This section is only for those who want in depth
legal information regarding water & water rights
Background Facts Concerning Water Restrictions & Penalties By Mayor Pro Tem Fred Strong,
City of El Paso de Robles
August 2, 2015
ARTICLE 10 WATER
SEC. 2. It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare.
SEC. 5. The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public use, and subject to the regulation and control of the State, in the manner to be prescribed by law.
ARTICLE 11 LOCAL GOVERNMENT
SEC. 7. A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.
Sec. 275. The department and board shall take all appropriate proceedings or actions before executive, legislative, or judicial agencies to prevent waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of water in this state.
Governor’s Commission To Review California Water Rights Law, GROUNDWATER RIGHTS IN CALIFORNIA, Background And Issues, by Anne J. Schneider:
In Katz v. Walkinshaw, the court concluded that the common law rule of absolute ownership of percolating groundwater is not suitable to California. It discussed Southern California’s chronic water shortage and decided that a rule of reasonable use should be applied. (p.4)
Los Angeles v. San Fernando:
The court stated:
The purpose of giving the right to recapture returns from delivered imported water priority over overlying rights and rights based on appropriations of the native ground supply is to credit the importer with the fruits of his expenditures and endeavors in bringing water that would not otherwise be there. (p. 72)
[Paso Robles releases and recaptures Lake Nacimiento water to enhance its water portfolio and “reservoir” of water.]
In San Fernando, the spreading, delivery and extraction of imported water were all within the city’s control and, therefore, within the city’s “reservoir.” (p. 74)
[The creation and operation of a municipal water operation is a permitted and licensed function under State Law.]
Governor’s Commission To Review California Water Rights Law, LEGAL ASPECTS OF WATER CONSERVATION IN CALIFORNIA, Background and Issues, by Clifford T. Lee
1. The Permit and License Process
The permit and license process for appropriating water provides considerable leverage for State enforcement of the reasonable beneficial use requirement. (p. 27)
The Board can revoke a permit or take other “appropriate” action if a permittee violates any permit term or condition.
The Board has taken advantage of this authority by adopting broad permit terms granting the Board the continuing authority to prevent a permittee from wasting water. Since at least 1957, approved permit applications have contained the following provision or one similarly worded:
All rights and privileges under this permit including method of diversion, method of use and quantity of water diverted are subject to the continuing authority of the State Water Rights Board in accordance with law and in the interest if public welfare to prevent waste, unreasonable use, unreasonable method of use or unreasonable method of diversion of said water.
In addition, the currently issued permits and licenses contain the following statement of the Board’s continuing authority to prevent waste:
The continuing authority of the board may be exercised by imposing specific requirements over and above those contained in this permit with a view to minimizing waste of water and to meeting the reasonable water requirements of permittee without unreasonable draft on the source. Permittee may be required to implement such programs as (1) reusing or reclaiming the water allocated; (2) using water reclaimed by another entity instead of all or part of the water allocated; (3) restricting diversions so as to eliminate agricultural tail-water or to reduce return flow; (4) suppressing evaporation losses from water surfaces; (5) controlling phreatrophytic growth; and (6) installing, maintaining, and operating efficient water measuring devices to assure compliance with the quantity limitations of this permit and to determine accurately water use as against reasonable water requirements for the authorized project. No action will be taken pursuant to this paragraph unless the board determines, after notice to affected parties and opportunity for hearing, that such specific requirements are physically and financially feasible and are appropriate to the particular situation.
The Board adopted this provision in 1972 but has not commonly invoked its specific requirements. (pp. 29-30)
[Page 64 describes the ability of local water agencies to “restrict water usage” and that it has the same rights as a water district within its jurisdiction.]
Water Code Section 31026 grants county water districts,
The power to restrict the use of district water during any emergency caused by drought, or other threatened or existing water shortage, and to prohibit the wastage of district water or the use of district water during such periods, for any purpose other than household uses or such other restricted uses as may be determined to be necessary by the district and may prohibit use if such water during such periods for specific uses which the district may from time to time find to be nonessential.
