August 31, 2009 -- In an email communication to Assembly Water Parks and Wildlife Committee consultant Alf Brandt, Mark Del Piero, a water rights law professor and former State Water Resources Control Board Member (1992-99), characterized the proposed water bill package as a thinly disguised attempt to reallocate the state's water and a backdoor attack on 130 years of California water law and legal precedent. Mr. Del Piero's detailed email echoes the concerns of numerous organizations and individuals that the present mad rush to pass these bills in their present form will likely result in disastrous unintended and redirected consequences for the environment, fisheries and the people of California. The communication is reprinted below.
Sunday, August 30, 2009 5:56:48 PM
From: MJDelPiero
To: alf.brandt"at"asm.ca.gov, Alf.Brandt"at"asm.ca.gov
DEAR ALF:
Thank you for talking to me the other day, and for the opportunity to review the legislative package that is to be presented to the Conference Committee of the state legislature. After over twenty-five years in the public and private practice of water law, and as an adjunct professor of Water Law at Santa Clara University since 1992, I am very worried.
These bills, sadly, are just not very good and appear to be a thinly disguised attempt to reallocate the state's water and represent a backdoor attack on 130 years of California water law and legal precedent. The scary part is that it appears that no one understands or wants to publicly admit the unintended consequences that are going to result if these bills go forward without major clarifications.
Suffice to say that I am very, very concerned that this will make the situation far worse in the arena of litigation, and muddy the last thirty years of judicial decisions, which have clarified the Public Trust Doctrine. It's not surprising that the State Water Contractors are supportive of this scheme to enable water exporters, who are holding the most junior water rights, to secure upstream water at the expense of the most senior water rights holders. Incredulously, the scheme then tags the upstream water rights holders with much of the expense for facilitating the reallocation of water and mitigating the environmental consequences of reallocation. This will do great damage to Sacramento Valley farmers and municipalities in the medium and long term, and will be the full employment act for lawyers in the short term.
The package's failure to specifically, and without nuance or ambiguity, define numerous terms like “coequal," “balanced" or “reliable" ensures twenty years of litigation (and millions of dollars of attorney's fees) as attorneys and the courts battle over their meaning. None of the bills acknowledge the fact that the State Water Board has issued rights to far more water than actually exists. Absent an admission of that TRUTH, there will never be a resolution to our water crisis.
Indeed, the legislation avoids the two actions that would meaningfully address the present water crisis: a mandate that the State Water Board aggressively begin the long overdue process of bringing water rights into conformance and balance with the amount of water that actually exists and an immediate repeal of the Monterey Agreement provisions that eliminated an “urban preference" that originally ensured water for the 20 million people on the South Coast during California's inevitable droughts. Surely, there should be a legislative water preference for 20 million people and the public trust resources of our state over cotton crops in Kern County.
I disagree with the Delta Vision Task Force's findings that new governance is required in the Delta. What is needed now is a legislative acceptance of the truth and legislative directives to reform the system to reflect the truth. An action that is desperately needed is meaningful enforcement of existing legal public trust and constitutional water doctrines and laws through the existing State Water Resources Control Board, not a new layer of bureaucracy and institutional inertia. Consequently, I urge that you recommend to the committee chairs to reject the legislation that promotes more water bureaucracy and wasteful spending on large water projects that will increase legal conflict and reduce water supply reliability far into California's future. "BEFORE ANYBODY SPENDS ANY MORE TAXPAYER DOLLARS AND BUILDS ANOTHER PIPE OR CANAL, THEY SHOULD BE REQUIRED BY THE LEGISLATURE TO PROVE THAT THEY HAVE REAL, WET WATER (TO WHICH THEY HAVE A REAL LEGAL ENTITLEMENT) THAT IS AVAILABLE TO FILL THE PIPE OR CANAL."
http://www.calsport.org/8-31-09c.htm
Sunday, August 30, 2009 5:56:48 PM
From: MJDelPiero
To: alf.brandt"at"asm.ca.gov, Alf.Brandt"at"asm.ca.gov
DEAR ALF:
Thank you for talking to me the other day, and for the opportunity to review the legislative package that is to be presented to the Conference Committee of the state legislature. After over twenty-five years in the public and private practice of water law, and as an adjunct professor of Water Law at Santa Clara University since 1992, I am very worried.
These bills, sadly, are just not very good and appear to be a thinly disguised attempt to reallocate the state's water and represent a backdoor attack on 130 years of California water law and legal precedent. The scary part is that it appears that no one understands or wants to publicly admit the unintended consequences that are going to result if these bills go forward without major clarifications.
Suffice to say that I am very, very concerned that this will make the situation far worse in the arena of litigation, and muddy the last thirty years of judicial decisions, which have clarified the Public Trust Doctrine. It's not surprising that the State Water Contractors are supportive of this scheme to enable water exporters, who are holding the most junior water rights, to secure upstream water at the expense of the most senior water rights holders. Incredulously, the scheme then tags the upstream water rights holders with much of the expense for facilitating the reallocation of water and mitigating the environmental consequences of reallocation. This will do great damage to Sacramento Valley farmers and municipalities in the medium and long term, and will be the full employment act for lawyers in the short term.
The package's failure to specifically, and without nuance or ambiguity, define numerous terms like “coequal," “balanced" or “reliable" ensures twenty years of litigation (and millions of dollars of attorney's fees) as attorneys and the courts battle over their meaning. None of the bills acknowledge the fact that the State Water Board has issued rights to far more water than actually exists. Absent an admission of that TRUTH, there will never be a resolution to our water crisis.
Indeed, the legislation avoids the two actions that would meaningfully address the present water crisis: a mandate that the State Water Board aggressively begin the long overdue process of bringing water rights into conformance and balance with the amount of water that actually exists and an immediate repeal of the Monterey Agreement provisions that eliminated an “urban preference" that originally ensured water for the 20 million people on the South Coast during California's inevitable droughts. Surely, there should be a legislative water preference for 20 million people and the public trust resources of our state over cotton crops in Kern County.
I disagree with the Delta Vision Task Force's findings that new governance is required in the Delta. What is needed now is a legislative acceptance of the truth and legislative directives to reform the system to reflect the truth. An action that is desperately needed is meaningful enforcement of existing legal public trust and constitutional water doctrines and laws through the existing State Water Resources Control Board, not a new layer of bureaucracy and institutional inertia. Consequently, I urge that you recommend to the committee chairs to reject the legislation that promotes more water bureaucracy and wasteful spending on large water projects that will increase legal conflict and reduce water supply reliability far into California's future. "BEFORE ANYBODY SPENDS ANY MORE TAXPAYER DOLLARS AND BUILDS ANOTHER PIPE OR CANAL, THEY SHOULD BE REQUIRED BY THE LEGISLATURE TO PROVE THAT THEY HAVE REAL, WET WATER (TO WHICH THEY HAVE A REAL LEGAL ENTITLEMENT) THAT IS AVAILABLE TO FILL THE PIPE OR CANAL."
http://www.calsport.org/8-31-09c.htm