McGeorge School of Law

Proposition 50

Proposition 50:
The Water Quality, Supply and Safe Drinking Water Projects.
Coastal Wetlands Purchase and Protection. Bonds.
Initiative Statute.

By

Aaron R. Bock
JD, McGeorge School of Law, University of the Pacific to be conferred May 2003
Masters of City and Regional Planning, California Polytechnic State Univ., San Luis Obispo 2002
B.S., Landscape Architecture, University of California at Davis 1996

and

Kenneth L. Swenson
LLM, McGeorge School of Law, University of the Pacific to be conferred May 2003
JD, McGeorge School of Law, University of the Pacific 1995
B.S., Biological Science, California State University 1993

Copyright © 2002 by University of the McGeorge School of Law

 

Table of Contents

I. Executive Summary
II. The Law
III. The Effects of Proposition 50
IV. Drafting Issues

V. Constitutional Issues
VI. Fiscal and Policy Considerations
VII. Public Policy Debate
VIII. Conclusion

I. EXECUTIVE SUMMARY

Proposition 50, titled the "Water Quality, Supply and Safe Water Projects. Coastal Wetlands Purchase and Protection. Bonds. Initiative Statute." would authorize $3.4 billion dollars in general obligation bonds to fund a variety of water related programs. The bonds would be used to fund (1) CALFED Bay-Delta projects including urban and agricultural water use efficiency projects; (2) grants and loans to reduce Colorado River water use; (3) purchasing, protecting, and restoring coastal wetlands; and (4) grants for water management and quality improvement projects, improving security for state, local, and regional water systems, and desalination and drinking water disinfection. These bonds would be repaid with interest from the state's General Fund, over a 25-year period and at a total cost of about $5.7 billion dollars.

Proposition 50 brings to light a major philosophical debate over what is more necessary for California's future; the conservation of land for environmental purposes or the storage of water for agricultural purposes. Land conservation requires the protection of land typically through donation or acquisition (the purchase of land). On the other hand, water storage is the creation of reservoirs by damming a river or by diverting or pumping water into an enclosed valley. In damming nearly all the major rivers in California, the federal and state government have caused major environmental changes to the State of California. Proposition 50 favors land conservation over water storage.

Proposition 50 follows a number of other water related bond initiatives. In 1996, voters passed Proposition 204, which provided nearly $1 billion dollars to fund a broad range of water related projects. In 2000, voters approved Proposition 13, which provided almost $2 billion dollars for water related projects. In 2002, voters passed Proposition 40, which provides $2.6 billion dollars to restoration of natural resources, including water resources. The funds provided by Proposition 204 and Proposition 13 have largely been exhausted. Proposition 50 would provide substantial new funds for water related programs.

Proposition 50 would create Division 26.5 of the Water Code, and is titled the Water Quality, Clean Drinking Water, Coastal and Beach Protection Act of 2002. This act contains a number of possible drafting problems and raises some potential constitutional issues. These problems do not appear insurmountable.

Proponents argue Proposition 50 ensures clean drinking water, improves water quality, secures water systems, protects and preserves beaches and coastal regions, and strengthens California's economy by ensuring a reliable and cost effective supply of water. The scope of Proposition 50 appeals to a wide range of environmental, conservation, and water interests. Opponents argue Proposition 50 overemphasizes land acquisition at the expense of sufficient water storage. Opponents consist chiefly of agricultural and business interests. The measure pits interests against one another, which were previously aligned in support of prior water bond initiatives. For this reason, Proposition 50 may not gather as much support as the prior measures.

II. LAW

 

 

In the west, nature alone would have supported a few thousand people. Marc Reisner, Cadillac Desert: The American West and Its Disappearing Water 2-3 (Penguin Books 1993). Hence, the State of California began unparalleled water projects, such as the Central Valley Project and the State Water Project, to manage California's waterways. Charles F. Wilkinson, Crossing the Next Meridian: Land, Water and the Future of the West 248-252 (Island Press 1992). In the early part of the last century, California could no longer afford the Central Valley Project, so the United States Bureau of Reclamation funded and expanded California's water projects. Id. at 250. Behind the scenes, water districts like the Southern California Municipal Water District played a major role in creating both the Central Valley Project and the State Water Project, two of the greatest engineering feats in human history. Id. at 253-254.

At a great expense to the environment, Californians have controlled and excessively used water by damming all but two rivers in California, diverting waters from the streams, and pumping ground water. Wilkinson, Crossing the Next Meridian: Land, Water and the Future of the West at 21. In damming rivers, the historical, cultural and natural characteristics of the landscape are lost. John McPhee, Encounters with the Arch Druid 59-60 (Farrah, Straus, and Giroux 1971). The Hetch Hetchy Dam drowned Yosemite Valley's sister valley, which was every bit as spectacular as Yosemite, behind a dam that is for the most part useless. Id. The use of water in the desert conditions of the Central Valley has led to the salinization of the Western Central Valley and to other environmental catastrophes. Reisner, Cadillac Desert: The American West and Its Disappearing Water at 467, 483-485. Furthermore, one used to be able to travel the entire Central Valley from San Francisco to Sacramento in a canoe during the wet months; but since then, seasonal lakes such as the Tulare Lake, one of the largest lakes in California, have long since dried up. Id. at 178-179. Finally, the destruction of the natural riparian waterways has contributed to the loss of 90% of all wetlands in California. Id. at 485.