Water Code Section 71640 grants municipal water districts similar authority to restrict water usage. (p. 65)
Under a use restrictions program, certain water uses are classified as nonessential and are prohibited. Lawn irrigation, gutter flooding, car washing, and the filling of swimming pools and decorative fountains are the common targets of a use restriction program. (p. 66)
PROPOSITION 218, Implementation Guide
Pajaro Valley Water Management Agency v. Amrhein
The court noted that the fee might have not been property-related and exempt from Proposition 218 if it had a clearer regulatory purpose.
The record supporting the adoption of the fee must estimate the costs of the regulatory activity and the basis for determining the manner in which costs are apportioned, so that charges allocated to a payor bear a fair or reasonable relationship to the payor’s burdens or benefits from the regulatory activity. (San Diego Gas & Electric Co. V. San Diego County Air Pollution Control District)
Practice Tip: The court have long recognized that pricing of a commodity such as water has an important correlation to management of water resources and is therefore a legitimate cost of providing water delivery services (Brydon v. East Bay Municipal. Util.
Dist. (1994) 24 Cal. App. 4th 178, 202-204; Carlton Santee Corp. V. Padre Dam Muni. Water Dist. (1981) 120 Cal. App. 3d 14, 26-28.) This regulatory aspect may not exempt usewr fees of the type discussed by the Supreme Court in Bighorn from the scope of article XIII D, but should be sufficient to justify compliance with the substantive requirements of Article XIIID, #6, particularly in light of Constitutional and statutory mandates to conserve water. Cal. Const., art. X, #2; e.g. Wat. Code, #375. (pp. 58-59)
Sec. 6, (5) ©
Voter approval for New or Increased Fees and Charges. Except for fees or charges for sewer, water, and refuse collection services.
[Annotation: Exemption for sewer, water and refuse collection is for voter approval only.
California Water Boards NOTICE OF PROPOSED EMERGENCY RULEMAKING, April 29, 2015
[This document outlined the process for the declaration of a drought caused, statewide emergency declared by the Governor with Executive Order B-29-15 on April 1, 2015, directing the State Water Board to impose restrictions statewide.
On April 29th they made a proposal with time to appeal. Paso Robles, through the League of California Cities, appealed a 25% reduction to be imposed upon us due to previous reductions. That appeal was accepted and then rejected on the basis of the new criteria. In May the Board issued its regulations amending Water Sections 863-866 ordering urban water suppliers to “meet specified conservation standards” (Sec. 865) and stating that a conservation order would be an enforceable order by the Board requiring the recipient to take specified actions immediately. (Sec. 866)
The regulations required every urban water supplier in the state to reduce water use. It required 8% reduction for those using less than 65 gallons of water per person per day and then established other ranges of average daily per person use for reduction requirements. Every agency in the state was individually listed with its statistics.
Paso Robles was listed on page 6 of the R-GPCD Appendix as having reduced it water use by 11% from 2013 to 2014 to 146.1 gallons per day per person placing it in “Tier 7” and requiring us to reduce our water use by 28% from 2013 or 17% from 2014 because we were in the range of 130 -170 gallons per day per person.
CALIFORNIA’S GROUNDWATER UPDATE 2013, updated in April and May of 2015, Central Coast Hydrologic Region:
Page 9 lists the Salinas Valley as one of 53 groundwater basins in California and Paso Robles Area as one of 10 sub-basins in the Salinas Valley Basin.
The Paso Robles Area Groundwater Subbasin (3-4.06) is located southeast of the Upper Valley Aquifer Groundwater Subbasin. Two groundwater-bearing zones are located in the Paso Robles Area Groundwater Subbasin: Holocene-age alluvium and the Pleistocene-age Paso Robles Formation. The unconsolidated Holocene-age alluvium consists of fine-to-course-grained sand with pebbles and boulders up to 130 feet thick near the Salinas River, and groundwater is present in unconfined conditions. The Paso Robles Formation is the primary aquifer in the subbasin. The formation ranges between 700 and 1,200 feet thick and consists of unconsolidated, poorly sorted sand, gravels, silt, and clay. Groundwater in the Paso Robles Formation is generally found in confined conditions. Recharge of the subbasin occurs primarily from percolation through stream channels, seepage from streams, and irrigation return flow.
