Department of Water Resources
A daily compilation of significant news articles and comment
April 25, 2007
5. Agencies, Programs, People
CASITAS FISH LADDER:
Casitas suit could set major precedent; District wants U.S. to pay for fish ladder water - Ventura County Star
LEVEE REPAIR FUNDING:
Farm aid in war spending bill - Sacramento Bee
DEVELOPMENT:
Editorial: Sanity in flood plans; Why allow new homes behind suspect levees? - Sacramento
MARYSVILLE AREA LEVEE ISSUES: - More levee money needed - Marysville Appeal Democrat
Supervisors confirm 7 for levee panel - Marysville Appeal Democrat
FLOOD CONTROL PROJECTS:
Flood control work to save residents on insurance premiums - Riverside Press Enterprise
WATER RIGHT FEES GOES TO COURT:
High court to review water rights 'fees' -
CASITAS FISH LADDER:
Casitas suit could set major precedent; District wants
By Zeke Barlow, staff writer
A small water district in the hills of Oak View is poised to make big ripples across the water-hungry West.
The Casitas Municipal Water District has sued the federal government, claiming it should be reimbursed for water it has to send down a fish ladder to protect the endangered steelhead trout. Since then, water agencies and property rights groups have been monitoring the suit to see how it may alter water regulations across the country and, just maybe, the Endangered Species Act.
"It's premature to speculate, but it has a lot of precedent-setting potential for the entire West," said J. David Bremmer, a principal attorney with the Pacific Legal Foundation, a property rights group that filed a brief during the case. "It could go all the way to the Supreme Court."
And no matter what side of the fence a person's on, that could be a big deal.
"The litigation is fundamentally wrong because it attempts to overturn 100 years of water law in
If Casitas wins, it could set a precedent for how states are able to manage water and what restrictions the federal government can impose to protect species. And if it loses, the decision could codify the rule of how water is regulated.
Casitas built the more than $8 million fish ladder in 2005 so steelhead trout can get around the Robles Diversion, which sends water from the
It filed the lawsuit last year in hopes that it would be paid for the roughly 3,000 acre-feet of water it sends down the ladder annually.
The cornerstone of the case is the Fifth Amendment, which states in part no "private property (may) be taken for public use, without just compensation." Casitas claims that because it owns the right to the water it does not outright own the water until it gets into
But last month, U.S. Court of Federal Claims Judge
Wiese and the Court of Appeals still have to agree to allow the appeal.
The Endangered Species Act comes into play because the federal government will sometimes limit use or access to property to protect at-risk animals. If a court rules the federal government took something from Casitas, that could have ripples within the Endangered Species Act.
Bremmer's group contends that, if the federal government wants something that benefits all of society, like saving an endangered species, it should have to pay for it, not the individual, or in this case, Casitas.
"If this is what the public wants, the public should pay for it," Bremmer said.
Others who disagree on who is right still agree on the magnitude of the issue.
"It's an enormous significant legal issue because it decides whether or not the public has a right to regulate water use in the public interest," said
Still, Echeverria doesn't think the case will get any further than the Court of Appeals because other legal cases establish that the government does have the regulatory right to the water.
Though Wiese earlier ruled the federal government did owe the Tulare Lake Basin Water Storage District for water it took for an endangered species, Echeverria said, he believes Wiese has since realized that decision was a mistake.
About six organizations, ranging from groups of farmers in
Dana Wisehart, general manager of United Water Conservation District, said she's been paying attention to the case to see how it may affect her district, which sends water down a fish ladder on the
"I think it will make the government agencies more careful about what they require," she said.
Bremmer and members of the board in support of the case aid it isn't the amount of water that matters, but the principle that the government can take as much as it wants, whenever it wants.
The Casitas board members recognize they have unwittingly placed themselves in middle of the firestorm.
"It's sort of a dubious position to be in," said Jim Word, who is favor of the suit. "I'm not interested in trying to undercut the Endangered Species Act, but there are certain elements that need to be clarified, and if we can help do that, that would be great." #
http://www.venturacountystar.com/news/2007/apr/25/casitas-suit-could-set-major-precedent/
LEVEE REPAIR FUNDING:
Farm aid in war spending bill
By Michael Doyle, staff writer
Overshadowed by debate over the
"
Feinstein serves on the Senate Appropriations Committee, which worked out the funding bill details Monday night. The farm money is part of a $124.2 billion package originally designed to fund
It is also part of a complicated political give-and-take. The
Nonetheless, Valley lawmakers and farm advocates still count the legislation as a victory.
"I think the $20 million is sufficient for the tree damages," Tulare County Supervisor Allen Ishida said Tuesday morning.
