AB 2121 offers bad water policy; raises concerns

Issue Date: October 20, 2004

By Kate Campbell
Assistant Editor

In a move that has baffled and alarmed agricultural water experts, Gov. Arnold Schwarzenegger signed Assembly Bill 2121 on the final day of the bill signing session. This last minute legislation jolts state water policy and raises a number of disturbing questions and concerns for California's farmers and ranchers.

Where this new water legislation will lead is unclear, experts said. California Farm Bureau Federation and other agriculture and business organizations already have been meeting with state officials to discuss future implementation of AB 2121.

The new law requires the State Water Resources Control Board to establish in-stream flow standards for the North Coast, allows their development for the rest of the state, and permits the board to use a set of "draft" guidelines, written in secret with the help of special interests, until final standards are developed.

As yet there has been no public oversight of these guidelines or standards, there were no public hearings in the Legislature before AB 2121 was adopted and few answers about policies and procedures that will lead to future implementation.

The governor wrote a special signing message to go along with approval of AB 2121 that acknowledges funds needed for the board to prepare these new standards aren't actually available. This means the board will need to look elsewhere for the money, perha‹s adding to what the Farm Bureau says is a burdensome and illegal water-rights fee charged to landowners. Farm Bureau is protesting this levy in court.

In his signing message, Schwarzenegger said, "The SWRCB should begin developing this policy only if the $1.5 million transfer from the Resources Trust Fund to the SWRCB pursuant to the 2004 Budget Act is made. If adequate funding is not made available to the SWRCB, then the work should be postponed until funding is available.

"As part of this comprehensive effort to develop guidelines for water right administration on Northern California coastal streams, I urge the SWRCB to focus on the Russian River first," Schwarzenegger said. "I am also concerned that the deadline in the bill is unattainable, even if adequate funding is provided, given the complexity and importance of adopting in-stream flow guidelines."

Schwarzenegger said he is asking the Legislature to follow up next session with a bill to extend the deadline and provide additional funding as necessary for developing in-stream flow standards.

The draft guidelines, which AB 2121 allows the SWRCB to consider adopting, were created in 2000 and have yet to be adopted through the formal rulemaking process. The content of the draft guidelines is controversial.

For instance, the draft guidelines require a "specific proposal to provide periodic channel maintenance and flushing flows that are representative of the natural hydrograph."

Farm Bureau water experts note that these types of proposed large water flows need to be evaluated objectively to determine the impact on public safety, along with fisheries needs and those of water users.

Calling AB 2121 the "worst kind of back room legislation," CFBF President Bill Pauli said, "This drastic bill to regulate water rights comes closely on the heels of the administration's decision to list the coho salmon as endangered in North Coast streams.

"These two actions in combination pose a clear threat to the viability of agriculture in the North Coast area, with the ominous possibility of greater statewide impact," Pauli said. "These decisions are particularly disturbing when one considers the investment of time, money, effort, research and planning that Farm Bureau members and staff have dedicated to voluntary efforts to recover fish species in the North Coast.

"CFBF believes that this bill impairs private property rights, threatens jobs and livelihoods, increases government red tape, and flies in the face of public participation in government decision making," Pauli said. "California's farmers and ranchers can now look forward to higher fees, less stable water rights and more regulation."

Although a number of county Farm Bureaus and individual members took time to write, fax, email, and call the governor's office asking him to veto this bill, they could not prevent AB 2121 from being signed. Pauli emphasized that, nonetheless, he was thankful for their timely action.

In addition to Farm Bureau members, those joining in the call for a veto of AB 2121 included the Association of California Water Agencies, California Building Industry Association, California Business Properties Association, California Chamber of Commerce, Northern California Water Association, Regional Council of Rural Counties and Wine Institute.

Initially the legislation will affect watersheds in Humboldt, Lake, Marin, Mendocino and Sonoma counties. Estimates by the water board's staff put the cost to implement AB 2121 at $7.5 million, while the state budget has suggested $1.5 million might be available during the next fiscal year.

The state water board said there are about 190 pending water right applications on the Russian River‎many of them for small to mid-sized wineries‎and about 1,435 existing water right permits and licenses.

SWRCB spokesperson Liz Kanter said that because it would take a significant amount of staff time to research and determine how many acre-feet of water these water right permits allow holders to take from the watershed, the answer to how much water is involved will have to be developed by interested parties willing to search public records.

"This information is available in several forms," Kanter said, "such as the face value of all permits and licenses. The determination is further complicated by the amount of water that is imported from the Eel River."

Kanter said the Russian River was chosen to go first under AB 2121 because it represents the greatest numbers and diversity of permit holders, including imports, exports, hydroelectric, recreation and agriculture in the Northern California coastal region.

She also said the new Resources Trust Fund, which would provide the financial resources to implement AB 2121, has not been funded, "but we are developing a Budget Change Proposal to try to get funding. At this point we will not be asking permit holders for more money to fund this."

She said the 1997 SWRCB staff report on the Russian River, which will be on the board's Web site soon, provides background information and the nature of the problems in the Russian River watershed that led to the development of the Department of Fish andgGame/National Oceanic and Atmospheric Administration Fisheries Draft Guidelines discussed in AB 2121.

"We are still in the infancy stages of how this will be implemented," Kanter said. "The governor has asked that the Legislature follow up next session with a bill to extend deadlines."

In addition to expressing disappointment that the governor would sign a bill of such importance that was in print only four days before the Legislature adjourned, Mendocino County Farm Bureau Executive Administrator Carre Brown said, "This is the kind of gut- and-amend bill the governor had guaranteed the public he would not sign."

She said farmers and ranchers in Mendocino County already use voluntary best management practices to protect fish and aquatic populations in the county's streams and watercourses. These practices have been developed through ongoing research, education and practical application, she said.

CFBF Water Resources Director Tony Francois said, "Codifying these underground regulations in the state Water Code is the worst kind of stealth legislation. It was broadly opposed when it was passed by the Legislature."

During Senate and Assembly votes, the bill earned only 22 and 41 votes in each house respectively. The Assembly vote involved six "no" votes from Democratic members, including the chairman and three other Democratic members of the Assembly Water, Parks and Wildlife Committee. The bill's analysis identifies no sponsors and no supporters.

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item. Top