BILL ANALYSIS
AB 1594
Page 1
Date of Hearing: April 27, 2010
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared William Huffman, Chair
AB 1594 (Huber) - As Amended: April 15, 2010
SUBJECT : Sacramento-San Joaquin Delta: peripheral canal
SUMMARY : Prohibits the construction of a peripheral canal
unless certain requirements are met. Specifically, this bill :
1)Prohibits the construction of a peripheral canal without
express statutory authority.
2)Requires the Legislative Analyst's Office to complete an
economic feasibility analysis of the peripheral canal prior to
the enactment of an authorizing statute.
3)Prohibits the construction and operation of a peripheral canal
from diminishing or negatively affecting the water supplies,
water rights, or quality of water for water users within the
Delta watershed.
4)Prohibits the construction and operation of a peripheral canal
from imposing any new infrastructure or financial burdens on
persons residing in the Delta or Delta watershed.
EXISTING LAW :
1)Provides the State Water Resources Control Board (SWRCB)
authority to protect Delta municipal, industrial, agricultural
and fish and wildlife beneficial water uses through the
adoption and implementation of the Water Quality Control Plan
for the Sacramento-San Joaquin Delta Estuary (Delta WQCP).
2)Provides the SWRCB authority to condition and enforce water
rights permits.
3)Provides the Department of Water Resources 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.
4)Creates the Delta Stewardship Council (Council) that is tasked
with developing and implementing a Delta Plan which meets the
co-equal goals of a more reliable water supply for California
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and protecting, restoring and enhancing the Delta ecosystem.
The co-equal 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.
5)Requires the Delta Plan to promote options for new and
improved infrastructure relating to the water conveyance in
the Delta, and water storage systems, and for the operation of
both to achieve the co-equal goals.
6)Requires the Bay Delta Conservation Plan (BDCP) to analyze a
reasonable range of Delta conveyance alternatives including
through-Delta, dual conveyance, and isolated conveyance.
FISCAL EFFECT : Nonfiscal
COMMENTS : According to the Public Policy Institute of
California, various approaches to a new water conveyance in the
Delta have been proposed since the 1940's. As historian Norris
Hundley, Jr. writes in his book The Great Thirst, it was in 1965
that the Interagency Delta Committee first released a plan for a
43-mile-long, 400 foot wide, 30-foot deep unlined ditch in the
shape of the broad eastward-swinging curve that garnered it the
name "Peripheral Canal." At that time, many water leaders did
not believe that building such a canal would require a vote of
the people or legislative approval, but they acknowledged that,
at the very least, legislative action would likely be required
to secure funding.
Ten years later, interest in the peripheral canal was renewed
when California began to experience a severe drought. Thus
began the modern debate over whether a new conveyance facility,
extending from the Sacramento River in the northern Delta to the
pumping plants in the southern Delta, could improve export water
supplies while reducing the through-Delta impacts of the State
Water Project (SWP) and federal Central Valley Project (CVP)
pumps on fish and wildlife species. As a build-up to the
peripheral canal legislation, the legislature put a
constitutional amendment on the ballot to protect the Delta and
north-coast rivers. This amendment, which passed as Proposition
8 in the November 1980 election, was worded not to take effect
unless the canal also gained approval. And, although the
Peripheral Canal Bill passed in late January 1980, enough
signatures were gathered to qualify it for a referendum, or veto
by the people. On June 8, 1982, Proposition 9, the Peripheral
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Canal legislation, was repealed by a margin of three to two and,
by association, Proposition 8.
CALFED
When a six year drought slowed water deliveries between 1987 and
1992, and pushed winter-run Chinook salmon and Delta smelt to
the brink of extinction, attention was once again focused on the
Delta. In 1992, the Central Valley Project Improvement Act was
passed and four federal agencies, U.S. Environmental Protection
Agency, the Bureau of Reclamation, the U.S. Fish and Wildlife
Service and the National Marine Fisheries Service began a
collaboration on Delta issues known at the time as "Club Fed."