In response to the environmental conditions associated with this problem, both federal and state agencies began to concentrate on the Sacramento/San Joaquin Delta [hereinafter Delta]. Cal Fed Bay-Delta Program History (accessed October 16, 2002). To reconcile the chaos of 24 agencies working on the Delta, the California - Federal Bay Delta Program [hereinafter Cal Fed] was created seven years ago to coordinate these agencies. Id. The Cal Fed also works to improve water quality and supply. Despite these efforts, California runs short of water each year. Reisner, Cadillac Desert: The American West and Its Disappearing Water at 483. The cause of the shortage has been attributed to the water subsidy that farmers still receive from the federal government, although lessened by a 1991 Executive Order, and the needs of a dramatically increasing population. Id. at 516-517.

California water law is based on principles of riparian rights, wherein those who own land next to waterways have the right to that water. Wilkinson, Crossing the Next Meridian: Land, Water and the Future of the West at 21. Diversions of water from their natural course are by permit process and based on the principle of first in time, first in right. Id. In determining water rights, the courts historically have looked toward economic and health criteria, and not environmental considerations. Reisner, Cadillac Desert: The American West and Its Disappearing Water at 516-517. Furthermore, unlike other arid states, California disallows in stream appropriations by the State Fish and Game Department. Cal. Water Code § 1701 (West 2000). Therefore, environmentalists petition decision makers, purchase and transfer water rights, or acquire lands surrounding waterways to conserve water for environmental purposes in order to protect the environment. Reisner, Cadillac Desert: The American West and Its Disappearing Water at 515-519.

In addition, environmental laws affect the use of water in the state. The Clean Water Act and the State equivalent protect water quality. Clean Water Act 33 U.S.C. §§ 1311-1330; Cal. Water Code § 13020 (West 1992). The Endangered Species Act (ESA), as enforced by the National Marine Fisheries Services [hereinafter NMFS], limits the amount of water that can be appropriated or appropriates water for listed species. 16 USC § 1534(b) (2000). NMFS allocated water in the Sacramento River for the Sacramento Coho Salmon as part of its critical habitat. National Marine Fisheries Services, U.S. District Court Approves A NMFS Consent Decree Withdrawing Critical Habitat Designations For 19 Evolutionarily Significant Units Of Salmon And Steelhead (accessed October 16, 2002). Moreover, the likely designation of critical habitat for 19 salmon and steelhead populations on the West Coast will have a dramatic affect on the appropriation of water to all Californians. Id.

The Cal Fed was budgeted over $503 million dollars for fiscal year 2002-2003. Cal Fed Bay-Delta Program, Monthly Update July 2002 Update/Monthly Update _July02.shtml> (accessed October 16, 2002). Obviously, this kind of spending requires a large number of laws and bonds to be passed each year to fund not only the Cal Fed, but the other agencies such as the Water Quality Control Board, the Water Resources Control Board, local irrigation districts, local water districts, reservoir projects, and clean water projects. Furthermore, the bond initiative process is counted on to fund the above projects and to help purchase water rights and protect lands surrounding waterways from pollution and development. Id. In the last 6 years, $7.65 billion dollars worth of bonds have been passed into law by Californians, as discussed in the next section of this analysis.

 

2. Recent Water Bond Propositions

 

In 1996, Proposition 204 provided for a bond issue of $995 million dollars. Legislative Analyst's Office, Proposition Number 204 Safe, Clean, Reliable Water Supply Act. Bond Act (accessed October 16, 2002). This initiative was to ensure safe drinking water, increase water supplies, clean up pollution in rivers, streams, lakes, bays, and coastal areas, protect life and property from flooding, and protect fish and wildlife. Id. Proposition 204 changed the Water Quality Bond Law of 1986 and the Clean Water and Reclamation Bond Law of 1988 by requiring these prior bonds to pay for local recycling projects. Id.

In 2000, Proposition 12, the Safe Neighborhood Parks, Clean Water, Clean Air, and Coastal Protection Bond Act, passed with 63.3% of the votes. Legislative Analyst's Office, Proposition 12 (accessed October 16, 2002). The initiative provided $2.1 billion dollars in State bonds for the restoration of parks and recreational facilities, open space, farmland and water resources. Id.

In 2000, Proposition 13, the Safe Drinking Water, Clean Water, Watershed Protection, and Flood Protection Act, provided $1.9 billion dollars in State bonds for safe drinking water, flood protection and water quality programs. Legislative Analyst's Office, Proposition 13 (accessed October 16, 2002).

