BILL ANALYSIS Ó
AB 147
Page 1
Date of Hearing: April 16, 2013
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Anthony Rendon, Chair
AB 147 (V. Manuel Pérez) - As Amended: April 9, 2013
SUBJECT : Salton Sea
SUMMARY : Requires the State Natural Resources Agency, in
consultation with other specified entities, to develop a
strategic plan to mitigate dust pollution at the Salton Sea.
Specifically, this bill :
1)Requires the Natural Resources Agency, upon execution of an
agreement with the Imperial Air Quality Management District
and the South Coast Air Quality Management District, and in
consultation with the State Air Resources Board and the Salton
Sea Authority (SSA), to develop a strategic plan to guide
implementation of the Salton Sea Dust Mitigation Project. The
Salton Sea Dust Mitigation Project is defined to mean a
project to monitor and mitigate dust pollution created at the
Salton Sea as a result of the Quantification Settlement
Agreement (QSA).
2)Requires the strategic plan to include specified elements,
including: quantification of current and exposed sea lake bed
arising from the QSA; quantification of exposed lake bed
arising from other factors; profile of Salton Sea lake bed
aerosols and other chemicals; prioritization of mitigation
measures that can be instituted at the Sea to meet air quality
standards for particulate matter in both air quality basins;
and identification and prioritization of funding streams to
pay for dust mitigation, including how best to monetize
renewable energy generating potential at the Salton Sea.
3)Authorizes the Secretary of the Natural Resources Agency
(Secretary), to the extent permitted by law, to work with
other appropriate governmental and nongovernmental
organizations in California and Mexico in developing the
strategic plan.
4)Authorizes the Secretary, in consultation with the state Air
Resources Board and the SSA, to establish a technical advisory
committee including representatives from impacted cities and
counties, other local, state and regional agencies and
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departments, nongovernmental organizations, and other
stakeholders as deemed necessary by the Secretary. Requires
the Secretary, in consultation with the Air Resources Board
and the SSA, to appoint the committee chair.
5)Authorizes the Secretary to enter into an agreement with other
public agencies, including but not limited to the county, to
accept, manage and expend funds for implementation of the dust
mitigation program.
6)States that this bill does not modify existing roles,
responsibilities or liabilities of the State of California,
the counties, or any other agency, under the QSA.
7)Creates the Salton Sea Dust Mitigation Project Account in the
Salton Sea Restoration Fund to receive moneys for mitigation
of dust pollution arising from implementation of the QSA.
8)States legislative findings and declarations regarding the
Salton Sea and the anticipated impacts of implementation of
the QSA on dust emissions, and states the Legislature's intent
to develop a strategic plan for dealing with air pollution at
the Sea.
EXISTING LAW :
1)The federal Clean Air Act regulates fine particulates in dust
(PM 10) and requires attainment of health based air quality
standards for particulates. Requires use of best available
mitigation measures and development of a plan for attainment
of air quality standards.
2)The Salton Sea Restoration Act states legislative intent that
the state undertake restoration of the Salton Sea and that the
maximum feasible attainment of specified environmental
objectives be achieved, including but not limited to,
elimination of air quality impacts from restoration projects.
3)Under the terms of the QSA-JPA Agreement, the State agreed to
cover the costs of mitigation for the water transfers,
including air quality impacts, beyond the first $133 million
in mitigation costs. The agreement states that "the state
obligation is an unconditional contractual obligation of the
State of California, and such obligation is not conditioned
upon an appropriation by the Legislature, nor shall the event
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of non-appropriation be a defense." It should be noted a
recent ruling by the Third District Court of Appeal held that
although the State is contractually obligated to pay excess
mitigation costs associated with the QSA, the agreement does
not give the other QSA parties "or anyone else" the right to
enforce the obligation by taking money out of the State
Treasury. Rather, it is solely up to the Legislature to
appropriate such funds.
Note: The California Supreme Court has denied all appeals for
review, but at the time of this writing, QSA litigation
continues at the Superior court level on remanded or
unadjudicated issues, including claims based upon the Brown
Act and the California Environmental Quality Act. At the
federal level, a decision of the U.S. District Court for the
Southern District of California, dismissing legal challenges
to the QSA based upon the Clean Air Act and National
Environmental Policy Act, is currently on appeal before the
Ninth Circuit Court of Appeals.
FISCAL EFFECT : Unknown
COMMENTS : The Salton Sea is California's largest lake at
approximately 360 square miles in size and is roughly twice the
size of Lake Tahoe. The Sea is located in the desert region of
southern California in Imperial and Riverside counties. The Sea
currently is fed primarily by agricultural runoff and has no
natural outlet. As a result in part of water transfer
agreements negotiated in 2003, known as the QSA, as well as
natural evaporation and other factors, the Sea is shrinking in
size, and will be substantially reduced after 2017 when the
water transfers are fully implemented. As the Sea recedes, dry
lake bed areas or playa that are exposed to the air may create
airborne dust pollution which is hazardous to human health and
may also negatively impact agricultural resources and other
natural resources in the area. Reduced water inflows to the Sea
are anticipated to result in exposure of over 26 square miles of
dry lake bed by the year 2018, and exposure of as much as 134
square miles over the next 20 to 25 years. The author of this
bill notes that exposure of the dry lake bed to the desert's
strong winds is expected to increase airborne dust particulates
of 10 microns or less (PM10) by up to 33% in the basin. The
Imperial and Coachella Valleys, which are home to over 400,000
people and already fail to meet state and federal ambient air
quality standards, could experience devastating impacts to
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public health, agricultural production, and the environment
unless adequate mitigation measures are taken to address the
problem.
