BILL NUMBER: SB 12 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 5, 2009
AMENDED IN SENATE FEBRUARY 26, 2009
INTRODUCED BY Senator Simitian
DECEMBER 1, 2008
An act to amend Section 29735 of, and to add Section 29740.1 to,
the Public Resources Code, and to add Division 26.8 (commencing with
Section 79850) to the Water Code, relating to the Sacramento-San
Joaquin Delta.
LEGISLATIVE COUNSEL'S DIGEST
SB 12, as amended, Simitian. Sacramento-San Joaquin River Delta,
Clean Drinking Water, Water Supply Security, and Environmental
Improvement Act of 2009.
(1) Existing law requires various state agencies to administer
programs relating to water supply, water quality, and flood
management in the Sacramento-San Joaquin Delta. The
Johnston-Baker-Andal-Boatwright Delta Protection Act of 1992 creates
the Delta Protection Commission and requires the commission to
prepare and adopt a comprehensive long-term resource management plan
for specified lands within the Sacramento-San Joaquin Delta.
This bill would enact the Sacramento-San Joaquin River Delta,
Clean Drinking Water, Water Supply Security, and Environmental
Improvement Act of 2009. The bill would establish the Delta Ecosystem
and Water Council. The council would be required to prepare and
adopt a plan referred to as the California Delta Ecosystem and Water
Plan (plan) to advance the coequal goals of restoring the Delta
ecosystem and creating a more reliable water supply in California.
The council would be required to establish a goal for the adoption of
the plan by December 1, 2010. If the plan is not completed by that
date, the council would be required to adopt an interim strategic
plan. The plan would be required to include specified components,
including species protection requirements, Delta water flow and water
quality requirements, and information relating to land use in the
Delta.
The council would have the exclusive authority to determine the
consistency of any project proposed or approved by a state agency or
local government with the plan, and would be required to assume
responsibility for any conservation or habitat management plan
developed for the Delta, ensure that federal and state actions are
consistent with the plan, receive and allocate funds to advance
policies and programs related to the Delta, establish policies and
procedures that ensure that the operations of water export systems
are consistent with the plan, and take other action on behalf of the
Delta. By authorizing the council to impose requirements on projects
undertaken by local governments, the bill would impose a
state-mandated local program.
The bill would authorize the council to impose a per-acre-foot fee
on water diversions within the Delta watershed and a fee on any
water conveyed through or around the Delta. The moneys generated by
the imposition of the fee would be required to be deposited in the
Delta Ecosystem and Water Fund, which would be established in the
State Treasury. The moneys in the fund, upon appropriation by the
Legislature to the council, would be required to be expended by the
council for the exclusive purpose of carrying out the bill's
provisions.
The bill would establish the California Delta Conservancy to
implement the ecosystem restoration elements of the plan. The bill
would establish the Delta Science and Engineering Board to carry out
a Delta science and engineering program under the direction of the
council.
The bill would revise the membership of the Delta Protection
Commission to include one of the members of the Central Valley Flood
Protection Board, or that member's sole designee. The bill would
require the commission to extend invitations to specified federal
agencies to participate in the activities of the commission in a
nonvoting capacity. The bill would require the commission to revise
its resource management plan to be consistent with the plan required
to be adopted by the council. The bill would require Delta
counties, as defined, and the cities within those counties, to revise
their general plans and submit the revised plans to the commission
each Delta county, as defined, and each city within a
Delta county, to submit to the commission for review proposed
amendments to make its general plan consistent with the commission's
revised resource management plan . By imposing
requirements on those counties and cities with regard to the
preparation of their general plans, the bill would impose a
state-mandated local program. The bill would establish a permit
process for projects, as defined, requiring the commission to review
and determine whether any project proposed to be carried out or
approved by a local government within the primary zone is consistent
with both the commission's revised resource management plan and the
plan, and requiring the commission, until a Delta county or a city
within a Delta county in which a project is located has adopted
general plan amendments to make the general plan consistent with the
commission's revised resource management plan, to review
and determine whether any project proposed to be carried out or
approved by a local government within the secondary zone is
consistent with both the commission's revised resource management
plan and the plan. The bill would make any person who undertakes a
development project within the commission's jurisdiction without
securing a permit from the commission guilty of a misdemeanor,
thereby imposing a state-mandated local program by creating a new
crime. The commission council
would be required authorized to review
and certify the general plans of those counties
and cities , and to review development projects in the
primary and secondary zones for consistency with
its resource management plan and the plan adopted by the
council.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 29735 of the Public Resources Code is amended
to read:
29735. There is hereby created the Delta Protection Commission
consisting of 24 members as follows:
(a) One member of the board of supervisors, or his or her
designee, of each of the five counties within the Delta whose
supervisorial district is within the primary zone shall be appointed
by the board of supervisors of the county.
(b) (1) Three elected city council members shall be selected and
appointed by city selection committees, from regional and area
councils of government, one in each of the following areas:
(A) One from the north Delta, consisting of the Counties of Yolo
and Sacramento.
(B) One from the south Delta, consisting of the County of San
Joaquin.
(C) One from the west Delta, consisting of the Counties of Contra
Costa and Solano.
(2) A city council member may select a designee for purposes of
paragraph (1).
