AB 2583, as amended, Frazier. Sacramento-San Joaquin Delta Reform Act of 2009.
Existing law, the Sacramento-San Joaquin Delta Reform Act of 2009, establishes the Delta Stewardship Council and requires the council to develop, adopt, and commence implementation of a comprehensive management plan for the Delta, known as the Delta Plan.begin insert The Delta Plan is required to further the coequal goals of providing a more reliable water supply and protecting, restoring, and enhancing the Delta ecosystem. The act requires the council to consider the Bay Delta Conservation Plan (BDCP) for inclusion in the Delta Plan and requires the incorporation of the BDCP into the Delta Plan if the BDCP meets certain requirements.end insert
This bill would add a definition of the California Water Fix to the act.begin insert This bill would eliminate certain provisions applicable to the BDCP and would revise other provisions to instead refer to a new Delta water conveyance project for the purpose of exporting water. This bill would require new Delta water conveyance infrastructure to be considered as interdependent parts of a system and to be operated in a way that maximizes benefits for each of the coequal goals.end insert
The act requires a state or local public agency that proposes to undertake a covered action that will occur within the boundaries of the Delta or the Suisun Marsh to prepare, and submit to the council, a specified written certification of consistency with the Delta Plan prior to taking those actions. The act defines the term “covered action” to mean a plan, program, or project, as prescribed.
This bill would delete certain exclusions relating to thebegin delete Bay Delta Conservation Planend deletebegin insert
BDCPend insert
from the definition of a covered action.begin insert This bill would prohibit any certification of consistency for a new Delta water conveyance project unless specified requirements are met.end insert
The act requires the Department of Water Resources to coordinate with the Department of Fish and Wildlife, the State Water Resources Control Board, the California regional water quality control boards, and the State Lands Commission efforts to cooperate with the United States Bureau of Reclamation to construct and implement the Two-Gates Fish Protection Demonstration Project by December 1, 2010, to evaluate the effectiveness of the Three Mile Slough Barrier project, to expeditiously move ahead with certain near term actions, and to assist in implementing early action ecosystem restoration projects.
end deleteThis bill would eliminate these requirements.
end deleteUnder the act, until the State Water Resources Control Board issues an order approving a change in the point of diversion of the State Water Project and the federal Central Valley Project from the southern Delta to a certain point on the Sacramento River the Department of Water Resources is prohibited from commencing construction of any diversion, conveyance, or other facility necessary to divert and convey water pursuant to the change in point of diversion.
end insertbegin insertThis bill would apply the above prohibition to a new point of diversion as well as a change in the point of diversion. This bill would prohibit the board from granting final approval of the requested change in or new point of diversion until the board has completed its update of a specified water quality control plan.
end insertbegin insertThe act prohibits construction of a new Delta conveyance facility from being initiated until the persons or entities that contract to receive water from the State Water Project and the federal Central Valley Project or a joint powers authority representing those entities have made arrangements or entered into contracts to pay for certain costs required for the construction, operation, and maintenance of the facility and full mitigation of property tax or assessments levied for land use in the construction, location, mitigation, or operation of the facility.
end insertbegin insertThis bill would instead prohibit the construction until legally binding financial agreements or contracts are signed by each of the state and federal water contractors that will receive water supplies that commit them to pay for the costs required for the federal Central Valley Project, State Water Project, and any new Delta water conveyance facility, as specified, and full mitigation of property tax or assessments levied for land use in the construction, location, mitigation, operation, or maintenance of the facility.
end insertVote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 85053.5 is added to the Water Code, to
2read:
“California Water Fix” or “Water Fix” means a
4project, within the meaning of Section 21065 of the Public
5Resources Code and subdivision (a) of Section 85057.5, to
6construct new State Water Project conveyance facilities in the
7Delta.
Section 85057.5 of the Water Code is amended to read:
(a) “Covered action” means a plan, program, or
10project as defined pursuant to Section 21065 of the Public
11Resources Code that meets all of the following conditions:
12(1) Will occur, in whole or in part, within the boundaries of the
13Delta or Suisun Marsh.
14(2) Will be carried out, approved, or funded by the state or a
15local public agency.
16(3) Is covered by one or more provisions of the Delta Plan.
17(4) Will have a significant impact on achievement of one or
18both of the coequal goals or the implementation of
19government-sponsored
flood control programs to reduce risks to
20people, property, and state interests in the Delta.
21(b) “Covered action” does not include any of the following:
22(1) A regulatory action of a state agency.
23(2) Routine maintenance and operation of the State Water
24Project or the federal Central Valley Project.
