BILL ANALYSIS Ó
AB 550
Page 1
Date of Hearing: January 10, 2012
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared Huffman, Chair
AB 550 (Huber) - As Amended: January 4, 2012
SUBJECT : Sacramento-San Joaquin Delta: peripheral canal
SUMMARY : Prohibits the construction of a peripheral canal in
the Sacramento-San Joaquin Delta (Delta) unless certain
requirements are met. Specifically, this bill :
1)Defines "peripheral canal" as a facility or structure to
convey water from the Sacramento River to State Water Project
(SWP) or federal Central Valley Project (CVP) pumping
facilities in the southern Sacramento-San Joaquin Delta
(Delta).
2)Prohibits the construction of a peripheral canal unless
authorized by statute.
3)Requires the Legislative Analyst's Office to complete an
economic feasibility analysis of the peripheral canal prior to
the enactment of an authorizing statute.
4)Prohibits the construction and operation of a peripheral canal
from diminishing or negatively affecting the water supplies,
water rights, or quality of water for water users within the
Delta watershed.
5)Prohibits the construction and operation of a peripheral canal
from imposing any new infrastructure or financial burdens on
persons residing in the Delta or Delta watershed.
EXISTING LAW :
1)Provides the State Water Resources Control Board (SWRCB)
authority to protect Delta municipal, industrial, agricultural
and fish and wildlife beneficial water uses through the
adoption and implementation of a Water Quality Control Plan
(WQCP) for the Delta.
2)Provides the SWRCB authority to condition and enforce water
rights permits to implement WQCPs.
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3)Provides the Department of Water Resources (DWR) authority to
construct and operate the State Water Project (SWP) and to
construct, maintain, and operate additional SWP units that
further the purposes of the SWP.
4)Establishes coequal goals in the Delta of a more reliable
water supply for California and protecting, restoring and
enhancing the Delta ecosystem while mandating that the coequal
goals are to be achieved in a manner that protects and
enhances the unique cultural, recreational, natural resource,
and agricultural values of the Delta as an evolving place.
5)Creates the Delta Stewardship Council (Council) which, among
other tasks, must develop and implement a long-term management
plan for the Delta (Delta Plan) that meets the coequal goals.
6)Requires that the Delta Plan promote options for new and
improved infrastructure relating to Delta water conveyance,
storage systems, and operations to achieve the co-equal goals.
7)Requires that the Bay Delta Conservation Plan (BDCP) analyze a
reasonable range of Delta conveyance alternatives including
through-Delta, dual conveyance, and isolated conveyance.
8)Allows a determination by the Department of Fish and Game
(DFG) that the BDCP meets Natural Community Conservation
Planning Act (NCCPA) standards and other requirements to be
appealed to the Council.
FISCAL EFFECT : Nonfiscal
COMMENTS : According to the Public Policy Institute of
California, various approaches to a new water conveyance in the
Delta have been proposed since the 1940's. As historian Norris
Hundley, Jr. writes in his book The Great Thirst, it was in 1965
that the Interagency Delta Committee first released a plan for a
43-mile-long, 400 foot wide, 30 foot deep unlined ditch in the
shape of the broad eastward-swinging curve that garnered it the
name "Peripheral Canal." At that time, many water leaders did
not believe that building such a canal would require a vote of
the people or legislative approval, but they acknowledged that,
at the very least, legislative action would likely be required
to secure funding.
Ten years later, interest in the peripheral canal was renewed
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when California began to experience a severe drought. Thus
began the modern debate over whether a new conveyance facility,
extending from the Sacramento River in the northern Delta to the
pumping plants in the southern Delta, could improve export water
supplies while reducing the through-Delta impacts of the SWP and
federal Central Valley Project (CVP) pumps on fish and wildlife
species. As a build-up to the peripheral canal effort, the
Legislature put a constitutional amendment on the ballot in the
November 1980 general election to protect the Delta and
north-coast rivers. This amendment, which passed as Proposition
8, was worded not to take effect unless the canal also gained
approval. And, although the Peripheral Canal Bill passed in
late January 1980, enough signatures were gathered to qualify it
for a referendum, or veto by the people. On June 8, 1982,
Proposition 9, the Peripheral Canal legislation, was repealed by
a margin of three to two and, by association, Proposition 8.