(c) (1) One member each from the board of directors of five
different reclamation districts that are located within the primary
zone who are residents of the Delta, and who are elected by the
trustees of reclamations districts within the following areas:
(A) Two members from the area of the North Delta Water Agency as
described in Section 9.1 of the North Delta Water Agency Act (Chapter
283 of the Statutes of 1973), provided at least one member is also a
member of the Delta Citizens Municipal Advisory Council.
(B) One member from the west Delta consisting of the area of
Contra Costa County within the Delta.
(C) One member from the area of the Central Delta Water Agency as
described in Section 9.1 of the Central Delta Water Agency Act
(Chapter 1133 of the Statutes of 1973).
(D) One member from the area of the South Delta Water Agency as
described in Section 9.1 of the South Delta Water Agency Act (Chapter
1089 of the Statutes of 1973).
(2) Each reclamation district may nominate one director to be a
member. The member from an area shall be selected from among the
nominees by a majority vote of the reclamation districts in that
area. The member may select a designee for this purpose. For purposes
of this section, each reclamation district shall have one vote. The
north Delta area shall conduct separate votes to select each of its
two members.
(d) The Director of Parks and Recreation, or the director's sole
designee.
(e) The Director of Fish and Game, or the director's sole
designee.
(f) The Secretary of Food and Agriculture, or the secretary's sole
designee.
(g) The executive officer of the State Lands Commission, or the
executive officer's sole designee.
(h) The Director of Boating and Waterways, or the director's sole
designee.
(i) The Director of Water Resources, or the director's sole
designee.
(j) The public member of the California Bay-Delta Authority who
represents the Delta region or his or her designee.
(k) (1) The Governor shall appoint three members and three
alternates from the general public who are Delta residents or Delta
landowners of the Delta, as follows:
(A) One member and one alternate shall represent the interests of
production agriculture with a background in promoting the
agricultural viability of Delta farming.
(B) One member and one alternate shall represent the interests of
conservation of wildlife and habitat resources of the Delta region
and ecosystem fo of the Delta.
(C) One member and one alternate shall represent the interests of
outdoor recreational opportunities, including, but not limited to,
hunting and fishing.
(2) An alternate may serve in the absence of a member.
(l) A member of the Central Valley Flood Protection Board, as
designated by the board or that member's sole designee.
SEC. 2. Section 29740.1 is added to the Public Resources Code, to
read:
29740.1. The commission shall invite the United States Army Corps
of Engineers, United States Fish and Wildlife Service, United States
Bureau of Reclamation, and other appropriate federal agencies to
participate in the activities of the commission in a nonvoting
capacity to better assess and coordinate flood protection, water
supply, and ecosystem protection issues.
SEC. 3. Division 26.8 (commencing with Section 79850) is added to
the Water Code, to read:
DIVISION 26.8. SACRAMENTO-SAN JOAQUIN RIVER DELTA, CLEAN
DRINKING WATER, WATER SUPPLY SECURITY, AND ENVIRONMENTAL IMPROVEMENT
ACT OF 2009
CHAPTER 1. GENERAL PROVISIONS
79850. This division shall be known and may be cited as the
Sacramento-San Joaquin River Delta, Clean Drinking Water, Water
Supply Security, and Environmental Improvement Act of 2009.
79851. The Legislature finds and declares all of the following:
(a) The Sacramento-San Joaquin River Delta is a web of channels,
natural habitat, and reclaimed islands at the confluence of the
Sacramento and San Joaquin Rivers. It forms the eastern portion of
the wider San Francisco Bay Estuary, which also includes the San
Francisco, San Pablo, and Suisun Bays. The Delta collects water from
California's largest watershed, which encompasses roughly 45 percent
of the state's surface area and stretches from the eastern slopes of
the coastal ranges to the western slopes of the Sierra Nevada and
Cascade mountain ranges.
(b) The Delta supports a unique and irreplaceable combination of
environmental and economic values, including all of the following:
(1) The San Francisco Bay/Sacramento-San Joaquin Delta Estuary is
a unique ecosystem. The Delta and the adjacent Suisun Marsh, an
integral part of the Delta ecosystem, provide habitat for 700
species, including 12 species listed under either the federal or
state endangered species laws. Eighty percent of the state's
commercial fishery species live in or migrate through the Delta. It
is a major stopping point for hundreds of thousands of migrating
birds along the Pacific Flyway. The Suisun Marsh alone contains more
than 10 percent of California's remaining wetlands.
(2) Two-thirds of the state's residents rely on the Delta for part
or all of their drinking water. One-sixth of all irrigated lands in
the nation are located in this watershed and water exported from the
Delta irrigates 45 percent of the fruits and vegetables produced in
the United States. California's water supply is limited and demand
will grow as the state's population increases. Despite polices to
encourage more efficient water use, residential use measured in
gallons per capita per day remains unchanged since the 1970s and
agriculture uses the same volumes of water as in the 1970s though
irrigated lands have shifted to orchards, vineyards, and other
permanent crops.
(3) Delta lands have contributed significantly to the agricultural
economy in California. Supporting a population of about 470,000, the
cities, towns, and settlements within the Delta are of significant
historical, cultural, and economic value.
(4) Three state highways, three rail lines, and two deepwater
channels cross the Delta and the Delta serves two inland ports. Most
of these transportation corridors serve other areas of the state.
(5) Hundreds of gas lines, five high voltage lines, and critical
water supply aqueducts that serve public health and safety needs
cross the Delta, including multiple Delta islands. The Delta is also
home to numerous underground natural gas storage sites.
