BILL ANALYSIS Ó
AB 147
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Date of Hearing: April 29, 2013
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 147 (V. Manuel Pérez) - As Amended: April 22, 2013
SUBJECT : Environment: Salton Sea: dust mitigation
SUMMARY : Requires the Air Resources Board (ARB) to evaluate and
make recommendations regarding Salton Sea dust mitigation
planning completed by the Quantification Settlement Agreement
Joint Powers Authority (QSA-JPA) and authorizes use of the
Salton Sea Restoration Fund (Fund) for this purpose.
EXISTING LAW :
1)The federal Clean Air Act regulates fine particulates in dust
(PM10) 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)Establishes the Salton Sea Restoration Fund (Fund) for the
restoration of the Salton Sea.
4)Implements the QSA, which was entered into by various parties
in 2003 to budget their portions of California's apportionment
of Colorado River water and to provide a framework for
conservation measures and water transfers for a period of up
to 75 years, and provides for a framework to mitigate the
environmental impacts on the Salton Sea caused by the QSA
water transfer.
THIS BILL :
1)Makes extensive findings regarding the Salton Sea, the QSA and
the air pollution caused by the exposed dry lake bed, and
defines relevant terms for purposes of the bill.
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2)Specifically authorizes use of the Fund for air quality
evaluations conducted by ARB for purposes of providing the
QSA-JPA with guidance on how to appropriately mitigate the air
quality impacts resulting from the QSA.
3)Requires ARB, upon execution of an agreement with the QSA-JPA,
to evaluate and determine if the air quality planning
completed by the QSA-JPA is sufficient to mitigate the air
quality impacts of the QSA.
4)Requires ARB, in making this determination, to evaluate:
a) The quantified current and projected exposed sea lake
bed arising from the QSA.
b) The quantified current and projected exposed sea lake
bed arising from factors other than the QSA.
c) The profiled sea lake bed aerosols, given chemicals that
have historically drained into the sea from both
agricultural runoff and water coming from Mexico over the
New River, including Dichlorodiphenyltrichloroethane or
"DDT."
d) The prioritization of mitigation measures that can be
instituted to enable Imperial and Coachella Valleys to meet
National Ambient Air Quality Standards for particulate
matter, including the applicability of measures used to
mitigate ambient dust pollution at Owens Lake.
5)Requires ARB, if it concludes additional mitigation planning
is necessary, to submit recommendations to the QSA-JPA, in a
manner to minimize costs to the QSA-JPA including:
a) The appropriate agencies or departments with whom the
QSA-JPA may work, including the Imperial County and South
Coast air districts for purposes of accessing work the air
districts have already completed as part of their state
implementation plan planning activities.
b) The appropriate number, model, and placement of air
quality monitors in the Salton Sea basin to ensure aerosols
arising from the sea are properly monitored.
6)States that the bill does not modify existing roles,
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responsibilities or liabilities of the QSA's state and local
government parties.
7)Requires moneys in the Fund to be expended by ARB for purposes
of the bill, upon appropriation by the Legislature.
FISCAL EFFECT : Unknown
COMMENTS :
1)Background. The Salton Sea, located in the Imperial Valley
and Coachella Valley of southern California, is California's
largest lake, covering 365 square miles, and it serves as an
important stop on the annual Pacific Flyway migratory route,
supporting over 400 species of birds and representing over
two-thirds of all birds in the continental United States. In
2003, the Legislature enacted statutes (Chapters 611, 612 and
613 of the Statutes of 2003) to facilitate the execution and
implementation of the QSA and related agreements, including a
transfer of conserved water from the Imperial Irrigation
District (IID) to the San Diego County Water Authority
(SDCWA). As part of those statutes, the Legislature declared
its intent that the state undertake the restoration of the
Salton Sea ecosystem and the permanent protection of wildlife
dependent on the ecosystem. Implementation of the water
transfer will reduce agricultural drainage inflow to the
Salton Sea, reducing the sea's depth and result in the
exposure of currently submerged sea lakebed. The exposure of
previously submerged sea lakebed has the potential to
significantly increase fugitive dust emissions as winds blow
across fine-grained sediments and salts exposed by the dry
lake bed. At Owens Lake, a lake drained by the Los Angeles
Department of Water and Power, the cost of mitigation fugitive
dust emissions arising from the exposed lakebed has reached
$1.2 billion. As part of the QSA, the state entered into the
QSA-JPA for purposes of financing the mitigation of the
environmental impacts resulting from the QSA. The parties of
the QSA-JPA include the state, acting by and through DFW, the
Coachella Valley Water District (CVWD), IID and SDCWA.
2)The QSA-JPA agreement purports to impose a huge liability for
dust and other environmental mitigation costs on the state.
Under the terms of the QSA-JPA Agreement, CVWD, IID and SDCWA
are required to contribute a total of $133 million for
environmental mitigation resulting from the QSA water
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transfers, including air quality impacts. The state, acting
through DFW, agreed to cover the additional costs. The
agreement states:
The State is solely responsible for the payment of the
costs of and liability for Environmental Mitigation
Requirements in excess of the Environmental Mitigation Cost
Limitation. The amount of such costs and liabilities shall
be determined by the affirmative vote of three
Commissioners, including the Commissioner representing the
State, which determination shall be reasonably made. 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 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.
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
un-adjudicated 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.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
AB 147
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Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092