In 2002, Proposition 40, the Clean Water, Clean Air, and Safe Neighborhood Parks and Coastal Protection Act of 2002, provided $ 2.6 billion in state bonds for state park and open space. Legislative Analyst's Office, Proposition 40 03_2002.html> (accessed October 16, 2002). Unlike previous bond measures this bond assisted local agencies in funding conservation projects. Id. However, Proposition 40 limited land acquisition to 50% of its funds. Id.

 

3. Pending Water Related State Legislation

 

Presently, several bills contain water related provisions. Some even count on the passage of Proposition 50 for funding. Posturing in various committees within the state legislature, on Governor Gray Davis's desk, or having recently passed, some of these bills stand to lose support if Proposition 50 passes, or if these bills pass, Proposition 50 may just be surplusage. The bill that might stand to lose the most is Senator Costa's SB 1710, proposed to run against Proposition 50. California Legislature, Bill Documents: Status (accessed October 16, 2002).

i. AB 954 (Kelley), the California Water Supply Reliability and Protection Bond Act of 2002, is presently in the Agricultural and Water Resource Committee. California Legislature, Bill Documents: Status (accessed, October 16, 2002). This bill adds provisions relating to financing of water security and storage programs through the issuance and sale of bonds. Id.

ii. AB 1925 (Nakano) is the California Clean Water, Clean Air, Safe Neighborhood Parks, and Coastal Protection Act of 2002: Coastal Water Quality Monitoring System. It is presently in Assembly Appropriations Committee. California Legislature, Bill Documents: Status 020603_status.html > (accessed October 16, 2002). This act provides money to improve water quality like Proposition 50, but it goes a step further and would include more moneys to go towards protection of water systems, including such things as background checks on state water employees. Id.

iii. AB 2365 (Goldberg) is the Water Recycling and Dual Plumbing Bond Act of 2002. California Legislature, Bill Documents: Status asm/ab_2351-2400/ab_2365_bill_20020603_status.html> (accessed October 16, 2002). This bill has been sitting in the Assembly Appropriations Committee for a few months and will add Division 26.5 (commencing with Section 79300) to the Water Code, relating to financing water recycling and dual plumbing infrastructure programs through the issuance and sale of bonds. Id. This bill, like Proposition 50, will put money towards recycling programs and towards the lining of canals in an attempt to stop the inefficient waste of water through seepage. Id.

iv. AB 2376 (Cogdill) is the Water Sustainability and Reliability Bond Act of 2002. It is presently in the Assembly Water, Parks and Wildlife Committee. California Legislature, Bill Documents: Status 020826_status.html> (accessed October 16, 2002). The Act will add Division 29 to the Water Code increasing dramatically the financing of water storage programs by providing funds through the issuance and sale of bonds. Id.

v. AB 2534 (Pavley), the Watershed, Clean Beaches, and Water Quality Act of 2000, has made it to the Senate Appropriations Committee. California Legislature, Bill Documents: Status 0826_status.html> (accessed October 16, 2002). AB 2534 is an act to add Division 20.4 commencing with Section 30901, and Chapter 6.5 commencing with Section 31275, to Division 21 of the Public Resources Code. Id. This bill makes an appropriation of over $223 million of the $300 million of Proposition 40 bonds approved for protecting coastal resources, improving water quality, and watershed protection programs. Id. The governor approved this bill and it was filed with the Secretary of State on September 20, 2002. Id.

vi. SB 1710 (Costa) the Safe, Clean, and Reliable Bond Act was last amended June 5, 2002 by the Senate Appropriations Committee. California Legislature, Bill Documents: Status (accessed October 16, 2002). This bill provides $ 2.9 billion dollars to fund new sources of water, more efficient use of water, and provides money for the conservation and preservation of water. Id. Some money comes from the state water pollution revolving fund, plus the bill creates the Cal Fed Commission to oversee spending, and gives the Cal Fed $816 million dollars. Id.

 

 

4. Pending Water Related Federal Legislation

 

Congress has appropriated $450 million dollars for California's Water Projects. United States Senator Diane Feinstein, Senate Appropriations Committee Approves Over $450 Million For California Water Projects, Including $30 Million to CALFED Efeinstein/Releases02/engwatr.htm> (accessed July 24, 2002). In addition, proposed House Bill 3208 and proposed Senate Bill 1768 are moving through Congress, which would give at least $1.6 billion dollars to the Cal Fed. H.R. 3208, 107th Cong. (2002); Sen. 1768 107th Cong. (2002). If these bills are not passed, there may not be enough money for the Cal Fed this year, and some projects may not be completed according to plan. Sacramento Bee, Congress Turns Off The Tap On Cal-Fed: Funds The Big State-Federal Water Project Hits A Snag On Capitol Hill sacbee.com/content/politics/ca/story/3621664p-4647705c.html> (accessed July 28, 2002). Furthermore, the lawmakers responsible for providing money on a year-to-year basis to Cal Fed's General Fund will probably not be able to pass either bill because there are just not enough days left for Congress to act this year. Id. However, the U.S. Senate Appropriations Committee did appropriate $30 million to the Cal Fed. United States Senator Diane Feinstein senate.gov/%7Efeinstein/Releases02/engwatr.htm>. Because the state's legislature failed to supply the Cal Fed with a $500 million budget, $30 million dollars is a drop in the bucket. Id. The federal legislature placed conditions on its appropriation that will not meet the Cal Fed's General Fund needs. Id. This would mean that agencies within the Cal Fed will have to resort to other ways to provide what limited funding they can find for this upcoming year. Id.

