BILL ANALYSIS
AB 13
Page 1
Date of Hearing: April 20, 2009
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Nancy Skinner, Chair
AB 13 (Salas) - As Amended: April 1, 2009
SUBJECT : Sacramento-San Joaquin Delta Conservancy
SUMMARY : Creates the Sacramento-San Joaquin Delta Conservancy
(Conservancy) within the Natural Resources Agency (NRA).
EXISTING LAW : Establishes the California Bay-Delta Authority
and assigns responsibility for the CALFED Bay-Delta Program's
Ecosystem Restoration Program (ERP) to the Department of Fish
and Game (DFG). The 2006 budget transferred funding and
responsibility for CALFED to the Secretary of NRA; DFG continues
to oversee the ERP.
THIS BILL :
1)Creates the Conservancy within the NRA.
2)Requires the Conservancy to:
a) Provide policy oversight, foster implementation of and
manage funds to implement the restoration and management of
habitats and lands for the sustainability of ecosystem
function, pursuant to the Delta sustainability plan (Plan)
adopted by the Delta Ecosystem and Water Council (Council).
b) Develop and implement projects to address the economic
viability of the Delta region, consistent with the Plan.
3)Defines Delta sustainability program (Program) as "a
comprehensive Delta sustainability program intended to restore
and manage habitat and restore ecosystem function in the
Sacramento-San Joaquin Delta and Suisun Marsh and to preserve
the economic viability of the Delta consistent with the [P]lan
adopted by the Delta Ecosystem and Water Council."
4)Establishes the governing board for the Conservancy to include
11 voting members and three ex officio non-voting members as
follows:
a) Secretary of the Natural Resources Agency;
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b) Director of Finance;
c) five members representing the five Delta counties
(Solano, Yolo, Sacramento, San Joaquin and Contra Costa),
one appointed by each county Board of Supervisors;
d) two public members appointed by the Governor;
e) two public members appointed by the Legislature, one by
the Senate Rules Committee and one by the Speaker of the
Assembly
f) three ex officio non-voting members including: Director
DFG, chair of the Delta Protection Commission (DPC), an
executive officer of San Francisco Bay Conservation and
Development Commission (BCDC), or designees.
5)Provides for 5-year, staggered terms for the Board members
representing the Delta counties, and 4-year, staggered terms
for the public Board members; only the public members are
subject to term limits (four years).
6)Requires public members to reflect either the diversity of
interests in the Delta or statewide interests as they relate
to the authorities and mission of the Conservancy.
7)Requires board to establish and coordinate activities with an
advisory committee, as specified.
8)Limits the Conservancy's jurisdiction to the Delta and Suisun
Marsh; the Board may take or fund an action outside of this
jurisdiction if it finding that the action is consistent with
the Program, adopted consistent with the Plan.
9)Authorizes the Conservancy to review and approve ecosystem
projects proposed by other state agencies in the Delta for
consistency with the Program, and allows appeal of such
determinations to the Delta Ecosystem and Water Council for
final determination.
10)Bars the Conservancy from regulating land-use, except to the
extent that it has property interests or an agreement with the
landowner.
11)Requires the Conservancy to:
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a) Implement habitat restoration and management projects to
achieve the ecosystem goals of the comprehensive Delta
sustainability program.
b) Cooperate, coordinate, and consult as necessary or
appropriate with any other agency having regulatory or
other responsibility related to the authorities of the
mission of the Conservancy.
c) Take whatever actions are reasonably necessary and
incidental to the management of lands under its ownership
or control.
d) Coordinate or assist in the implementation of local,
state, and federal ecosystem projects, including the
Bay-Delta Conservation Plan and other habitat conservation
plans.
e) Develop and implement projects, as specified, consistent
with the program, to maintain the economic and social
viability of the Delta region.
12)Authorizes the Conservancy to:
a) Accept acquire and hold real property interests.
b) Make grants or loans to other agencies and nonprofit
organizations.
c) Directly undertake or contract with other agencies or
nonprofit organizations to undertake appropriate actions.
d) Enter into agreements with other agencies, nonprofit
organizations, or private entities for implementation of
projects, including construction and management.
e) Acquire and hold any necessary regulatory permits.
f) Implement projects to address related flood issues.
