BILL ANALYSIS SB 51 Page 1 Date of Hearing: June 29, 2010 ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE Jared William Huffman, Chair SB 51 (Ducheny) - As Amended: June 21, 2010 SENATE VOTE : 37-0 SUBJECT : Salton Sea SUMMARY : Establishes the Salton Sea Restoration Council (Council) as a state agency in the Natural Resources Agency to oversee restoration of the Salton Sea. Specifically, this bill : 1)States legislative findings and declarations regarding the values of the Salton Sea, and states the Legislature's intent in restoring the Salton Sea to permanently protect fish and wildlife dependent on the Salton Sea ecosystem, restore aquatic and shoreline habitat, eliminate air quality impacts, protect water quality, maintain the sea as a vital link in the Pacific flyway, preserve local tribal values, and minimize noxious odors. 2)Establishes the Council as a state agency within the Natural Resources Agency to oversee restoration of the Salton Sea, including: early start habitat demonstration projects; biological, water quality, air quality, geotechnical, sedimentation and inflow investigations; investigation of access and utility agreements; and evaluation of restoration plans, including but not limited to alternatives described in the Resource Agency's October 2006 Salton Sea Draft Programmatic Environmental Impact Report (PEIR). 3)Requires the Council to report to the Governor and the Legislature by an unspecified date with a recommended restoration plan. Requires the Council in recommending a restoration plan, to consider the impacts of the plan on air quality, fish and wildlife habitat, water quality, and the technical and financial feasibility of the restoration plan. 4)Provides that the Council shall consist of a 16 member executive committee, a science committee, a local government forum, and a stakeholder forum. 5)Provides that the executive committee shall serve as the SB 51 Page 2 governing body of the Council and provide overall guidance and oversight of the restoration program. Provides that the executive committee shall make decisions by a two-thirds majority vote, and that 12 voting members shall constitute a quorum. Provides for election of officers for the executive committee. 6)Requires that the executive committee include the director of the Department of Fish and Game (DFG), the director of the Department of Water Resources (DWR), the director of the Department of Parks & Recreation (DPR), the chair of the State Water Resources Control Board (SWRCB), the chair of the State Air Resources Board, the State Treasurer, the director of the Department of Finance, three public members appointed one each by the Governor, Assembly and Senate, one member from the Imperial County Board of Supervisors, one member from the Riverside County Board of Supervisors, one member from the Coachella Valley Water District (CVWD), one member from the Imperial Irrigation District (IID), and one member each from the Torres Martinez Band of Desert Cahuilla Indians and the Cabazon Band of Mission Indians. Nonvoting members of the executive committee shall include the lead scientist and representatives of specified federal agencies. Provides that members of the executive committee shall serve without compensation but may be reimbursed for expenses. 7)Requires that the science committee shall include a lead scientist, to be appointed by the United States Geological Survey Salton Sea Science Office or the executive committee, and other experts familiar with large-scale wetlands, marine restoration, adaptive management, long-term monitoring, dike design and dredging, water treatment and hydraulics. The scientists shall serve without compensation but may be reimbursed for expenses. Responsibilities of the science committee include to provide best available science and engineering oversight, to provide periodic review of local technical investigations, to consult with and advise the stakeholder forum, and provide guidance on ongoing short-term planning. 8)Requires the local government forum to include elected representatives from within the Salton Sea Watershed and authorizes the forum to include local air pollution control officials. Requires the Council to request the Salton Sea Authority to assist with the forum. Responsibilities of the SB 51 Page 3 local government forum include to facilitate communication between local governments and landowners, the executive committee and the stakeholder forum. 9)Requires the stakeholder forum to consist of interested persons, as determined by the executive committee, representing ten specified categories of persons. Responsibilities of the stakeholder forum include to provide ongoing, public input to the executive committee, and to assist the executive committee in understanding public and interest group perspectives. Requires the stakeholder forum to provide focused review and discussion, and to seek to achieve consensus on: design opportunities and constraints; integration of habitat, public access and air quality management objectives; public access and recreation; opportunities for economic development; habitat location; and vector management and predator control. 10)Requires DFG to implement and be responsible for implementation of early start habitat demonstration projects and biological investigations relating to restoration. 11)Requires DWR to be responsible for implementation of investigations of water quality, sedimentation, inflows, air quality, geotechnical, and access and utility agreements relating to restoration. 12)Authorizes the Council to sue and be sued and to enter into contracts and agreements. 13)Provides that only funds deposited in the Salton Sea Restoration Fund or nonstate funds may be expended to carry out this article. Requires that the status of the Salton Sea Restoration Fund shall be included in the Governor's proposed annual budget document. Requires the Council to advise DFG with regard to expenditure of funds from the Salton Sea Restoration Fund. 14)Provides that the secretary of the State Natural Resources Agency shall select, in consultation with the executive committee, the executive director of the Council, who shall be exempt from civil service and serve at the pleasure of the executive committee. 