restore some faith in the State Water Resources Control Board process,” said Assemblyman Heath Flora. “This issue isn’t going away and we will continue to fight.”

In his veto message Governor Brown said that, while he could not support Gray’s bill, he is “directing the Secretary of the Environmental Protection Agency to evaluate the potential role for administrative law judges and provide a recommendation on improvements to the Board’s hearing process…”

“I am encouraged that the Governor recognizes the lack of transparency and fairness in the Water Board’s process,” said Gray. “The bureaucrats at the State Water Board have lost any and all credibility with the communities I represent. I will continue to pursue every avenue at my disposal to promote greater public transparency and expose this out of control kangaroo court of an agency.”

Governor Brown Vetoes BBID-Backed Water Rights Fairness Bill

Late Sunday night, Governor Brown vetoed Assembly Bill 313, a bill introduced by Assemblyman Adam Gray (D-Merced) to promote fairness and due process in California’s water rights enforcement. Byron-Bethany Irrigation District (BBID) provided technical support in crafting the bill.

“The deck is stacked against the state’s water rights holders, and the State Water Resources Control Board holds all the cards,” said BBID General Manager Rick Gilmore. “They act as the judge, jury and prosecutor of the water world with immense impunity and no accountability. When the scales are tipped, water users lose faith in the process. The Governor could have restored some balance to this badly-broken system by signing AB 313.”

The bill received strong bipartisan support from the beginning and passed multiple policy committees, including the Assembly Water, Parks and Wildlife Committee, and the Senate Judiciary Committee. The bill was amended to include feedback from several water community stakeholders and environmental NGOs, and a broad coalition of water agencies and organizations across the state urged the Governor to sign it.

“Rarely have we seen such unity in the water community,” Gilmore said. “Clearly, the legislature agreed with overwhelming votes in both Houses that AB 313 is good public policy, and the Water Board’s decision-making process is inappropriate.”

The State Water Board currently writes the rules, initiates enforcement actions, then decides in its own court whether the alleged violator is guilty – with the Board’s own staff acting as prosecutors and Board members acting as the judge. AB 313 was a solution to the problem. The bill called for administrative law judges in a newly-created Water Rights Division to preside over water rights hearings, ensuring an objective, expert third party would adjudicate these complex, critically important matters. This approach is utilized by several state agencies and helps ensure fairness in enforcement proceedings.

“The Water Board has lost only one out of 2500 cases,” Gilmore continued. “How can anyone argue that we don’t need some checks and balances here? Isn’t everyone entitled to a fair hearing?”

In his veto message, Governor Brown said that he is “…directing the Secretary of the Environmental Protection Agency to evaluate the potential role for administrative law judges and provide a recommendation on improvements to the Board’s hearing process…” AB 313’s procedural structure is similar to legislation the Governor recently signed for the Board of Equalization.

Assemblyman Gray pledges to keep pushing, saying in a news release, “The bureaucrats at the State Water Board have lost any and all credibility with the communities I represent. I will continue to pursue every avenue at my disposal to promote greater public transparency and expose this out of control kangaroo court of an agency.”

“BBID recognizes and appreciates Assemblyman Gray’s leadership on an issue that impacts millions of Californians,” said BBID Board President Russell Kagehiro. “We are more committed than ever to working with our legislative partners to bring common-sense reform to California’s water rights enforcement. The stakes are high, and we will continue to fight for fairness.”

Byron-Bethany Irrigation District (BBID) is a multi-county special district serving parts of Alameda, Contra Costa, and San Joaquin Counties across 47 square miles and 30,000 acres. The district serves 160 agricultural customers and approximately 12,000 residents of the Mountain House community. For additional media information, contact Nick Janes at 630.915.6493, or via email at n.janes@bbid.org.

DWR Releases 2017-18 Lake Oroville Flood Season Operations Plan

From the Department of Water Resources:

The Department of Water Resources (DWR) today released the operations plan for Lake Oroville during the 2017-18 rainy season to protect public safety while construction continues on the reservoir’s main and emergency spillways.