The author of this bill also notes by analogy the air quality
impacts caused by the draining of Owens Lake east of the
Sierras, which resulted in the exposure of over 100 square miles
of dry lake bed, creating the single largest known source of
fugitive dust in the United States. To date the Los Angeles
Department of Water and Power (LADWP) has spent over $1.2
billion to mitigate the dust pollution. LADWP has also been
ordered to undertake additional air quality mitigation actions
that are currently being appealed in court. Whether dust
pollution impacts at the Salton Sea will be similar, greater or
less than those experienced at Owens Lake due to difference in
soil types and weather patterns is unknown at this time, but the
potential for significant dust pollution impacts at the Salton
Sea is well recognized.
As stated above, the State of California under the QSA-JPA
agreed to assume the costs of mitigating the effects of the QSA,
including air pollution impacts, beyond the first $133 million
(in 2003 dollars) paid for by the water agencies that are
parties to the agreement. (The amount being paid by the water
agencies is actually closer to $300 million with inflation.)
However, the Third District Court of Appeal has ruled that while
the state is contractually liable for the excess mitigation
costs, neither the parties to the QSA nor anyone else can compel
the Legislature to appropriate funds to pay for the mitigation.
In other words, the state's contractual obligation under the QSA
to pay for air quality mitigation may be unenforceable.
Whether or not the State can be held legally liable for
mitigation of air quality impacts resulting from the shrinking
of the Salton Sea, the fact remains that over 400,000 people
live in close proximity to the Salton Sea and could be exposed
to harmful dust pollution if effective actions are not taken to
mitigate the air quality impacts. Dust storms could also impact
a much larger area beyond those living in close proximity to the
Sea.
Testimony provided by air quality officials at an oversight
hearing of this committee on February 22, 2013 noted the South
Coast Air Basin, where the Salton Sea is located, is home to
about half the State's population and contains the largest air
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quality challenges in the nation. Both the South Coast Air
Quality Management District and the Imperial County Air
Pollution Control District testified that early mitigation
strategies must be identified and implemented at the Salton Sea
to avoid a situation similar to Owens Lake, and the serious
public health impacts that could result from fugitive dust
produced from exposed playa as the lake recedes. When asked
what the degree of certainty is that air quality impacts at the
Salton Sea will be similar to those at Owens Lake, the air
quality officials indicated that additional studies are needed
before conclusive findings can be made. According to the air
quality officials, the greatest risks to public health stem from
PM10 exposure, and to a lesser extent PM2.5. The dust may also
contain toxic components, both naturally occurring and from
agricultural pesticides. Hydrogen sulfide gases given off by
the Sea as a result of eutrophication, which produces the
characteristic rotten egg smell and was the source of the
basin-wide odor incident experienced last September throughout
Southern California, can also be toxic to human health at acute
levels, in addition to being a public nuisance.
Air quality officials testifying at the oversight hearing noted
that a strategic implementation plan for controlling the playa
dust will be necessary to achieve attainment of health-based
standards for PM10 fine dust particulates, as required by the
Clean Air Act. Once the QSA is fully implemented, it is
estimated that 66,000 acres (103 square miles) of playa will be
exposed, an area roughly the size of the entire City of Burbank.
Already the declining Sea has resulted in air quality impacts,
with air quality monitors showing state standards for PM10 were
exceeded on 232 days between June 2010 and July 2012. Air
quality officials also noted that if the State fails to achieve
the Clean Air Act standards, in addition to the public health
impacts and crop damage, the State could risk federal sanctions,
including potential loss of federal funding.
Double-Referral and Potential Amendments : This bill is
double-referred to the Assembly Natural Resource Committee which
will hear this bill next if it is approved by this committee.
The author notes that some work has already been done by the
parties to the QSA in designing dust mitigation and monitoring
plans for the Salton Sea. However, it is unclear whether the
mitigation steps that have been planned thus far will be
sufficient to fully mitigate the dust pollution and meet state
and federal air quality standards. To avoid duplication of
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effort, while also ensuring that appropriate actions are taken,
the author is working on proposed amendments to this bill that
would require the Air Resources Board or regional air quality
districts to certify whether the dust mitigation plans currently
proposed under the QSA are sufficient, instead of requiring the
Resources Agency to develop an entirely new plan. These
amendments may be considered in the Assembly Natural Resources
Committee which has primary subject matter jurisdiction over air
quality issues.
Support Arguments : Supporters urge that strategic mitigation
planning is important now to address potentially significant
increases in PM10 at the Salton Sea, and to avoid negative
public health consequences. ACWA supports the effort to reduce
the impacts of dust on air quality surrounding the Salton Sea,
but raised concerns about some of the uncodified findings in
this bill. The most recent author's amendments modified the
legislative findings and may have addressed these concerns.
REGISTERED SUPPORT / OPPOSITION :
Support
American Lung Association
Association of California Water Agencies (support if amended)
Coalition for Clean Air
The Coachella Valley Economic Partnership
Sierra Club California
Opposition
None on file.
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096