The Water Plan update rates the various areas regarding their priority for immediate remedial action to assure future, available, water supplies. On page 22 it lists Paso Robles Area of the Salinas Valley Basin as “high priority” There are only 8 basins or subbasins with that designation in the Central Coast Region. The others range from “medium”, 16 of them, “low”, one basin, and “very low”, 35. Our subbasin reportedly served 56,077 people in 2012.
Report by Mayor Pro Tem Fred Strong
On Activities From February 2nd to the 16th, 2016
National Association of Regional Councils (NARC) Annual Conference 2/7-9/16:
I attended the NARC National Conference of Regions from the 7th through the 9th in Washington. DC, representing SLOCOG and as NARC’s Transportation Committee Policy Chairman, Member of the Policy Revision Committee and representing the United States of America on the Board of Directors.
I met with my co-chairs and staff the evening of the 7th to go over agenda topics and procedures for the meeting of the committee that I would chair the next afternoon. Our primary staff was absent due to the death of his father three days earlier. Substitute staff gave us all the assistance they were capable of doing.
February 8: I heard from and participated in a Q & A with Dr. Valerie McCall, President of the American Public Transportation Association; Roy Wright, Deputy Associate Administrator of the Federal Emergency Management Agency (FEMA); a transportation panel of leaders of various transportation organizations; Jay Williams, U.S. Assistant Secretary of Commerce for Economic Development; and Gene Lowe, Assistant Executive Director of the U.S. Conference of Mayors and Elisha Harig-Blaine, Principle Housing Associate of the National League of Cities on homelessness. I wrapped up the day by chairing the afternoon meeting of the Transportation Committee. (detail attached)
February 9: I heard and engaged in Q&A with Danielle Arigoni, Deputy Director of the US Department of Housing and Urban Renewal (HUD), Office of Economic Resilience;Shannon Skowronski, Aging Services Program Specialist with the US Department of Health and Human Services; Deborah Nagle, Water Permits Division Director in the Water Office of the US Environmental Protection Agency; and Victor Mendez, Deputy Secretary of Transportation (DOT).
Following the conference the Board of Directors met and adopted my changes to the Environmental policies of the organization and received updates on our change of offices into a new building with the National League of Cities (NLC) and the National Association of Counties (NACO).
February 10: SLOCOG Director Ron DeCarli and I had individual or joint conferences with Todd McIntyre and Carla Bloch of the Federal Rail Administration (FRA) in the DOT headquarters; Representative Lois Capps and her Chief of Staff; the staff of Congressman Kevin McCarthy and Erika Young, Transportation staff with Transportation 4 America. An appointment with the Vice-President of AmTrak was postponed due to jury duty.
That is the "summary". IF you want the detail, it follows this:
Detailed Report on February 8, 2016 activities
National Conference of Regions:
Dr. Valerie J. McCall urged closer cooperation between NARC and APTA going forward. In a private conversation with me the night before she expressed great frustration with unfunded mandates from the Federal Government and an unrealistic environmental process and regulations regarding transportation projects.
Roy Wright of FEMA spoke favorably for flood insurance even slightly beyond the 500 year flood line. Flood insurance is required of any structure insured by, or under financing from, the Federal Government. He said that Federal flood mapping is supportive of the International Building Code, especially regarding natural disaster risk. He stated that buying down risk reduces insurance premiums for both businesses and homes. In Pierce County, WA, the efforts made in that regard resulted in a 40% reduction in flood insurance premiums.
The National Flood Insurance Program re-authorization in 2016 has 5.1 million people insured. Statistics show that those insured recover from natural disasters much more quickly than those who aren’t covered. Education efforts by local government in California has resulted in a 25% increase in those covered by flood insurance.