(6) The Delta's 635 miles of boating waterways are served by 138
marinas containing 11,700 in water boat slips and dry storage for
5,500 boats. In 2000, there were an estimated 6.4 million
boating-related visitor days, with 2.13 million boating trips. Other
major recreational activities in the Delta include fishing,
waterfowl, and upland game bird hunting, wildlife viewing, bird
watching, and windsurfing.
(7) The Delta is the natural outlet for a 42,500 square mile
watershed that includes the central valley and the western slope of
the Sierra Nevada from Fresno to north of Mount Shasta. As such, it
is the main conduit for flood waters to flow out to the ocean. The
Delta itself is protected by extensive, but fragile, flood management
facilities, including about 1,100 miles of levees in the Delta and
about 230 miles of levees in the Suisun Marsh. These levees protect
about 65 islands and tracts in the Delta. Most of these
levee-protected lands are below sea level; some areas are as much as
25 feet below sea level.
(c) The Delta cannot sustain important environmental and economic
values under current conditions. All of these values either are
already in significant decline or are at risk of sudden failure.
Several factors are intensifying the problems, including all of the
following:
(1) Land subsidence, sea level rise, and changes in climate make
Delta levees increasingly vulnerable to failure from earthquakes,
floods, and other causes. Over the next 50 years, there is a
two-thirds chance of a catastrophic levee failure in the Delta,
leading to flooding of multiple islands and the intrusion of
seawater. The Department of Water Resources estimates that a large
earthquake near the Delta would cause major interruptions in water
supplies for southern California, the San Joaquin Valley, and the San
Francisco Bay area, as well as disruptions of power, road, and
shipping lines, costing the state's economy as much as $40 billion.
These failures also would create major environmental disruptions and
local flooding risks.
(2) Endangered species and fisheries have continued to decline in
the Delta and disruptive nonnative species continue to invade. In the
fall of 2004, routine fish surveys registered sharp declines in the
numbers of several open-water (pelagic) species, including the Delta
smelt, already listed as threatened under the federal and state
endangered species laws. Subsequent surveys have confirmed the trend,
raising concerns that the Delta smelt, which are sometimes seen as
an indicator of ecosystem health in the Delta, risks extinction if a
solution is not found quickly. In the winter of 2008, salmon
populations reliant on the Delta declined precipitously, contributing
to closure of the salmon fishery that year.
(3) Delta water quality remains at risk from salts entering from
the ocean and the central valley's agricultural drainage, as well as
from pesticides and metals coming from agricultural and urban lands.
Chronic toxicants continue to be a problem, and episodic toxic events
from urban and agricultural applications are also a major problem.
(4) Organic soils in the Delta contribute precursors for
trihalomethanes, a known carcinogen. Removing trihalomethanes from
drinking water is very costly.
(5) Regional population and economic growth have increased
pressure to urbanize Delta lands near major transportation routes and
urban centers. This "hardening" of Delta lands simultaneously raises
the costs of flood management and reduces the flexibility of land
management options. Unlike most other activities in the Delta,
urbanization is generally irreversible. Additionally, urbanization is
self-accelerating. Urbanization in one location significantly
increases the value of adjacent lands. This, coupled with declining
profit margins for farming, will increase the pressure to convert
farmlands to subdivisions. This shift will come at the expense of
habitat protection and other services, such as water quality and
water supply.
(d) It is necessary to implement the recommendations of the Delta
Vision Blue Ribbon Task Force to develop a durable vision for
sustainable management of the Delta with the goal of managing the
Delta over the long term to restore and maintain identified functions
and values that are determined to be important to the environmental
quality of the Delta and the economic and social well-being of the
people of the state.
(e) To achieve long-term environmental sustainability and protect
California's economy, it is necessary to codify the coequal goals of
restoring the Delta ecosystem and creating a more reliable water
supply for California. To achieve the desired coequal goals, strong
participation of local, state, and federal agencies is necessary to
better integrate their responsibilities and capacities into an
effective Delta plan.
(f) The State of California must recognize and enhance the unique
cultural, recreational, and agricultural values of the California
Delta as an evolving place, an action critical to achieving the
coequal goals.
(g) The ecosystem of the Delta must be restored as the heart of a
healthy estuary.
(h) Any effort to balance the coequal goals will require a
sustained effort promoting statewide water conservation, efficiency,
and sustainable use of California's natural resources.
(i) It shall be the policy of the State of California to build
facilities to improve the existing water conveyance system and expand
statewide storage, and operate both to achieve the coequal goals.
(j) It shall be the policy of the State of California to reduce
risks to people, property, and state interests in the Delta by means
of effective emergency preparedness, appropriate land uses, and
strategic levee investments.
(k) To achieve the coequal goals the State of California must
establish a new governance structure with the authority,
responsibility, accountability, science support, and secure funding
to achieve these goals.
(l) Land use decisions in the Delta should be based on public
safety.
(m) Despite the enactment of the Johnston-Baker-Andal-Boatwright
Delta Protection Act of 1992, development has continued to expand in
the Delta, potentially threatening state interests and heightening
safety risks in the region. Substantial population increases in the
region are projected for the coming decades, increasing urbanization
pressures in both the secondary zone and the primary zone. In
addition to increasing flood risks, urban development outside of the
primary zone can also foreclose critical future ecosystem
revitalization and climate change adaptation opportunities, as well
as limit improvements to the existing water export system. Active
floodplains are critical ecosystem revitalization sites, and should
not be cut off by levees protecting new development. Lands just above
current tidal elevation are crucial sites to accommodate long-range
sea level rise, and should be conserved for that reason.
