BILL ANALYSIS Ó
AB 2583
Page 1
Date of Hearing: April 19, 2016
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 2583
(Frazier) - As Amended March 17, 2016
SUBJECT: Sacramento-San Joaquin Delta Reform Act of 2009
SUMMARY: Places new requirements on the approval, financing,
and operation of any new conveyance facility in the
Sacramento-San Joaquin Delta (Delta). Specifically, this bill:
1)Strikes reference in law to the Bay Delta Conversation Plan
(BDCP) and replaces with new Delta water conveyance.
2)Defines California WaterFix as a covered action project in the
Delta and eliminates specific activities currently excluded
from a covered action.
3)Creates new requirements on the permit approval and financial
commitments associated with new Delta conveyance.
4)Creates new requirements for consistency with the Delta Plan.
AB 2583
Page 2
EXISTING LAW:
1)Provides the State Water Resources Control Board (State Water
Board) authority to protect Delta municipal, industrial,
agricultural and fish and wildlife beneficial water uses
through the adoption and implementation of a Water Quality
Control Plan (WQCP) for the Delta.
2)Provides the Department of Water Resources (DWR) authority to
construct and operate the State Water Project (SWP) and to
construct, maintain, and operate additional SWP units that
further the purposes of the SWP.
3)Prohibits the DWR from constructing any diversion, conveyance,
or other facility to divert from the Sacramento River to the
south Delta until the State Water Board issues an order
approving the change. Requires the State Water Board to
include appropriate Delta flow criteria in any order approving
a change in diversion.
4)Prohibits construction of any new Delta conveyance facility
until the SWP and the federal Central Valley Project (CVP)
contractors enter into a contract to pay for environmental and
community impacts associated with construction, operation, and
maintenance of the facility.
5)Establishes coequal goals in the Delta of a more reliable
water supply for California and protecting, restoring and
enhancing the Delta ecosystem while mandating that the coequal
goals are to be achieved in a manner that protects and
enhances the unique cultural, recreational, natural resource,
and agricultural values of the Delta as an evolving place.
6)Creates the Delta Stewardship Council (Council) which, among
other tasks, must develop and implement the Delta Plan a
long-term management plan that meets the coequal goals.
AB 2583
Page 3
7)Requires that the Delta Plan promote options for new and
improved infrastructure relating to Delta water conveyance,
storage systems, and operations to achieve the coequal goals.
Requires the Delta Plan promote statewide water conservation,
water use efficiency, and sustainable use of water.
8)States the intent that any covered action in the Delta be
consistent with the Delta Plan.
9)Permits inclusion of the BDCP into the Delta Plan only if it
complies with a Natural Community Conservation Plan (NCCP),
the California Environmental Quality Act (CEQA), and that the
CEQA analysis specifically looks at flow related operational
requirements and a reasonable range of Delta conveyance
alternatives.
FISCAL EFFECT: unknown
COMMENTS:
1)Author's Statement: Fiscal accountability and protection of
Delta water supplies and natural resources must be the
foundation of any proposal by the State to expand its water
conveyance facilities in the Delta. In response to the recent
decision by the Administration to abandon the BDCP as
originally proposed when the Legislature adopted the Delta
Reform Act in 2009, the bill will provide new legislative
guidance to ensure fiscal accountability and project
management performance standards for any new SWP/CVP
conveyance project proposed in the Delta. This bill protects
California taxpayers by requiring legally binding fiscal
assurances and proposes to prevent any change in diversion
from unreasonably harming water users in the Delta or public
trust resources, including fish and wildlife.
AB 2583
Page 4
2)Background: There is broad agreement that the state's water
management system is currently unable to satisfactorily meet
both ecological and human needs. Under current water use,
demands surpass supply; especially, in times of drought. The
State has taken action through the Water Action Plan to lay
out a path to sustainable water management. This and other
documents, necessarily put all options on the table to improve
the water management system. Those options include but are
not limited to conservation, efficiency, stormwater capture,
groundwater replenishment, recycled water, and desalination.
Due to limited resources it is important that the state invest
first in actions of the highest value to create the greatest
improvements in water reliability for human and natural
requirements.
The Delta is crucial and is in decline: The Sacramento-San
Joaquin Delta (Delta) is both the hub of the California Water
System and the most valuable estuary and wetland ecosystem on
the west coast of the Americas. The Delta provides water to
more than 25 million Californians and 3 million acres of
agricultural land. It supports a four hundred billion dollar
a year economy, is part of the Pacific Flyway, is critical
habitat to 700 native plant and animal species, and is home to
more than 500,000 people.