13)Requires the Conservancy to use easements and cooperative
agreements to achieve ecosystem restoration goals, to the
extent practicable.
14)Prohibits the Conservancy from exercising eminent domain.
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15)Requires annual reports to the Legislature and Governor on
progress toward its implementation of the Delta sustainability
program.
FISCAL EFFECT : Unknown
COMMENTS : In the last decade, the Sacramento-San Joaquin Delta
has suffered a substantial ecosystem decline. The Delta is, at
once, the heart of California's water system and the most
valuable estuary ecosystem on the west coast of North and South
America. For a number of reasons, the populations of Delta fish
species have dropped to near-extinction levels, resulting in
court-ordered restrictions on water exports to the San Francisco
Bay Area, San Joaquin Valley and Southern California. Federal,
state and local agencies have worked on ecosystem restoration
projects for more than 15 years. The CALFED Bay-Delta Program,
a project of federal and state agencies, has largely failed to
make sufficient progress to head off the ecosystem decline.
After fishery agencies reported the Delta ecosystem crisis in
2005, ecosystem restoration efforts have accelerated, including
an effort by the NRA to create a "Bay-Delta Conservation Plan"
in order to secure permits under the federal Endangered Species
Act for the state and federal water project exports.
According to the author's office, this bill reflects an emerging
consensus that the Delta needs its own conservancy.
Importantly, the Delta Vision Blue Ribbon Task Force (Task
Force), in its proposed strategic plan, has recommended that a
Delta conservancy be established to coordinate restoration of
the Delta ecosystem as early as possible in the 2009 legislative
session. According to the Task Force, "California has a long
and successful history with conservancies, and there is
widespread agreement that such an entity would succeed in the
Delta."
While the Legislature has considered similar bills in past
years, the recent Delta ecosystem crisis has elevated the need,
promoting Delta stakeholders to develop a framework for what a
Delta conservancy would look like. This year, Senator Simitian
convened several stakeholder workgroups, including one to
develop the details on a Delta conservancy. The author relied
on the results of that work to develop this bill.
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1)Authority
This bill delegates unprecedented authority to a conservancy.
First, it is obligated to restore the Delta ecosystem and
"address" the economic viability of the Delta and Suisun Marsh
based on planning documents and an overarching governance
structure that have yet to materialize but all are consistent
with recommendations of the Task Force. This dual authority
arises out of concerns from in-Delta stakeholders that the Delta
needs to be sustained for more than just fish or wildlife. The
Delta is a unique place that enjoys environmental, agricultural
and recreational resources that sustains an economy and legacy
communities like nowhere else in California. This Conservancy
would promote projects that protect all the Delta's resources.
Second, the Conservancy's authority also allows for more than
just funding of projects, but actual long-term management of
Delta resources and property-both land and water-to achieve
Delta restoration and ecosystem goals. Such authority is
available to other conservancies but it is infrequently
exercised. It reflects the fact that several federal, state and
local agencies currently own land in the Delta, but do not
necessarily manage that land, either effectively or as a system.
Several in-Delta stakeholders have expressed preference for one
entity that has responsibility for managing public land and
water resources in the Delta.
Third, and most importantly, the Conservancy is authorized to
review and approve "ecosystem projects," which remains
undefined, proposed by other state agencies in order to
determine if a project is consistent with the Program. This
determination may be appealed to the Council. However,
discussions among all stakeholders and the Legislature are
on-going as the ultimate entity to adjudicate consistency
determinations. The bill does not specify evidentiary rules,
due process procedures, or a standard of review on appeal but
the author is committed to doing so as the bill moves.
2)Board Composition
The composition of the Conservancy's board largely reflects the
Task Force's proposal, which included strong representation from
the Delta itself, as reflected in the five-of-eleven members
representing the five Delta counties whose jurisdiction overlaps
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with the Delta's "primary zone." The board includes two state
agency representatives (NRA and Finance) and four other "public"
representatives, appointed by the Governor and the Legislature.
It also includes several non-voting ex officio members from the
DPC and BCDC.