III. THE EFFECTS OF PROPOSITION 50

Proposition 50 will add Division 26.5 (commencing with section 79500) to the Water Code. The Water Quality, Supply And Safe Water Projects. Coastal Wetlands Purchase and Protection. Bonds. Initiative Statute. 1 (2002). Proposition 50 provides $3.4 billion dollars of funding for purchase of water and land and other water related projects through the sale of bonds, as summarized in Table 1.

 

 

Chapter 1 starts with, "That the people of California find the following in the public interest." Cal. Water Code § 79501 (proposed). This language may have some legal significance in future water adjudications as the legislature determines what is the public interest in reasonable use questions. The Water Quality, Supply And Safe Water Projects. Coastal Wetlands Purchase and Protection. Bonds. Initiative Statute. 1 (2002).

 

2. Water Security

 

In the wake of Sept. 11, Chapter 2 and Chapter 3 will protect state, local, and regional drinking water systems from terrorist attack through:

 

a. Monitoring and Warning Systems
b. Protective Structures
c. Emergency Interconnections
d. Communication Systems

 

Id. at 3-4.

 

 

Chapter 4 makes available to the Legislature for the Department of Health Services grants and loan programs for safe drinking water purposes, including:

 

a. Clean Water and Water Quality Dollars for Competitive Grants from the Water Board
b. Contaminant and Salt Removal (Desalinization)

 

Id. at 4.

 

4. Cal Fed Bay-Delta Program

 

Chapter 7 provides money for the Cal Fed to operate programs geared towards the operation of the several agencies in the Sacramento/San Joaquin Delta. These operations include:

 

a. Storage Planning Feasibility Studies
b. Water Conveyance
c. Delta Levee Restoration
d. Interim Water Supply Reliability
e. Ecosystem Restoration
f. Watershed Protection
g. Conservation and Efficiency Projects

 

Id. at 6-7.

 

5. Regional Projects

 

Chapter 8 slates money for regional projects including the areas around Lake Tahoe, land along Sierra- Nevada and Cascade Mountain Ranges, and around Los Angeles and San Diego. These projects include:

 

a. Integrated Regional Water Management
b. Water Supply Reliability
c. Storm Water Management
d. Wetland Restoration and Pollution Reduction
e. Groundwater Recharge, Desalination and Reclamation
f. Water Banking and Exchange
g. Integrated Flood Management
h. Fish and Wildlife enhancement
i. Conservation and Efficiency Programs
j. Treatment Technology
k. Groundwater Monitoring

 

Id. at 7-9.

 

6. Colorado River

 

Chapter 9 assists the Southern California Municipal Water District (SCMWD) in creating
alternative sources of water and making present sources more efficient through concreting present diversion canals. Id. at 9. Presently, Southern California uses 4.4 million-acre feet of water a year from the Colorado River. Id. One acre-foot is enough water for a household of five for one year. George Gould and Douglas Grant, Cases and Materials on Water Law 12 (West 2000). The SCMWD wants to get out of the Colorado River, which is the source of water for most of the South-Western United States and has not run to the Pacific Ocean since 1969. Reisner, Cadillac Desert: The American West and Its Disappearing Water at 483. Chapter 9's provisions include:

 

a. Canal Lining For More Efficient Use Of Water
b. Ecosystem Restoration Requirements

 

Id. at 9.

 

7. Coastal and Wetland Protection

 

Chapter 10 is the most controversial part of Proposition 50. It contains over two pages of provisions that are geared towards the purchase of coastal land for:

 

a. Watershed Protection and Restoration
b. Wetland Protection and Restoration

 

Id. at 9-11.

Table I/ Proposition 50 Funding Provisions

Provision (Amount in millions)
Water Security $50

· Protection of water systems from terrorist act

 
Safe Drinking Water $435

· Small Community drinking water system upgrades, contaminant removal and treatment, water quality monitoring, drinking water source pollution

 
Desalination and Water Treatment Project $100

· Desalinization projects, treatment/removal of specified containments, drinking water disinfecting projects

 
CALFED Bay-Delta Program $825

· Water use efficiency and conservation

$180

· Water supply reliability

$180

· Ecosystem restoration

$180

· Watershed protection

$90

· Water conveyance

$75

· Delta levee restoration

$70

· Water Storage planning and studies

$50
Integrated Regional Water Management $640

· Various water supply, pollution reduction, water treatment, flood management and wetlands restoration projects.