California is an arid state with limited precipitation. The
mountains in the northern part of the state serve as the
state's water catcher and largest natural surface reservoir.
These mountains receive the bulk of their precipitation as
snow in the winter. The majority of human needs in the state
are hundreds of miles from the primary water source. This
hurdle of time and place of use led to major reengineering of
the hydrology of the state. Beginning in 1933 and largely
culminating in 1968 a major redirecting of water from the
mountains to the cities and valleys through the construction
of the CVP and the SWP made the Delta the hub of water in
California.
AB 2583
Page 5
The Delta watershed and California's water infrastructure are
in crisis and existing pressures on the Delta are not
sustainable. Among other human impacts the CVP and the SWP
operations have altered the natural amount, duration,
direction and timing of water flows. As a result, today there
are about 100 Delta wildlife species, 140 plant species and 13
species of fish that have some form of legal or regulatory
protection. There have been numerous species-related
restrictions on the management of water exports from the Delta
since 1991, with restrictions being in place continuously
since 2008.
Simply receiving more precipitation does not appear to be
sufficient to resolve the challenges for species and
deliveries in the Delta as a significant part of the problem
stems from the fact that the infrastructure associated with
deliveries itself is environmentally damaging. 2016, an
average precipitation year, is an example of what the future
of this environmental and infrastructure challenge would
appear to hold. CVP Sacramento Valley interests are projected
to receive 100% of their deliveries while many CVP San Joaquin
Valley interests are projected to receive 5% of deliveries. It
seems that further restrictions on deliveries from the Delta
and continued ecological decline are a certainty under the
status quo.
The expectation behind proposed changes in conveyance in the
Delta has always been that it will improve the reliability of
water deliveries out of the Delta. A concern that has always
gone along with that expectation is what the environmental
impacts of that reliability will be, and what the impacts
would be on the people who live in the Delta.
Long Look at Conveyance and Delta Management: Since prior to
AB 2583
Page 6
the completion of both the CVP and the SWP there has been an
ongoing debate about how to manage the Delta. Management and
conveyance in the Delta have been and continue to be closely
linked together. Because management and conveyance have been
the responsibility of federal, state, and local governments,
plans have not always been coordinated and have occurred in
overlapping ways. Much of the debate on coordination,
conveyance, and management was settled in legislation that was
passed in 2009. While the legislation contemplated Delta
management under the scenario where BDCP did not move forward,
the legislation specifically built BDCP into Delta management.
Delta Legislation 2009
In 2009, when California faced a third consecutive dry year,
former Governor Schwarzenegger called an Extraordinary Session
of the Legislature to address water issues. That Extraordinary
Session produced several pieces of legislation including SB 1
(Simitian, Chapter 5, Statutes of the 7th Extraordinary
Session 2009-2010). Among numerous changes, this legislation
tied Delta conveyance, governance, and funding together. SB 1
x7 clarified that any new conveyance facility could not be
constructed without approval from the State Water Board. It
required the State Water Board to develop new flow criteria
for the Delta and include that flow criteria in any approval
for new conveyance.
SB 1 x7 set environmental bars for BDCP beyond those required
under CEQA with specific analysis required for numerous
conveyance alternatives, and included a reasonable range of
flow criteria, rates of diversion, and other operational
criteria. Importantly, SB 1 x7 required BDCP to be approved
as a federal Habitat Conservation Plan (HCP) and a state
Natural Community Conservation Plan (NCCP) in order to be
eligible for public funding.
AB 2583
Page 7
Additionally, SB 1 x7 established the Delta Stewardship
Council (Council) as a governance body for the Delta. Part of
the Council's responsibility is to develop a Delta Plan and
make determinations of consistency for construction in the
Delta with the Delta Plan. Any new conveyance facility would
fall under an action that would be evaluated by the Council
for consistency with the Delta Plan.
Among other things, the Delta Plan is required to:
Further the restoration of the Delta through
advancing the coequal goals of providing water
reliability and enhancing the Delta ecosystem in a manner
that protects the unique culture of the Delta.
Promote statewide water conservation, water use
efficiency, and sustainable use of water.
Promote options for conveyance, storage, and
operation that achieve the coequal goals.
Be based on the best available science and promote a
healthy Delta ecosystem.