The overall $124.2 billion emergency supplemental bill represents a compromise between the House and Senate, each of which had earlier passed slightly different versions. Some provisions became too controversial to survive. A plan to reimburse
In other cases, lawmakers added in last-minute provisions, including funding to repair
"
Most Republicans are likely to vote against the bill, because of the
Once approved by both chambers, which is likely to happen by Thursday, the conference report will go to the White House. Citing the
Lawmakers will then rewrite the legislation. The changes, though, are expected to cover only the
As worked out by House and Senate negotiators, the funding package also includes:
- $94.1 million to repair
- $60.4 million for salmon fishermen and associated businesses along the
- $12 million to help eradicate marijuana on Forest Service lands. With nearly 1.5 million marijuana plants seized on federal land in
- $21 million for farmworker assistance grants. #
http://www.sacbee.com/111/story/160353.html
DEVELOPMENT:
Editorial: Sanity in flood plans; Why allow new homes behind suspect levees?
Sacramento
Assemblywoman Lois Wolk, D-Davis, is still fighting the good fight for a state law to discourage development in parts of the Central Valley that lack adequate flood protection.
Since Hurricane Katrina swamped
Facing opposition from the building industry, Wolk's legislation died in the Senate last session. This year, she is back with Assembly Bill 5, which faces a test today in the Assembly Local Government Committee. The bill is a work in progress, but with the right combination of amendments, it could become a much-needed vehicle for a saner flood control policy.
As now written, it would encourage Central Valley cities and counties to assess their levees' safety, as
Those who fail to develop such plans would be restricted from building in floodplains, starting in 2011, if their levees lacked a certain standard of flood protection.
Why 2011? That's the year the Department of Water Resources expects to finish a new state plan of flood control for the
This is a major undertaking, so it shouldn't be surprising that Wolk hasn't hashed out all the details. Some of the big issues: What should be the standard for flood protection in urban areas, and who should make that determination? And is there a legal way to discourage inappropriate building in floodplains before 2011, when the state expects to finalize its new flood plan?
Everyone with a stake in smart flood control needs to address such questions. They include Gov. Arnold Schwarzenegger, Wolk's counterparts in the Senate, the League of California Cities and other groups.
http://www.sacbee.com/110/story/160506.html
MARYSVILLE AREA LEVEE ISSUES:
More levee money needed
Marysville Appeal Democrat – 4/24/07
By Daniel Witter, staff writer
The Three Rivers Levee Improvement Authority continues to make progress with plans for fixing the levees in south
In the next few weeks, the agency plans to submit an application to the state to obtain funding for Proposition 1E funding to pay for repairs on the
“We’re busily working on that application,” Brunner said Tuesday.
Brunner is hopeful the project will receive funding. The project, when completed, is projected to cost $256 million. More than $100 million in repairs have already been completed in the county largely through contributions from developers.
The movement for funding comes after the State Reclamation Board decided Friday to request clarification from the U.S. Army Corps of Engineers on whether or not the Three Rivers project needs federal approval to begin repairs on segments 1 and 3 of the final phase of repairs, said Dan Fua, a supervising engineer for the state.
No information was available on when the Corps will make its decision.
Phase 4 is broken into three segments along the
Encroachment permits for the setback levee in Segment 2, the 6-mile midsection of Phase 4 spanning between Starr and Shanghai bends, will be sought at a later date, Brunner said.
Three Rivers has until May 1 to submit a Prop 1E application to the state for consideration of early funding. Three Rivers will meet the deadline, Brunner said.
Once the state has the Prop 1E application is in hand, a state review team will look over the application. If it is accepted,
The local agencies will have a week to decide if they like the terms. There will likely be negotiations, Brunner said.
The state will then ask Three Rivers for a financing plan and review it. If Three Rivers finds it acceptable, both sides will sign the contract. Funding could come as early as July, Brunner said.
http://www.appeal-democrat.com/onset?id=47523&template=article.html
Supervisors confirm 7 for levee panel
Marysville Appeal Democrat – 4/25/07
By Robert LaHue, staff writer
The seven were chosen by the board last week, but the Sutter County Taxpayers Association, among those not chosen for the committee, claimed supervisors violated the Brown Act, which governs openness of public meetings.
SCTA President Bob Mackensen. Mackensen was the only speaker. He claimed there was a March 13 deadline for applications but two appointees had application timestamped after the date.
Mackensen claimed the county had gone “shopping” for candidates.
Mackensen’s deadline claim was countered by Supervisor Stan Cleveland, who had pitched SCTA for committee membership the previous week.
“I find that item to be unfounded,”
“A lot of people did assume that,” he said. #
http://www.appeal-democrat.com/onset?id=47526&template=article.html
FLOOD CONTROL PROJECTS:
Flood control work to save residents on insurance premiums
Riverside Press
By Darrell Santschi, staff writer
As many as 10,000 property owners from
"All we do now is sit back and wait while FEMA does everything as fast as they do it," said Loma Linda City Councilman Floyd Petersen.
His flood insurance premium dropped from $600 a year to $450 in 2002, when the county formally declared the channel work three-quarters complete. Now Petersen looks forward to paying no premium at all.
"It's a big deal," he said of the completion. "This is probably the biggest major project that has happened in Loma Linda."
