BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Patricia Wiggins, Chair
BILL NO: SB 12 HEARING: 4/29/09
AUTHOR: Simitian FISCAL: Yes
VERSION: 2/26/09 CONSULTANT: Detwiler
DELTA ECOSYSTEM AND WATER COUNCIL
Background and Existing Law
In 1995, as required by the Delta Protection Act, the Delta
Protection Commission adopted a resource management plan
for a statutorily designated primary zone of nearly 490,000
acres within the Sacramento-San Joaquin river delta (SB
1866, Johnston, 1992).
Cities and counties in the primary zone have 180 days after
the Commission adopts or subsequently amends its resource
management plan to submit to the Commission proposed
general plan amendments that make their general plans
consistent with 11 statutory criteria. The Commission has
60 days to approve the proposed general plan amendments,
making 11 documented findings. A city or county then has
120 days to adopt the approved general plan amendments.
This general plan consistency requirement applies only to
land uses in the Delta's primary zone, and does not apply
to land uses in the smaller secondary zone.
The Legislature created a cabinet-level Delta Vision
Committee to prepare a Delta Vision and Strategic Plan
which the Committee produced in January 2009 (SB 1574,
Kuehl, 2006). Governor Schwarzenegger also created a
Governor's Delta Vision Blue Ribbon Task Force which
released a Delta Vision Strategic Plan in October 2008.
The Task Force's report called for a new governance
structure with the authority, responsibility,
accountability, science support, and secure funding to
achieve its recommended co-equal goals for restoring the
Delta ecosystem and creating a more reliable water supply.
Proposed Law
Senate Bill 12 enacts the Sacramento-San Joaquin River
Delta, Clean Drinking Water, Water Supply Security, and
Environmental Improvement Act of 2009.
SB 12 -- 2/26/09 -- Page 2
SB 12 creates the Delta Ecosystem and Water Council which
must adopt a Delta Ecosystem and Water Plan by December 1,
2010. The bill requires the Delta Protection Commission to
revise its resource protection plan to be consistent with
the Delta Ecosystem and Water Plan.
I. Land use planning and development . Senate Bill 12
requires that the general plans of Contra Costa,
Sacramento, San Joaquin, Solano, and Yolo counties and the
cities within those five counties must be consistent with
the Delta Ecosystem and Water Plan.
General plans . SB 12 requires those counties and
cities to submit their general plans to the Delta
Protection Commission for consistency review. The
Commission must review and certify that the counties and
cities' general plans are consistent with both the
Commission's resource management plan and the Council's
Delta Ecosystem and Water Plan. At its discretion, the
Council may review those local plans.
Projects in the primary zone . The bill requires the
Commission to determine if projects approved by local
governments within the primary zone are consistent with
both the Commission's resource management plan and the
Council's Delta Ecosystem and Water Plan. At its
discretion, the Council may exercise consistency
determination for individual projects within the primary
zone.
Projects in the secondary zone . SB 12 declares that
it is the Legislature's intent that the Commission shall
exercise appeal authority over selected portions of the
secondary zones once local plans are created. At its
discretion, the Council may exercise consistency
determination for individual projects within the secondary
zone.
II. Delta Protection Commission . Senate Bill 12 expands
the Delta Protection Commission from 23 to 24 members by
adding a member of the Central Valley Flood Protection
Board.
III. Delta governance and programs . Senate Bill 12
SB 12 -- 2/26/09 -- Page 3
contains extensive legislative findings and declarations.
SB 12 creates and assigns substantive and fiscal duties to
the:
Delta Ecosystem and Water Council.
California Delta Conservancy.
Delta Science and Engineering Board.
Comments
1. State interest, local decisions . There's no longer any
doubt that the Sacramento-San Joaquin River Delta's
resources are statewide assets. Both the legislative and
executive branches have convinced themselves that stronger
institutions and more effective programs are essential to
restoring the Delta's ecosystem and creating a more
reliable water supply. SB 12 tackles this challenge by
creating new public entities plus expanding the membership
and duties of the Delta Protection Commission. The bill
uses a three-step approach to carry out its goals: first,
the bill assigns policy guidance to the Delta Ecosystem and
Water Council and its Delta Ecosystem and Water Plan;
second, the bill relies on the new Council and the existing
Commission to supervise the integration of these statewide
values into the existing county and city general plans; and
third, the bill leaves direct land use decisions with the
Delta's county boards of supervisors and city councils. SB
12 assigns the right roles to the right levels of
government.
