BILL ANALYSIS �
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2013-2014 Regular Session |
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BILL NO: SB 735 HEARING DATE: April 23, 2013
AUTHOR: Wolk URGENCY: No
VERSION: April 16, 2013 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Sacramento-San Joaquin Delta Reform Act of 2009:
covered actions
BACKGROUND AND EXISTING LAW
The Sacramento-San Joaquin Delta Reform Act of 2009 (Act), 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" (defined below) to be
consistent with the Delta Plan.
The current schedule for adoption of the Delta Plan and related
documents is as follows:
May 2013 - Council certifies the environmental documents,
adopts the Delta Plan, and adopts the implementing
regulations.
July or October 2013 - Office of Administrative Law approves
the regulations, which go into effect immediately.
The Act requires 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), which 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
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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, as amended, 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 Central Valley Project.
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.
Routine dredging activities of the ports of Stockton and West
Sacramento.
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).
The Act further provided that, under Water Code �85350, the
Council may incorporate other completed plans related to the
Delta into the Delta Plan, to the extent that the other plans
promote the coequal goals. Last year under these provisions,
the Council reviewed the Delta Protection Commission's (DPC)
Economic Sustainability Plan. The Council fully accepted into
the Delta Plan seventeen of the DPC's thirty-eight
recommendations in the while not accepting one recommendation
and partially accepting eight other recommendations.
Landscape level, multi-species Habitat Conservation Plans (HCPs)
and Natural Community Conservation Plans (NCCPs) are authorized
and permitted pursuant to the federal Endangered Species Act,
the California Endangered Species Act, and the state Natural
Community Conservation Planning Act. NCCPs and HCPs take a
broad-based ecosystem approach to planning for the protection
and perpetuation of biological diversity while allowing for the
incidental take of endangered species in the course of otherwise
legal activities, such as land development projects. A key
factor in attracting local agencies to the HCP/NCCP process is
the ability of the Department of Fish and Wildlife (DFW) and the
United States Fish and Wildlife Service (USFWS) to provide
regulatory assurances. In effect, permittees agree to measures
that provide a higher level of species conservation in exchange
for an assurance from the permitting agencies that, generally,
additional measures will not be imposed over the term of the
plan.
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PROPOSED LAW
This bill would further exempt the following from being a
"covered action:"
The approval of a conservation plan and implementing agreements
by a city, county, special district, or joint powers authority
consisting of cities or counties, or both, within the Counties
of Contra Costa, Sacramento, San Joaquin, Solano, or Yolo
pursuant to any of the following:
Section 1539 of the federal Endangered Species Act (16
U.S.C. Sec. 1531 et seq.).
The Natural Community Conservation Planning Act (Chapter 10
(commencing with Section 2800) of Division 3 of the Fish and
Game Code).
Section 2081 of the Fish and Game Code for a conservation
plan and implementing agreements that are also incorporated
in a conservation plan pursuant to Section 1539 of the
federal Endangered Species Act (16 U.S.C. Sec. 1531 et seq.).
The implementation of conservation measures included in a
conservation plan approved by a city, county, special district,
or joint powers authority consisting of cities or counties, or
both, within the Counties of Contra Costa, Sacramento, San
Joaquin, Solano, or Yolo pursuant to any of the following:
Section 1539 of the federal Endangered Species Act (16
U.S.C. Sec. 1531 et seq.).
The Natural Community Conservation Planning Act (Chapter 10
(commencing with Section 2800) of Division 3 of the Fish and
Game Code).
Section 2081 of the Fish and Game Code for a conservation
plan and implementing agreements that are also incorporated
in a conservation plan pursuant to Section 1539 of the
federal Endangered Species Act (16 U.S.C. Sec. 1531 et seq.).
ARGUMENTS IN SUPPORT
According to the author, "Under the five NCCPs and HCPs within
the Delta, habitat for 99 Delta species will be conserved in a
thoughtful and systematic way. These voluntary plans take many
years and require significant investment at the local level.
Without these plans, locals would pursue minimum project by
project mitigation that would need only to meet a standard of
avoiding jeopardy to those species that are listed under the
state and federal endangered species act."