79852. By enacting this division, it is the intent of the
Legislature to facilitate the implementation of a program for the
sustainable management of the Delta ecosystem and to establish a
governance structure that will coordinate efforts across state
agencies to develop a legally enforceable California Delta Ecosystem
and Water Plan.
79853. Unless the context requires otherwise, the definitions set
forth in this section govern the construction of this division:
(a) "Acquisition" means the acquisition of a fee interest or any
other interest, including easements, leases, and development rights.
(b) "Adaptive management" means a method of constructing and
operating physical facilities in a manner that maximizes operational
flexibility in response to changing physical and biological
conditions.
(c) "Bay-Delta" means the San Francisco Bay/Sacramento-San Joaquin
Delta.
(d) "Bay Delta Conservation Plan" means any natural communities
conservation plan or habitat conservation plan being developed by the
Natural Resources Agency through a consortium of public agencies and
nonprofit organizations to protect and restore endangered and
threatened species and their habitat in the Delta.
(e) "Board," or "board of directors," or "board members" means the
board of directors of the council.
(f) "CALFED" means the consortium of state and federal agencies
with management and regulatory responsibilities in the Bay-Delta.
(g) "CALFED Bay-Delta Program" means the undertaking by CALFED to
develop and implement, by means of the final programmatic
environmental impact statement/environmental impact report, the
preferred programs, actions, projects, and related activities that
will provide solutions to identified problem areas related to the
Bay-Delta ecosystem, including, but not limited to, the Bay-Delta and
its tributary watersheds.
(h) "California Delta Conservancy" or "conservancy" means the
conservancy established pursuant to Section 79890.
(i) "California Environmental Quality Act" means the California
Environmental Quality Act as set forth in Division 13 (commencing
with Section 21000) of the Public Resources Code.
(j) "Delta" means the area of the Sacramento-San Joaquin Delta
that is defined in Section 12220, and includes the Yolo Bypass and
the Suisun Marsh.
(k) "Delta counties" mean the Counties of Contra Costa, Solano,
Yolo, Sacramento, and San Joaquin.
(l) "Delta Ecosystem and Water Council" or "council" means the
council established by Section 79860.
(m) "Delta Ecosystem and Water Plan" or "plan" means a plan
developed pursuant to this division by the council.
(n) "Delta Protection Commission" or "commission" means the
commission established pursuant to Section 29735 of the Public
Resources Code.
(o) "Delta watershed" means ____.
(p) "Department" means the Department of Water Resources.
(q) "Fund" means the Delta Ecosystem and Water Fund established by
Section 79885.
(r) "Nonprofit organization" means any nonprofit corporation
formed pursuant to the Nonprofit Public Benefit Corporation Law (Part
2 (commencing with Section 5110) of Division 2 of Title 1 of the
Corporations Code) and qualified under Section 501(c)(3) of the
United States Internal Revenue Code.
(s) "Public water agency" means a public entity, as defined in
Section 514, that provides water service, as defined in Section 515.
CHAPTER 2. DELTA ECOSYSTEM RESTORATION AND WATER SUPPLY
RELIABILITY
79855. The Legislature finds and declares all of the following:
(a) The coequal goals of restoring the Delta ecosystem and
creating a more reliable water supply in California are the
foundation of water and ecosystem policymaking.
(b) All state agencies with significant responsibilities relating
to the Delta should implement their statutory duties in a manner that
advances these coequal goals.
(c) All water project operational agreements, contracts for water
use, water right permits, and financial agreements that impact the
Delta should reflect and promote these coequal goals.
CHAPTER 3. STATEWIDE WATER CONSERVATION, EFFICIENCY, AND
SUSTAINABLE USE
79858. The Legislature finds and declares that the following
policies should be incorporated into state planning, programmatic,
and regulatory actions:
(a) The reduction of urban, residential, industrial, and
agricultural water demand through improved water use efficiency and
conservation, starting by achieving a statewide 20 percent per capita
reduction in water use by 2020.
(b) The improvement of statewide water use efficiency and
conservation by use of tiered pricing, incentives and grants, basin
water planning for both surface and groundwater, educational
programs, and a water "loading order" that gives first priority to
conservation and efficiency improvements.
(c) The reduction of urban per capita water use over the long-term
by requiring water agencies to reduce water use per capita at least
sufficiently to offset population growth and to require communities
to include all available water use efficiencies in land use plans and
actions.
(d) (1) The establishment of a statewide agricultural water
conservation target by 2010 of at least an estimated 800,000
acre-feet of agricultural water conservation.
(2) Requiring the submission of water management plans to the
department, on and after 2011 and every five years thereafter, by
agricultural water districts using more than 3,000 acre-feet of
groundwater or surface water, and by counties that provide regulatory
oversight for individual agricultural groundwater users that are not
within established water districts.
(3) Requiring the state board to use its authority to determine
reasonable use of water over the coming decades to evolve away from
the generally accepted practices of diverting surface water for
irrigated agriculture, considering climatic and agronomic factors in
making these ongoing determinations.