WaterFix 2015-Present
In 2015 federal agencies determined that BDCP likely would not
meet the requirements of an HCP and that the Delta conveyance
associated with BDCP would not receive long-term permits for
operation. This effectively led to the end of the BDCP and
resulted in the Department splitting BDCP into WaterFix, the
Delta conveyance piece of BDCP, and EcoRestore the ecological
restoration piece of BDCP.
AB 2583
Page 8
Recent estimates put the cost of WaterFix at $17 billion and
EcoRestore at $8 billion. Under existing law, the CVP and the
SWP contractors will have to pay the cost of WaterFix. The
funding for EcoRestore is less clear and while the CVP and the
SWP contractors will have to pay the mitigation costs
associated with any new conveyance it is not clear if that
mitigation will cover all costs associated with EcoRestore.
Much of SB 1 x7 still applies to how conveyance and governance
continue to be carried out in the Delta. Importantly, the
approval process for conveyance at the State Water Board and
the Council remains in place.
Status Quo vs Certain Improvement
Part of the consideration that went into passage of SB 1 x7
was the reality that the Delta watershed and California's
water infrastructure are in a crisis and existing Delta
policies are not sustainable. As a result, the legislation
considered the scenario where BDCP did not move forward. That
scenario placed even greater importance on the Delta Plan, and
specifically, the adaptive management strategy adopted in the
Delta Plan. The adaptive management strategy currently
adopted is one that provides for making management decisions
using the best available science to build better approaches
that move decisions beyond repeated delay in action until more
information is available. The purpose of the adaptive
management strategy is to increase the likelihood of success
in managing natural resources where there is considerable
uncertainty.
There is no silver bullet for solving the crisis in the Delta.
At this point, the best available science only tells us the
AB 2583
Page 9
status quo is a sure fire path to failure. In short, the best
available science says we must do something if we are to meet
the coequal goals, but it doesn't tell us what that something
is.
SB 1 x7 envisioned new Delta conveyance being directly tied to
environmental standards. Specifically, SB 1 x7 stated the
intent that Delta conveyance be part of the Delta plan and
conditioned the inclusion of BDCP in the Delta plan to BDCP
becoming compliant with an HCP/NCCP, and further required
specific analysis on flow that would meet an NCCP in the CEQA
analysis, among other things.
Now that BDCP is no longer under consideration, an important
question centers on the ability of the Delta Plan and its
adaptive management strategy to reduce uncertainty; will the
adaptive management strategy provide for a meaningful process
to improve Delta management in meeting the coequal goals over
time?
The Council has recently begun the process of updating the
Delta Plan, has submitted a Budget Change Proposal in the
budget process to pay for that update, and has established new
principles for conveyance, water storage, and operations.
Where Do We Go Post BDCP?
The straight forward issue this bill raises is now that BDCP
is a thing of the past, should the process approved in 2009 be
improved to provide greater evaluation, financial assurances
and environmental protection?
This bill lays out three broad ways in which it would adjust
AB 2583
Page 10
SB 1 x7:
Provide financial certainty that every impact
associated with a new Delta conveyance will be paid for.
Provide for additional evaluation necessary to meet
approval of new Delta conveyance from the State Water
Board.
Provide additional requirements necessary to meet
approval of new Delta conveyance from the Council.
This bill sets a high bar in all three of those areas.
The financial requirements are expansive, including all costs
to date, associated with the SWP and the CVP. It is
questionable if the state has the ability to impose these
costs on federal CVP contractors. It may be unconstitutional
to require funding used for fish and wildlife enhancement
associated with the SWP to be restricted or repaid. The
language would require each state and federal water contractor
to sign a legally binding financial agreement. This would
essentially give any water contractor veto power over new
Delta conveyance.
Potential Considerations
The committee may wish to clarify the following that the
financial agreements will apply only to contractors who enter
into a financial agreement; that for the project to move
forward there is sufficient funding to meet the expected costs
AB 2583
Page 11
of construction; that in addition to identified mitigation
there is a funding mechanism put in place to finance the
adaptive management plan long-term; and that the CVP
contractors will be requested, not required, to pay costs;
that fish and wildlife enhancement associated with the SWP
will continue to have elements of state funding, or provisions
in existing law requiring that state funding be changed.
One of the requirements of BDCP was that a reasonable range of
flows would be evaluated to meet the needs to recover fish and
that only water beyond those requirements would be available
for export. Existing law requires the State Water Board to
uphold the public trust. It also requires the State Water
Board to approve any new conveyance. This bill would require
the update of the Bay-Delta water quality control plan be
completed before the State Water Board could approve any new
conveyance. The water quality control plan is a four phase
plan that was initiated in 2009 and has yet to complete phase
1.