In 1994, two years after the end of the drought, Club Fed
partnered with California to further coordinate activities in
the Delta, culminating in an agreement known as the "Bay Delta
Accord." The Accord initiated a long-term planning process to
improve the Delta and increase the reliability of its water
supply which later became the CALFED Bay-Delta Program (CALFED).
As part of the planning process, CALFED began to once again
look at some type of peripheral conveyance in evaluating various
options to address export water supply reliability and ecosystem
restoration in the Delta. Sensitive to the earlier divisive
peripheral canal debate, CALFED called this new conveyance an
"isolated facility" and tried to distinguish it from the
peripheral canal by stating "there are significant differences
between the two projects." Principally, while the canal
proposed in 1982 was designed to transport 23,000 cubic feet per
second (cfs) of water as a way of expanding export water
supplies, the isolated facility was evaluated "in a size range
of 5,000 to 15,000 cfs as a comprehensive program designed to
solve multiple problems in the Bay-Delta." CALFED clearly
stated, it was "not considering an isolated facility as a means
of increasing water supply." Ultimately, however the CALFED
Program chose the existing through-Delta system as its preferred
alternative for continuing to convey water.
Delta Vision
Following a 2005 independent review critical of some aspects of
CALFED, Governor Arnold Schwarzenegger created a new effort, the
Delta Vision, by Executive Order on September 17, 2006. Delta
Vision built on work done through CALFED but aimed at broadening
the focus of past efforts within the Delta to recommend actions
to address the full array of natural resource, infrastructure,
land use and governance issues necessary to achieve a
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sustainable Delta. In their final report to the Governor, the
Delta Vision Blue Ribbon Task Force made twelve integrated and
linked recommendations. First, the Task Force concluded that
any Delta solution must embrace the co-equal goals of providing
a more reliable water supply for California while preserving,
enhancing and protecting the Delta ecosystem. The Task Force
also recognized that any solution must respect the unique
cultural, recreational, natural resource, and agricultural
values of the Delta as an evolving place. And while the Delta
Vision concluded that a new system of dual water conveyance
(i.e. continued through-Delta conveyance together with some type
of peripheral conveyance) may be needed to protect municipal,
agricultural, environmental, and other beneficial uses of water,
it qualified its conclusion by recognizing additional study was
required and placed all of its recommendations squarely within
the framework of reasonable use, public trust values and strong
governance with an emphasis on conservation, efficiency and
sustainable use.
BDCP
Meanwhile, on a parallel track to Delta Vision, principal
SWP/CVP contractors signed an agreement with state and federal
agencies dated July 28, 2006. This Memorandum obligated the
water contractors to voluntarily contribute funding to CALFED
but also launched a new effort: the Bay-Delta Conservation Plan
(BDCP). The BDCP was described as "a conservation plan for the
Delta and its upstream basins" with the express mission of
obtaining for SWP/CVP Delta operations "the permits necessary to
comply with the California Endangered Species Act and the
Federal Endangered Species Act." This made the BDCP distinct
from CALFED which provided a programmatic framework and no
endangered species act coverage.
After some initial coarse-level analysis, the BDCP Steering
Committee comprised of state and federal water contractors,
non-governmental entities, the Natural Resources Agency, the
Department of Water Resources (DWR), the Department of Fish and
Game, the Bureau of Reclamation, and, in an ex-officio capacity,
the U.S. Fish and Wildlife Service and the National Marine
Fisheries Service, agreed to pursue further study of a "dual
conveyance option." This dual conveyance, together with habitat
restoration and "other stressors" actions, forms the BDCP
foundation. And while DWR, as the principal permittee under the
BDCP, has sought to analyze a canal (or more recently a tunnel)
with a 15,000 cfs capacity, many of the Steering Committee
members, particularly environmental organizations, have made it
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clear that they are not yet endorsing any specific outcome
including any particular size of facility. They, and others
outside of the process, have challenged whether a 15,000 cfs
facility - basically the maximum pumping capacity of the state
and federal pumps in the south Delta combined - is economically
feasible or even desirable. A July 21, 2009 report by BDCP
Steering Committee member the Contra Costa Water District,
entitled "What the BDCP Studies Show and What the Delta Needs
Now ," concluded that because of the bypass flows needed in the
Sacramento River and other technical factors a 5,000 cfs
pipeline provides nearly the same export supply as a 15,000 cfs
canal costing $10 to 12 billion. In addition to the technical
questions surrounding a peripheral canal, BDCP has yet to
address the question of who would govern such a facility.