CALFED
When a six year drought slowed water deliveries between 1987 and
1992, and pushed winter-run Chinook salmon and Delta smelt to
the brink of extinction, attention was once again focused on the
Delta. In 1992, the Central Valley Project Improvement Act was
passed and four federal agencies, U.S. Environmental Protection
Agency, the Bureau of Reclamation (Reclamation), the U.S. Fish
and Wildlife Service (USFWS) and the National Marine Fisheries
Service (NMFS) began a collaboration on Delta issues that was
known at the time as "Club Fed." In 1994, two years after the
end of the drought, Club Fed partnered with California to
further coordinate activities in the Delta, culminating in an
agreement known as the "Bay Delta Accord." The Accord initiated
a long-term planning process to improve the Delta and increase
the reliability of its water supply which later became the
CALFED Bay-Delta Program (CALFED). As part of the planning
process, CALFED began to reconsider some type of peripheral
conveyance in evaluating various options to address export water
supply reliability and ecosystem restoration in the Delta.
Sensitive to the earlier divisive peripheral canal debate,
CALFED called this new conveyance an "isolated facility" and
tried to distinguish it from the prior peripheral canal effort.
Ultimately however, in a Record of Decision signed in August of
2000, the CALFED Program chose the existing through-Delta system
as the preferred alternative for continuing to convey export
water supplies.
Delta Vision
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Following a 2005 independent review critical of many aspects of
CALFED, former Governor Arnold Schwarzenegger created a new
effort by Executive Order called "Delta Vision." Delta Vision
built on CALFED's work but aimed at addressing the full array of
natural resource, infrastructure, land use, and governance
issues necessary to achieve a sustainable Delta. In their final
report to the Governor, the Delta Vision Blue Ribbon Task Force
made twelve integrated and linked recommendations. Chief among
them was that any Delta solution must embrace the coequal goals
of providing a more reliable water supply for California while
preserving, enhancing and protecting the Delta ecosystem and
respecting the unique cultural, recreational, natural resource,
and agricultural values of the Delta as an evolving place. The
Delta Vision process reignited the peripheral canal debate when
it suggested that a new system of dual water conveyance (i.e.
continued through-Delta conveyance together with some type of
peripheral conveyance) could be needed to protect municipal,
agricultural, environmental, and other beneficial uses of water.
Ultimately, the Delta Vision process acknowledged that further
study was required and placed all of its recommendations
squarely within the framework of reasonable use, public trust
values and strong governance with an emphasis on conservation,
efficiency and sustainable use.
BDCP
During the same period of time that CALFED was being
reevaluated, the California Bay-Delta Authority (CBDA), together
with its state and federal partners, identified a significant
funding shortfall that threatened to put agreed-upon CALFED
"regulatory commitments" with state and federal export
contractors at risk. Therefore, on July 28, 2006, a Memorandum
of Agreement (MOA) was reached between CBDA, state and federal
agencies, and export water agencies that obligated those export
water contractors to voluntarily contribute funding to CALFED
while also launching a new effort: the BDCP. The BDCP was
described as "a conservation plan for the Delta and its upstream
basins" with the express mission of obtaining for SWP/CVP Delta
operations the permits necessary to comply with the California
Endangered Species Act and the Federal Endangered Species Act
(FESA) through a state Natural Community Conservation Plan
(NCCP) and a federal Habitat Conservation Plan (HCP). This made
the BDCP distinct from CALFED which had provided only a
programmatic framework and no endangered species act coverage
for the state and federal water projects.
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2009 Historic Delta Legislation
In 2009, when California faced a third consecutive dry year,
former Governor Schwarzenegger called an Extraordinary Session
of the Legislature to address water issues that were still
pending at the close of the regular session. In the five-bill
package that emerged from those negotiations and was signed into
law, SB 1 (Simitian, Chapter 5, Statutes of the 7th
Extraordinary Session 2009-2010), addressed Delta governance and
implemented many of the Delta Vision strategies. SB 1 X7 set
the co-equal goals in statute and created the Council as a
governing body mandated to adopt the Delta Plan. It also
established a policy of reduced reliance on the Delta in meeting
California's future water supply needs. It directed the SWRCB
to develop public trust flow criteria "for the purpose of
informing planning decisions for the Delta Plan and ÝBDCP]."
And with regard to BDCP, it imposed other specific detailed
requirements. Among them, it mandated that BDCP must be
approved by DFG as an NCCP in order to be incorporated in the
Delta Plan and eligible for public funding; it must include a
reasonable range of flow criteria, rates of diversion, and other
operational criteria; and, it must analyze a "reasonable range
of Delta conveyance alternatives including through-Delta, dual
conveyance, and including further capacity and design options of
a lined canal, an unlined canal, and pipelines" and assess the
"potential effects of each Delta conveyance alternative on water
quality." For any eventual project, SB 1 X7 required that "BDCP
shall include a transparent, real-time operational
decisionmaking process in which ÝUSFWS, NMFS and DFG] ensure
that applicable biological performance measures are achieved in
a timely manner with respect to water system operations."