The committee may wish to reinstate the requirement that fish
flow requirements be met. The committee may further wish to
require that fish flow requirements be built into the Delta
plan, or explicitly into the adaptive management plan.
The bill imposes numerous new requirements on any new
conveyance to meet a certification of consistency with the
Delta Plan. In total these requirements would establish a bar
that would be essentially unattainable for new conveyance to
meet a certification of consistency. Moreover, certification
of consistency is a point in time event. Some of the
requirements in this bill are ongoing, inherently raising the
question if there is an ability to meet these requirements to
gain a certification of consistency.
AB 2583
Page 12
The committee may wish to establish requirements to be
included in the Delta Plan that address the fact that BDCP
will no longer be included in the Delta Plan. That may
include some of the requirements currently proposed in this
bill for a certification of consistency.
Approval of new Conveyance
A ballot initiative in this November's election would require
the state to seek voters' permission before funding projects
of $2 billion or more with revenue bonds. The administration
had been and may still propose such bonds for new Delta
conveyance.
Any large scale conveyance project that moves water from the
Sacramento River to the South Delta CVP and the SWP pumping
plants would have to comply with CEQA and all of the
associated requirements for approval of the project.
In addition, exclusive to the BDCP process, at least part of
the ability to gain approval for a Delta conveyance facility
was clearly laid out through SB 1 x7 and that process must be
adhered to today. Among other things that process required
the Council to make a certification of consistency with the
Delta plan. It is not clear whether the Council will find new
Delta conveyance to be consistent with the Delta Plan, but it
seems likely that process would inform any CEQA challenge.
1)Prior and Related Legislation:
AB 1713 (Eggman) of 2016, requires an initiative vote to
authorize construction of any Delta conveyance. AB 1713 is
pending in this committee.
AB 2583
Page 13
AB 550 (Huber) of 2011, would have prohibited construction of
a peripheral canal unless there was expressed legislative
approval. The bill failed passage out of this Committee.
AB 1594 (Huber) of 2010, would have prohibited construction of
a peripheral canal unless there was expressed legislative
approval. The bill was held in this Committee.
SB 1 x 7 (Simitian) Chapter 5, Statues of the 7th
Extraordinary Session of 2009-2010, established the
Sacramento-San Joaquin Delta Reform Act requiring Delta
management to meet the coequal goals.
2)Supporting Arguments: AB 2583 will ensure that appropriate
fiscal and environmental safeguards are applied to any new
Delta conveyance. New Delta conveyance is not automatically
incorporated in the Delta Plan as was the case with the BDCP.
Specific criteria to guide approval and implementation of any
new Delta water conveyance infrastructure that exports water
out of the Delta is necessary. Greater environmental
safeguards are necessary beyond those established in 2009 in
order to ensure the protection of fish and wildlife and
in-Delta beneficial uses. Requiring a completed update of the
2006 water quality control plan for the Bay-Delta estuary is
crucial in protecting the Delta's environment.
3)Opposing Arguments: This bill would create onerous new
requirments that would delay or even stop the construction of
the California WaterFix. These provisions would cause years
of delays and greatly reduce the reliability of water supplies
for 2/3 of the state. This bill attempts to significantly
change the rules for operation, funding, management, and
construction of the project. These new rules will undo the
collaborative, exhaustive process that has brought us to this
point. Arriving at a Delta solution is a complex process.
State and federal agencies have been working in collaboration
AB 2583
Page 14
with stakeholders and the science community for years to weigh
alternatives in order to develop the best plan possible to
ensure that the coequal goals are met.