$500

· Land acquisition to improve/protect water quality, water supply, reliability, and fish and wildlife habitat

$140
Clean Water and Water Quality $370

· Water pollution prevention, water recycling, water quality improvements

$100

· River parkway projects

$100

· Coastal non-point source pollution control

$100

· Lake Tahoe water quality improvements

$40

· Land acquisition to protect water quality in the Sierra-Nevada - Cascade Mountain Region

$30
Coastal Protection (through acquisition) $950

· Wetlands Restoration in or near urban areas

$750

· Watershed protection

$200

Colorado River Management

$70

· Ecosystem Restoration

$50

· Canal lining

$20

Source: Letter from Joint Legislative Budget Committee to Bill Lockyer, Attorney General
(Dec. 11, 2001) (copy on file with California Initiative Review, McGeorge School of Law).

IV. DRAFTING ISSUES

If passed, Proposition 50 creates Division 26.5 of the Water Code (beginning with section 79500), the Water Quality, Clean Drinking Water, Coastal and Beach Protection Act of 2002 [hereinafter Act]. The Water Quality, Supply And Safe Water Projects. Coastal Wetlands Purchase and Protection. Bonds. Initiative Statute. 1 (2002). Chapter 1 of the Act contains general provisions. Id. Chapter 2 creates the Water Security, Clean Drinking Water, Coastal and Beach Protection Fund of 2002 [hereinafter Fund]. Id. at 3. Chapters 3 through 10 allocate funds for water security, safe drinking water, clean water and water quality, contaminant and salt removal technologies, the Cal Fed Bay-Delta Program, integrated regional water management, projects to reduce Colorado River water use, and coastal and watershed and wetland protection. Id. at 4-9. Chapter 11 contains fiscal provisions, which create a bond "committee" and "board" for purposes of the State General Obligation Bond Law. Id. at 11. The Act presents three potential drafting problems.

 

 

The definition of "board" in Chapter 1 conflicts with that in Chapter 11. Id. at 1, 11. Section 79504 of the Water Code would make the general provisions of Chapter 1 applicable to the entire division. These general provisions define the "board" as the State Water Resources Board and the "secretary" as the Secretary of the Resources Agency. Cal. Water Code § 79505(b), (h) (proposed). The fiscal provisions of the Act later define the "board" for purposes of Chapter 11 as the secretary. Cal. Water Code § 79582(b) (proposed). The specific definition of "board" in Chapter 11 would generally control in the fiscal provisions. California law gives particular definitions priority over general ones. Cal. Civ. Code § 3534 (West 2002); In re Marquez, 3 Cal. 2d 625, 629 (1935); Burum v. State Compen. Ins. Fund, 30 Cal. 2d 575, 585-586 (1947). Nevertheless, the two conflicting definitions create an ambiguity.

 

2. The Issue of "Willing Sellers"

 

The provisions of the Act relating to the acquisition of lands make reference to "willing sellers," but the Act contains no definition for the term. Cal. Water Code §§ 79554, 79568(b), and 79573(b) (proposed). The term implies lands could not be acquired through the exercise of condemnation powers. However, the Act does not expressly prohibit the use of condemnation powers to acquire land. This ambiguity may give rise to litigation over the power to acquire lands by condemnation using funds provided by the Act.

 

3. The Doctrine of Incorporation by Reference

 

 

The Act's incorporation of other laws creates some potential drafting problems. California law interprets incorporation of other laws according to whether the incorporation was specific or general. Palermo v. Stockton Theatres, Inc., 32 Cal. 2d 53, 58-59 (1948). Where a statute adopts part of another statute by specific reference, the provisions are incorporated in the form they exist at the time of the incorporation and not as subsequently amended. Id. If the reference is a general one, amendments to the provision become incorporated into the incorporating statute. Id.

The Act incorporates a number of other laws including the California Environmental Quality Act, the General Obligation Bond Law, the Nonprofit Public Benefit Corporation Law, and the Internal Revenue Code. The Water Quality, Supply And Safe Water Projects. Coastal Wetlands Purchase and Protection. Bonds. Initiative Statute. at 2-3. Most of these laws appear generally incorporated into the Act. Id. at 2. Thus, if they are later amended, the Act will be amended to conform to the changes. However, the incorporation of the Internal Revenue Code section 501(c)(3) definition of a qualified non-profit corporation appears specific. Cal. Water Code § 79501(g) (proposed). This incorporated definition may remain fixed for purposes of the Act even if the Internal Revenue Code is later amended to change the definition. As a result, a conflict could arise between the definition of a qualified non-profit corporation under the Act and under the Internal Revenue Code.

