Draconian water plan unveiled


MAY 3, 2010


Water is the lifeblood of California. Throughout the state’s history, it has formed the core of political and economic battles. It is actually more important than gold, a commodity that can be mined elsewhere. But California’s water can only be obtained in this state, or in neighboring states.

Given the importance of any changes in California’s water policy, the new “California Water Plan Update 2009” has been practically unreported in the media since its main parts were released on March 31, 2010; the rest is scheduled to be published by May. Although “Update 2009” does not itself have the force of law, it is the state’s water blueprint for the next five years and will be highly influential in every water policy discussion and law revision.

It was produced by the California Department of Water Resources, and written by a steering committee representing 21 State agencies, a 45-member public advisory committee, nearly 40 regional workshops held around the state and “about 150 meetings with more than 26,500 person-hours of conversations about our water.”

The department’s printing section told me they do not know what the total number of pages will be. But the total so far – for the “Highlights,” all of Volume 1, and most of Volume 2 – is 915 pages. When Volumes 3 to 5 are added, the total should exceed 2,000 pages.

Reading through this massive document, large parts of it call for greatly increasing state government control over water production and supply. It is the biggest leap in government control I have seen in my more than 30 years of practicing environmental and water law. It is the state equivalent of President Obama’s federal takeover of health care with a 2,400-page law passed by Congress.

The state’s previous water plan, in 2005, was no slouch in advancing government control. But “Update 2009” comes in the wake of two major actions. In 2006, the Legislature passed, and Gov. Arnold Schwarzenegger signed into law AB 32, the “Global Warming Solutions Act of 2006,” which mandates a 25 percent reduction in greenhouse gases produced in California by 2020.

Second, just last November 2009, the Legislature passed and the governor signed the Comprehensive State Water Package.


The centralization theme begins with the press release, which insists:

Integrated water management and sustainability is the thread of continuity throughout Update 2009. It gives all Californians a new direction for water decisions about such challenges as threatened ecosystems, the uncertainties of climate change and a rising sea level, and population growth.

Notice the tone: “It gives all Californians a new direction….” But in a democracy, isn’t it Californians – the people of the state – who themselves are supposed to give direction to the state?

And it notes that SB 7, part of the Comprehensive State Water Package, mandates:

Water use efficiency must be a key part of the water portfolio of every water agency, city, county, farm, and business—as well as State and federal government agencies. Using water efficiently must be a foundational action of every water plan—one that also serves to mitigate and adapt to climate change.

That’s all part of SB 7’s conservation dictates: 

Governor Schwarzenegger directed DWR to collaborate with the State Water Board and its nine Regional Water Quality Control Boards (Regional Boards), the California Energy Commission, the California Public Utilities Commission, the California Department of Public Health, and other agencies to implement strategies to increase regional water supply self-sufficiency and achieve a statewide 20 percent reduction in per capita urban water use by 2020.

However, the costs of delivery do not decrease if you cut down the amount of water used. The infrastructure’s construction and maintenance still cost the same. The only way to implement this edict, by a governor who soon will be out of office, will be to sharply increase water costs for all consumers, including businesses and families. 

AB 32 and Climategate 

A major justification for water centralization is AB 32, whose presence is strong in many parts of “Update 2009.” “Update 2009” was published four months after the Climategate scandal broke in November 2009. The scandal showed that major global-warming scientists cooked the data supposedly proving that humans caused the Earth’s temperature to rise in recent decades. Yet “Update 2009” continues to assume that global warming is a proven fact. 

As London’s Daily Telegraph wrote:

The second and most shocking revelation of the leaked [climate change] documents is how they show the scientists trying to manipulate data through their tortuous computer programs, always to point in only the one desired direction – to lower past temperatures and to “adjust” recent temperatures upwards, in order to convey the impression of an accelerated warming. This comes up so often (not least in the documents relating to computer data in the Harry Read Me file) that it becomes the most disturbing single element of the entire story….

Our hopelessly compromised scientific establishment cannot be allowed to get away with a whitewash of what has become the greatest scientific scandal of our age.

