Editorials

If governor signs it, Gray’s new law would add fairness to water disputes

Senator Anthony Cannella, R-Ceres, left, and Assemblyman Adam Gray, D-Merced, surveyed the rivers and levees during high water flows in February. They combined forces, with Sen. Cathleen Galgiani, to insert fairness into disputes with the State Water Resources Control Board.
Senator Anthony Cannella, R-Ceres, left, and Assemblyman Adam Gray, D-Merced, surveyed the rivers and levees during high water flows in February. They combined forces, with Sen. Cathleen Galgiani, to insert fairness into disputes with the State Water Resources Control Board. akuhn@mercedsun-star.com

The odds were against Assemblyman Adam Gray in his long-shot effort to force additional fairness on decisions made by the State Water Resources Control Board.

Most of the board was against him. Its five appointees have virtually unchecked power to decide water disputes – including those the board’s own staff creates.

The environmental community was against him. With a majority of the water board almost always on their side, any loss of the board’s prerogative is, by extension, a loss for them. They marshaled support from the Los Angeles Times, among others.

The Save-the-Delta crowd, who rail against the state’s Delta-draining WaterFix, dislikes any plan that doesn’t end with the Delta getting more water – even if that water has lawfully been used by others for more than a century.

Despite these formidable foes, at around 3 a.m. on Saturday morning, Assembly Bill 313 passed in the state senate and now awaits Gov. Jerry Brown’s signature.

AB313 is about one thing – fairness.

Since the late 1960s, the state water board has written the rules, issued the citations then decided if its own staff is right. You can appeal, but they hear the appeals, too.

“The current process is judge, jury and prosecutor all in one place,” said Gray. “They’ll tell you there’s a firewall, but the same executive director is in charge of both sides of the house.”

Gray’s bill inserts a state-certified administrative law judge, like those used in disputes with other state agencies, between enforcement and appeal. The judge will rule on appeals. Only then will the case proceed to the water board. If the board overrules a neutral judge’s decision, red flags would fly.

Why is this important?

There have been 2,560 complaints since 2012 involving water board decisions. Most never got to a hearing, but of the few that did only four were overturned. Roughly speaking, you’ve got about a 1-in-640 chance of prevailing against the water board. In the face of such futility, most are intimidated and don’t even try.

Then there’s the board’s pending decision on our region’s water rights, rooted in 130 years of legal precedent and careful use. Board staff is demanding that double the water from the Merced, Tuolumne and Stanislaus rivers flow to the Pacific. A board ruling is expected in October; if it agrees with its own staff, our region’s economic losses could run in the hundreds of millions of dollars per year.

It would be nice to have a neutral party looking over the board’s shoulder as we try to balance science and the plight of both salmon and farmers.

Gray’s AB313 will help create fairness in a regulatory process. Fairness in the face of bureaucracy is a rare commodity, which might explain why so many worked to get this bill passed.

On the senate floor, Republican Anthony Cannella and Democrat Cathleen Galgiani led the fight. They got help from Sen. Jim Nielsen of Tehama and from southern Californian Bob Hertzberg.

“He is a Los Angeles senator with a strong environmental bend,” said Gray. “But he’s also a very fair-minded person. … He was instrumental in helping us.”

It passed 26-7. Now, more help is needed.

“We need to rally the community,” said Gray, “to call, write, text and support the bill. We’ve got to impress upon the governor’s office to sign this. I’m sure the water board will lobby the governor – they don’t want to lose any authority.”

Gray, Cannella and Galgiani engineered an important but improbable win on AB313. Now it’s up to the rest of us to help convince the man with the final say.

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