BILL NUMBER: SB 200 AMENDED
BILL TEXT
AMENDED IN SENATE JANUARY 4, 2012
AMENDED IN SENATE MARCH 24, 2011
INTRODUCED BY Senator Wolk
(Coauthor: Assembly Member Bill Berryhill)
FEBRUARY 8, 2011
An act to add Section 85321.5 to the Water Code, relating
to water. An act to amend Sections 12986 and 12987.5
of the Water Code, relating to water projects .
LEGISLATIVE COUNSEL'S DIGEST
SB 200, as amended, Wolk. Sacramento-San Joaquin Delta:
Bay Delta Conservation Plan. Delta l evee
maintenance.
Existing law establishes a delta levee maintenance program
pursuant to which a local agency may request reimbursement for costs
incurred in connection with the maintenance or improvement of project
or nonproject levees in the Sacramento-San Joaquin Delta. Existing
law declares legislative intent to reimburse eligible local agencies
under this program, until July 1, 2013, in an amount not to exceed
75% of those costs that are incurred in excess of $1,000 per mile of
levee, and on and after that date, in an amount not to exceed 50% of
those described costs.
This bill, instead, would declare legislative intent to reimburse
up to 75% of those described costs until July 1, 2020, and on and
after that date, to reimburse up to 50% of those described costs.
Existing law, until July 1, 2013, authorizes the board to provide
funds to an eligible local agency under this program in the form of
an advance in an amount that does not exceed 75% of the estimated
state share.
This bill would extend the operation of that authorization to July
1, 2020.
Existing law imposes requirements on the Department of Water
Resources in connection with the preparation of a Bay Delta
Conservation Plan (BDCP).
The Delta Reform Act of 2009 requires the Delta Stewardship
Council to consider the BDCP for inclusion in a specified Delta Plan,
and authorizes the incorporation of the BDCP into the Delta Plan if
the BDCP meets certain requirements.
This bill would require any state agency that is responsible for
authorizing or implementing any action in implementation of the BDCP
to ensure that the action is consistent with specified requirements
prescribed by the bill. The bill would make related legislative
findings and declarations.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12986 of the Water
Code , as amended by Section 1 of Chapter 23 of the
Statutes of 2010, is amended to read:
12986. (a) It is the intention of the Legislature to reimburse an
eligible local agency pursuant to this part for costs incurred in
any year for the maintenance or improvement of project or nonproject
levees as follows:
(1) No costs incurred shall be reimbursed if the entire cost
incurred per mile of project or nonproject levee is one thousand
dollars ($1,000) or less.
(2) Not more than 75 percent of any costs incurred in excess of
one thousand dollars ($1,000) per mile of project or nonproject levee
shall be reimbursed.
(3) (A) As part of the project plans approved by the board, the
department shall require the local agency or an independent financial
consultant to provide information regarding the agency's ability to
pay for the cost of levee maintenance or improvement. Based on that
information, the department may require the local agency or an
independent financial consultant to prepare a comprehensive study on
the agency's ability to pay.
(B) The information or comprehensive study of the agency's ability
to pay shall be the basis for determining the maximum allowable
reimbursement eligible under this part. Nothing in this paragraph
shall be interpreted to increase the maximum reimbursement allowed
under paragraph (2).
(4) Reimbursements made to the local agency in excess of the
maximum allowable reimbursement shall be returned to the department.
(5) The department may recover, retroactively, excess
reimbursements paid to the local agency from any time after January
1, 1997, based on an updated study of the agency's ability to pay.
(6) All final costs allocated or reimbursed under a plan shall be
approved by the reclamation board for project and nonproject levee
work.
(7) Costs incurred pursuant to this part that are eligible for
reimbursement include construction costs and associated engineering
services, financial or economic analyses, environmental costs,
mitigation costs, and habitat improvement costs.