Given the skepticism across the world about global warming, “Update 2009’s” five-year projection for California water use did not have to follow AB 32 with the rigidity of a Soviet five-year plan

Nor does “Update 2009” take into account efforts to suspend AB 32 until the economy improves, specifically the California Jobs Initiative, which could be on the November ballot. If approved by the voters, it would suspend AB 32’s implementation until state unemployment drops to 5.5 percent or less (from 12.5 percent in February 2010) for four consecutive quarters. 

Moreover, under AB 32, the governor has the authority to suspend its implementation. Meg Whitman, the likely Republican nominee for governor, has said that, if elected, she would suspend most of AB 32. Likely Democratic nominee Jerry Brown has supported AB 32 and, as part of his current job as attorney general, renamed the repeal initiative in a negative fashion. 

The point is that “Update 2009” does not take into account the political fluidity of the global-warming issue. 

Implementing AB 32 

Here are some examples of how AB 32 dominates “Update 2009.” A couple of modest-length quotations also will give the reader a taste of the bureaucratic nature of “Update 2009.” This is from Volume 1, Chapter 1

DWR [Department of Water Resources] is taking a leadership role in adapting to effects of climate change on water resources and systems. In October 2008, the department released Managing an Uncertain Future: Climate Change Adaptation Strategies for California’s Water. The strategies of this white paper and those in the 2009 California Climate Adaptation Strategy (California Natural Resources Agency) are part of this Water Plan’s implementation plan and appear as objectives and related actions (see Chapter 7 Implementation Plan). The Climate Change Technical Advisory Group contributed to the preparation of the white paper.

From Volume 1, Chapter 2

As understanding of climate change increases, the challenge for California’s water community is to develop and implement strategies that improve resiliency, reduce risk, and increase sustainability for water and flood management systems and the ecosystems upon which they depend….

Water managers must play dual roles when it comes to climate change; they must engage in both mitigation and adaptation.

Mitigation refers to the reduction of greenhouse gas (GHG) emissions from water-related energy use. Water utilities use energy to reliably provide quality water to customers, while wastewater utilities in turn use energy to safely collect, treat, and dispose of wastewater to protect public health and the environment. GHG emissions reduction is a critical responsibility of water managers, and efficiency in water and energy use should be pursued at every opportunity….

Adaptation refers to the ways in which our society and culture will need to change to cope with a changing climate. Several of the water plan objectives and actions will help California adapt to climate change and are ready for immediate adoption.

Again, note the top-down nature of the directives: “our society and culture will need to change.” There is not even a tip of the hat to the democratic wishes of citizens. 

In Volume 1, Chapter 7, Objective 5 advances “Expand Environmental Stewardship,” a worthy goal. But it takes another centralized approach: 

Contribute to AB 32 GHG [greenhouse gases] reduction goals related to water and flood systems operations through enhancing carbon sequestration mechanisms by re-establishing 500,000 acres of historic vegetated floodplain corridors and restoring 500,000 acres of upper watershed forests.

And Objective 9, “Reduce Energy Consumption of Water Systems and Uses,” includes a call to “Reduce the energy consumption of water and wastewater management systems by implementing the water-related strategies in AB 32 Scoping Plan to mitigate greenhouse gas emissions.” That is even more centralization to placate the global-warming bogeyman. 

Sensible warnings

“Update 2009” contains many positive elements, including descriptions of the state’s water regions and resources. It also includes prescient warnings about the age and state of decomposition of much of the state’s water infrastructure, and about the increased problems of the state obtaining credit at reasonable interest rates for bonds for new construction. 

In Volume 1, Chapter 4, it correctly states: 

Aging facilities risk public safety, water supply reliability, and water quality. The SWP [State Water Project] is more than 35 years old; the federal CVP [Central Valley Project] is more than 50 years old. Some local facilities were constructed nearly 100 years ago. Current infrastructure disrepair, outages, and failures and the degradation of local water delivery systems are in part the result of years of underinvestment in preventive maintenance, repair, and rehabilitation. The Public Policy Institute of California estimated the state’s water supply and wastewater treatment systems maintenance backlog to be about $40 billion. 

And the “Highlights” introduction points out, “State and regional budget shortfalls and a tightened credit market may delay new projects and programs.”