2009 Historic Delta Legislation
SB7X 1 (Simitian, c. 5, Statutes of the 7th Extraordinary
Session 2009-2010) implemented many of the Delta Vision
strategies by setting the co-equal goals in statute and creating
the Delta Stewardship Council (Council) as a governing body
mandated to adopt a Delta Plan. SB7X 1 also requires the SWRCB
to "develop new flow criteria for the Delta ecosystem necessary
to protect public trust resources" and imposes requirements on
the BDCP, including that it coordinate with the Council and
study a full range of alternatives, including alternatives to a
canal and various configurations such as a smaller canal or a
tunnel. Thereafter, the Council is tasked with evaluating
whether BDCP and BDCP actions are consistent with the Delta
Plan.
Unintended Consequences?
Delta communities and organizations who support this bill feel a
full fiscal analysis and vote of the Legislature is appropriate
where a "major infrastructure project with potentially
disastrous effects on water users and the environment in the
Delta" is concerned. They worry that the current process lacks
safeguards to protect Delta communities, California taxpayers,
and the environment. Delta interests state the BDCP process,
which is principally funded by south-of-Delta water contractors,
has excluded them from meaningful participation. Finally,
environmental organizations and others that support the bill
point out that the legislature should maintain oversight because
a peripheral canal or other conveyance "could further harm
endangered fish and water quality in the Delta."
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Opponents of this bill include central and southern California
water interests and chambers of commerce as well as building
industry representatives and agricultural organizations. They
state that this bill "represents a serious threat to the future
water reliability of Southern California and to the co-equal
goals of ecosystem restoration and reliable water supplies in
the Sacramento-San Joaquin Delta" by adding delay and "chances
of obstruction" to the process which will "threaten jobs and
economic health." They argue that SB7X 1 already contains
extensive safeguards and the BDCP "incorporates numerous layers
of economic impacts analysis and risk analysis." They state the
Council is responsible for ensuring the BDCP is consistent with
the Delta Plan "making more legislative involvement redundant."
In February 2008, following Governor Schwarzenegger's directive
to DWR to proceed with a National Environmental
Policy/California Environmental Quality Act analysis of new
Delta conveyance, including an "isolated facility," some
legislators questioned whether DWR had the authority to build a
peripheral canal without legislative approval. DWR and the
Governor's Office maintained that the original legislation
authorizing the SWP was broad enough to encompass any future
units that furthered the SWP's purposes. But others argued that
the original SWP legislation authorized something much different
than a modern peripheral canal and therefore additional
legislative approval would be needed before DWR could construct
such a facility.
Currently, it is unclear as to whether legislative action might
already be needed to approve new Delta conveyance. However, if
this bill moves to the Assembly floor and does not pass it could
backfire on its proponents by giving rise to an argument that,
by implication, the legislature was acknowledging a bill was
necessary in order to submit the peripheral canal to legislative
approval. While this is clearly not the author's intention and
the author has not conceded such a point, it may be a risk.
In addition, it is unclear if the bill's prohibitions act as an
outright bar to any new conveyance. The bill states that
"notwithstanding any other law" the construction of a peripheral
canal shall not "diminish or negatively affect" water supplies,
water rights, or quality of water for water users within the
Delta watershed. This threshold appears to be triggered by any
negative effect no matter how minimal. The SWRCB administers
and enforces California's water rights permit system. The SWRCB
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also sets water quality standards in the Delta WQCP (most
recently updated in 2006). This bill's prohibition appears to
eliminate SWRCB authority to determine if a "negative effect" is
permissible under existing law or even if there is a legitimate
water right at issue. This bill also prohibits the construction
and operation of a peripheral canal from imposing any new
infrastructure burdens or any financial burdens on anyone
residing in the Delta or Delta watershed. Arguably, any large
construction project in the Delta is likely to cause at least
some burden on, for example, roads or transportation levels of
service. In addition, it is unclear whether a prohibition on
"financial burdens" related to new conveyance or operations
would be limited to the conveyance itself or would also
foreclose any determination as to whether residents in any part
of the Delta watershed are beneficiaries who should help pay,
for example, for new Delta governance under the Delta
Stewardship Council created by SBX7 1. At the very least the
issues would be ripe for extensive litigation.
