BILL ANALYSIS
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
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BILL NO: SB 12 HEARING DATE: April 14, 2009
AUTHOR: Simitian URGENCY: No
VERSION: February 26, 2009 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: Local Government FISCAL: Yes
SUBJECT: Sacramento-San Joaquin River Delta, Clean Drinking
Water, Water Supply Security, and Environmental Improvement act
of 2009.
BACKGROUND AND EXISTING LAW
In 1992, the Legislature passed and the Governor signed into
law, the Johnston-Baker-Andal-Boatwright Delta Protection Act of
1992. The purpose of the Act was to protect regional, state,
and national interests in the long-term agricultural
productivity, economic vitality, and ecological health of Delta
resources, by coordinating and integrating activities by the
various agencies whose land use activities and decisions
cumulatively impact the delta. To do so, it created the Delta
Protection Commission.
The Commission is a quasi-regulatory body with oversight
authority over local land use decisions in the Delta. The
Commission consists of 23 members, representing a mix of local
elected officials and state agency representatives. The
Commission's central task is the preparation and adoption of a
comprehensive long-term resource management plan for land uses
within the primary zone of the Delta. Once the Commission
adopted that plan, each of the local governments within the
Delta was required to conform its own general plan to the
provisions of the Commission plan with the Commission approving
or rejecting the local government conforming plans.
In December 1994, state and federal agencies, urban and
agricultural water users, and environmental advocates signed the
Bay Delta Accord. Its three main goals were: develop water
quality standards to protect the estuary, coordinate operations
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of the state and federal water projects, and develop a long-term
solution for the Delta. The signing of the Accord marked the
birth of the CalFed Bay-Delta Program.
To implement the CalFed program, in 2002 the Legislature passed
and the Governor signed SB 1653 (Costa). This bill enacted the
California Bay-Delta Authority Act, which, among other things,
created the California Bay Delta Authority (CBDA). The CBDA is
composed of representatives from six state agencies, six federal
agencies, seven public members, and one member of the Bay-Delta
Public Advisory Committee.
As documented in a 2005 Little Hoover Commission report, the
CBDA and CalFed program has not been as successful as originally
anticipated. The Commission noted, "Frustration with CalFed is
warranted. Because of a faulty design, the CBDA cannot
effectively coordinate activities, push agencies to perform, or
provide rigorous oversight."
During its 2005-2006 Regular Session, the Legislature passed and
the Governor signed AB1200 (Laird), SB 1574 (Kuehl), and AB
1803(Committee on Budget). Together, these bills required an
assessment of the potential impacts on water supplies of
catastrophic failures in the Delta, identification and
evaluation of options to protect water supplies and the
ecosystem of the Delta, the development of a vision for a
sustainable Delta, and a strategic plan to achieve a sustainable
Sacramento-San Joaquin Delta. Additionally, SB 1574 created a
Delta Vision Committee to develop the vision and strategic plan.
The Committee is composed of the Secretary of the Resources
Agency as chair, and the Secretaries of the Business,
Transportation and Housing Agency, Department of Food and
Agriculture, and the California Environmental Protection Agency,
and the President of the Public Utilities Commission.
On September 28, 2006, the Governor issued an Executive Order
that, among other things, established a Blue Ribbon Task Force
and directed the Task Force to:
Develop a vision for the sustainable management of the Delta,
Report to the to the Delta Vision Committee and Governor its
findings and recommendations on its vision for the Delta by
January 1, 2008, and
Develop a strategic plan to implement the Delta vision by
October 31, 2008.
The Executive Order further directed the Delta Vision Committee
to report to the Governor and the Legislature by December 31,
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2008 with recommendations for implementing the Delta Vision and
Strategic Plan.
October 2008, the Blue Ribbon Task Force published its Delta
Vision Strategic Plan. According to the plan, in order to
achieve a healthy Delta and a more reliable water system for
Californians, policy makers must:
Legally acknowledge the co-equal goals of restoring the Delta
ecosystem and creating a more reliable water supply for
California.
Recognize and enhance the unique cultural, recreational, and
agricultural values of the California Delta as an evolving
place, an action critical to achieving the co-equal goals.