Finally, SB 1 X7 established that any determination by DFG that
the BDCP met both the NCCPA and the requirements of SB 1 X7
could be appealed to the Council.
Current Status of BDCP and Delta conveyance
From the outset DWR and the export water agencies funding the
BDCP planning phase have suggested that a new peripheral
conveyance of 15,000 cubic feet per second (cfs), either around
or under the Delta, should be part of the BDCP. Other parties
have reserved judgment as to whether any new conveyance is
necessary or if the current inflexibility in the system is due
to a lack of storage, particularly groundwater storage, that
would allow parties to take more water in wet years and store it
so that they can decrease pressure on the Delta in dry years
(the "big gulp, little sip" theory). At the very least, some
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have stated increased reliability could be achieved in the
majority of years by a 3,000 cfs facility at a much lower cost.
However, DWR and the export water agencies have continued to
reason that a large facility will provide increased flexibility
to move water from the north Delta as opposed to directly from
the south Delta where the export pumps are located and many of
the fisheries conflicts are currently occurring. They chose a
size of 15,000 cfs because it is the maximum physical capacity
of the six pumps located at the CVP's C.W. "Bill" Jones Pumping
Plant and the eleven pumps located at the SWP's Harvey O. Banks
Pumping Plant combined even though, due to physical constraints
in the existing system, the pumps have never operated at 15,000
cfs but have peaked at around 12,800 cfs. Various estimates for
building a new five-intake 15,000 cfs facility indicate the
infrastructure alone could cost upwards of $12 billion.
While groups from the Public Policy Institute of California to
DFG itself have theorized that new conveyance of some size in
the northern Delta could alleviate pressures on Delta smelt and
other fish species currently affected by water operations in the
southern Delta, the unresolved issue is how any new conveyance
would be specifically linked to an operational regime that is
demonstrably likely to result in improvements for at-risk native
species and overall ecosystem health. Although many factors are
at play in the decline of California's salmon and other Bay
Delta native fishes, including but not limited to habitat loss,
toxic discharges and invasive species, the SWRCB and others have
also found that increased freshwater flows are a crucial part of
the mix for this already over-subscribed Estuary. Thus, a key
question is the extent to which BDCP - as an NCCP that must
provide for the conservation and management of species - can
result in a plan that supports ecosystem recovery standards.
At the end of 2010, the Natural Resources Agency, under the
outgoing administration of Governor Schwarzenegger, released a
"BDCP Working Draft" that represented four years of cumulative
scientific and policy rationale for the plan. At the request of
federal agencies and leaders the Working Draft was subject to
independent scientific review by the National Academy of
Sciences (NAS). In May of 2011 the NAS issued its report. In a
strongly-worded conclusion the NAS reviewers state that the lack
of scientific structure and analysis in the BDCP "creates the
impression that the entire effort is little more than a post-hoc
rationalization of a previously selected group of facilities,
including an isolated conveyance facility, and other measures
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for achieving goals and objectives that are not clearly
specified." Importantly it stated the BDCP Working Draft lacked
any detailed "effects analysis," a critical component. The
effects analysis is intended to provide the best scientific
assessment of whether BDCP actions are likely to improve the
status of species of concern and the ecological processes of the
Bay-Delta system. On November 28, 2011 the BDCP did not fare
much better. An independent scientific review by a panel
convened through the Delta Science Program found BDCP goals and
objectives were still incomplete and "under revision" and that
the "Effects Analysis does not yet provide the 'big picture'
necessary to evaluate how the effects of complex hydrodynamic,
geophysical and ecological changes in the Bay-Delta are going to
be synthetically analyzed as a system to ensure conservation and
management of listed species under ÝFESA and the NCCPA], and
that ecological processes of the Bay-Delta will be preserved and
enhanced under future operations."
Nevertheless, in August of 2011, three months after the NAS
review and three months prior to the Delta Science Program
review, the California Resources Agency and the Department of
the Interior exchanged letters emphasizing the need for BDCP
progress and calling for commitment to a schedule that would
require a completed effects analysis within eight months so that
final permits could be issued for the project by February 15,
2013. Following adoption of the "aggressive schedule," the
Resources Agency issued a press release stating that it now had
"impending financial commitments of roughly $100 million" from
the export water agencies to continue the planning process.