"The state and federal governments have created incentives for
HCPs and NCCPs by offering local agencies greater certainty in
exchange for a commitment to implement a higher level of
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conservation. Even with this incentive, the process to complete
and NCCP and HCP is very expensive and very time consuming. It
is a very difficult process for local entities to navigate under
the current conditions."
"The new Delta Stewardship Council process greatly reduces
certainty for the local agencies attempting to complete and
implement these beneficial plans. Under the Delta Stewardship
process, the locals have no clear path for determining whether
their plans will be ultimately consistent with the Delta Plan.
New requirements to self-certify and protect against covered
actions challenges could create delays and cost overruns that
will be very difficult for local plans to endure. The current
process gives locals very little assurance that they will be
able to implement the very plans that have taken so long and
cost so much to complete. Therefore, the lack of clarity within
the Delta Stewardship Council process eliminates the primary
incentive for locals to develop and implement an HCP or NCCP."
ARGUMENTS IN OPPOSITION
A coalition of water and business interests assert "The Delta
Stewardship Council is expected to complete and adopt its Delta
Plan later this year. The "covered action" consistency process
will start at that time. SB 735 is premature as no actions have
been subject to the consistency determination process to date.
The author seeks exemptions that are extremely broad and would
undermine existing state policy designed to advance the co-equal
goals of water supply reliability and ecosystem restoration."
While the Delta Stewardship Council has not taken a formal
position on this bill, three of its members (Chair Phil
Isenberg, Vice Chair Randy Fiorini, and Senate appointee Patrick
Johnston) submitted a letter to convey "serious concerns" with
this bill. Among other things, they comment, "HCPs and NCCPs
are specifically designed to contribute to the achievement of
one of the coequal goals (ecosystem), but not both. Furthermore,
they are not necessarily designed to be coordinated with other
Delta-specific considerations such as:
Water supply reliability (the other coequal goal)
Flood risk reduction
Protection of agriculture
Economic sustainability of the broader Delta region
Absent coordination with the Council and the Delta Plan, major
habitat actions or large-scale easements within local
jurisdictions may conflict with planned setback levee projects
or a floodplain bypass expansion to meet the state's risk
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reduction goals or could prevent farming activities that can
strengthen the regional economy. The as-yet completed local HCPs
and NCCPs do not yet provide sufficient details for us to
understand the full range or location of projects that would be
exempted under SB 735."
COMMENTS
We should have known this was going to be a problem . When the
legislature was developing and debating the Delta Reform Act, it
was generally acknowledged that the legislature needed to do
something about the HCPs and joint HCP/HCCPs in and surrounding
the Delta. The solution was �85350 (discussed above) which, in
retrospect and as will be explained below, is proving to be
inadequate.
What are the problems that need to be solved? There are at
least three policy issues.
1.How to ensure that currently adopted HCPs and joint HCP/NCCPs
are consistent with the about to be adopted Delta Plan, and
vice versa.
2.How to ensure that the HCPs and joint HCP/NCCPs that are
currently being developed, including BDCP, are consistent with
the existing HCPs and joint HCP/NCCPs, the about to be adopted
Delta Plan, and each other.
3.How to ensure that all the current and future plans are
implemented in harmony with each other.
What are the challenges to solving these problems? There are
many, including:
Delta Reform Act - By design, the Act does not provide the
council with much discretion regarding other plans or actions
in the Delta. Actions are either covered actions, or they are
not. BDCP will either be accepted in whole into the Delta
Plan, or it is not. And so on.
While �85350 does provide a mechanism to incorporate other plans
into the Delta Plan, in the case of the DPC Economic
Sustainability Plan, the Council included some elements of the
Economic Sustainability Plan in whole, other elements partly,
and completely rejected another. This would not work for an
HCP or joint HCP/NCCP. The take authorized under these is
multi-species plans is contingent upon the permittee following
all element of the HCP or joint HCP/NCCP. If the Council were
to find that some aspect or element of an HCP or joint
HCP/NCCP could not be incorporated into the Delta Plan because
it was either in conflict with the Delta Plan or it did not
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promote the co-equal, the permittee would be in an awkward
position at best.