P4 1(3) Regional transportation plans prepared pursuant to Section
265080 of the Government Code.
3(4) A plan, program, project, or activity within the secondary
4zone of the Delta that the applicable metropolitan planning
5organization pursuant to Section 65080 of the Government Code
6has determined is
consistent with either a sustainable communities
7strategy or an alternative planning strategy that the State Air
8Resources Board has determined would, if implemented, achieve
9the greenhouse gas emission reduction targets established by that
10board pursuant to subparagraph (A) of paragraph (2) of subdivision
11(b) of Section 65080 of the Government Code. For purposes of
12this paragraph, “consistent with” means consistent with the use
13designation, density, building intensity, transportation plan, and
14applicable policies specified for the area in the sustainable
15communities strategy or the alternative planning strategy, as
16applicable, and any infrastructure necessary to support the plan,
17program, project, or activity.
18(5) Routine maintenance and operation of a facility located, in
19whole or in part, in the Delta, that is owned or operated by a local
20public
agency.
21(6) A plan, program, project, or activity that occurs, in whole
22or in part, in the Delta, if both of the following conditions are met:
23(A) The plan, program, project, or activity is undertaken by a
24local public agency that is located, in whole or in part, in the Delta.
25(B) Either a notice of determination is filed, pursuant to Section
2621152 of the Public Resources Code, for the plan, program, project,
27or activity by, or the plan, program, project, or activity is fully
28permitted by, September 30, 2009.
29(7) A project within the secondary zone, as defined pursuant to
30Section 29731 of the Public Resources Code as of January 1, 2009,
31for which a notice of approval
or determination pursuant to Section
3221152 of the Public Resources Code has been filed before the date
33on which the Delta Plan becomes effective.
34(8) Leases approved by a special district if all of the following
35apply:
36(A) The uses proposed by the lease are authorized by the
37applicable general plan and zoning ordinances of the city where
38the special district is located.
39(B) The uses proposed by the lease are approved by the city
40where the special district is located and the city complies with
P5 1Chapter 3 (commencing with Section 85225) of Part 3, if
2applicable, prior to approval of the lease by the special district.
3(C) The special district complies with the
California
4Environmental Quality Act (Division 13 (commencing with Section
521000) of the Public Resources Code) prior to approving the lease.
6(9) (A) Routine dredging activities that are necessary for
7maintenance of facilities operated by a special district.
8(B) For purposes of this paragraph, “routine dredging activities”
9are limited to the following:
10(i) Dredging to maintain the Stockton Deep Water Ship Channel
11at a depth of 40 feet in the sediment trap at the confluence of the
12San Joaquin River, between river mile 39.3 to river mile 40.2, and
13to maintain the remaining Stockton Deep Water Ship Channel at
14a depth of 35 feet plus two feet of overdredge from river mile 35
15to river mile 43.
16(ii) Dredging designed to maintain the Sacramento Deep Water
17Ship Channel at a depth of 30 feet plus two feet of overdredge
18from river mile 0.0 to river mile 30, and at a depth of 35 feet from
19river mile 35 to river mile 43.
20(C) Except as provided by this subdivision, it is the intent of
21the Legislature that this exemption shall not be interpreted or
22treated as changing or modifying current substantive and procedural
23regulations applicable to the decision to approve dredging
24operations.
25(c) For purposes of this section, “special district” means the
26Port of Stockton or the Port of West Sacramento.
27(d) This section shall not be interpreted to authorize the
28abrogation
of a vested right whether created by statute or by
29common law.
Section 85085 of the Water Code is repealed.
end deletebegin insertSection 85086 of the end insertbegin insertWater Codeend insertbegin insert is amended to read:end insert
(a) The board shall establish an effective system of
33Delta watershed diversion data collection and public reporting by
34December 31, 2010.
35(b) It is the intent of the Legislature to establish an accelerated
36process to determine instream flow needs of the Delta for the
37purposes of facilitating the planning decisions that are required to
38achieve the objectives of the Delta Plan.
39(c) (1) For the purpose of informing planning decisions for the
40Delta Plan and the Bay Delta Conservation Plan, the board shall,
P6 1pursuant to its public trust obligations, develop new flow criteria
2for the Delta ecosystem necessary to protect public trust resources.
3In carrying out this section, the board
shall review existing water
4quality objectives and use the best available scientific information.
