BILL ANALYSIS Ó ----------------------------------------------------------------- | | | SENATE COMMITTEE ON NATURAL RESOURCES AND WATER | | Senator Fran Pavley, Chair | | 2011-2012 Regular Session | | | ----------------------------------------------------------------- BILL NO: SB 1495 HEARING DATE: April 10, 2012 AUTHOR: Wolk URGENCY: No VERSION: Introduced CONSULTANT: Dennis O'Connor DUAL REFERRAL: No FISCAL: Yes SUBJECT: Sacramento-San Joaquin Delta Reform Act of 2009. BACKGROUND AND EXISTING LAW The Sacramento-San Joaquin Delta Reform Act of 2009, among other things: Established co-equal goals of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem. Created the Delta Stewardship Council (Council) Required the Council to develop and adopt a Delta Plan to achieve the co-equal goals. Required all "covered actions" to be consistent with the Delta Plan. The Act defined covered actions as a plan, program, or project, as defined in the California Environmental Quality Act (CEQA), that meets all of the following conditions: Will occur, in whole or in part, within the boundaries of the Delta or Suisun Marsh. Will be carried out, approved, or funded by the state or a local public agency. Is covered by one or more provisions of the Delta Plan. Will have a significant impact on achievement of one or both of the coequal goals or the implementation of government-sponsored flood control programs to reduce risks to people, property, and state interests in the Delta. The Act also defined a number of specific activities as not being covered actions, including: A regulatory action of a state agency. Routine maintenance and operation of the State Water Project or the federal Central Valley Project. 1 Regional transportation plans. Any plan, program, project, or activity within the secondary zone of the Delta that the applicable metropolitan planning organization has determined is consistent with the provisions of SB 375 (Stats 2008, c. 728). Routine maintenance and operation of any facility located, in whole or in part, in the Delta, that is owned or operated by a local public agency. PROPOSED LAW This bill would exclude from the definition of "covered actions" both of the following: 1.Leases approved by a special district formed under the Harbors and Navigation Code if all of the following apply: The uses proposed by the lease are authorized by the applicable general plan and zoning ordinances of the city where the special district is located. The special district complies with CEQA prior to approving the lease. 1.Dredging activities and projects conducted by the federal government or a special district formed under the Harbors and Navigation Code to improve interstate and international commerce through the navigable waters of the United States. ARGUMENTS IN SUPPORT According to the author, "The Sacramento and Stockton ports provide important hubs for goods movement within our region. The 2009 Water Package gave broad authority to the Delta Stewardship Council to review 'covered actions' for consistency with the Delta Plan. The covered actions review process adds a new level of review and delay for some port activities within the Delta. Two actions that are currently considered covered actions are lease approvals and routine dredging of ship channels. SB 1495 would provide a narrow exemption for these two actions from the definition of 'covered actions' in order to ensure that these time sensitive port activities proceed without unnecessary delays." ARGUMENTS IN OPPOSITION According to the Association of California Water Agencies (ACWA), "ACWA is concerned that dredging operation by the ports that go beyond routine maintenance and operation (which appears to be exempt under existing law), is the type of activity that should be reviewed for consistency with the Delta Plan. ACWA is also concerned that the enactment of SB 1495 would encourage 2 others to seed 'covered action' exemptions for their activities in and around the Delta." COMMENTS Two Ports. The Delta is home to two deep water ports, the Port of Stockton and the Port of West Sacramento. They both move ships through the Delta via deep water channels; the Sacramento Deep Water Channel roughly parallels the Sacramento River along the west side of the Delta, the Stockton Deep Water Channel largely follows the main stem of the San Joaquin River up to Stockton. What is a "Significant Impact?" As noted in the background discussion above, the Act establishes a four part test to determine if a plan, program, or project is a "covered action." The first three items are relatively unambiguous. The fourth test, whether it will have a significant impact on achievement of one or both of the coequal goals or the implementation of government-sponsored flood control programs, is less clear-cut. The Council, in its 5th staff draft of the Delta Plan, "has determined that 'significant impact' means a change in existing conditions that is directly, indirectly, and/or cumulatively caused by a project and that will significantly affect the achievement of one or both of the coequal goals or the implementation of government-sponsored flood control programs to reduce risks to people, property, and State interests in the Delta." Accordingly, the Council has established "administrative exemptions" to the "covered actions." Specifically, "The Council has determined that the following types of projects are not covered actions because they will not have a significant impact under Water Code section 85057.5(a)(4):" "'Ministerial' projects under CEQA (because they only require the application of fixed standards or objective measurements set forth in an ordinance or other legal or regulatory provision)" "'Emergency' projects under CEQA Ýcitation omitted]" "Temporary water transfers of up to 1 year in duration." It might be that subsequent drafts of the Delta Plan will address the issues raised by this bill by further refining the list of "administrative exemptions." Are We Missing A Step? The Port of Stockton asserts that because updates to the general plan are covered actions, as long 3 as the leases are consistent with the general plan, any issues associated with leases of Port lands have already been considered and so the leases should not, in and of themselves, be considered covered actions. Two points: First, it might be that they are not covered actions because they do not meet the "significant impact" test discussed above. Second, the Port's argument holds only if the city finds that the leases are consistent with the general plan and the city has complied with the requirements for covered actions. (See Amendment 1) Maintaining Vs. Expanding Channel Capacity. The definition of covered actions in the statute explicitly excludes routine maintenance and operations of the SWP, CVP, or any facility located in the Delta that is owned or operated by a local public agency. Routine dredging to maintain channel capacity is arguably consistent with this construct. However, dredging to expand channel capacity could reasonably have a "significant impact," and so should remain a covered action. (See Amendment 2) Technical Corrections. Senate Engrossing and Enrolling found a typo that needs correcting. (See Amendment 3) SUGGESTED AMENDMENTS AMENDMENT 1: On page 3 line 29, after "(B)" insert: The uses proposed by the lease are approved by the city where the special district is located, and the city complies with Chapter 3 (commencing with section 85225), if applicable, prior to approval of the lease by the special district. (C) AMENDMENT 2: On page 3, delete lines 32 through 35 inclusive and insert: (9) Routine dredging activities that are necessary for maintenance of facilities operated by special districts formed under the harbors and navigation code. AMENDMENT 3: On page 3 line 4, after "of" insert "the" SUPPORT Port of Stockton OPPOSITION 4 Association of California Water Agencies 5