This seems to be a reference to state budget problems which have sunk California’s bond ratings to the lowest of any state in the nation. As merchant banker and FoxNews contributor Mallory Factor noted on April 12, 2010: 

Although the rating agencies differ in their assessments of Greece and California, Moody’s rating agency gives California a Baa1 while it gives Greece a higher rating — A2. Don’t be mistaken: Both ratings are severe warnings from the financial markets to California and Greece that they must get their fiscal house in order. The recent downgrades in California’s debt ratings mean that the state will face much higher costs of borrowing both now and in the future. Similarly, even though both have the euro as their currency, Greece’s borrowing costs are twice that of Germany because of the difference in the two nations’ perceived creditworthiness. And both Greece and California face similar problems attracting lenders to purchase their debt.

 “Update 2009” also is fairly good at recommending additional use of recycled water, currently an under-tapped resource in this state. In Volume 1, Chapter 7, it recommends: 

* Municipal recycled water may represent a relatively energy efficient water management strategy in some areas of the state … 

* Water agencies should adopt policies by 2015 that promote the use of recycled water for all appropriate, cost-effective uses while protecting public health, the beneficial uses of surface water and groundwater quality, and the environment. 

* The State Water Board will (a) implement its Recycled Water Policy to encourage the use of recycled water while protecting beneficial uses of water resources and the environment, and (b) require the use of recycled water where the use of potable water would be considered a waste or an unreasonable use of water.

* By 2015, water and wastewater utilities should collaboratively develop water recycling plans as part of Integrated Regional Water Management plans. 

I would add that the most helpful approach the State Water Board could take in this area would be to stand out of the way of local water agencies that want to increase recycling, and improve and increase grants. 

Conclusion: water and prosperity 

Most Californians only care about water when rust comes out of their pipes or their bill is jacked up. They need to wake up. 

California’s economy – and its bond rating – will not be helped by the many draconian water measures recommended in “Update 2009” to get the state in line with AB 32 or to meet other severe conservation measures. 

California simply cannot have it both ways. It can either have a robust economy that generates a large enough tax base for a decent credit rating and the funding of a strong infrastructure; or it can have a feeble, highly regulated, AB 32-dominated economy with low credit ratings that will continue to see its infrastructure crumble, including its vital and once-robust water system. 

California’s increasing water needs can only be met with sensible state regulations, the increased use of recycled water when economically feasible, the unleashing of local and private initiatives and skepticism about state-sponsored global-warming alarmism. Especially in a time when government’s own financial resources, even its credit rating, are stressed to the limit, less bureaucratic solutions are not optional, but essential. 

Susan M. Trager has more than 30 years of experience in water law, public agency law, municipal law, right of way acquisitions, environmental law and eminent domain law, including the valuation of water rights. She also edits Trager Water Report, a new site on California water.

Her email: [email protected]. The views in this article are hers, and do not represent those of her law firm, SmithTrager LLP.


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  1. ahippynomore
    ahippynomore 4 May, 2010, 10:30

    A great article, Susan.

    Don’t you just love how the EPA is in control of our water.
    In Sacramento, the Delta water was cut off because of the endangered species, smelt. Ruining the richest farmland in California and ruining the livlihoods of generations of farmers who now have to stand in food lines as they have no money.
    Then there is the EPA’s declaration that salmon are an endangered species. In San Diego, we will now get 5% of our water because the Damn of Lake Henshaw (which provides the water to San Diego) will release its water into the ocean so that salmon can spawn. The San Luis Rey River will be widened and dreged to accomadate the release of water. Our water rates will go up again. Salmon were last seen in San Diego in the late 1800’s.
    This is insanity. You can easily grow smelt and salmon in ponds. So, what is really up with the EPA??? I am suspicious.
    Larry Naritelli, who is a grassroots candidate for CA Govenor, will work hard to stop this insanity. I have been following his efforts to restore water sanity in California. He is for people, not smelt or salmon.

    Reply this comment
  2. Peyton Farquhar
    Peyton Farquhar 7 May, 2010, 08:17

    The golden days of wasting hundreds of thousands of dollars to water your precious lawns are over. The sooner you accept that the better off the state as a whole will be. If you want all the water you can waste, move back east. California’s water is a finite resource as is our environment. Without protection, we can just kiss goodbye everything that makes California an attractive destination for tourists and become a third world shithole without environmental and water protections in place just like Mexico.

    Reply this comment

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