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 229 HEARING DATE: April 14, 2009
AUTHOR: Pavley URGENCY: No
VERSION: April 13, 2009 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: California Water Commission: Bay-Delta.
BACKGROUND AND EXISTING LAW
In 1957, the Legislature created the Department of Water
Resources (DWR) and the California Water Commission. The
principle purpose of the department was to design, construct,
and operate what was to become known as the State Water Project
(SWP).
The commission is composed of nine members, appointed by the
Governor, and subject to Senate confirmation. The original
purpose of the commission was to conduct an annual review of the
progress of construction of the SWP and report its findings to
the legislature. The commission was also the reviewing agency
for any regulations proposed by the Department, and was later
granted the authority to name facilities of the SWP.
The original statutes also included a provision that while it
was the intent of the Legislature that the commission and
director of DWR be in agreement whenever possible, if there was
a disagreement the opinion of the director of DWR would prevail.
While the commission still exists in statute, there currently
are no appointed members to the commission, nor have there been
any for quite some time.
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
of the state and federal water projects, and develop a long-term
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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), SB1574 (Kuehl), and
AB1803(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,
2008 with recommendations for implementing the Delta Vision and
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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 Bay-Delta Interim Governance Act of
2009. Specifically, this bill would:
1.State the intent of the Legislature to provide for interim
management and governance measures that will contribute to the
health of the Bay-Delta and to enhance water supply
reliability to those who depend on adequate water supplies
that originate in the Bay-Delta. Furthermore, it is the
intent of the Legislature:
To accomplish the identified tasks through the use of
existing government agencies and not to create additional
entities.
That federal, state, and local governments should
cooperate in devising the necessary projects, programs,
water supply reliability improvements, and ecosystem
recovery strategies in the Bay-Delta.
1.Establish as state policy that, to the maximum extent
practicable, projects and programs of state agencies that
affect the Bay-Delta shall achieve the two coequal goals of
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ecosystem recovery and improvements to the reliability of
public water supplies.
2.Require the Natural Resources Agency (NRA) to take all
necessary actions to ensure that all funds and programs of the
State of California and its cooperating partners in the
federal government and local governments in the Bay-Delta are
consistent with the two coequal goals.
3.Require the NRA to adopt a Bay-Delta Conservation Plan for the
Bay-Delta. The plan would be required to do the following:
Incorporate adaptive management techniques to the
maximum extent practicable in order to focus the best
available scientific information on the two coequal goals
Be consistent with the Natural Community Conservation
Planning Act (NCCP Act). The secretary would be required
to extend an invitation to appropriate federal agencies and
local governments inviting their participation and entering
into agreements consistent with this section at the
earliest possible time.
Comply with the California Environmental Quality Act
(CEQA). To the extent feasible, the NRA would be required
to coordinate with local governments that are developing
NCCPs adjacent to the Bay-Delta.
1.Require development and implementation of the plan to be
funded through a fee paid by all entities that are
beneficiaries of the plan and those entities that divert water
from a Bay-Delta water body. "Beneficiaries" would be defined
as those entities that obtain or are delegated authority,
pursuant to the plan or its implementing agreements, to take
endangered, threatened, or candidate species protected under
state or federal law.
2.Require the Delta Vision Committee to develop an interim plan
that includes recommendations for projects and programs to
address other interim measures not included in the plan,
including issues pertaining to transportation, utilities,
recreation, water supply, and flood control.
In addition, this bill would:
3.Reform the California Water Commission as follows:
Move the commission from being within DWR and instead
make it an independent commission within the NRA.
Change the membership from 9 members with specific
backgrounds and experiences to 5 members from all parts of
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the state.
Eliminate the ability of the Director of DWR to override
decisions of the commission.
Make other technical changes.
1.Charge the commission with primary authority to implement,
approve, and oversee implantation of the Bay-Delta Governance
Act of 2009, including:
Ensuring that the coequal goals for the governance of
the Delta are successfully coordinated and implemented.
The implementation of the Bay-Delta Conservation Plan.
The interim plan described in Section 80534, adopted
pursuant to that act.
The responsibility to recommend priority activities and
projects to the Natural Resources Agency, the state board,
and other entities for environmental review and
implementation that are included within the Bay-Delta
Conservation Plan or the interim plan required by Sec.
80534.
1.Provide the commission with the following additional
authorities and duties:
Authority to enter into agreements with appropriate
state agencies to provide technical assistance that may be
necessary to implement specific projects.
Authority to delegate lead agency status for projects in
the Bay-Delta Conservation Plan or the interim plan to
other appropriate state or local entities.
Duty to serve as lead agency to implement projects
recommended by the final environmental impact report of the
Bay-Delta Conservation Plan or the interim plan.
Duty to establish a Delta fee in accordance with the
Bay-Delta Governance Act of 2009.
1.Establish a watermaster for the Delta who would be charged
with the responsibility of enforcing all statutory provisions
that are relevant to the successful implementation of the
Bay-Delta Conservation Plan or the interim plan:
The commission would be required to recommend at least
one individual to serve as a watermaster.
The costs of the watermaster would be paid from the
Delta Governance Account established pursuant to Bay-Delta
Governance Act of 2009.
The watermaster would notify the commission of any
action of the Natural Resources Agency or the state board
or any other governmental entity that is inconsistent with
this article.
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Watermaster decisions could be appealed by an affected
party to the chair of the state board. The chair may stay
decisions if he or she determines that the decision of the
watermaster was not supported by substantial evidence in
the record. An order of the chair of the state board
pursuant to this subdivision that stays an order of the
watermaster would be set for hearing before the full state
board at the earliest possible meeting.
ARGUMENTS IN SUPPORT
According to the Author, "The ongoing environmental collapse of
the California Bay-Delta, if not reversed, will result in
ecosystem losses that threaten the water supplies of millions of
Californians, agriculture, and protected species such as salmon
and other species. The Legislature is considering many bills on
the Bay-Delta in this term, but SB 229 is unique in that it
focuses on only short-term, positive steps that can be achieved
promptly. This bill adopts the recommendation of the Delta
Vision Task Force that two co-equal goals should be adopted:
ecosystem restoration and improvements to water supply
reliability. It does not address long-term governance, a
peripheral canal, possible bond financing, or land use reforms.
Instead, it focuses only on ecosystem planning, short-term
funding, and enforcement of existing laws."
ARGUMENTS IN OPPOSITION
According to the Association of California Water Agencies
(ACWA), "While it is possible that a permanent Delta Governance
structure may not be negotiated in the 2009 legislative session
and an interim approach as contemplated by SB 299 may be
required, ACWA respectfully submits that the approach in SB 229
is overbroad and over reaching." ACWA raises particular
concerns with (1) Not being clear whether the Bay Delta
Conservation Plan discussed in this bill is the same as the Bay
Delta Conservation Plan being developed by the NRA, delta water
exporters, and others, (2) the appointment of a watermaster; and
(3) fees.
COMMENTS
Work In Progress . This bill, like most of the other bills
addressing the Delta, is still evolving. Consequently, there
are some inconsistencies 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
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those technical issues as the bill progresses.
The Plan is the Key. Everything in this bill tees off from the
Bay-Delta Conservation Plan for the Bay-Delta - 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:
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
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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
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.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.
5.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
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probably a recipe for failure.
Related Bills: Each of the following bills address one or more
aspect of problems the Delta.
Senate:
SB 12 (Simitian)A compressive bill that largely mirrors the
recommendations of the Blue Ribbon Task Force.
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
Association of California Water Agencies (Unless Amended)
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