The most at risk appear to be those in wholly owned rental properties whose owners are not insured. These renters are frequently also the least able to pay for recovery in the event of a disaster. He stated that renters’ coverage is also available at very low cost
When I asked if FEMA reviews plans for risk reduction in flood prone areas, he stated that they do when and if appropriate information is provided so they can do an adequate review and assessment.
The panel all agreed that the success we had in getting the bi-partisan FAST Act passed was due to our strong collaborative effort between various organizations including NARC. We dod get an additional $4.5 billion of funding for large projects but the bridge repair program was eliminated except for bridges in the Fewderal Highqway program and totally “off system” bridges.
I asked two questions:
- Had anyone heard of or did they know anything about Sen. Imhof’s proposal to the President that he institute Cap & Trade at the Federal level as reported in a newspaper in Washington, DC? The response was that it was not going to be an issue in 2016.
- I asked if there is any consideration for funding based upon percentage of freight carried on highways as well as for mileage based charges? I was again told that there was no current consideration for any of these options.
However, the panel urged us to not get too wrapped up in patting ourselves on the back and instead get right back on pushing for adequate funding to prevent the destruction of our national transportation system. We must have a true, permanent funding source with a connection between those who pay and those who benefit. It is unacceptable that $70 billion of the next five years’ funding is coming from the General Fund.
Then panel also believes that the proposed $10/barrel oil fee is not likely to be approved.
Session on Homelessness:
Gene Lowe of the National Conference of Mayors stated that 29% of homeless adults , nationally, are mentally disabled. In 2016-2017 studies indicate that there will be a modest reduction in the numbers of unattached adults who are homeless even resources are expected to remain at their present levels.
Elisha Harig-Blaine of the NLC stated that national attempts to create transitional housing as an incentive to the substance buse homeless to complete rehabilitation programs didn’t work. An attempt is now in process to do it in reverse. Put them in housing first and then offer the programs.
Also, while veterans constitute only 3% of the national population they are 10% of the homeless population. Also, while there is a large demand for affordable housing there is also an extreme lack of it. HUD has now created a parallel program for veterans to its Section 8 vouchers called VASH.
During Q&A I informed the conference of Mayor Martin’s efforts to bring agencies together and offer services to the homeless. That was received very well so I followed up with a question on what more we could do. The response was to work more extensively with the Faith Based Community, concentrate on homeless veterans to reduce overall demand and check with hospitals as repeat visitors are frequently among the homeless.
Transportation Committee meeting:
I lead off this afternoon session by urging us to quickly get through our back slapping on our accomplishments on the FAST Act quickly and to move forward on the many things we’d already heard about earlier in the day. Among those things, and the conclusions we could draw from them, are that there is no free lunch, no one has Rumpelstiltskin on their staff nor do we own any money trees. Therefore, we need “nexus” funding for all transportation systems so that all can interface safely, efficiently and usefully for our personal use and our economy. We cannot afford to ignore water and air transportation nor bicycles and our feet. Although we’ve come a long way it is still merely another segment of the journey. My co-chairs echoed my remarks and gave specific local examples. I then asked the conference attendees to weigh in on suggestion for future process and goals.
The attendees stated that they need more certainty in reauthorization by the Federal Aviation Authority; a “bridge” between the various silos of money so that we can better integrate the different segments of our transportation system. Finally, many stressed that the regulatory process needs to be streamlined with a timely release of Federal guidance on new programs, requirements and availability of funds.
Detailed Report on February 9, 2016 activities
Danielle Arigoni, Deputy Director in the Office of Economic Resilience of HUD stressed the necessity for a regional approach to economic resilience across communities to promote public transit and air quality. She stressed that climate change is a reality and that 2014 was the warmest year of all recorded years until 2015 which was even warmer. Evidence for the changes are being dramatically presented by increasing natural disasters. HUD helps recover from these with grants for water sustainability and flood protection.