Thereafter, DWR and Reclamation signed an amended Memorandum of
Agreement (Amended MOA) with those export water agencies
detailing how the remaining planning process would be funded and
conducted, and which provided the export water agencies
heightened access and authority over consultant work, draft
documents, and contracts. The amended MOA prohibited DWR from
releasing a public review draft of the BDCP Environmental Impact
Statement/Environmental Impact Report (EIS/EIR), or a final BDCP
EIS/EIR, using funds provided by those water agencies until the
Director of DWR received written authorization from the export
water agencies. In response to intense criticism from
environmental organizations, Delta communities, congressional
Democrats from Northern California and others, the Amended MOA
was subsequently revised.
The controversy over BDCP's funding and its singular focus on a
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new 15,000 cfs conveyance facility caused the Sacramento Bee
newspaper, on November 6, 2011 to issue an editorial opinion
entitled "Bay Delta plan on a perilous path." In it the Bee
editorial board acknowledged that while "California desperately
needs to make progress on its beleaguered Sacramento-San Joaquin
Delta?Ýs]adly, the linchpin to any sort of deal to bring peace
to this estuary - the ÝBDCP] - has been heading in the wrong
direction for years and continues down a perilous path. Paid
for and driven by water contractors, this 'conservation plan'
has been disproportionately focused on construction of a canal
or tunnel that would provide water exporters with extra
supplies. State and federal officials seem determined to
finalize plans for some form or canal or tunnel by next year,
even though there remain serious concerns about the financing,
impacts and governance of this audacious feat of plumbing, and
its impact on Delta communities?Ýstate and federal leaders] need
to wrest the BDCP out of private hands and make it a truly
inclusive process, grounded on science and equally focused on
Delta restoration and water reliability."
Meanwhile other editorial opinions applauded the Amended MOA and
the prospect of new infrastructure. In a rebuttal, also
published in the Sacramento Bee, one federal representative
stated that although the Amended MOA had been criticized by some
it "is actually a significant step toward completing BDCP" and
that the BDCP itself "is a welcome advance that will implement a
comprehensive approach to Delta restoration and water supply
restoration and reliability. The involvement of Ýexport water
agencies] - representing 25 million Californians - is more than
balanced by the powers of the state and federal regulatory
agencies. These agencies will only issue final permits if the
plan is able to fulfill the goals of ecosystem restoration and
water reliability...BDCP is a dramatic undertaking. It is a
public infrastructure project on the scale of those built by
President Franklin Roosevelt and Gov. Pat Brown. It improves on
the projects those great leaders built by recognizing and
serving the needs of both the environment and of people. We
cannot shy away from the challenges - we must embrace BDCP, and
see it as the great opportunity it is."
Supporting arguments : The author states this bill is needed
because "the water package that was passed in the Seventh
Extraordinary Session failed to clearly address the issue of
legislative oversight in regard to the possible creation of a
peripheral canal in the Delta." The author believes construction
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of a peripheral canal in the Delta should be prohibited unless
the potential project undergoes a full fiscal analysis and a
vote of the Legislature. Supporters of this bill, including
Delta communities, local governments, and individual citizens,
point out that the Delta is the largest freshwater estuary on
the West Coast with thousands of miles of navigable waterways, a
fragile ecosystem, and many communities dependent on it for
agriculture and recreation. They state that it seems no more
than common sense that such a monumental project as a peripheral
canal or tunnel to divert fresh water around the Delta "with
staggering economic consequences, should be subject to a
thorough unbiased fiscal analysis and a vote of the
Legislature."
Opposing arguments : Opponents of this bill, which include
central and southern California water interests and chambers of
commerce as well as building industry representatives and
agricultural organizations, view this bill as "a threat to
achieving the coequal goals of ecosystem restoration and
reliable water supplies" in the Delta. They state that SB 1 X7
from the 2009 water package already imposes numerous new
requirements on the BDCP such as a mandate to review a full
range of alternatives and that any "future conveyance
alternatives adopted by BDCP will undergo one of the most
exhaustive and rigorous process for any infrastructure project
in the nation." As a result, they state the reviews required by
this bill are unneeded, counterproductive, and will create
"unreasonably high hurdles" for the project.
This bill is substantially similar to AB 1595 (Huber/2010). As
was raised in the previous analysis of that bill, it is unclear
as to whether legislative action might already be needed to
approve new Delta conveyance. If this bill moves to the
Assembly floor and does not pass it could backfire on its
proponents by creating an argument, by implication, the
legislature was acknowledging a bill was necessary in order to
submit the peripheral canal to legislative approval. While this
is clearly not the author's intention and the author has not
conceded such a point, it may be a risk.