REGISTERED SUPPORT / OPPOSITION:
Support
Bay Institute, The
California Central Valley Flood Control Association
California Delta and Chambers Visitors Bureau
Central Delta Water Agency
City of Rio Vista
Contra Costa County Farm Bureau
County of Sacramento
Delta Caucus
Delta Counties Coalition
AB 2583
Page 15
Greater Stockton Chamber of Commerce
Local Agencies of the North Delta
North Delta Cares Action Committee
Planning and Conservation League
Restore the Delta
Sacramento County Farm Bureau
San Joaquin County
San Joaquin County Farm Bureau
Sierra Club California
Solano County Board of Supervisors
Solano County Farm Bureau
South Delta Water Agency
Yolo County Farm Bureau
AB 2583
Page 16
Opposition
Alameda County Zone 7 Water Agency
American Council of Engineering Companies
Associated General Contractors of California
Association of California Cities, Orange County
Association of California Water Agencies
California Alliance for Jobs
California Asian Pacific Chamber of Commerce
California business Properties Association
California Chamber of Commerce
California Contract Cities Association
California Professional Firefighters
California Small Business Association
AB 2583
Page 17
California State Association of Electrical Workers
California State Building & Construction Trades Council
Calleguas Municipal Water District
Camarillo Chamber of Commerce
Central City Association of Los Angeles
Chambers of Commerce Alliance of Ventura and Santa Barbara
Counties
Coachella Valley Water District
Cucamonga Valley Water District
Eastern Municipal Water District
El Toro Water District
Elsinore Valley Municipal Water District
Engineering Contractor's Association
Foothill Municipal Water District
Gateway Chambers Alliance
Great Bakersfield Chamber of Commerce
Greater Conejo Valley Chamber of Commerce
Greater Fresno Area Chamber of Commerce
AB 2583
Page 18
Greater Los Angeles African American Chamber of Commerce
Greater Riverside Chambers of Commerce
Huntington Beach Chamber of Commerce
Imperial County Building & Construction Trades Council
Inland Action
Inland Empire African American Chamber of Commerce
Inland Empire Economic Partnership
Insulators & Allied Workers Local Union 5
International Association of Heat and Frost Insulators and
Allied Workers Local Union 16
International Brotherhood of Boilermakers Local Union 549
International Brotherhood of Electrical Workers Local Union 6
International Brotherhood of Electrical Workers Local Union 11
International Brotherhood of Electrical Workers Local Union 45
International Brotherhood of Electrical Workers Local Union 234
AB 2583
Page 19
International Brotherhood of Electrical Workers Local Union 332
International Brotherhood of Electrical Workers Local Union 428
International Brotherhood of Electrical Workers Local Union 441
International Brotherhood of Electrical Workers Local Union 477
International Brotherhood of Electrical Workers Local Union 551
International Brotherhood of Electrical Workers Local Union 684
International Union of Painters & Allied Trades, District
Council 36
Ironworkers Local Union 433
Kern County Taxpayer Association
Kern County Water Agency
Kern, Inyo and Mono Counties Building and Construction Trades
Council
Las Virgenes Municipal Water District
Los Angeles Area Chamber of Commerce
Los Angeles County Business Federation
AB 2583
Page 20
Los Angeles/Orange County Building & Construction Trades Council
Marin County Building & Construction Trades Council
Mesa Water District
Metropolitan Water District of Southern California
Mojave Water Agency
Monterey/Santa Cruz Building & Construction Trades Council
Moreno Valley Chamber of Commerce
Municipal Water District of Orange County
Natural Heritage Institute
North Orange County Chamber of Commerce
Northeastern Counties Building & Construction Trades Council
Oxnard Chamber of Commerce
Piping Industry Progress and Education (P.I.P.E)
Pistachio Producers of California
Port Hueneme Chamber of Commerce
Redondo Beach Chamber of Commerce
AB 2583
Page 21
San Bernardino Valley Municipal Water District
San Diego County Building & Construction Trades Council
San Francisco Chamber of Commerce
San Francisco Peninsula Fire Safe Council
San Gabriel Valley Economic Partnership
San Gorgonio Pass Water Agency
San Jose Silicon Valley Chamber of Commerce
San Jose/Silicon Valley NAACP
San Mateo County Building & Construction Trades Council
Santa Clara/San Benito County Building & Construction Trades
Council
Santa Margarita Water District
Sheet Metal, Air, Rail & Transportation Workers 105
Sonoma, Mendocino and Lake Counties Building & Construction
Trades Councils
South Bay Association of Chambers of Commerce
AB 2583
Page 22
South Bay Labor Council
Southern California Water Committee
Southwest California Legislative Council
Southwest Riverside County Association of Realtors
Stanislaus, Merced, Tuolumne and Mariposa Counties Building &
Construction Trades Council
Three Valleys Municipal Water District
Torrance Area Chamber of Commerce
Tulare Kings Hispanic Chamber of Commerce
United Association of Plumbers and Steamfitters Local Union 484
United Chambers of Commerce San Fernando Valley & Region
Valley Ag Coalition
Valley Industry & Commerce Association
Ventura County Taxpayers Association
Western Growers Association
Western Municipal Water District
Yorba Linda Water District
AB 2583
Page 23
Analysis Prepared by:Ryan Ojakian / W., P., & W. / (916)
319-2096