Un the Q&A I noted our drought conditions and mentioned well water drops of as much s 80 feet. The response was that HUD administered funding only applies to disasters declared by the President of the United States and State declarations don’t count. However, California did get a grant appropriation for the danger of fire to our national forests
Shannon Skowronski, Aging Services Program Specialist, Office of Nutrition and Health Promotion Programs, US Department of Health and Human Services, spoke on the pending reauthorization of the Older Americans Act (OAA) with only about, at that time, 70 legislative days left to get it done. Many regional governments administer their Area Agency on Aging (AAA) programs, including Meals on Wheels (MOW), which are in jeopardy unless this reauthorization passes with adequate funding provided.
She stated that the Meals on Wheels and Personal Care programs serve the one in five of older Americans that are living at a below poverty level. On average, the OAA provides $9.5 million per year for each regional AAA. This Federal money is frequently supplemented by local fund raising to provide the means to meet local needs. Currently the budget for these programs are not keeping pace with the growth of demand for these services.
During Q&A I mentioned our past practice, at the local level, of supplementing these programs with CDBG grants and asked for more detail on fund raising. Shannon suggested service clubs, non-profit charities, faith based groups and major corporation foundations as potential sources of supplemental funding. She also gave me her card and invited further contact for assistance.
However, Jennifer Schaufele, the Executive Director of the Denver Regional Council of Governments, challenged Shannon regarding a “hold harmless” provision in the OAA which she says locks the dollar amount of appropriation in on a state by state basis and disadvantages those states with growing older populations. She provided a colored map showing the effects of the provision by state and asked that this provision be removed from the Act so the distribution of funds would be more fair. Both Colorado and California were among those states being “harmed” by this provision.
Deborah Nagle, Water Permits Division Director, Office of Water, US Environmental Protection Agency (EPA) spoke Gregory Burbridge, Senior Program Specialist, Atlanta Regional Commission, was the main lunch speaker on “Arts In Your Community”. He told us of a local program that was enlivening the Atlanta Region with a “place making” arts advisory group that pairs artists with non-artist business people to provide a more attractive community. This includes many projects similar to the one previously featured at a national conference about the program to remove graffiti in Philadelphia.
Victor Mendez, Chief Operating Officer, and Deputy Secretary, of the US Department of Transportation (DOT) spoke on his primary area of operations which is the safety and efficiency of the American transportation for its role in economic development nationwide. He is the former administrator of the Federal Highway Administration.
He spoke to us 30 minutes after the President released his proposed Federal Budget. This caused him to abbreviate his remarks to thanking us for our efforts in getting the FAST Act passed. He stated that “certainty of funding is critical.” He went on to say that the FAST Act has given us that certainty for the next five years. [However, other speakers warned us that the “certainty” will be gone in three and a half years if we don’t get the next reauthorization framed and in process by that time.]
He noted that there is one round of TIGER funding left for infrastructure only. That $500 million will be awarded this summer. His function is to see that the application time frame is shorter and more efficient so that he can get on to administering the new provisions of the FAST Act.
He also gave us some very simplistic advice:
Wear you seat belts.
Don’t use cell phones while driving.
Be aware of bicycles and pedestrians.
Fifteen minutes following the conclusion of the Conference, the Board of Directors met.
Board of Directors meeting:
The Board handled the normal portions of business, including staff reports, minutes and financial reports prior to adopting the changes to the “Environment Committee Policies and Priorities” that I’d offered as one of the four elected officials nationwide on the policy review and amendment committee.
Those adopted were:
Simpler rule making and increased funding for drinking water and waste water projects.
Water funding specifically for aging infrastructure.
Allow revolving fund loans for water storage projects.
Ensure that education funds are for conservation and sustainability issues in addition to environmental issues.
Contract terms for our new offices were discussed and our relationship with NACO was brought into the conversation as we will be partnering with that organization in the new office space. The National League of Cities will be in the same building also. This will allow us greater cooperation and better joint efforts on our mutual educational issues as well as with the legislative advocacy arms of our organizations.
The next Board meeting was set for the Annual Conference and elections in Salt Lake City on June 26 - 29.