The flood protection, and the drop in premiums, will affect residents of Loma Linda,
Construction in the channel was finished last May, he said. The county has submitted an application to FEMA for removal of construction limitations and the requirement that property owners obtain flood insurance. The county also sent copies of construction plans and hydraulic calculations.
"They give it a thorough review before they agree to release" the area from the restrictions, he said.
The process could take another four months, he said.
About five miles of the construction downstream from Loma Linda is a concrete-lined channel.
Two miles upstream into the canyon is a series of 18 earthen retention basins separated by small dams that help trap debris before water pours into the concrete channel.
The channel had to be widened from 120 feet to about 400 feet in places to accommodate the basins, Lovell said.
Construction of the channel required a new two-lane bridge across
"The San Timoteo Creek project is virtually coming to a conclusion," San Bernardino County Supervisor Dennis Hansberger said at the time. "It will do the job it was intended to do. It will preserve a place for wildlife; for us to recreate. It will also preserve a great deal of the region and make it safe for us to live downstream" of the bridge.
Lovell said the channel is intended to protect the east valley of San Bernardino County from a flood so large it could be expected only once in 100 years.
During such a flood, he said, the channel would carry as much as 20,000 cubic feet of water per second. That is enough to fill an Olympic-size swimming pool every two seconds.
A 1969 flood brought 19,000 cubic feet of water per second along the creek, destroying 400 houses, 300 vehicles, five bridges and a school. One person was killed.
In Loma Linda, the channel improvements already have spawned the biggest building boom in the city's 37-year history. That boom has generated cries for growth control, leading to passage last November of Measure V, which could grind construction to a halt until the city revamps its general plan to guide growth.
Yet to be completed are aesthetic improvements along the flood control channel, including a hiking trail, ground cover, bushes and benches, water fountains, horse troughs and hitching posts.
Lovell said a landscape contractor is about to begin planting along the earthen section of the channel, which could take another year to finish.
The drought-resistant plants will be watered for the first five years, he said, until they take root enough to survive on their own. #
http://www.pe.com/localnews/inland/stories/PE_News_Local_B_bflood25.4167455.html
WATER RIGHT FEES GOES TO COURT:
High court to review water rights 'fees'
By Kate Campbell Assistant Editor
Legal battling over the validity of charging annual "fees" to holders of water rights licenses and permits intensified April 11 when the California Supreme Court decided to step into the controversy. The California Farm Bureau Federation contends that these so-called fees are really illegally imposed taxes.
In April 2005, the Superior Court in
While ruling invalid the "fee" regulation, the appellate court upheld the statute on which it was based and gave the water board 180 days to issue a valid regulation, letting it keep until then the more than $20 million collected, with only excessive amounts subject to refund.
"The Supreme Court's acceptance of the case, however, means the water board won't have to write a new regulation or make refunds for quite some time, if at all," said Carl Borden, CFBF associate counsel. "As we've cautioned before, Farm Bureau members with water rights licenses and permits need to be patient until this litigation has reached its end, which now may not be for another year or two."
At the heart of this dispute, legal experts say, is the state's new "beneficiary pays" philosophy for funding state agencies and services, which has the potential for wrongful fees and thinly disguised taxes.
In its ruling, the appellate court upheld the constitutionality of a statute, enacted in 2003 under Senate Bill 1049, requiring the State Water Resources Control Board to issue each year a schedule of fees to cover the full budget of its Water Rights Division, which issues and administers the licenses and permits.
But that opinion also struck down the first schedule adopted by the water board because the "fees" it imposed were not fairly and reasonably related to the benefits received or the burdens imposed by those being charged for the regulatory program, Borden said.
The two issues raised by Farm Bureau that the state's highest court will consider are:
1. Does Water Code section 1525 impose an invalid tax or a lawful regulatory fee?
·
2. If that statute is valid, but the regulation implementing it is invalid, did the appellate court err in limiting refunds to only those who had filed a protest with the water board?
·
In two separate actions, CFBF and its 53 member county Farm Bureaus, along with the Northern California Water Association, Central Valley Project Water Association and about 200 individuals, sued the water board after it had issued, as directed by the statute, a regulation imposing a "fee" on about 7,000 persons holding some 13,000 water rights licenses and permits.
Borden points out that Article XIII A of the California Constitution, which was added by Proposition 13, requires legislation resulting in new or increased taxes be approved by a two-thirds vote of each house of the Legislature. As that requirement was not met, the resulting exaction, which is really a tax, is invalid, he said.
In addition, Farm Bureau contends that because the "fee" it mandated is really a tax based on the value of water rights, the bill violated the constitutional prohibition against the enactment of new ad valorem taxes.
Meanwhile, Borden said, that to enhance their chances of getting a refund of "fees" paid, if they're ultimately declared invalid, water rights holders should file with the water board a protest of each year's fee bill.
Borden said the deadline for protesting the most recent bill, technically, a "Notice of Determination," was Jan. 18, which was 30 days after the state had mailed bills for fiscal year 2006-07. #
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