(e) The achievement of increased water supply reliability through
the maintenance of diverse regional water supply portfolios, and by
establishing a statewide target to recycle 1.5 million acre-feet of
water annually by 2020, encouraging local water agencies to at least
triple the current statewide capacity for generating new water
supplies through ocean and brackish water desalination by 2020,
requiring the state board to establish goals by 2015 for infiltration
and direct use of urban stormwater runoff throughout the Delta
watershed and its export areas, requiring agencies to ensure that
accurate and timely information is collected and reported on all
surface water and groundwater diversions in California by 2012,
requiring that all water purveyors develop an integrated contingency
plan by 2015 in the event of Delta water supply curtailments or
drought, and establishing a regulatory framework that encourages
efficient and integrated management of water resources at local,
regional, and statewide levels.
CHAPTER 4. DELTA ECOSYSTEM AND WATER COUNCIL
79860. (a) The Delta Ecosystem and Water Council is hereby
established to advance the coequal goals of restoring the Delta
ecosystem and creating a more reliable water supply in California.
(b) (1) The board of directors of the council shall consist of
seven members. The board members shall be appointed as follows: ____
(2) The initial term of office of each member of the board shall
be two, four, or six years, as specified in subdivision (c), and all
subsequent terms shall be eight years.
(3) No member of the board shall serve two consecutive terms, but
a member may be reappointed to the board after a period of two years
following the end of his or her term.
(4) Notwithstanding paragraph (3), those members of the board that
serve an initial term of two or four years may be immediately
appointed to a subsequent full eight-year term.
(c) At the first meeting of the board, the members shall classify
themselves by lot into three classes. One class shall have three
members and the other two classes shall have two members each. For
the class that has three members, the terms of office shall be two
years. The second class, composed of two members, shall serve four
years. The third class, composed of two members, shall serve six
years. Thereafter, the terms of all succeeding members shall be eight
years.
(d) Any vacancy shall be filled by the appointing authority within
60 days. If the term of a board member expires, and no successor is
appointed within the allotted timeframe, the existing member may
serve up to 180 days beyond the expiration of his or her term.
(e) The Governor shall appoint a chairperson from among the board
members, who shall serve for not more than four years.
(f) The council shall meet once a month in a public forum. At
least two meetings each year shall take place within the Delta.
(g) The Commissioner of the United States Bureau of Reclamation,
the Director of the United States Fish and Wildlife Service, the
Director of the National Marine Fisheries Service, and the Director
of the United States Geological Service, if those federal officials
wish to participate, as well as the director of the department and
the Director of Fish and Game, shall be nonvoting ex officio members
of the board of directors.
79861. The chairperson shall serve full time. Other members shall
serve one-third time. The board of directors may select a vice
chairperson and other officers determined to be necessary.
79862. (a) Each member of the board shall receive the salary
provided for in Section 11564 of the Government Code.
(b) The members of the board of directors shall be reimbursed for
expenses necessarily incurred in the performance of official duties.
(c) The board of directors shall appoint an executive director who
shall serve full time.
(d) The council shall hire employees necessary to carry out the
functions of the agency.
(e) The number of employees and qualifications of those employees
shall be determined by the council, subject to the availability of
funds.
(f) The salary of each employee of the council shall be determined
by the State Personnel Board, and shall reflect the duties and
responsibilities of the position.
(g) All persons employed by the council are state employees,
subject to the duties, responsibilities, limitations, and benefits of
the state.
79863. Board members shall be selected with diverse expertise and
perspectives, and include policy and resource experts, strategic
problem solvers, and individuals having success in resolving
multiinterest conflicts.
79864. The headquarters of the agency shall be located in
Sacramento.
CHAPTER 5. MISSION, DUTIES, AND RESPONSIBILITIES OF THE DELTA
ECOSYSTEM AND WATER COUNCIL
79870. The council shall do all of the following:
(a) Prepare and adopt a plan referred to as the California Delta
Ecosystem and Water Plan that incorporates the plans of other
agencies, as appropriate, to carry out the requirements of this
division.
(b) The council shall have exclusive authority to determine the
consistency of any project proposed or approved by a state agency or
local government with the plan adopted pursuant to this division.
(c) Assume responsibility for any conservation or habitat
management plan developed for the Delta by the state or federal
government.
(d) Ensure that federal and state actions are consistent with the
plan.
(e) Participate as a trustee agency pursuant to Division 13
(commencing with Section 21000) of the Public Resources Code.
(f) Determine the consistency of major water, road, railroad,
utility, and levee infrastructure projects in the Delta with the plan
and communicate that determination to the responsible agencies.
(g) Assess policies applied outside the Delta that are critical to
meeting goals of this division and convey the results of that
assessment to the responsible agency.
(h) Work with the Delta Science and Engineering Board to adopt
sound principles of adaptive management.
(i) Receive and allocate funds to advance policies and programs
related to the Delta.
(j) Address environmental justice concerns with regard to the
implementation of the plan and regarding future Delta decisionmaking.
(k) Empanel a public advisory group of stakeholders to advise and
make formal recommendations to the council, and to issue a public
biennial report on the
activities of the council.
(l) Adopt procedures to facilitate use of alternative approaches
to dispute resolution, such as joint factfinding and arbitration to
reduce reliance on litigation and the courts.
(m) Exercise the power to sue to ensure compliance with the plan.
(n) Establish policies and procedures that ensure that day-to-day
operations of water export systems are consistent with the plan.
79871. (a) The council shall prepare on or before August 1, 2010,
a schedule for preparing and adopting the plan.