Following the meeting, I and Environment Policy Chairman Geof Benson, of District VI: Indiana, Illinois, Minnesota and Wisconsin, went over some additional policy changes that did not get presented at this meeting. We came to agreement on which to forward and address at the June meeting.
Detailed Report on February 10, 2016 activities
Department of Transportation (DOT), Federal Rail Administration (FRA):
I met with Todd McIntyre, Regional Team Lead in the Office of Program Delivery and Karla Bloch, Regional manager - Southwest in the same department at 9 a.m. We discussed delivery of funding for a variety of rail projects.
Those needing immediate consideration include the construction of pass through tracks at Los Angeles Union Station. Currently all tracks leave the main line, pull into Union Station disembark and load new passengers then back out 1½ miles to the main line to proceed on their journey. This is a loss of 15 to 20 minutes on trips north or south for our citizens. Also, there are six projects in process in Chicago to correct serious connection problems currently causing delays of up to one hour as far away as California. This includes the Chicago Gateway Project which is actually located in Indiana.
I also thanked them for the funding already provided for the environmental and modeling studies to recreate the Coast Daylight service which used to exist between Los Angeles and San Francisco. The current proposal, due to changes in track usage, is for the service to be San Diego to San Jose. I asked for them to not let this get put on the back burner as we hope to move this forward to operational status in the next year or two. This new service is supported by AmTrak, LOSSAN, the Train Riders Association and, to a limited extent, Union Pacific.
I also told them of our support for the Alameda East project for freight movement between the Ports of L.A. And Long Beach and the Inland Empire. This project is needed to reduce passenger train trips by up to another 30 minutes due to current delays waiting for freight trains to move through this congested area.
My contacts were supportive of all of these projects … always on condition of available funding resources.
Representative Lois Capps:
At 10:30 a.m. SLOCOG Executive Director Ron DeCarli and I met with Lois Capps and Sarah Rubinfield, her Chief of Staff, to thank her for supporting the FAST Act and to seek delivery of currently available funding for many local projects. Ron turned all rail matters over to me to discuss. These, of course, included support and funding for the Coast Daylight as well as the L.A. Union Station project.
As always, we received full support for our efforts.
Representative Kevin McCarth
At 11:00 a.m. We met with Legislative Director Kyle Lombardi and Legislative Fellow Samuel Van Kopp of Congressman Kevin McCarthy’s office.
We discussed very much the same issues with that office as we had with Lois Capps. The promises of support and cooperation were also similar. In this case we also mentioned the need to immediately begin to move forward on the next Transportation Reauthorization with a sustainable funding mechanis=
Erika Young, Transportation 4 America:
At 12:30 p.m. We had a luncheon meeting with Erika who was our previous transportation staff at NARC. She is truly on top of the issues and developments in transportation and her reports in the FAST Act and the President’s budget proposal were superior to any that we’d seen thus far. This meeting was primarily Erika informing us as to what had happened and what is pending, with some prognostication as to potential outcomes.
First, there is little likelihood of any additional movement regarding transportation funding this session. Any new or different funding formulae or mechanisms will have to wait until after a new Congress and President are sworn in and functioning. Any efforts now should be directed to staff that in all likelihood will still be functioning in D.C.
What the FAST Act does and doesn’t do:
It does not provide sustainable funding for the transportation deficit, instead it uses $75 billion of General Fund revenues to put a bandaid on the problem.
A little better for local government by increasing STP funding and giving greater access to TIFIA funds with decreased administrative costs and more flexibility in project design. However, the funding for TIFIA is cut from $1 billion per year to between $275 and $300 million per year between 2016 and 2020.
Encourages multimodal freight transportation planning but gives nearly all of the funding only to highway freight projects.
Continues the TOD planning project at a meager $10 million.
Discontinues funding for the very successful TIGER grant program.
Passenger rail is perhaps the biggest “winner” in this package with increased funding across the board with $450 million annually to regional systems increasing to $600 million by 2020.