BILL ANALYSIS
SB 12
Page 1
PROPOSED CONFERENCE REPORT NO. 1 - September 9, 2009
SB 12 (Simitian)
As Amended July 9, 2009
Majority vote
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|SENATE: |26-9 |(June 3, 2009) |ASSEMBLY: | |(July 13, |
| | | | | |2009) |
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(vote not relevant)
SENATE CONFERENCE VOTE : 4-0 ASSEMBLY CONFERENCE VOTE :4-0
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|Ayes:|Steinberg, Pavley, |Ayes:|Bass, Huffman, Caballero, |
| |Padilla, Florez | |Solorio |
|-----+-------------------------+-----+--------------------------|
| | | | |
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Original Committee Reference: W., P. & W.
SUMMARY : Establishes new legal framework and Delta Stewardship
Council (Council) for managing environmental and water resources
of the Sacramento-San Joaquin Delta (Delta). Specifically, the
conference committee amendments :
1)Repeal the California Bay-Delta Authority Act.
2)Establish new legal framework for Delta management which:
a) Sets the coequal goals of "providing a more reliable
water supply for California and protecting, restoring, and
enhancing the Delta ecosystem" as the foundation for State
decisions as to Delta management.
b) Sets certain objectives as inherent in the coequal
goals.
c) Sets state policy of reducing reliance on the Delta to
meet future water supply needs through a statewide strategy
of investing in improved regional supplies and
conservation.
d) Requires Council land-use decisions to be guided by
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certain findings, policies, and goals.
e) States certain "fundamental goals for managing land use
in the Delta."
f) Describes the longstanding constitutional principle of
reasonable use and the public trust doctrine as the
foundation of state water management policy.
g) Preserves specified statutes and legal doctrines as
unaffected by the new division in the Water Code, including
area-of-origin protections, water rights and public trust
doctrine.
h) Establishes the Council as the successor to the
California Bay-Delta Authority, and provides for the
Council to assume its responsibilities.
i) Defines certain terms, including the following key
terms:
i) "Coequal goals" means "the two goals of providing a
more reliable water supply for California and protecting,
restoring, and enhancing the Delta ecosystem," but those
goals are achieved in a manner to protect the Delta as an
evolving place.
ii) "Covered action" means a Delta related plan or
program that meet certain conditions, including
significant impact on achievement of the coequal goals.
iii) "Restoration" means achieving a close approximation
of the Delta's ecosystem's natural potential, given past
physical changes and future impact of climate change.
3)Require the Council to take certain "early actions,"
including:
a) Appointment of Delta Independent Science Board
b) Development of strategy to engage federal government in
the Delta
c) Certain projects to start now, before the Delta Plan is
completed, including the "Two-Barrier" pilot project and
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specified ecosystem restoration projects
4)Require the State Water Resources Control Board (SWRCB) to
develop new flow criteria for the Delta ecosystem necessary to
protect public trust resources.
a) Specify process and substance of development of flow
criteria.
b) Require SWRCB approval of change in State Water Project
(SWP) and Central Valley Project (CVP) point of diversion,
as specified, to include flow criteria.
c) Require SWRCB to enter agreement with SWP/CVP
contractors to pay costs.
d) Preserve SWRCB authority to review water rights and
impose terms and conditions on water right permits.
5)Require SWRCB to submit prioritized schedule and costs for
instream flow studies for the Delta and other high priority
streams, with completion by certain dates.
6)Create Delta Stewardship Council as an independent state
agency.
a) Establish 7-member Council, with four appointments by
the Governor, two by the Legislature, and the chair of the
Delta Protection Commission, with staggered terms.
b) Provide for Council salaries, hiring of Council staff
and headquarters.
c) Specify authority of Council, including:
i) Administrative authorities (e.g., contracting).
ii) Consultation with other agencies implementing Delta
Plan.
iii) Performance measurements.
iv) Appeals of state/local agency determinations of
consistency with Delta Plan, including specified
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procedures for such appeals.
7)Create Delta Watermaster as enforcement officer for SWRCB in
the Delta.
8)Create Delta Independent Science Board (Science Board) and
Delta Science Program.
9)Requires Council to consider including the Bay Delta
Conservation Plan (BDCP) under certain circumstances,
including:
a) Conditions BDCP incorporation into Delta Plan and state
funding for BDCP public benefits on compliance with the
Natural Community Conservation Planning (NCCP) Act and
California Environmental Quality Act (CEQA).
b) Requires certain analyses as part of CEQA compliance:
i) reasonable range of flow criteria, rates of
diversion and other operational criteria required to
satisfy NCCP Act.
ii) reasonable range of Delta conveyance alternatives,
and capacity/design options for a lined canal, an unlined
canal, and pipelines.
iii) potential effects of climate change on conveyance
and habitat restoration activities.
iv) potential effects on migratory fish and aquatic
resources.
v) potential effects on Sacramento River/San Joaquin
River flood management.
vi) resilience/recovery of conveyance alternatives in
event of natural disaster.
vii) potential effects of each conveyance alternative on
Delta water quality.
c) Requires Department of Water Resources (DWR) to consult
with Council and Science Board during development of BDCP.
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d) Requires Council to have at least one public hearing and
incorporate BDCP into Delta Plan if Department of Fish &
Game approves BDCP as NCCP.
e) Requires annual report to Council on BDCP
implementation.
f) Allows Council to make recommendations to BDCP
implementing agencies.
g) Requires BDCP to include a transparent, real-time
operational decisionmaking process in which fishery
agencies ensure applicable biological performance measures
are achieve in a timely manner.
h) Specifies that BDCP chapter does not amend or create any
additional legal obligation or cause of action under NCCP
Act or CEQA.