Restore the Delta ecosystem as the heart of a healthy estuary.
Promote statewide water conservation, efficiency, and
sustainable use.
Build facilities to improve the existing water conveyance
system and expand statewide storage, and operate both to
achieve the co-equal goals.
Reduce risks to people, property, and state interests in the
Delta by effective emergency preparedness, appropriate land
uses, and strategic levee investments.
Establish a new governance structure with the authority,
responsibility, accountability, science support, and secure
funding to achieve these goals.
PROPOSED LAW
This bill would enact the Sacramento-San Joaquin River Delta,
Clean Drinking Water, Water Supply Security, and Environmental
Improvement Act of 2009. Specifically, the bill would:
1.Make findings and declarations stating that 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. Furthermore:
All state agencies with significant responsibilities
relating to the Delta should implement their statutory
duties in a manner that advances these coequal goals.
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.
1.Establish the Delta Ecosystem and Water Council (Council).
The Council's charge would be to advance the coequal goals
of restoring the Delta ecosystem and creating a more
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reliable water supply in California.
The Council would have a seven-member board of directors,
serving staggered eight year terms.
Board members would be selected with diverse
expertise and perspectives, and include policy and
resource experts, strategic problem solvers, and
individuals having success in resolving multi-interest
conflicts.
Non-voting ex officio members of the board would
include the Director of the Department of Water Resources
and the Director of Fish and Game.
Non-voting ex officio members of the board could
include, 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.
The Governor would appoint the chairperson, who
would serve for not more than four years.
The chairperson would serve full time. Other members
would serve one-third time.
The Council would be required to prepare and adopt a plan
referred to as the California Delta Ecosystem and Water Plan
to advance the coequal goals of restoring the Delta
ecosystem and creating a more reliable water supply in
California.
By August 1, 2010, the council would be required to
prepare a schedule for preparing and adopting the plan.
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,
information relating to land use in the Delta, principles
and procedures for adaptive management, and a detailed
financing plan that identifies costs, benefits, and
revenue sources.
The council would be required to review and revise
the plan every five years.
The Council would have the exclusive authority to
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determine the consistency of any project proposed or
approved by a state agency or local government with the
plan.
The Council would further be required, among other things,
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.
Participate as a trustee agency pursuant the
California Environmental Quality Act (CEQA).
Receive and allocate funds to advance policies and
programs related to the Delta.
Address environmental justice concerns with regard
to the implementation of the plan and regarding future
Delta decision making.
Establish policies and procedures that ensure that
the day-to-day operations of water export systems are
consistent with the plan.
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.
1.Establish the California Delta Conservancy to implement the
ecosystem restoration elements of the plan.
The conservancy would consist of 11 voting members:
Five members, each of whom shall represent one of
the Delta counties who would be selected from nominees
advanced by the Delta Protection Commission.
Two public members with business or land trust
experience.
The Secretary for Natural Resources and the Director
of Finance.
Two additional public members, one appointed by the
Senate Committee on Rules and one by the Speaker of the
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Assembly, would serve as nonvoting ex officio members.
The conservancy would, among other things:
Coordinate state ecosystem-related and urban
waterfront projects in the Delta.
Acquire or manage land as needed to implement the
plan.
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.
Assume responsibility for publicly or privately
owned lands pursuant to voluntary agreements.
1.Establish the Delta Science and Engineering Board to carry out
a Delta science and engineering program under the direction of
the Council.
The Council would appoint between 12 and 20 individuals
with natural science, social science, engineering, and
policy expertise.
Members would serve a maximum of two five-year
terms.
Lead scientists appointed by the council shall have
a rotating appointment of three years.
The Board would:
Research critical scientific issues of both the
physical Delta and elsewhere in the state relevant to
Delta management.
Organize, assess, and synthesize the best available
science for policymakers and the council.
Review all major projects undertaken to advance the
goals of Delta Vision.
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.
1.The bill would also revise the Delta Protection Commission as
follows:
Add an additional member to the Commission to include one
of the members of the Central Valley Flood Protection Board,
or that member's sole designee, raising the total membership
to 24.
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Require the Commission to extend invitations to specified
federal agencies to participate in the activities of the
Commission in a nonvoting capacity.