15)Requires DFG and DWR to provide staff services for the SB 51 Page 4 Council, using staff currently dedicated to Salton Sea activities or other staff provided by legislative action, including but not limited to, administering grants and expenditures, administering contracts, arranging meetings, handling communication and public outreach, holding public meetings and workshops, maintaining a regularly updated Web site, and providing electronic mail and paper newsletters in English and Spanish. 16)Provides that either the director of DFG or the director of DWR shall enter into interagency agreements with other state agencies to provide staff services. 17)Clarifies that the Council's jurisdiction is limited to the Salton Sea watershed within California, and that this bill does not grant to the Council any regulatory authority or any authority over land use, water rights or air quality. EXISTING LAW : 1)Establishes the Salton Sea Restoration Act which states legislative intent that: a) the state undertake the restoration of the Salton Sea ecosystem and the permanent protection of the wildlife dependent on that ecosystem; b) the restoration be based on the preferred alternative developed as a result of the restoration study and alternative selection process; and c) the preferred alternative provide the maximum feasible attainment of specified environmental objectives, including restoration of long-term stable aquatic and shoreline habitat to historic levels and diversity of fish and wildlife dependent on the Salton Sea, elimination of air quality impacts from restoration projects, and protection of water quality. Provides that for purposes of the restoration plan the Salton Sea ecosystem includes the Salton Sea, agricultural lands surrounding the Sea, and the tributaries and drains within Imperial and Coachella Valleys that deliver water to the Sea. 2)Required the Secretary of the Resources Agency, in consultation with DFG, DWR, the Salton Sea Authority, air quality districts, and the Salton Sea Advisory Committee to undertake a restoration study to determine a preferred alternative for restoration of the Salton Sea, to prepare a PEIR analyzing the alternatives, and to submit a preferred alternative to the Legislature on or before December 31, 2006. SB 51 Page 5 The Resources Agency released the draft PEIR in October of 2006, and published the Final PEIR and submitted its preferred alternative to the Legislature in May 2007. 3)Requires the Resources Agency to act as lead agency for Salton Sea restoration and to work cooperatively with staff from DWR, the State Air Resources Board, the State Water Resources Control Board, and DFG. Requires the Resources Agency to continue to serve as lead agency for implementation, in partnership with one or more of its departments, unless and until legislation is enacted establishing a new governing structure for restoration of the Sea. 4)Limits authorized funding of activities and expenditures for Salton Sea restoration to Period 1 activities identified in the draft PEIR for completion in the first 5 years of implementation. FISCAL EFFECT : Unknown COMMENTS : This bill establishes the Salton Sea Restoration Council as a state agency within the State Natural Resources Agency, to serve as the governing entity to oversee activities related to restoration of the Salton Sea. Among other things, this bill directs the Council to evaluate various restoration plans and report to the Legislature by an as yet unspecified date with a recommended restoration plan. The Council would consist of an executive committee, composed of existing state agencies and public members. A science committee, local government forum, and stakeholder forum would also be created. DFG and DWR would provide the primary administrative staff support services for the council, and would have responsibility for implementing various aspects of restoration and planning. Importantly, this bill also provides that only funds deposited in the Salton Sea Restoration Fund or nonstate funds may be used to carry out this bill. Finally, this bill provides that the secretary of the Natural Resources Agency shall select an executive director of the Council who shall be exempt from civil service. The Salton Sea, California's largest lake, is located in a low-lying trough or desert sink in Southern California, much of which is below sea level. The current sea was formed in 1905 when the Colorado River flooded its banks at a faulty irrigation diversion site. However, the sea bed has periodically filled SB 51 Page 6 and receded numerous times, from prehistoric times through the 1800s. The present sea is fed primarily by agricultural runoff. Since it has no natural outlet, it is becoming increasingly saline and today is considerably saltier than the ocean. In 2003, the Legislature approved a package of implementing legislation related to the Quantification Settlement Agreement (QSA) and calling for restoration of the Salton Sea. The QSA is a collection of agreements between the IID, Metropolitan Water District, San Diego County Water Authority, the CVWD, and the state, that included approval of water transfers from IID, settled a number of claims to the Colorado River, and provided a transition period for the state to reduce its consumption of Colorado River water to its 4.4 million acre feet entitlement. Under the QSA, the amount of water flowing into the Salton Sea is being reduced over time. It should be noted that in February of this year, the future of the QSA water transfers was thrown into question when a California Superior court invalidated the QSA on the grounds the agreement committed the state of California to open ended liability for all environmental mitigation costs in excess of $133 million. That decision is being appealed and a temporary stay has been granted. The Salton Sea is