V. CONSTITUTIONAL ISSUES

 

 

Proposition 50 has not given rise to a single subject rule challenge, but the dual effect of the acquisition of land, and funding water projects implicates the concern behind the rule. Under the single subject rule, if an initiative measure embraces more than one subject, it may not be submitted to the electors or have any effect. Cal. Const. Art. II, § 8(d) (West 2002). This section was adopted to make sure that an initiative did not trick voters into voting for something they did not intend to. Senate v. Jones, 21 Cal. 4th 1142, 1156-1157 (1999). Furthermore, this constitutional standard has been interpreted broadly to mean the germaneness or reasonable relatedness of a provision to a common theme or purpose to the entire initiative. Legislature v. Eu, 54 Cal. 3d 492, 512 (1991).

However, the California Supreme Court has appeared to limit the applicability of this standard to the likeliness of voter confusion or obscuring the voter's intent. Manduley v. Superior Court, 27 Cal. 4th 537, 581 (2002). In Manduley, the Supreme Court allowed Proposition 21, intended to curb gang related violence, to go to the voters despite a provision tightening up child molestation laws, child abuse laws and terrorist threats. Id. at 577. Therefore, under the Manduley standard, Proposition 50 would not violate the single subject rule. Although it has a dual effect in protecting and improving water quality and supply, purchasing and protecting coastal lands and wetlands, the purchase and protection of coastal wetlands fits within Proposition 50's overall purpose of protecting and improving water quality and supply.

2. Fiscal Provisions

 

The principal constitutional issues raised by the Act involve its fiscal provisions. Chapter 11 creates the Water Security, Clean Drinking Water, Coastal and Beach Protection Act of 2002 Finance Committee [hereinafter Committee] for the purpose of authorizing the issuance of and sale of the bonds authorized by the Act, under the State General Obligation Bond Law. Cal. Water Code § 79582(a) (proposed). The Committee consists of the Controller, the Director of Finance, and the Treasurer, or their designated representatives. Id. Section 79583 of the Water Code would empower the Committee to determine if it is "necessary or desirable" to issue bonds authorized by the Act. Cal. Water Code § 79583 (proposed).

Vesting the Committee with the authority to determine if it is "necessary or desirable" to issue bonds potentially implicates constitutional principles of separation of powers. The California Constitution separates the power of state government into the legislative, executive, and judicial branches. Cal. Const. Art. III, § 3 (West 2002). One branch may not exercise the powers of either of the other branches. Id. The California Constitution thereby avoids the concentration of power in a single branch and overreaching by one branch against the others. Kasler v. Lockyer, 23 Cal. 4th 472, 494 (2000). Separate powers are divided coequally among the three branches of government with each branch vested with certain core functions that may not be usurped by another branch. People v. Bunn, 27 Cal. 4th 1, 14 (2002).

The legislature possesses the core power to appropriate moneys through the budget bill and special appropriation measures. Cal. Const. Art. IV, §12 (West 2002). The Act allows the Committee to determine when and if it is necessary or desirable to issue bonds. Cal. Water Code §79583 (proposed). This provision potentially infringes upon the core power of the legislature to appropriate moneys, a power which may not be usurped by coordinate branches of government without violating the principle of separation of powers.

Chapter 11 makes the Secretary of the Resource Agency the "board" within the meaning of the State General Obligation Bond Law. Cal. Water Code § 79582 (proposed). Under that law, the "board" is the body which requests the "committee" to cause bonds to be issued to create a fund to be expended by the "board" for the purposes of the bond act. Cal. Gov. Code §16722(c) (West 2002). This provision makes the "secretary" a "board" unto herself and concentrates powers in a person appointed by the governor and not politically accountable to the people, implicating separation of powers principles.

VI. FISCAL AND POLICY CONSIDERATIONS

Proposition 50's fiscal effect is that $3.9 billion dollars worth of bonds will be floated by the legislature. Letter from Joint Legislative Budget Committee. The $3.9 billion dollars will come from the State's general fund over 25 years. Id. It will take $5.7 billion dollars will be required to pay off the $3.4 billion, equating to $227 million dollars per year with actual cost depending on interest rates at the time of the bond sale. Id. The total debt repayment will be less because the initiative provides that loans made for coastal non-point pollution control will be repaid by the general fund. Id. Finally, there may be additional operational costs to buy or improve land by state and local agencies. Id.

VII. PUBLIC POLICY DEBATE

 

 

The main issue is whether it is more necessary for California to preserve land for the protection of water resources, or to create above and below ground water storage facilities. Furthermore, Proposition 50 is creating such political antagonism that it might result in the failure of this initiative. John Marelius, San Diego Tribune, Proposition 49 To Fund After-School Programs Is Favored By Voters (September 7, 2002). Polls have shown that 37 percent oppose the water bond issue and 38 percent support it. Id.