Require the Commission to revise its resource management
plan to be consistent with the plan required to be adopted
by the Council.
The Commission would be required to review and certify the
general plans of those counties and cities for consistency
with its resource management plan and the plan adopted by
the Council.
1.Require Delta counties, as defined, and the cities within
those counties, to revise their general plans and submit the
revised plans to the Commission.
2.Make numerous findings and declarations regarding the Delta,
its importance to California, the numerous threats to the
Delta, the consequences of Status Quo, and policies that
should be incorporated into state planning, programmatic, and
regulatory actions.
3.Impose a state-mandated local program by authorizing the
Council to impose requirements on projects undertaken by local
governments, and by imposing requirements on Delta counties
and cities with regard to the preparation of their general
plans.
ARGUMENTS IN SUPPORT
According to the author, "Three years ago, after a series of
policy briefings, I reached the conclusion that California's
water delivery system, and the eco-system on which it depends,
were both in danger of imminent collapse. The consequences for
the environment and the state's economy if we, the Legislature,
failed to act would be catastrophic."
"I concluded at the time, and significant research since has
solidified my view, that any solution that would successfully
address the threats to the water supply and the collapsing
ecosystem would require reengineering the current system to
allow the Delta to function as it had evolved - as a brackish
estuary. Not, as it was, and is being operated, as a water
delivery system, half fresh and half salt."
"To do this, would require an isolated conveyance facility - to
separate, isolate if you will, the freshwater necessary for
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California's cities and farms, from the estuary."
"We needed legislation to accomplish two missions - fix the
environment, and secure the water supply. SB12 is that bill"
ARGUMENTS IN OPPOSITION: None Received
COMMENTS
Based on Blue Ribbon Commission. The author and his staff
worked closely with staff from the Delta Vision Blue Ribbon
Commission to ensure the current version of this bill matches,
as closely as possible, the recommendations in the Commission's
Delta Vision Strategic Plan. That said, neither the Delta
Vision Blue Ribbon Commission, its individual members, nor staff
have taken a position on this bill.
Work In Progress . This bill, like most of the other bills
addressing the Delta, is still evolving. Consequently, there
are some critical blanks and technical issues within the bill.
Should this bill move foreword, the Committee may wish to ask
the author to commit to working with committee staff to resolve
those technical issues as the bill progresses.
Also, this bill, like most of the other bills addressing the
Delta, contains pages upon pages of Legislative findings and
declarations. While findings and intent statements are
occasionally helpful in interpreting statutes, one must question
whether all such statements in this bill are necessary. Should
this bill move foreword, the Committee may wish to ask the
author to commit to working with committee staff to pare down
the findings and intent statements to those truly necessary for
accurate interpretation of the statutes.
The Plan is the Key. Everything in this bill tees off from the
California Delta Ecosystem and Water Plan - to the extent the
plan fails to adequately address one or more critical issue
affecting the Delta, the likelihood of successfully achieving
the coequal goals of restoring the Delta ecosystem and creating
a more reliable water supply is diminished.
Elephants in the Room . The Delta Vision efforts have provided
needed clarity to many of the critical problems facing the
Delta. This bill, like a number of other bills, builds upon the
efforts and recommendations of the Blue Ribbon Task Force.
However, like the Task Force, it does not directly confront many
of the crucial questions regarding the Delta. These include:
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1.To PC, or not to PC: That is the question. Most, if not all,
Delta water exporters believe that a peripheral canal or some
other sort of isolated conveyance is essential to provide an
adequate and reliable supply of water from the Delta. Most,
if not all, in Delta water users believe a peripheral canal
would be the demise of the Delta. The environmental community
is of mixed minds on the topic. And, the Blue Ribbon Task
Force largely punted, calling for a dual conveyance strategy
incorporating both a through-Delta and an isolated conveyance
strategy.
Disputes about whether DWR has existing authority to build a
PC aside, Delta water policy is not well served by being
vague. The author of this bill, as well as the authors of the
other Delta bills, should consider either explicitly
prohibiting a PC, explicitly authorizing a PC, or explicitly
delineating the conditions under which such a decision would
be made, by whom, and using what criteria.