(b) Upon completion of its evaluation pursuant to Sections 139.2
and 139.4, by January 1, 2008, the department shall recommend to the
Legislature and the Governor priorities for funding under this
section.
(c) Reimbursements made pursuant to this section shall reflect the
priorities of, and be consistent with, the Delta Plan established
pursuant to Chapter 1 (commencing with Section 85300) of Part 4 of
Division 25, as enacted by Section 39 of Chapter 5 of the Seventh
Extraordinary Session of the Statutes of 2009.
(d) This section shall become inoperative on July 1, 2013
2020 , and, as of January 1, 2014
2021 , is repealed, unless a later enacted
statute, that becomes operative on or before January 1, 2014
2021 , deletes or extends the dates on which it
becomes inoperative and is repealed.
SEC. 2. Section 12986 of the Water Code
, as amended by Section 2 of Chapter 23 of the Statutes
of 2010, is am ended to read:
12986. (a) It is the intention of the Legislature to reimburse
from the General Fund an eligible local agency pursuant to this part
for costs incurred in any year for the maintenance or improvement of
project or nonproject levees as follows:
(1) No costs incurred shall be reimbursed if the entire cost
incurred per mile of levee is one thousand dollars ($1,000) or less.
(2) Fifty percent of any costs incurred in excess of one thousand
dollars ($1,000) per mile of levee shall be reimbursed.
(3) The maximum total reimbursement from the General Fund shall
not exceed two million dollars ($2,000,000) annually.
(b) This section shall become operative on July 1, 2013
2020 .
SEC. 3. Section 12987.5 of the Water
Code is amended to read:
12987.5. (a) In an agreement entered into under Section 12987,
the board may provide for an advance to the applicant in an amount
not to exceed 75 percent of the estimated state share. The agreement
shall provide that no advance shall be made until the applicant has
incurred costs averaging one thousand dollars ($1,000) per mile of
levee.
(b) Advances made under subdivision (a) shall be subtracted from
amounts to be reimbursed after the work has been performed. If the
department finds that work has not been satisfactorily performed or
where advances made actually exceed reimbursable costs, the local
agency shall promptly remit to the state all amounts advanced in
excess of reimbursable costs. If advances are sought, the board may
require a bond to be posted to ensure the faithful performance of the
work set forth in the agreement.
(c) This section shall become inoperative on July 1, 2013
2020 , and, as of January 1, 2014
2021 , is repealed, unless a later enacted
statute, that becomes operative on or before January 1, 2014
2021 , deletes or extends the dates on which it
becomes inoperative and is repealed.
SECTION 1. The Legislature finds and declares
all of the following:
(a) Removing remaining barriers to achievement of the coequal
goals described in Section 85054 of the Water Code remains a priority
for the Legislature and the state.
(b) It is the intent of the Legislature to avoid potential
conflicts in achieving the coequal goals described in Section 85054
of the Water Code by ensuring that state actions within the
Sacramento-San Joaquin Delta are equitable and do not redirect
negative impacts from one entity or region of the state to another.
(c) The Bay Delta Conservation Plan (BDCP), identified as one tool
that the state is pursuing to meet the coequal goals, is a plan to
provide 50-year permits compliant with the Natural Community
Conservation Planning Act (Chapter 10 (commencing with Section 2800)
of Division 3 of the Fish and Game Code) and the federal Endangered
Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) for the State Water
Project, the Central Valley Project, and Mirant Energy Company. The
direct beneficiaries of the BDCP are those that will receive
regulatory permits and assurances under the Natural Community
Conservation Planning Act and the federal Endangered Species Act of
1973 for actions within the Sacramento-San Joaquin Delta. No other
entity within the Sacramento-San Joaquin Delta watershed will be
provided regulatory permits or operational assurances through the
BDCP.