2. Plans, projects, or both ? Existing law requires city
and county general plans to be consistent with the Delta
Protection Commission's resource management plan for the
primary zone. SB 12 goes further by requiring the
Commission to certify local general plans' consistency with
the new Delta Plan. But the bill also intrudes into local
officials' traditional land use prerogatives by requiring
the Commission to determine if every local government
project in the primary zone is consistent with both the
Commission's resource management plan and the Council's new
Delta Plan. SB 12 says that it intends for the Commission
to have similar control over projects in the secondary
zone. The bill goes on to allow the new Council to
second-guess the Commission's review of projects in both
the primary and secondary zones. The Committee may wish to
SB 12 -- 2/26/09 -- Page 4
consider the point of these overlapping regional reviews.
Does every local project warrant this heightened scrutiny
by two regional agencies?
3. Project-by-project reviews . Responding to the
perception that local officials weren't adequately
protecting regional and statewide resources, the
Legislature created four regional commissions to plan and
then regulate land use: the San Francisco Bay Conservation
and Development Commission (BCDC), the Tahoe Regional
Planning Agency (TRPA), the California Coastal Commission,
and the Delta Protection Commission. These statutes
generally require new regional plans, require local plans
to be consistent with the regional plans, and sometimes
require the regional commissions to review development
projects and issue permits. These laws spell out how the
property owners apply for development permits, how the
public officials give public notice and hold hearings on
the permit applications, how the commissions decide on
these permit applications, how the opponents can appeal the
commissions' decisions, and how any plaintiffs can file
legal challenges. In contrast, SB 12 simply requires the
Delta Protection Commission to determine whether projects
in the primary and secondary zones are consistent with its
management plan and the Delta Plan (page 22, lines 26-35),
without explaining the procedures that protect due process
rights. Further, the bill allows the Council to review
these same projects, but without procedural safeguards
(page 22, line 36 to page 23, line 2). The Committee may
wish to consider amendments that replace these general
assignments with specific procedures that promote
managerial transparency and administrative accountability.
Should the BCDC statute be the bill's model?
4. Details, details, details . The Delta Protection Act
spells out the precise protocol for making city and county
general plans consistent with the Delta Protection
Commission's resource management plan. The statute
requires fixed deadlines, clear criteria, and robust
documentation. In contrast, SB 12 requires none of these
details. The bill requires plan reviews, but without any
timelines; mandates consistency, but without any criteria;
and calls for determinations, but without any documented
findings. To avoid the kind of statutory ambiguity that
invites lawsuits, the Committee may wish to consider
SB 12 -- 2/26/09 -- Page 5
amendments that spell out the protocols that local and
regional officials must follow. Specifically, the
Committee should consider amendments that:
Set a 180-day deadline for counties and cities to
submit proposed general plan amendments to the
Commission that would make their plans consistent with
the Commission's revised resource protection plan and
the new Delta Plan.
Set a 60-day deadline for the Commission to review
and certify that the proposed general plan amendments
are consistent with its revised resource protection
plan and the new Delta Plan.
Either adopt criteria for the Commission to use
when determining whether the proposed general plan
amendments are consistent with its revised resource
protection plan and the new Delta Plan, or adopt the
generally recognized description of consistency.
Require the Commission's consistency findings to be
based on substantial evidence in the record.
Set a 120-day deadline for counties and cities to
adopt their general plan amendments.
5. Related bills . SB 12 is not the only bill affecting
the Delta's resources. On April 29, the Senate Local
Government Committee will also consider SB 457 (Wolk). SB
229 (Pavley) and SB 458 (Wolk) are already in the Senate
Appropriations Committee. The Assembly is also working on
AB 13 (Salas) and AB 39 (Huffman).
6. Double-referred . The Senate Rules Committee ordered
the double-referral of SB 12; first to the Senate Natural
Resources and Water Committee, then to the Senate Local
Government Committee. On April 14, the Senate Natural
Resources and Water Committee considered the Delta resource
policy questions in SB 12 and then passed the bill on a 7-3
vote. On April 29, the Senate Local Government Committee
can consider the bill's effects on local land use planning
and decision making.
Support and Opposition (4/23/09)
Support : Unknown.
Opposition : Kern County Water Agency.
SB 12 -- 2/26/09 -- Page 6