In addition, it is unclear if the bill's prohibitions act as an
outright bar to any new conveyance. The bill states that
"notwithstanding any other law" the construction of a peripheral
canal shall not "diminish or negatively affect" water supplies,
water rights, or quality of water for water users within the
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Delta watershed. This threshold appears to be triggered by any
negative effect no matter how minimal. The SWRCB administers
and enforces California's water rights permit system. The SWRCB
also sets water quality standards in the Delta WQCP (most
recently updated in 2006). This bill's prohibition appears to
eliminate SWRCB authority to determine if a "negative effect" is
permissible under existing law or even if there is a legitimate
water right at issue. This bill also prohibits the construction
and operation of a peripheral canal from imposing any new
infrastructure burdens or any financial burdens on anyone
residing in the Delta or Delta watershed. Arguably, any large
construction project in the Delta is likely to cause at least
some burden on, for example, roads or transportation levels of
service. At the very least the issues would be ripe for
extensive litigation.
Finally, technically speaking, other existing conveyance
facilities through the Delta could also be deemed peripheral
canals and yet those facilities did not require legislative
approval or independent fiscal analysis. That makes it unclear
as to whether the author believes a peripheral canal, as defined
in this bill, should be subject to a legislative vote and fiscal
analysis due to the size of the facility currently being
proposed for analysis, the related cost pressures associated
with a project of that scale, the fact that it would be a unit
of the SWP, or some other criteria. With regard to proposed new
Delta conveyance, BDCP is currently looking at sizes from 3,000
cfs to 15,000 cfs and has not yet chosen its "preferred project
alternative" for its EIS/EIR. If it were to eventually proceed
with a project that could divert up to 15,000 cfs that rate
would be fifty times higher than any other screened diversion in
the Delta and five times larger than the largest existing
screened diversion on the Sacramento River, which is
Glenn-Colusa Irrigation District's Hamilton City pump station.
REGISTERED SUPPORT / OPPOSITION :
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Support
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California Delta Chambers
Central Delta Water Agency
City of Lodi
City of Stockton
Food and Water Watch
Foster's Bighorn
Freeman, D'Aiuto, Pierce, Gurev, Keeling
& Wolf
J.H. Jonson & Son, Inc.
Reclamation District 150
Reclamation District 999
Restore the Delta
Rio Vista Chamber of Commerce
San Joaquin County Board of Supervisors
San Joaquin County Multi-Species Habitat
Conservation and Open Space Plan
South Delta Water Agency
Sutter Home Family Vineyards
Wilson Farms and Vineyards
Numerous letters from individual
Opposition
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Alameda County Flood Control & Water
Conservation District, Zone 7
Alameda County Water District
Association of California Water Agencies
BIOCOM
Burbank Chamber of Commerce
Burbank Water and Power
California Chamber of Commerce
California Municipal Utilities Association
Calleguas Municipal Water District
Castaic Lake Water Agency
Central City Association
Chambers of Commerce Alliance,
Ventura and Santa Barbara Counties
Chino Valley Chamber of Commerce
City of Corona
Coachella Valley Water District
County of Los Angeles
Downey Chamber of Commerce
East Valley Water District
Eastern Municipal Water District
El Monte/So. El Monte Chamber of Com.
Foothill Municipal Water District
Friant Water Authority
Fullerton Chamber of Commerce
Glendale Water and Power
Inland Empire Utilities Agency
Irvine Chamber of Commerce
Irvine Ranch Water District
Irwindale Chamber of Commerce
Kern County Water Agency
La Verne Chamber of Commerce
Las Virgenes Municipal Water District
Long Beach Area Chamber of Commerce
Los Angeles Area Chamber of Commerce
Los Angeles Business Council
Metropolitan Water District of So. Calif.
Mojave Water Agency
Montclair Chamber of Commerce
Montebello Chamber
Municipal Water District of Orange County
Newhall County Water District
North Orange Co. Legislative Alliance
Orange County Business Council
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Orchard Dale Water District
Redondo Beach Chamber of Commerce
and Visitors Bureau
Regional Chamber of Com. San Gabriel Valley
Rowland Water District
San Bernadino Valley Municipal Water Dist.
San Fernando Chamber of Commerce
San Gabriel Valley Economic Partnership
San Gabriel Valley Legis. Coalition of
Chambers
Santa Clara Valley Water District
Simi Valley Chamber of Commerce
Southern California Water Committee
Southwest California Legislative Council
State Water Contractors
The Greater Corona Valley Chamber of Com.
Three Valleys Municipal Water District
United Chambers of Commerce,
San Fernando Valley and Region
Upland Chamber of Commerce
Upper San Gabriel Valley Muni. Water Dist.
Valley Ag Water Coalition
Valley Industry and Commerce Association
Ventura Co. Economic Development Assoc.
Walnut Valley Water District
Western Municipal Water District
Westlands Water District
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Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916)
319-2096