The bill currently allows public members to reflect either Delta
or statewide interests. This appears to be inconsistent with
the interests and responsibilities of their appointing
authority. The author and committee may wish to consider
whether the public members should reflect statewide interests,
especially given the exclusive representation of Delta interests
among five seats. Allowing representation of statewide
interests reflects the unique quality of the Delta - its
importance and connection to the entire state. As the hub for
water transfers from the Sacramento Valley - whose watershed
produces two-thirds of the state's water resources - the Delta
contributes to and is affected by the economy of much of the
state that depends on its water resources. Moreover,
considering that the source of the Conservancy's funding will
most likely come from all state taxpayers, it logically follows
that public members should reflect statewide interests.
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3)Overlapping jurisdictions
This bill includes Suisan Marsh within the Conservancy's
jurisdiction. A portion of the marsh in Contra Costa and Solano
Counties also lies within the Coastal Conservancy's
jurisdiction. The Coastal Conservancy has funded several
large-scale projects in the Delta, notably the Dutch Slough
restoration.
4)Proposed amendments
The Conservancy's primary purpose, of course, is to restore the
Delta. The Council is the more appropriate entity to provide
"policy oversight." Page 4, lines 7-15 should be amended to
read:
(b) The conservancy shall, as its primary purpose, provide
policy oversight, foster implementation of, and manage funds to
implement, the restoration and management of restore, maintain,
and enhance Delta ecosystems, including habitat, wildlife
corridors, native species, and open space habitats and lands for
the to ensure their viability, diversity, and sustainability of
native species biodiversity and ecosystem function , pursuant to
the comprehensive Delta sustainability plan adopted by the Delta
Ecosystem and Water Council. Consistent with that plan, the
conservancy shall also develop and implement projects to address
the economic viability of the Delta region.
Page 5, lines 20-26 should be amended to read:
(f) The public members shall be selected to reflect either the
diversity of interests in the Delta or statewide interests as
they relate to the authorities and mission of the conservancy.
Public members shall be compensated for attendance at regular
meetings of the board at the rate of one hundred dollars ($100)
per day and shall be reimbursed for actual reasonable and
necessary expenses for attending meetings and carrying out the
duties of their office.
Page 5, lines 33-35 should be amended to read:
(i) The board shall determine the qualifications of and appoint
an executive officer of the conservancy , who shall serve at the
pleasure of the board. The executive officer shall and employ
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appoint other staff as necessary to execute the powers and
functions provided for under this division.
Page 6, lines 38-40, and page 7, lines 1-10, should be amended
to read:
(d) The conservancy has no power to regulate land use or any
activities on land . Nothing in this section shall be construed
to limit the authority of the Conservancy , except as the owner
of an interest in the land, or pursuant to an agreement with, or
a license or grant of management authority from, the owner of an
interest in the land, or as specified in an agreement with a
person or entity to which the conservancy has transferred an
interest in land, or which has
accepted a grant to manage an interest in land for the purposes
of this division , to exercise any and all rights inherent to
such ownership or conferred upon by agreement . A determination
by the conservancy, pursuant to this subdivision, that the
management of an interest in land is consistent with the
purposes of this division may be appealed to the Delta Ecosystem
and Water Council. Upon appeal, the Delta Ecosystem and Water
Council shall have final authority to make that determination.
Page 9, lines 1-5 should be amended to read:
80513. By December 1 of each year, T t he board shall report to
the Legislature and Governor annually on the progress towards
implementation of the measures identified in the comprehensive
Delta sustainability program intended to restore and manage
habitat in the Delta and Suisun Marsh.
5)Other legislation
AB 642 (Huber) and SB 458 (Wolk) also create a Delta conservancy
within the NRA. AB 642, however, creates a nine-person
conservancy board entirely comprised of Delta county supervisors
and Delta residents. Last year, SB 1108 (Machado) created a
Delta conservancy program with the Coastal Conservancy but it
was held in the Assembly Appropriations Committee.
6)Double referred
This bill was heard in the Assembly Water, Parks and Wildlife
Committee on April 14. It passed on a vote of 12-2.
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REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees,
ALF-CIO
Audubon California
Association of California Water Agencies
California Central Valley Flood Control Association
Metropolitan Water District of Southern California
Natural Resources Defense Council
San Diego County Water Authority
The Nature Conservancy
Opposition
Analysis Prepared by : Dan Chia / NAT. RES. / (916) 319-2092