5The flow criteria for the Delta ecosystem shall include the volume,
6quality, and timing of water necessary for the Delta ecosystem
7under different conditions. The flow criteria shall be developed in
8a public process by the board within nine months of the enactment
9of this division. The public process shall be in the form of an
10informational proceeding conducted pursuant to Article 3
11(commencing with Section 649) of Chapter 1.5 of Division 3 of
12Title 23 of the California Code of Regulations, and shall provide
13an opportunity for all interested persons to participate. The flow
14criteria shall not be considered predecisional with regard to any
15subsequent board consideration of a permit, including any permit
16in connection with abegin delete final BDCP.end deletebegin insert new Delta
water conveyance
17project for the purpose of exporting water.end insert
18(2) Any order approving a change in the point of diversion of
19the State Water Project or the federal Central Valley Project from
20the southern Delta to a point on the Sacramento River shall include
21appropriate Delta flow criteria and shall be informed by the analysis
22conducted pursuant to this section. The flow criteria shall be subject
23to modification over time based on a science-based adaptive
24management program that integrates scientific and monitoring
25results, including the contribution of habitat and other conservation
26measures, into ongoing Delta water management.
27(3) Nothing in this section amends or otherwise affects the
28application of the board’s authority under Part 2 (commencing
29with Section 1200) of Division 2 to include terms and conditions
30in permits that in its judgment will best
develop, conserve, and
31utilize in the public interest the water sought to be appropriated.
32(d) The board shall enter into an agreement with the State Water
33Project contractors and the federal Central Valley Project
34contractors, who rely on water exported from the Sacramento River
35watershed, or a joint powers authority comprised of those
36contractors, for reimbursement of the costs of the analysis
37conducted pursuant to this section.
38(e) The board shall submit its flow criteria determinations
39pursuant to this section to the council for its information within
4030 days of completing the determinations.
begin insertSection 85088 of the end insertbegin insertWater Codeend insertbegin insert is amended to read:end insert
Until the board issues an order approving a change in
3begin delete theend deletebegin insert or a newend insert point of diversion of the State Water Project and the
4federal Central Valley Project from the southern Delta to a point
5on the Sacramento River as specified in subdivision (c) of Section
685086, the department shall not commence construction of any
7diversion, conveyance, or other facility necessary to divert and
8convey water pursuant to the change inbegin insert or newend insert point of diversion.
9begin insert In order to ensure protection
of fish and wildlife and in-Delta
10beneficial uses of the Bay-Delta estuary’s waters, final approval
11by the board of a change or new point of diversion described in
12this section shall not be granted until the board has completed its
13update of the 2006 water quality control plan for the Bay-Delta
14estuary that was initiated with a notice of preparation in 2009.end insert
begin insertSection 85089 of the end insertbegin insertWater Codeend insertbegin insert is amended to read:end insert
Construction of a new Delta conveyance facility shall
17not be initiated until the persons or entities that contract to receive
18water from the State Water Project and the federal Central Valley
19Project or a joint powers authority representing those entities have
20begin delete made arrangements orend delete entered intobegin insert legally binding financial
21agreements orend insert contractsbegin insert signed by each of the state and federal
22water contractors that will receive water supplies that commit
23themend insert to pay forbegin insert all costs,
including reimbursement to the state for
24any General Fund or water bond funding used to date, that are
25associated withend insert both of the following:
26(a) The costs of the environmental review, planning, design,
27construction, and mitigation, including mitigation required pursuant
28to Division 13 (commencing with Sectionbegin delete 21000end deletebegin insert 21000)end insert of the
29Public Resourcesbegin delete Code),end deletebegin insert Code,end insert required for the construction,
30operation, and maintenance ofbegin insert the federal Central Valley Project,
31the
State Water Project, andend insert any new Delta water conveyance
32facility.
33(b) Full mitigation of property tax or assessments levied by local
34governments or special districts for land used in the construction,
35location, mitigation,begin insert maintenance,end insert or operation ofbegin insert aend insert new Delta
36conveyancebegin delete facilities.end deletebegin insert facility.end insert
begin insertThe heading of Chapter 2 (commencing with Section
3885320) of Part 4 of Division 35 of the end insertbegin insertWater Codeend insertbegin insert is amended to
39read:end insert
begin insertSection 85320 of the end insertbegin insertWater Codeend insertbegin insert is amended to read:end insert
(a) The Bay Delta Conservation Plan (BDCP) shall be
6considered for inclusion in the Delta Plan in accordance with this
7chapter.
8(b) The BDCP shall not be incorporated into the Delta Plan and
9the public benefits associated with the BDCP shall not be eligible
10for state funding, unless the BDCP does all of the following:
11(1) Complies with
Chapter 10 (commencing with Section 2800)
12of Division 3 of the Fish and Game Code.