(b) The council shall prepare a list of all applicable legal
requirements, including requirements relating to federal and state
endangered species laws, that pertain to the Delta for incorporation
into the plan.
(c) The council shall commence the preparation of the plan on or
before September 2010, consistent with the procedural and substantive
requirements of the federal Coastal Zone Management Act of 1972 (16
U.S.C. Sec. 1451 et seq.).
(d) The council shall appoint persons to serve on the Delta
Science and Engineering Board on or before September 1, 2010, and
direct the work of the Delta Science and Engineering Program.
(e) Coordinate with stakeholders as well as local, state, and
federal agencies.
(f) Seek the advice of the council's public advisory group to
enhance stakeholder participation and actively address environmental
justice concerns.
(g) Establish a goal for the adoption of the plan by December 1,
2010.
(h) If the plan is not adopted by December 1, 2010, the council
shall adopt an interim strategic plan.
(i) Identify and address, by December 1, 2010, any inconsistencies
between the state board's water quality control plans and the plan
or the interim strategic plan.
(j) Review, and if necessary amend, the plan at least every five
years.
CHAPTER 6. DELTA ECOSYSTEM AND WATER PLAN
79880. (a) The plan shall be prepared in order to achieve the
coequal goals of Delta Vision. The plan shall build upon other plans,
modifying and extending those plans as needed to meet the
requirements of this division. Those other plans include, but are not
limited to, the ecosystem restoration program being developed by the
Department of Fish and Game, the land use and resource management
plan developed by the Delta Protection Commission, any local habitat
conservation plan within the Delta, the Suisun Marsh plan under
development, the provisions of the California Water Plan that address
reliable water supply being developed by the department, and the
conservation program resulting from the Bay Delta Conservation Plan.
(b) Those persons responsible for implementing the plans described
in subdivision (a) shall do so in a manner that is consistent with
the plan adopted pursuant to this division.
79881. The plan shall meet all of the following requirements:
(a) Include any species protection requirements that impact Delta
resources.
(b) Include requirements for water flow and water quality in the
Delta that achieve the coequal goals.
(c) Identify state land use interests in the Delta, especially
those that impact the ecosystem, water supply reliability, and flood
concerns.
(d) Establish principles and procedures for adaptive management.
(e) Establish requirements for the modeling, data collection,
management, monitoring, analysis, and interpretation to support
policy decisionmaking.
(f) Adopt a model designed to maximize flexibility and resiliency
in managing the Delta.
(g) Establish a detailed financing plan that identifies costs,
benefits, and revenue sources.
(h) Serve as a foundational document for a programmatic
environmental impact statement or environmental impact report for
projects in the Delta that require permits in accordance with the
National Environmental Policy Act (42 U.S.C. Sec. 4321 et seq.) and
the California Environmental Quality Act.
(i) Optimize the use of the CALFED Programmatic Record of Decision
dated August 28, 2000, and the Coastal Zone Management Act of 1972
(16 U.S.C. Sec. 1451 et seq.) to maximize participation of federal
agencies in implementation of the plan.
79882. (a) The Legislature finds and declares that the
preparation of the plan should reflect all of the following
principles or goals:
(1) Recognize and enhance the unique cultural, recreational, and
agricultural values of the Delta as an evolving place.
(2) Restore the Delta ecosystem as the heart of a healthy estuary.
(3) The construction of facilities to improve the existing water
conveyance system, to expand statewide storage facilities, and to
operate both the water conveyance system and statewide storage
facilities to achieve the coequal goals.
(4) The reduction of risks to people, property, and state
interests in the Delta by means of effective emergency preparedness,
appropriate land uses, and strategic levee investments.
(5) The provision of adequate and reliable funding to carry out
this division.
(b) These principles and goals shall guide the financing
priorities of the council, the conservancy, the Delta Protection
Commission, and all related bodies, including the Delta Science and
Engineering Board.
79883. The council shall review and revise the plan every five
years. The review and revisions shall be based upon the adaptive
management program developed by the council and the Delta Science and
Engineering Board.
CHAPTER 7. DELTA ECOSYSTEM AND WATER FUND
79885. (a) The council may generate revenues and allocate those
revenues to pay for the work of the council, the conservancy, the
Delta Protection Commission, and related activities of the Department
of Fish and Game, the department, and the state board in accordance
with this division.
(b) The council may impose a per-acre-foot fee on water diversions
within the Delta watershed, and a fee on any water conveyed through
or around the Delta.
(c) In establishing fees under this chapter, the council shall be
subject to the following requirements:
(1) The amount of the fee shall not exceed the reasonable cost of
the program the fee supports.
(2) The fee shall not be imposed for adverse impacts that the
feepayer did not create or for benefits that the feepayer does not
obtain.
(3) The fee shall be equitably apportioned among feepayer groups.
Periodic adjustment mechanisms shall be established to ensure that
the fee is allocated fairly and that feepayers are not paying
disproportionately more than their impacts or benefits justify.
(d) Moneys generated by the imposition of fees pursuant to
subdivision (b) shall be deposited in the Delta Ecosystem and Water
Fund, which is hereby established in the State Treasury.
(e) The moneys in the fund, upon appropriation by the Legislature
to the council, shall be expended for the exclusive purpose of
implementing this division.
(f) The council shall establish requirements that apply to public
and private entities that seek funding pursuant to this section.