The plan, which will guide reservoir operations between November 1 and April 2018, calls for DWR to maintain lower-than-average lake levels during the winter months to provide space for inflows and manage releases from the substantially reconstructed main spillway.

“This plan puts public safety first, while also meeting our water supply and environmental obligations as we repair and rebuild the Lake Oroville spillways,” said DWR Director Grant Davis. “We will operate Lake Oroville conservatively until construction on both spillways is complete in late 2018, early 2019.”

The plan calls for DWR to lower the lake level to an elevation of 700 feet by November 1, compared to the average 780 feet elevation maintained on that date in prior years. The lower level will provide more than 2.2 million acre-feet of flood reserve storage to accommodate inflows during the rainy season. The lower lake level, combined with operational contingencies, should allow DWR to keep releases from the mostly reconstructed main spillway at 100,000 cubic-feet per second (cfs) or less over the winter and ensure lake levels remain below 901 feet, the level that would require use of the emergency spillway, which is still undergoing construction.

Work to repair and reconstruct the main spillway has been underway since April. By November 1, the main spillway will be prepared to handle releases of up to 100,000 cfs. By next season, it will be fully reconstructed to handle the original design capacity of 270,000 cfs. Releases from the main spillway have never been above 160,000 cfs.

In the event the reservoir rises quickly during the winter months, the operations plan identifies certain elevations at which DWR will increase outflows through the Hyatt Powerplant, the river valve outlets or the main spillway to safely manage lake levels.

DWR consulted with the United States Army Corps of Engineers during development of the plan and has shared it with the Federal Energy Regulatory Commission and California’s Division of Safety of Dams for additional input. During this consultation, DWR shared data showing that Lake Oroville operations would be able to manage storm events such as those in 1997 and 2017 without flows greater than 100,000 cfs over the main spillway and without using the emergency spillway.

DWR will assess the operations plan for the remainder of the year in April, when hydrologic and snowpack conditions are clearer, to guide operations through the completion of construction on Lake Oroville’s main and emergency spillways. After construction is complete in early 2019, DWR, in consultation with the USACE, plans to begin working on a long-term operations plan, which will involve extensive public engagement.

Reclamation and USFWS announce availability of grants to help listed species

From the Bureau of Reclamation:

The Bureau of Reclamation and the U.S. Fish and Wildlife Service have announced the opportunity to apply for grant funding for projects that would improve conditions for federal Endangered Species Act-listed species and their habitats impacted by the Central Valley Project. The CVP, owned and operated by Reclamation, is one of the world’s largest water storage and conveyance systems.

The grants are funded by the Central Valley Project Conservation Program and Central Valley Project Improvement Act Habitat Restoration Program. Reclamation and the Fish and Wildlife Service have partnered to manage these programs concurrently to reduce administrative costs resulting in more funding available for program purposes. The CVPCP and CVPIA HRP have established 16 specific priority actions related to CVP-impacted species, their habitats and corresponding geographic areas. Available funds apply to the 2019 and 2020 funding years. Reclamation expects $4.2 million total will be available to apply to these grant programs pending future appropriations.

Each of the priority actions is supported by a threatened or endangered species recovery plan that provides strategies and guidance on how the species could be restored to a healthy and viable status. Applicants are requested to submit applications that support these actions. State or local government agencies, private organizations, individuals and educational institutions are eligible to apply. The grant application period closes March 16, 2018. Federal agencies wanting to apply are encouraged to contact the program managers named in the announcement to discuss potential projects and the application submission process.

Program information and application instructions are available at www.grants.gov, keyword BOR-MP-18-F001.

More information about the CVPCP and HRP may be found at http://www.usbr.gov/mp/cvpcp/. For questions, please contact Daniel Strait at 916-978-5052 (TTY 800-877-8339) or dstrait@usbr.gov.

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About News Worth Noting:  News Worth Noting is a collection of press releases, media statements, and other materials produced by federal, state, and local government agencies, water agencies, and academic institutions, as well as non-profit and advocacy organizations.  News Worth Noting also includes relevant legislator statements and environmental policy and legal analyses that are publicly released by law firms.  If your agency or organization has an item you would like included here, please email it to Maven.

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