2.Surface Storage. Like the conveyance debate, many believe
that additional surface storage is essential to provide an
adequate and reliable supply of water. Others argue that
while additional storage might be helpful, the data supporting
additional surface storage is not persuasive, especially if
public funds are involved. For a variety of reasons, (some
good, some not so good), the CalFed program has yet to
complete engineering and financial feasibility studies for any
of the five surface storage projects identified in the CalFed
ROD.
This is another area calling for plain talk. The author of
this bill, as well as the authors of the other Delta bills,
should consider either explicitly prohibiting new surface
storage as a part of this effort, explicitly authorizing new
surface storage, or explicitly delineating the conditions
under which such a decision would be made, by whom, and using
what criteria.
3.The Big One. Scientific evidence continues to mount that the
Delta in its current form is not sustainable. According to
DWR's February 2009 Delta Risk Management Study, under current
conditions, there is a greater than 50% chance that within the
next 25 years, 30 or more islands will fail because of an
earthquake or flood. The study further estimates that
repairing those islands would cost $3.0 - $4.2 billion, taking
1120 - 1520 days to close all the breaches, and 1,240 - 1,660
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days to drain all the islands.
Any plan for the Delta that does not take this potential under
explicit consideration is fatally flawed. The author of this
bill, as well as the authors of the other Delta bills, should
consider, at a minimum, requiring the Delta Plan to explicitly
consider the potential for catastrophic levee failure in the
Delta and further to develop appropriate response plans.
4.Delta Protection Commission. The Commission is a
quasi-regulatory body with oversight authority over local land
use decisions in the Delta. This bill would significantly
change the role of the Commission.
It is not at all clear that a 24 member board is the
appropriate structure for this expanded role. The author of
this bill, as well as the authors of the other Delta bills,
should be encouraged to revisit the structure of the
Commission to determine if the proposed 24 member board with
its mix of local and state representatives is the most
appropriate for its new role.
5.CalFed. This bill would leave intact the California Bay Delta
Authority Act. That act was enacted to oversee the
implementation of the CalFed Bay Delta Program. Among other
things, that Act created the California Bay Delta Authority
(CBDA). The CBDA has not met in nearly two years because of
inability to get a quorum.
It is not at all clear whether this bill is intended to
completely replace CalFed, supplement CalFed, or operate
independently from CalFed. Clarity would be helpful.
Moreover, the author of this bill, as well as the authors of
the other Delta bills, should be encouraged to consider
eliminating the CBDA.
6.Fish & Game. Restoring the ecosystem functions of the Delta
will require a well functioning, scientifically directed,
independent Department of Fish and Game. There is widespread
concern that, for a variety of reasons, the Department does
not now meet that description, and may not for the foreseeable
future.
Reform of DFG is probably beyond the scope of this bill. That
said, to not take steps to restore confidence in DFG is
probably a recipe for failure.
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7.Existing Authorities. In order to achieve a revitalized Delta
ecosystem and a reliable water supply for California, while
ensuring the Delta remains a unique and valued area, some
state and local agencies are going to have to be told "No!"
Indeed, one of the principle failures of the California Bay
Delta Authority was that it did not have the authority to
impose its decisions on others.
For the approach described in this bill to work, some existing
authorities of state and local governments (and perhaps the
federal government as well) are going to have to be eliminated
or otherwise made subservient to implementation of the Delta
Plan. Many such agencies are likely to resist. The earlier
the author engages local agencies, the Administration, and the
federal government in such discussions, the better.
Related Bills: Each of the following bills address one or more
aspect of problems the Delta.
Senate:
SB 229 (Pavley)Institutes an interim governance structure for
the Delta.
SB 457 (Wolk)A compressive bill that builds on many, but not
all, of the recommendations of the Blue Ribbon Task
Force.
SB 458 (Wolk)Establishes a Sacramento- San Joaquin Delta
Conservancy.
Assembly:
AB 13 (Salas)Establishes a Sacramento-San Joaquin Delta
Conservancy.
AB 39 (Huffman)Intended to become a comprehensive bill on the
Delta.
SUGGESTED AMENDMENTS: None
SUPPORT
Natural Resources Defense Council (In Concept)
OPPOSITION
None Received
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