(d) Consistent with the provisions of the Natural Community
Conservation Planning Act (Chapter 10 (commencing with Section 2800)
of Division 3 of the Fish and Game Code), the BDCP is a voluntary
program. Responsibility for implementation of the BDCP is the sole
responsibility of the entities that choose to agree to the terms of
the permits resulting from the BDCP process. Responsibility for
implementation of BDCP conservation measures by parties that have not
chosen to participate in the program is not consistent with the
Natural Community Conservation Planning Act or legally justifiable.
(e) It is the intent of the Legislature to ensure that secured,
equitable funding to meet the coequal goals described in Section
85054 of the Water Code is available, that funding complies with the
beneficiary pays principle, and that actions to achieve the coequal
goals are affordable for ratepayers and the public.
SEC. 2. Section 85321.5 is added to the Water
Code, to read:
85321.5. (a) Prior to authorizing or taking any action to
implement a conservation measure within the Bay Delta Conservation
Plan, any state agency that is responsible for authorizing or
implementing that action shall ensure that the action is consistent
with all of the following requirements:
(1) The action shall not result in significant unmitigated
negative impacts to another entity or region. For purposes of this
paragraph, "negative impacts" include, but are not limited to, any
impact that would negatively affect the water right, water supply,
water quality, ecosystem function, flood risk, agricultural
resources, infrastructure, regulatory responsibility, or the economy
of another entity or region without appropriate full mitigation.
(2) The action shall have a viable funding source for the entire
period proposed for the implementation of the action. The funding
source shall be affordable for the ratepayers and contractors
supplying the funding, and shall be reasonably likely to be provided
by those ratepayers and contractors through secured funding
mechanisms.
(3) Funding for the action shall be consistent with the
beneficiary pays principle. For purposes of this paragraph,
"beneficiary pays principle" means that only those identified as
beneficiaries of the Bay Delta Conservation Plan shall be responsible
for providing funding for the Bay Delta Conservation Plan.
(4) The action shall be consistent with protecting and maintaining
public trust resources in the Delta. The action shall be consistent
with maintaining flows within the Delta and outflows from the Delta
that are necessary to maintain the public trust resources of the
Delta, the Suisun Marsh, and the San Francisco Bay. Any action that
results in reduced flow within the Delta or outflow from the Delta
shall be scientifically justified and consistent with maintaining the
existing statewide water rights priority system, area of origin
protections, and beneficial uses of water within the Delta.
(5) If the action requires additional waterflows in order to
mitigate for the action or meet conditions of a permit under the Bay
Delta Conservation Plan, the beneficiaries of the Bay Delta
Conservation Plan or the action shall be solely responsible for
identifying, developing, funding, and supplying those waterflows. No
other water rights holder or legal user of water shall be responsible
for supplying flows that may be necessary to permit or mitigate for
actions taken to comply with the Bay Delta Conservation Plan, except
for those water rights holders and parties that are beneficiaries of
the Bay Delta Conservation Plan.
(6) The action shall be developed and implemented with the input
of all affected local governments and the public.
(7) The action shall be implemented consistent with existing
efforts to manage wildlife within the Delta, Suisun Marsh, and the
San Francisco Bay, including adopted plans for management of the Yolo
Wildlife Area, the Suisun Marsh Conservation District, the San
Francisco Bay Plan, and the federal Migratory Bird Treaty Act (16
U.S.C. Sec.703 et seq.), and applicable local natural community
conservation plans.
(8) The action shall not violate any legal contract to maintain
water quality within the Delta, including but not limited to, the
contract between the department and the North Delta Water Agency,
dated January 28, 1981, and the contract between the department and
the City of Antioch, dated April 11, 1968.
(b) Nothing in this section supersedes, reduces, or otherwise
affects existing legal protections, both procedural and substantive,
relating to the state board's regulation of diversion and use of
water, including, but not limited to, water right priorities, the
protection provided to municipal interests by Sections 106 and 106.5,
and changes in water rights. Nothing in this section expands or
otherwise alters the board's existing authority to regulate the
diversion and use of water or the courts' existing concurrent
jurisdiction over California water rights.