First, both federal and state government may fail to give California the funding it needs because House Bill 3208, and Senate Bill 1768 have not passed, and prior bond measures funds are drying up. Sacramento Bee . Furthermore, Governor Gray Davis and the Legislature have failed to come to a consensus of how Proposition 40's allocation of Cal Fed money should be spent. Cal Fed Bay-Delta Program 02.shtml>. Funding was proposed by Gray Davis and passed in the Senate, but failed in the Assembly. Id. The state budget committee is also considering deep cuts to the Cal Fed's General Fund. Id.

Although Proposition 50 may look like the solution, it lacks full political support. Fresno Bee, Water Measure On Ballot Bond Would Buy Coastal Land; Critics Say Its Focus Is Skewed (June 3, 2002). According to the Sacramento Bee, Jim Caves, a leading environmental lawyer and lobbyist, drafted Proposition 50 with the support of the Nature Conservancy and the Southern California Municipal District (SCMWD). The Sacramento Bee, Critics Say The Nov. 5 Initiative Favors Southern California Interests And Projects story/3199864p-4248287c.html> (June 14, 2002). Jim Caves drafted Proposition 50 without the assistance of state water interests such as the, the Association of California Water Agencies, the Cal Fed, Water Resource Control Board of California, other local municipalities outside of the SCMWD, irrigation districts outside of the Imperial Irrigation District, and other special interests. Id. On the other hand, Senator Jim Costa (D-Fresno) and Senator Mike Mechado (D-Linden) drafted Propositions 204 and 13, with the consideration and approval of the legislature. Wallaces Farmers, Water Bond Qualifies for Ballot 1,1494,8920+45,00.html> (accessed September 29, 2002).

Therefore, Proposition 50 is splitting previously aligned factions. Senator Mechado (D-Linden) is sitting as Honorary Chair on the Commission to get Proposition 50 passed and will replace Senator Costa as head of the Senate Agriculture and Water Resources Committee next year. The Bakersfield Californian, Editorial: Proposition 50 Deserves a Yes Vote bakersfield.com/elections/story/1804344p-1919946c.html> (September 19, 2002). Senator Costa stands firmly against Proposition 50, because he believes it places too little emphasis on water and too much emphasis on land acquisition. Telephone Interview by Kenneth Swenson with Senator Jim Costa (October 1, 2002). In fact, Senator Costa drafted SB 1710 to provide what he thinks is a "more balanced" alternative to Proposition 50, for it provides greater emphasis on water and water storage. Id. SB 1710 failed to pass the legislature and make it on the ballot to compete with Proposition 50. Fresno Bee .

On the one hand are the proponents like the Nature Conservancy, who are in the business of buying land for conservation. The Nature Conservancy of California org/news/campaign_12_01.asp> (accessed September 16, 2002). According to the Fresno Bee, opposition is mainly coming from Senator Costa, who sits as Vice Chair of the Cal-Fed, because Proposition 50 does not promise greater water storage capacity. Fresno Bee fresnobee.com/local/agriculture/ story/3083829p-4068309c.html>. Furthermore, Costa represents agricultural interests in the Central Valley, and Proposition 50 provides money for everywhere else but for the farmers in the Central Valley. Id. He criticizes Proposition 50 for its failure to allocate funds to retire agricultural lands in the Central and Imperial Valleys. Telephone Interview by Kenneth Swenson with Senator Jim Costa.

 

B. Water Storage, Now!

 

The opponents want more water storage. Farmers and rancher use 80% of water and consistently come up short. Mike Taugher, Contra Costa Times, Water Bill less About Concrete (May 22, 2002). The California Farm Bureau Federation stands firmly against Proposition 50 for this reason. California Farm Bureau, Farm Bureau Recommends 'No' On Water Bond Measure pr-090302.html> (last updated, September 3, 2002). Moreover, Senator Costa, and other legislators sought legislation on similar bills that include more storage facilities. (For a discussion on similar bills, review the text accompanying pending water related legislation supra under the existing law). According to the Contra Costa Times, other opponents like the California Chamber of Commerce want storage and expanded security funding for recreation and tourism. Mike Taugher, Contra Costa Times .

Proponents respond to this argument by stating that $50 million dollars is allocated for research into reservoirs in various communities. The Sacramento Bee content/politics/v-print/story/3199864p-4248287c.html>. Furthermore, the initiative provides money for desalinization plants and other remedial sources for water. Fresno Bee www.fresnobee.com/local/agriculture/story/3083829p-4068309c.html>. Finally, strong emphasis has been placed on the initiatives $50 million dollars security package for the protection of dams, and other water structures. Id.

What might sway some voters? The Kern County Water Agency Board of Directors, while recognizing the need for more storage, supports the initiative because $820 million dollars is allocated towards the Cal-Fed Bay/Delta project. The Bakersfield Californian bakersfield.com/elections/story/1804344p-1919946c.html>. Furthermore, with no other alternative environmentally progressive/ community based initiatives on the ballot; some voters may see any money being contributed to the environment is better than no money.

