The Schwarzenegger administration's plan to fast-track construction of a water canal around the Delta leans on an old interpretation of state water law from a bygone era.
Valid or not, supporters and critics agree the plan is more likely to fast-track its way into court.
"The simplest thing to predict is that somebody will sue to block this on any number of potential grounds," said Gregory Weber, an expert on water law at McGeorge School of Law. "My guess is that it will be years before these matters are resolved and any construction actually were to take place."
On Friday, a committee of administration officials released a long-awaited plan to improve water supply and habitat in the Sacramento-San Joaquin Delta. Its most controversial element: By 2011, start building a giant canal to divert the Sacramento River around the estuary.
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Mike Chrisman, chairman of the committee and secretary of the state's Natural Resources Agency, which oversees the Department of Water Resources, said the state already has legal authority to build the canal. It doesn't need approval, he said, from lawmakers or California voters.
But he said the administration will work with the Legislature on a funding plan and related habitat restoration projects.
"We're going to have to sit down and work through this whole process with the Legislature as we move along," he said. "But it's going to be quite a challenge for us, at least in the short term."
Lawmakers from both parties Monday expressed frustration that they are expected to cooperate on some aspects of Delta restoration but could be denied a role in its most controversial aspect – the canal.
"The health of the Delta is too important to bypass the people's representatives," said Senate President Pro Tem Darrell Steinberg, D-Sacramento.
Senate minority leader Dave Cogdill, R-Modesto, criticized the plan from another perspective. He asked why the administration set a date for a new canal, but not for new dams.
The administration's claim to authority rests largely in a 1984 opinion by then-Attorney General John Van de Kamp.
He wrote that the state has authority to build a Delta canal and to issue bonds to pay for it under two earlier laws: the Burns-Porter Act of 1960, which authorized the State Water Project, and the State Central Valley Project Act of 1933. Both were approved by voters.
But the opinion refers to a specific canal project proposed in 1984. Its bearing on today's proposal remains unclear. Chrisman's committee proposes both an earthen canal completely isolated from the Delta, and a "through-Delta" canal built by reinforcing existing levees.
"Existing legislation gives DWR a fair amount of independent authority to act. It is very broad language," said Cliff Schulz, a senior attorney at Kronick Moskovitz in Sacramento who has built his career on California water law.
But Schulz, whose clients include state water contractors who are prepared to pay for the canal, said that hardly ends the discussion. "What my clients know and what I know, after being involved with this for 40 years, is that it's hard to imagine there won't be some litigation over this," he said.
Sen. Lois Wolk, D-Davis, a leader on Delta issues, said both the Legislature and voters should demand an oversight role. "It's not possible to break ground in 2011 without running roughshod over everybody except the water exporters. It's just the wrong way to approach this," she said.
McGeorge professor Weber also said a ballot initiative may be necessary, partly because the public's 1982 vote against the canal carries no weight today. That vote did not change state water law, he said. It merely rejected a specific canal design proposed then.