These requirements shall include, but shall not be limited to,
provisions relating to the minimum amount of costs required to be
borne by a local agency, and the development of a completed financial
plan prior to the receipt of funds for the design and construction
of major capital projects.
(g) No funding shall be available pursuant to this section unless
the private or public entity agrees to carry out its projects in a
manner that is consistent with the plan and this division.
CHAPTER 8. THE CALIFORNIA DELTA CONSERVANCY
79890. The California Delta Conservancy is hereby established to
implement the ecosystem restoration elements of the plan.
79891. (a) The conservancy shall consist of 11 voting members,
including both local and state officials serving staggered terms,
with voluntary federal participation in nonvoting roles.
(b) The Governor shall appoint the following members:
(1) Five members, each of whom shall represent one of the Delta
counties who shall be selected from nominees advanced by the Delta
Protection Commission.
(2) Two public members with business or land trust experience.
(c) The Secretary for Natural Resources and the Director of
Finance shall serve as voting ex officio members.
(d) Two additional public members, one appointed by the Senate
Committee on Rules and one by the Speaker of the Assembly, shall
serve as nonvoting ex officio members.
(e) The Governor shall appoint the chairperson of the conservancy.
79892. The conservancy shall do all of the following:
(a) Coordinate state ecosystem-related and urban waterfront
projects in the Delta.
(b) Acquire or manage land as needed to implement the plan.
(c) Enter into contracts to buy and sell land and other property,
and acquire property through the State Public Works Board. The
conservancy shall be exempt from approval processes of the Department
of General Services.
(d) Assume responsibility for publicly or privately owned lands
pursuant to voluntary agreements.
(e) Receive funding from the state, the council, or any other
source, and allocate those funds for purposes consistent with
policies and plans adopted by the council.
(f) Support appropriate recreation and ecosystem activities in the
Delta, including bolstering the local economy and National Heritage
Area designations consistent with the plan.
(g) Establish incentives for mutually beneficial mixtures of
traditional agriculture, habitat, and recreation, including
agri-tourism, wildlife-friendly agriculture practices, birdwatching,
and hunting.
CHAPTER 9. THE DELTA PROTECTION COMMISSION
79895. (a) To ensure state interests in the region are fully
protected over decades, all general plans of Delta counties and
cities within Delta counties shall be consistent with the plan.
(b) The Delta Protection Commission shall revise its resource
management plan to be consistent with the plan.
(c) The Delta Protection Commission shall review and certify all
general plans of Delta counties and cities within Delta counties for
consistency with its resource management plan and the plan.
(d) The Delta Protection Commission shall determine whether any
project approved by local governments within the primary zone is
consistent with the resource management plan and the plan.
(e) It is the intent of the Legislature that the Delta Protection
Commission shall exercise appeal authority over selected portions of
the secondary zone once local plans are created for those areas.
Until those local plans are created, it is the intent of the
Legislature that the commission shall possess direct consistency
determination authority over development proposals in those areas.
(f) General plans of Delta counties and cities within those
counties shall be revised and submitted for consistency review to the
Delta Protection Commission upon completion. The council may review
local plans, or exercise consistency determination authority for
individual projects in the primary or secondary zones, at its
discretion.
79895. As used in this chapter:
(a) "Commission" means the Delta Protection Commission.
(b) "Consistent with the plan" means that an action, program, or
project is consistent with the commission's revised resource
management plan or the plan if, considering all its aspects, the
action, program, or project will further the objectives and policies
of the revised management plan or the plan and not obstruct the
attainment of those objectives and policies.
(c) "Development" means, on land, in or under water, the placement
of any solid material or structure; discharge or disposal of any
dredged material or of any gaseous, liquid, solid, or thermal waste;
grading, removing, dredging, mining, or extraction of any materials;
change in the density or intensity of use of land, including, but not
limited to, subdivision pursuant to the Subdivision Map Act
(Division 2 (commencing with Section 66410) of Title 7 of the
Government Code), and any other division of land except where the
land division is brought about in connection with the purchase of
such land by a public agency for public recreational use; change in
the intensity of water, or of access to water; construction,
reconstruction, demolition, or alteration of the size of any
structure, including any facility of any private, public, or
municipal utility; and the removal or harvesting of major vegetation
other than for agricultural purposes, kelp harvesting, and timber
operations that are in accordance with a timber harvesting plan
submitted pursuant to the provisions of the Z'berg-Nejedly Forest
Practice Act of 1973 (Chapter 8 (commencing with Section 4511) of
Part 2 of Division 4 of the Public Resources Code). As used in this
section, "structure" includes, but is not limited to, any building,
road, pipe, flume, conduit, siphon, aqueduct, telephone line, and
electrical power transmission line and distribution line.
"Development" does not mean a "change of organization" as defined in
Section 56021 of the Government Code or a "reorganization" as defined
in Section 56073 of the Government Code.
(d) "Development project" means any project undertaken for the
purpose of development. "Development project" includes a project
involving the issuance of a permit for construction or
reconstruction, but not a permit to operate. "Development project"
does not include any ministerial projects proposed to be carried out
or approved by public agencies.
(e) "Project" means any activity involving the issuance to a
person of a lease, permit, license, certificate, or other entitlement
for use by one or more public agencies.
79896. (a) To ensure state interests in the region are fully
protected over decades, all general plans of Delta counties and
cities within Delta counties shall be consistent with the plan.
(b) The commission shall revise its resource management plan to be
consistent with the plan.