 

 

The above figure shows how Proposition 50 allocates more money for conservation and the preservation of regional watersheds than SB 1710, which allocates more money towards storage and clean water. Opponents see Proposition 50 as tricking the voters, hence the name change from the Water Security, Clean Drinking Water, Coastal and Beach Protection Act of 2002 to The Water Quality, Supply And Safe Water Projects, Coastal And Wetlands Purchase And Protection. Bonds. Initiative Statute. Id. Senator Costa has commented that Proposition 50 would better be called a "coastal acquisition bond measure" than a water bond measure. Telephone Interview by Kenneth Swenson with Senator Jim Costa.

Despite these concerns, a short list of supporters include: the League of Women Voters, Contra Costa Water District, East Bay Mud, League for Coastal Protection, Audubon Society, and the State Council for Economic and Environmental Balance. Yes on Prop 50 50yes.com/factsheet.html> (accessed October 16, 2002). The full list of supporters includes over 100 other groups and agencies. Id. Opponents like the Farmland Trust saw funds of $75 million dollars under Proposition 40, but they may oppose this initiative because of its purely environmental considerations for land acquisition. American Farmland Trust, News www.farmland.org/news/index_ca.htm> (February 2, 2002).

Proponents may favor the initiative because Proposition 50 would provide them funding since there is insufficient money from prior initiatives. Mike Taugher, Contra Costa Times . This is despite Proposition 12's allocation of 50% of its funds to purchase land. Legislative Analyst's Office, Proposition 12 (accessed October 16, 2002). Proponents like the Trust for Public Lands may be in favor of this initiative because they are likely to receive money under Proposition 50. Trust for Public Lands (website accessed September 17, 2002). Furthermore, there is great local interest in these projects because of increased funding for local programs, as the Irvine Company and the Riverside Land Conservancy have contributed to Proposition 50. California Secretary of State, Campaign Finance Committee ss.ca.gov/Campaign/Committees/calaccess.asp?session=2001&id=1241134&detail=RECEIVED> (accessed September 17, 2002).

An argument could be made that preservation and conservation of land surrounding waterways is in the public interest because it adds to the amount of overall water. Wilkinson, Crossing the Next Meridian: Land, Water and the Future of the West at 286-291. Water transfers to environmental purposes, more efficient use of water, and remedial water projects will create alternative sources of water. Id. at 288-290. Finally, by protecting streambeds and river ways from sedimentation and agricultural runoff, the quality and quantity of water is improved and less money and resources will be wasted in the reclamation of water for all users. Ian McHarg, Designing with Nature 56-57 (John Wiley and Sons 1992). However, this is not an immediate remedy, like the building of a reservoir would be. Therefore, the voters may not appreciate its long-term pay off, especially irrigation users who need water now.

 

 

Senator Costa, author of SB 1710, has expressed his disappointment in the proponents of Proposition 50 circumventing the legislative process and taking the measure directly to the people. Telephone Interview by Kenneth Swenson with Senator Jim Costa. Senator Costa noted the legislature's success in getting voters to approve two recent legislative bond initiatives, Proposition 204 and Proposition 13, diminishes any real argument legislative inaction prompted the proponents to make an end run around the normal legislative process. Id. Instead, he calls Proposition 50 an "initiative by checkbook." Id.

Other opponents point to the fact that Proposition 50 was drafted by a lobbyist for several environmental groups and the Metropolitan Water District of Southern California, and that supporters hired professional signature gatherers to qualify the measure for the ballot as evidence Proposition 50 is more about money than about water. California Secretary of State, Argument Against Proposition 50 (accessed October 1, 2002). They also charge the proponents solicited special interests for campaign contributions and traded bond money from Proposition 50 for campaign cash. California Secretary of State, Rebuttal to Argument in Favor of Proposition 50 voterguide.ss.ca.gov/propositions2.asp?id=221&sID=3> (accessed October 1, 2002). One author of the opposition ballot arguments commented that this "quid quo pro" use of campaign money by special interests in the initiative process has supplanted what was originally meant to be an instrument of the people. Telephone Interview by Kenneth Swenson with Edward J. (Ted) Costa, Chief Executive Officer of People's Advocate (September 30, 2002).

VIII. CONCLUSION

Proposition 50 would authorize $3.4 billion dollars in general obligation bonds to provide substantial new funds for water related programs in California. Proponents argue the measure would protect clean drinking water, improve water quality, secure water systems, preserve beaches and coastal regions, and ensure a reliable and cost effective water supply. Opponents argue the measure gives too much emphasis to land acquisition and does not provide sufficient funds for water storage. This problem pits powerful agricultural and business interest groups who supported prior water bond initiatives against the measure. For this reason, Proposition 50 may not gather the widespread support some of the prior water bond measures enjoyed.

D. Initiative by Checkbook?

 

C. Coast and Wetlands Purchase and Protection. Bonds. Initiative?

 

A. Background

 

1. Single Subject Rule

 

1. Definitional Issues

 

3. Safe Drinking Water

 

1. General provisions

 

A. Existing Law

1. Background