Finally, this bill does not define "peripheral canal."
Technically speaking, other entities existing conveyance
facilities could also be deemed peripheral canals and yet an
argument was not made that those facilities required legislative
approval. That makes it unclear whether the harm to be avoided
by bringing this facility back to the legislature is related to
its currently proposed capacity of 15,000 cfs, which entity
might operate it, or some other criteria.
REGISTERED SUPPORT / OPPOSITION :
Support
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Amador Co. Democratic Central Committee
California Delta Chambers
Campaign for Common Ground
Central Delta Water Agency
Delta Counties Coalition
East Bay Regional Park District
El Dorado Co. Dem. Central Committee
Friends of the River
Hispanics for Political Action
Lodi Chamber of Commerce
Reclamation District 999
Sacto Regional Co. Sanitation Dist. (if amended)
San Joaquin County Board of Supervisors
Sierra Club California
South Delta Water Agency
Stockton East Water District
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Opposition
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Alameda County Flood Control & Water
Conservation District, Zone 7
Alameda County Water District
Association of California Water Agencies
Bell Gardens Chamber of Commerce
BIOCOM
Burbank Chamber of Commerce
Burbank Water and Power
California Chamber of Commerce
California Special Districts Association
Calleguas Municipal Water District
Castaic Lake Water Agency
Cerritos Regional Chamber of Commerce
City of Glendale Water & Power
City of Huntington Beach
Coachella Valley Water District
Construction Ind. Coalition on Water Quality
Corona Chamber of Commerce
Cucamonga Valley Water District
Desert Water Agency
Downey Chamber of Commerce
East Valley Municipal Water District
Eastern Municipal Water District
El Monte/So. El Monte Chamber of Commerce
El Segundo Chamber of Commerce
Foothill Municipal Water District
Friant Water Authority
Fullerton Chamber of Commerce
Gateway Chambers Alliance
Glendale Water & Power
Harbor Association of Industry & Commerce
Helix Water District
Huntington Beach Chamber of Commerce
Inland Empire Utilities Agency
Irvine Chamber of Commerce
Irvine Ranch Water District
Irwindale Chamber of Commerce
Kern County Water Agency
La Verne Chamber of Commerce
Las Virgenes Municipal Water District
Long Beach Area Chamber of Commerce
Manhattan Beach Chamber of Commerce
Metropolitan Water District of So. Calif.
Mojave Water Agency
Municipal Water District of Orange County
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Orange County Business Council
Orange Co. Div/ of the League of Calif. Cities
Palos Verdes Peninsula Chamber of Commerce
Rancho California Water District
Redondo Beach Chamber of Commerce
and Visitors Bureau
Regional Chamber of Com. San Gabriel Valley
San Diego County Water Authority
San Gabriel Valley Economic Partnership
San Gabriel Valley Legis. Coalition of Chambers
Santa Clara Valley Water District
So. Bay Association of Chambers of Commerce
South Bay Cities Council of Governments
Southern California Water Committee
Southwest California Legislative Council
State Bldg. & Const. Trades Council, AFL-CIO
State Water Contractors, Inc.
The South Gate Chamber of Commerce
Three Valleys Municipal Water District
Torrance Area Chamber of Commerce
Tustin City Council
United Chambers of Commerce, San Fernando Valley and Region
Valley Ag Water Coalition
Walnut Valley Water District
West Basin Municipal Water District
Westlands Water District
Western Growers
Western Municipal Water District
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Analysis Prepared by : Tina Leahy / W., P. & W. / (916) 319-2096