(a) New Delta water conveyance infrastructure shall
14be considered as interdependent parts of a system and operated
15in a way that maximizes benefits for each of the coequal goals. A
16certification of consistency pursuant to Section 85225 shall not
17be made for a new Delta water conveyance project for the purpose
18of exporting water unless all of the following requirements are
19met:
20(1) The costs of the design, construction, and operation of the
21water conveyance project and
the associated mitigation and
22maintenance costs are not eligible for state funding. This includes
23implementation of existing habitat restoration requirements of the
24Department of Fish and Wildlife Longfin Smelt Incidental Take
25Permit for the State Water Project Delta operations and the United
26States Fish and Wildlife Service and National Oceanic and
27Atmospheric Administration National Marine Fisheries Service
28biological opinion for the current coordinated operations of the
29State Water Project and federal Central Valley Project. These
30costs shall be the responsibility of the water agencies that benefit
31from the conveyance project.
32(2) The restrictions on the use of state bond funding for the
33acquisition of water pursuant to Section 79709 are met.
34(3) A legally binding finance agreement is signed by all
35beneficiary state and federal water contractors committing them
36to pay all water conveyance project construction, mitigation,
37operation, maintenance, monitoring, and adaptive management
38costs, including reimbursement of local agency property taxes and
39assessments pursuant to subdivision (b) of Section 85089.
P9 1(4) An enforceable mitigation implementation plan and
2monitoring and an enforceable monitoring and adaptive
3management plan are completed and contain mechanisms, such
4as establishing an endowment fund, to ensure adequate and
5ongoing funding necessary to mitigate the impacts to communities
6and agricultural production in the project area and to carry out
7the plans that are finalized and approved by the Department of
8Fish and Wildlife. The Delta Independent Science Board shall
9perform
oversight regarding implementation of these plans for the
10purposes of ensuring that implementation of all mitigation
11measures required pursuant to Division 13 (commencing with
12Section 21000) of the Public Resources Code is roughly
13proportional in time and extent to the impact on all resources
14analyzed in the environmental impact report and to assess the
15effectiveness and adequacy of mitigation performance, funding,
16and habitat protection measures. The Delta Independent Science
17Board shall annually submit its findings and recommendations to
18the department, the council, and the Department of Fish and
19Wildlife.
20(5) The council determines that the proposed changes in Delta
21water conveyance are consistent with Section 85021 because each
22region that will import water from the Delta using the new Delta
23water conveyance demonstrates that it has improved its regional
24self-reliance for water by 50 percent over average regional water
25supply levels during
the period of 2010 to 2015, inclusive, due to
26reduced import demand from the Delta through investment in water
27use efficiency, water recycling, advanced water technologies, local
28and regional water supply projects, and improved regional
29coordination of local and regional water supply efforts to the
30maximum extent possible.
31(6) Water exported from the Delta will match more closely the
32surplus water supplies available to be exported based on water
33year type, compliance with water quality objectives of the water
34quality control plan for the Bay-Delta estuary, the coequal goals,
35and the Delta water supply protections of Chapter 1 (commencing
36with Section 12220) of Part 4.5 of Division 6.
37(7) Conveyance infrastructure and operations enhance Delta
38inflows and outflows by reducing diversions in dry periods
39consistent with the beneficial use needs of the Delta ecosystem
P10 1and water users and provide net benefits to the
ecosystem beyond
2protecting the ecosystem from further degradation.
3(8) The water conveyance project complies with real-time
4operational requirements in accordance with Section 85321.
5(2) Complies with
end delete
6begin insert(9)end insertbegin insert end insertbegin insertThe requirements ofend insert Division 13 (commencing with Section
721000) of the Public Resourcesbegin delete Code,end deletebegin insert Code
are met,end insert including a
8comprehensive review and analysis of all of the following:
9(A) A reasonable range of flow criteria, rates of diversion,begin delete and
and
10other operational criteria required to satisfy the criteria for approval
11of a natural community conservation plan as provided in
12subdivision (a) of Section 2820 of the Fish and Game Code,end delete
13other operational requirements and flows necessary for recovering
14the Delta ecosystem and restoringbegin delete fisheriesend deletebegin insert
fisheries, in compliance
15with all of the following,end insert under a reasonable range of hydrologic
16conditions, which will identify the remaining water available for
17export and other beneficialbegin delete uses.end deletebegin insert uses:end insert
18(i) Section 85031.
end insertbegin insert
19(ii) The federal Central Valley Project Improvement Act (Public
20Law 102-575).