Jurisdiction - Only the state and federal wildlife agencies
can authorize changes to an adopted plan, and under current
law, only under very specific circumstances. For example, the
federal "no surprises" provisions assure non-federal
landowners that if "unforeseen circumstances" arise, the USFWS
will not require the commitment of additional land, water or
financial compensation or additional restrictions on the use
of land, water, or other natural resources beyond the level
otherwise agreed to in the HCP without the consent of the
permittee.
Sovereignty - Neither state agencies, such as the Council, nor
this legislature can compel federal agencies, such as USFWS,
to act in any way. Nonetheless, legislature has often
directed state agencies to encourage the participation of
various federal agencies to participate in various programs
and activities. In the case of efforts to resolve potential
or perceived conflicts among various efforts to restore the
ecosystem of the Delta, especially as they relate to federally
authorized HCPs, it seems likely that USFWS would seriously
consider such an invitation.
Trust - When it comes to the Delta counties, the old saying,
"just because I'm paranoid doesn't mean people aren't out to
get me" comes to mind. Generally, cities and counties are
responsible for land use planning, economic development, and
other such activities. Then the legislature came along and
said, "well, in this instance, pretty much every future land
use decision you traditionally have made in the Delta, now has
to be consistent with an as yet to be adopted Delta Plan, to
be developed by a bunch of political appointees. But don't
worry; collectively you-all get one seat on the Council." To
the Delta counties, actions since the passage of the Delta
Reform Act haven't eased their feelings of being dismissed or
ignored. So, it shouldn't be surprising that the Delta
counties are skeptical of various council members' commitments
to work cooperatively to solve whatever problems the counties
might have.
What needs to happen? While the legislature clearly played a
role in creating this situation, the affected parties are in the
best position to resolve it. The council, Delta counties, DFW,
and USFWS need to mutually agree on a clear process to resolve
all three problems discussed above. If state legislation is
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necessary to help implement this solution, the proposed changes
to law should be agreed to by all parties, and the council and
Delta counties should commit to supporting such legislation.
Finally, the terms of the solution should be memorialized in a
memorandum of understanding.
SUGGESTED AMENDMENT: Delete existing language and insert:
SECTION 1: Section 85351 of the Water Code in added to
read:
85351. (a) The council, Department of Fish and Wildlife,
the Counties of Contra Costa, Sacramento, and Solano, the Yolo
Habitat/Natural Community Conservation Plan Joint Powers Agency,
and the San Joaquin Council of Governments shall, by January 1,
2015, enter into a memorandum of understanding, or other written
agreement, as appropriate, that describes the following:
(1) How the parties would ensure that adopted multi-species
conservation plans are consistent with the Delta Plan, and the
Delta Plan is consistent with those multi-species conservation
plans.
(2) How the parties would ensure that multi-species
conservation plans under development are consistent with the
adopted multi-species conservation plans, the Delta Plan, and
each other.
(3) How to ensure that all the current multi-species
conservation plans, future multi-species conservation plans, and
Delta plan are implemented in accord with each other.
(b) The council shall invite and encourage the United
States Fish and Wildlife Service to participate in developing
and signing the agreement developed pursuant to this section, to
the extent authorized under federal law.
(c) For purposes of this section, "multi-species
conservation plan" means a multi-species conservation plan
adopted under either Section 1539 of the federal Endangered
Species Act (16 U.S.C. Sec. 1531 et seq.), the Natural Community
Conservation Planning Act (Chapter 10 (commencing with Section
2800) of Division 3 of the Fish and Game Code), or jointly under
both acts.
SUPPORT
Contra Costa County
San Joaquin County Council of Governments
Solano County Water Agency
Yolo County Habitat JPA
OPPOSITION
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Association of California Water Agencies
Burbank Water and Power
California Chamber of Commerce
Coachella Valley Water District
Eastern Municipal Water District
Glendale Water and Power
Kern County Water Agency
Las Virgenes Municipal Water District
Metropolitan Water District of Southern California
Mojave Water Agency
San Bernardino Valley Municipal Water District
Southern California Water Committee
Three Valleys Municipal Water District
Western Growers Association
Western Municipal Water District
Westlands Water District
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