one of the most important wetland areas in California for migratory waterfowl and shorebirds, since over 95% of California's historical wetlands have been converted to other land uses. The Salton Sea supports over 400 species of birds, including up to 90% of the total population of some species, and is an internationally significant stopover site for hundreds of thousands of birds migrating along the Pacific flyway. Recently, fishery resources in the sea have declined significantly due to increasing salinity, evaporation and declining water quality. It is generally recognized that without restoration efforts the ecosystem of the Salton Sea will collapse over the next decade or two. The California Resources Agency in October 2006 distributed a draft PEIR and ecosystem restoration study for public review and comment. The study analyzed eight different alternatives with cost estimates ranging from close to $1 billion for the "no alternative" to over $10 billion. In May 2007 the Resources Agency released the Final PEIR and its selected preferred alternative. The Agency's preferred alternative includes a 62,000 acre saline habitat complex, a 45,000 acre marine sea formed by construction of a large marine SB 51 Page 7 rock barrier, a 17,000 acre brine sink for discharge of salts, an exposed sea bed of 106,000 acres, early start habitat of 2,000 acres, miles of berms and canals, and other facilities for managing air quality. Total capital costs are estimated at $8.879 billion, with operations and maintenance costs of $142 million per year. The restoration project would be constructed and implemented in a series of phases over 70 years. Selection of the preferred alternative was controversial due to its significant cost and has not yet been selected or endorsed by the Legislature. The Resources Agency's report on the preferred alternative noted that one of the next steps, after approval by the Legislature, was to identify an implementing entity. SB 187 (Ducheny), Chapter 372, Statutes of 2008, required the Resources Agency to serve as the lead agency for implementation of restoration until legislation establishing a new governance structure is established. SB 187 also stated that it should not be construed as legislative approval or denial of the preferred alternative recommended by the Resources Agency Secretary. This bill directs the Council created by this bill to review restoration alternatives and propose a new recommended restoration alternative to the Legislature by an unspecified date. This bill also directs the Council to oversee 8 tasks, including early start habitat, various biological, water quality, air quality and geotechnical investigations, and evaluation of restoration plans. DFG would be responsible for implementation of the early start habitat and biological investigations, and DWR would be responsible for implementation of the water quality, air quality and geotechnical investigations, but the bill does not specify who would be responsible for staffing evaluation of the restoration alternatives. To ensure that it is completed, the author and committee may wish to consider inserting a date certain as to when the recommendation on a restoration alternative is due, and specifying which state entities are responsible for providing the staff support for this task. The committee should also be aware that the state of California has incurred legal obligations to restore the Salton Sea, whether or not the preferred alternative proposed by the Resources Agency, or another alternative, is adopted. Those legal obligations arise in part out of legislation enacted as part of the QSA in 2003 (currently in litigation), historic SB 51 Page 8 agreements regarding allocation of water from the Colorado River, and environmental laws requiring protection of air and water quality, wetlands preservation and endangered species. In the draft PEIR prepared by the Resources Agency on restoration of the Salton Sea, it was recognized that even the "no alternative" would cost the state over $1 billion. According to a report by the Pacific Institute, failure to restore the Salton Sea could result in exorbitant costs to human and ecological health, and possibly agricultural production. The state would also incur increased liability and litigation costs. Thus, the appropriate question is arguably not whether to restore the Salton Sea, but how and to what extent, and what the ultimate state cost will be. Some bond funding for restoration activities at the Salton Sea was included in both Proposition 50 and Proposition 84. The Salton Sea Program received $37.7 million in appropriations in fiscal years 2007/08, 2008/09 and 2009/10. This includes $8.2 million from the Salton Sea Restoration Fund and $29.5 million from Proposition 84. As of March 1, 2010, $2.7 million has been spent from the Salton Sea Restoration Fund and $1.2 million from Proposition 84 for a total of $3.9 million. An additional $12 million has been encumbered in contracts, mainly with DWR. This leaves $21.5 million available for expenditure. However, due to limited bond sales, apparently only $7 million is available for expenditure at this time. Proposed Amendments : The author and committee may wish to consider adoption of the following technical amendments: On page 3, line 6, after "for" insert "is". On page 4, line 36, after "District," insert: "Coachella Valley Water District". On page 10, line 7, strike "two-thirds". On page 10, line 37, after "(a)" insert: "and subdivision (b)". On page 10, line 40, after "(a)" insert: "and subdivision (b)". On page 13, line 6, insert: "(5) Carrying out its restoration responsibilities under 2942." SB 51 Page 9 REGISTERED SUPPORT / OPPOSITION : Support AFSCME Audubon California CalEnergy Operating Corporation California Outdoor Heritage Association Defenders of Wildlife Imperial Irrigation District Indio Chamber of Commerce Pacific Institute Planning and Conservation League Sierra Club California Opposition None on file. Analysis Prepared by : Diane Colborn / W., P. & W. / (916) 319-2096