79897. (a) Within 180 days from the date on which the commission
revises its resource management plan to be consistent with the plan
as required by Section 79896, each Delta county and each city within
a Delta county shall submit to the commission proposed amendments to
make its general plan consistent with the commission's revised
resource management plan.
(b) The commission shall act on the proposed amendments within 60
days from the date of their submittal. The commission shall approve
the proposed general plan amendments by a majority vote of the
commission's membership, only if it finds, based on substantial
evidence in the record, that the proposed general plan amendments are
consistent with the commission's revised resource management plan.
(c) A Delta county or a city within a Delta county shall adopt its
proposed general plan amendments within 120 days after the date of
approval by the commission.
79898. (a) The commission shall review and determine whether any
project proposed to be carried out or approved by a local government
within the primary zone is consistent with both the commission's
revised resource management plan and the plan.
(b) Until a Delta county or a city within a Delta county in which
a project is located has adopted general plan amendments pursuant to
Section 79897, the commission shall review and determine whether any
project proposed to be carried out or approved by a local government
within the secondary zone is consistent with both the commission's
revised resource management plan and the plan.
(c) The commission shall adopt regulations that prescribe the form
and content for permits. The commission may adopt a schedule of
filing fees and service charges to recover its costs, provided that
these fees shall not exceed the estimated reasonable cost of
providing the service for which the fee is charged.
(d) The commission shall give notice of any public hearing on an
application pursuant to Section 65091 of the Government Code.
(e) The commission shall act on an application for a permit at a
public hearing, either denying or granting the permit, within 90 days
after it files the application. The permit shall be automatically
granted if the commission fails to take specific action either
denying or granting the permit within the time period specified in
this section. The commission shall grant the permit if the commission
finds, based on substantial evidence in the record, that the project
is consistent with both the commission's revised resource management
plan and the plan. To effectuate the purposes of the commission's
revised resource management plan and the plan, the commission may
grant a permit subject to reasonable terms and conditions, including
the uses of land and structures, intensity of uses, and construction
methods. A majority vote of the members of the commission is required
to grant a permit.
(f) The commission may adopt regulations that allow the executive
director to issue permits without otherwise complying with this
section in cases of emergency or for minor repairs or minor
improvements.
(g) If the commission denies a permit, the applicant may submit
another application for the permit directly to the commission after
90 days from the date of the denial.
(h) Any project authorized pursuant to this section shall be
commenced, performed, and completed in compliance with the provisions
of all permits granted or issued by the commission and by any Delta
county or city in a Delta county.
(i) Any action or proceeding to contest or question the commission'
s denial of a permit application, or conditions attached to approval
of a permit application, shall be commenced in the appropriate court
within 90 days following the date of that action by the commission.
(j) Any person who undertakes a development project within the
commission's jurisdiction without securing a permit from the
commission as required by this section is guilty of a misdemeanor.
79899. At its discretion, the council may do both of the
following:
(a) Review the general plans of Delta counties and cities in Delta
counties.
(b) Review development projects in the primary and secondary zones
to determine whether they are consistent with the plan.
CHAPTER 10. THE DELTA SCIENCE AND ENGINEERING BOARD AND THE
DELTA SCIENCE AND ENGINEERING PROGRAM
79900. The Legislature finds and declares all of the following:
(a) California should maintain a strong and consistent investment
in science and engineering important to the Delta. There needs to be
a more direct link between scientific investigation and real-world
management and policy.
(b) To achieve this, the council requires both a permanent science
and engineering program staff and an independent science and
engineering board that reviews actions undertaken by the council.
(c) The program and the board should receive stable, adequate
funding.
(d) The science and engineering program should be a replacement
for, and a successor to, the successful CALFED Independent Science
Program, and a newly constituted delta science and engineering board
should replace the CALFED Independent Science Board.
79901. The Delta Science and Engineering Board is hereby
established, consisting of between 12 and 20 individuals with natural
science, social science, engineering, and policy expertise appointed
by the council to a maximum of two five-year terms. Lead scientists
appointed by the council shall have a rotating appointment of three
years. To ensure independence, the current practice in which lead
scientists are formally engaged by an agency other than the state,
such as the United States Geological Survey, should continue. The
Delta Science and Engineering Board shall respond to requests from
the council or independently offer advice on significant issues of
its choosing.
79902. The council shall appoint persons to serve on the Delta
Science and Engineering Board. The Delta Science and Engineering
Board shall carry out a Delta science and engineering program
referred to as the Delta Science and Engineering Program under the
direction of the council. That program shall undertake all of the
following activities:
(a) Research critical scientific issues of both the physical Delta
and elsewhere in the state relevant to Delta management.
(b) Organize, assess, and synthesize the best available science
for policymakers and the council.
(c) Review all major projects undertaken to advance the goals of
Delta Vision.
(d) Conduct independent science and engineering reviews of the
work of government agencies or consultant work upon the request of
the council, the conservancy, or other state agencies.
(e) Establish communication channels to effectively transmit
science and engineering results to broader and more diverse
audiences, coordinating with the council's Public Advisory Group.
(f) Prepare discussion papers and interactive lectures.
SEC. 4. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
SEC. 4. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution for certain costs that may be incurred by a local agency
or school district because, in that regard, this act creates a new
crime or infraction, eliminates a crime or infraction, or changes the
penalty for a crime or infraction, within the meaning of Section
17556 of the Government Code, or changes the definition of a crime
within the meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.