10)Conforms certain laws to provide for creation of the Council.
11)Makes legislative findings regarding the Delta and California
water.
12)Conditions enactment on enactment of SB 229, SB 458, AB 39
and AB 49.
EXISTING LAW establishes the California Bay-Delta Authority to
oversee implementation of the CALFED Bay-Delta Program, and
authorizes more than 200 state and local agencies to govern the
Delta.
AS PASSED BY THE SENATE , the bill created a Delta Council but
provided little detail.
The Assembly amendments removed all the substance and stated
legislative intent to create a Delta council.
FISCAL EFFECT : Unknown
COMMENTS : For several years, the Delta has suffered a crisis -
ecosystem, water supply, levee stability, water quality, policy,
program, and litigation. In June 2004, a privately owned levee
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failed and the State spent nearly $100 million to fix it and
save an island whose property value was far less. In August
2005, the Department of Fish & Game (DFG) reported a trend
showing severe decline in the Delta fishery. In 2006, the
Legislature reorganized Delta programs and funding under the
Resources Agency Secretary. In 2007, a federal judge, acting
under the federal Endangered Species Act, declared illegal
certain federal biological opinions about near-extinct fish and
restricted water exports from the Delta, to the San Francisco
Bay Area, the San Joaquin Valley and Southern California. The
Governor shortly thereafter called the Legislature into an
extraordinary session on water.
Delta Vision :Through this enduring Delta crisis, the Legislature
and the Governor initiated, in 2006, a process to develop a new
long-term vision for the Delta. SB 1574 (Kuehl) of 2006
required a cabinet committee to present recommendations for a
Delta vision. The Governor created a Delta Vision Blue-Ribbon
Task Force to advise the Cabinet Committee. The Task Force
produced an October 2008 Strategic Plan, which the Cabinet
Committee largely adopted and submitted the recommendations to
the Legislature on January 3, 2009. This year, the Legislature
held numerous hearings on Delta Vision and a set of five bills,
including this one. In August, policy committees in both houses
held hearings on the topics in these bills, and considered
"pre-print" versions. Conference Committee substantially
amended the pre-prints.
Legal Framework for Delta :Since statehood, California has asked
much of the Delta, perhaps too much. Conflicting demands have
led to crisis and conflict - between and among agencies,
stakeholders and natural resources. The Delta Vision process
spent more than 18 months, investigating the Delta, engaging
agencies and stakeholders, and thinking carefully about the
Delta's challenges and prospects for change. The Task Force's
first recommendation was to change the fundamental legal
framework for the State to make decisions as to its activities
in the Delta - encapsulated in two "coequal goals" of "restoring
the Delta ecosystem and creating a more reliable water supply
for California." This bill sets a new legal and governance
framework for the future of the Delta, explicitly stating for
the first time how the state should approach resolving the
inherent conflicts in managing Delta resources. This framework
includes legislative findings, policies and definitions, which
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provides the foundation for new governance in the Delta.
Early Actions : This bill identifies a series of actions that
existing and new agencies need to take as soon as possible -
before the Council completes its new Delta Plan. Some actions
are administrative. Others are substantive projects for the
Delta ecosystem and/or water supply reliability. The early
actions part communicates the urgency of responding to the Delta
crisis, without waiting for the completion of another Delta
plan.
Council Membership : The foundation of this bill's change is the
new Delta Stewardship Council, which this bill creates with
seven members. Council members would be required to possess
diverse expertise and reflect a statewide perspective. However,
this bill would also designate the chair of the Delta Protection
Commission as a voting member of the Council ex officio.
Delta Vision suggested the Council should have no slots set
aside for persons with specific characteristics. Others suggest
that there must be specific slots for persons with specific
characteristics, such as, representing Delta interests,
environmental interests, exporter interest, etc. This bill
appears to be a hybrid of the two approaches, with membership
appointed by the Governor, Senate Rules Committee, Assembly
Speaker and the DPC
Delta Vision suggested the Council should all be appointed by
the Governor, subject to Senate confirmation, with no ex officio
members. That approach would rely solely on the Senate
confirmation process to ensure the Governor's appointments
fairly balanced state and local interests. This bill provides
the Senate and Assembly an additional method to ensure balance,
at least from the Senate and Assembly's perspectives, by
allowing each to appoint a member.
Delta Water Master :This bill includes a provision that requires
SWRCB to appoint a Delta Watermaster. This version, however, is
much narrower than the proposal in the August pre-print version,
which had broader authority. The Watermaster in this bill acts
by delegation of authority from the SWRCB. It is the
enforcement officer for the board, with specified delegated
authorities. This version also narrows its geographic
jurisdiction to the Delta.
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Science Board/Program :This bill establishes a Science Board as
well as a science program under the leadership of a Lead
Scientist. This language was developed in cooperation with
Professor Jeff Mount, former chair of the CALFED Independent
Science Board.
Bay Delta Conservation Plan :This bill conditions State funding
and incorporation of BDCP into the larger Delta Plan on its
approval as a Natural Community Conservation Plan by DFG and
completion of robust investigation and analysis pursuant to
CEQA. While some agencies have asserted that BDCP would be an
NCCP, the December 2006 planning agreement specifically provided
that the signatories were not committed to achieving the higher
standard for an NCCP under state Endangered Species Act. This
bill sets the higher NCCP standard ("the gold standard") as the
threshold for state funding of the public benefits of BDCP
activities, which is a significant step forward, while relying
on existing law. The specified issues that will be analyzed
under CEQA also add credibility to the outcome of BDCP, but also
rely on the context of existing CEQA law.
Analysis Prepared by : Alf W. Brandt / W., P. & W. / (916)
319-2096
FN:
0003147