21(iii) The federal Water Supply, Reliability, and Environmental
22Improvement Act (Public Law 108-361).
23(iv) The Department of Fish and Wildlife Longfin Smelt
24Incidental Take Permit for State Water Project Delta operations.
25(v) The United States Fish and Wildlife
Service and National
26Oceanic and Atmospheric Administration National Marine
27Fisheries Service biological opinion for the current coordinated
28operations of the State Water Project and federal Central Valley
29Project.
30(B) A reasonable range of Delta conveyance alternatives,
31including through-Delta, dual conveyance, and isolated conveyance
32alternatives and including further capacity and design options of
33a lined canal, an unlined canal, and pipelines.
34(C) The potential effects of climate change, possible sea level
35rise up to 55 inches, and possible changes in total precipitation
36and runoff patterns on the conveyance alternatives and habitat
37restoration activities considered in the environmental impact report.
38(D) The potential effects on migratory fish and aquatic resources.
39(E) The potential effects on Sacramento River and San Joaquin
40River flood management.
P11 1(F) The resilience and recovery of Delta conveyance alternatives
2in the event of catastrophic loss caused by earthquake or flood or
3other natural disaster.
4(G) The potential effects of each Delta conveyance alternative
5on Delta water quality.
6(c)
end delete
7begin insert(b)end insert The department shall consult with the council and the Delta
8Independent Science Board during the development ofbegin delete the BDCP.end delete
9begin insert
projects to construct new Delta water conveyance facilities for the
10purpose of exporting water.end insert The council shall be a responsible
11agency in the development of the environmental impact report.
12The Delta Independent Science Board shall review the draft
13environmental impact report and submit its comments to the
14begin delete councilend deletebegin insert department, the council,end insert and the Department of Fish and
15begin delete Game.end deletebegin insert Wildlife.end insert
16(d) If the Department of Fish and Game approves the BDCP as
17a natural community conservation plan pursuant to Chapter 10
18(commencing with Section 2800) of Division 3 of the Fish and
19Game Code, the council shall have at least one public hearing
20concerning the incorporation of the BDCP into the Delta Plan.
21(e) If the Department of Fish and Game approves the BDCP as
22a natural community conservation plan pursuant to Chapter 10
23(commencing with Section 2800) of Division 3 of the Fish and
24Game Code and determines that the BDCP meets the requirements
25of this section, and the BDCP has been approved as a habitat
26conservation plan pursuant to the federal Endangered Species Act
27(16 U.S.C. Section 1531 et seq.), the council shall incorporate the
28BDCP into the Delta Plan. The Department of Fish and Game’s
29determination that the BDCP has met the requirements of this
30section may be appealed to the council.
31(f)
end delete
32begin insert(c)end insert The department, in coordination with the Department of Fish
33andbegin delete Game,end deletebegin insert Wildlife,end insert or any successor agenciesbegin insert or joint powers
34authorityend insert charged withbegin delete BDCP implementation,end deletebegin insert implementation of
35a new Delta water conveyance project,end insert shall report to the council
36on thebegin delete implementation of the BDCPend deletebegin insert
implementation, funding, and
37scheduleend insert at least once a year, including the statusbegin insert and effectivenessend insert
38 ofbegin insert mitigation measures,end insert monitoringbegin delete programsend deletebegin insert programs,end insert and
39adaptive management.
40(g)
end delete
P12 1begin insert(d)end insert The council may make recommendationsbegin delete to BDCPend deletebegin insert
for the
2purpose of the Delta Habitat Conservation and Conveyance
3Program and to the department, other Delta water conveyanceend insert
4 implementingbegin delete agenciesend deletebegin insert agencies, and joint power authoritiesend insert
5 regarding the implementation ofbegin delete the BDCP. BDCP implementingend delete
6begin insert
a new Delta water conveyance project. Implementingend insert agencies
7shall consult with the council on these recommendations. These
8recommendations shall not change the terms and conditions of the
9permits issued by state and federal regulatory agencies.
begin insertSection 85321 of the end insertbegin insertWater Codeend insertbegin insert is amended to read:end insert
begin deleteThe BDCP end deletebegin insertA new Delta water conveyance project for
12the purpose of exporting water end insertshall include a transparent,begin delete real-timeend delete
13begin insert real-time, annual, and long-termend insert operational decisionmaking
14process in which fishery agencies ensure that applicable biological
15performance measures are achieved in a timely manner with respect
16to water system operations.
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