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 457 HEARING DATE: April 14, 2009
AUTHOR: Wolk URGENCY: No
VERSION: April 13, 2009 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: Local Government FISCAL: Yes
SUBJECT: Sacramento-San Joaquin Delta.
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
of the state and federal water projects, and develop a long-term
solution for the delta. The signing of the Accord marked the
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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 Assembly Bill 1200 (Laird), Senate Bill 1574
(Kuehl), and Assembly Bill 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,
2008 with recommendations for implementing the Delta Vision and
Strategic Plan.
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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
1.Create Delta Stewardship Council in the Natural Resources
Agency
The Council would have responsibility for the
stewardship of the Sacramento-San Joaquin Delta and all its
natural resources.
The council would consist of 9 members:
Eight members would be appointed by the Governor,
subject to Senate confirmation, serving staggered 5 year
terms. The 8 members are to include diverse expertise
and perspectives, policy and resource experts, strategic
problem solvers, and individuals having successfully
resolved multi-interest conflicts.
One member would be the Chair of the Delta
Protection Commission
The Council would be required to, among other things:
Develop and approve the Delta Stewardship Plan (see
below)
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Determine appeals from the Delta Protection
Commission regarding whether a project proposed by or
approved by a state agency or local government that may
impact the Delta is consistent with the plan.
Assume responsibility for any conservation or
habitat management plan developed for the Delta by the
state or federal government.
Establish a process to ensure federal and state
consistency with the plan.
Review and determine consistency of the Bay Delta
Conservation Plan or EIR for any significant Delta
Conveyance facility with this Division(?)
Be designated a trustee agency pursuant to the
California Environmental Quality Act (CEQA).
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.
Assess policies applied outside the Delta that are
critical to meeting Delta Vision goals and convey the
results of that assessment to the responsible agency.
Work with the Delta Science and Engineering Program
and the Delta Science and Engineering Board on adopting
sound principles of adaptive management.
Receive and allocate funds to advance policies and
programs related to the Delta.
Include issues of environmental justice in the plan
and in future Delta decision-making.
Adopt procedures for use of alternative approaches
to dispute resolution, such as joint fact finding and
arbitration to reduce reliance on litigation and the
courts.
Have the power to sue to ensure compliance with the
plan.
Establish policies and procedures that ensure that
day-to-day operation of water export systems is
consistent with the plan.
1.Require the Council to develop and approve the Delta
Stewardship Plan as follows:
The purpose of the Plan would be to guide and shape
management of the Delta to ensure its revitalization and
create a statewide reliable water delivery system.
The plan would be intended to meet the primary goals
of the Delta Vision.
The plan would build upon and integrate other plans,
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including the delta Protection Commission Resource
management Plan and the Central Valley Flood protection
Plan, modifying and extending them as needed to meet
(its) responsibilities.
The plan would be intended to:
Incorporate any species protection requirements that
impact Delta resources.
Incorporate requirements for water flow and water
quality in the Delta that achieve the coequal goals.
Define state land use interests in the Delta,
especially those that impact the ecosystem, water supply
reliability, and flood concerns.
Provide principles and procedures for adaptive
management.
Provide for the modeling, data collection,
management, monitoring, analysis, and interpretation to
support policy decision-making.
Ensure flexibility and resiliency in managing the
Delta.
Incorporate the recommendations of the Delta Vision
Strategic Plan.
Include an accurate up-to-date assessment of water
supply availability.
Articulate a detailed financing plan that identifies
costs, benefits, and revenue sources.
Serve as a foundational document for a programmatic
environmental impact statement or environmental impact
report, as well as any projects undertaken requiring
permits pursuant to the California Environmental Quality
Act (CEQA) or the federal National Environmental Policy
Act (NEPA).
The plan would be developed as follows:
Start by assessing existing plans and planning
efforts and use elements which are consistent with the
goals of the Delta Vision.
Coordinate with stakeholders as well as state,
federal, and local agencies.
Encourage the participation of local, state, and
federal agencies to help to better integrate their
responsibilities and capacities into the plan.
The plan would be required to recognize and address the
uncertainty involved in Delta decision-making and include
an adaptive management plan. The adaptive management plan
would be required to do all of the following:
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Synthesize existing knowledge about the Delta as a
physical system.
State hypotheses about the effects of management
actions recommended in the plan on the ecosystem, water
supply, and other values.
Recommend to the council additional management
actions expected to yield desired ecosystem or water
supply outcomes or designed to generate useful knowledge
about the Delta.
Design monitoring programs to systematically gather
needed data.
Identify and put in place the processes by which the
data will be synthesized, hypotheses evaluated, and new
management actions recommended.
On the five-year cycles on which the plan is
reviewed and updated, the results should be integrated
into a report on the knowledge of the Delta, an
assessment of the success of current policies and
management, and the identification, assessment, and
recommendation of possible changes in policies or
management.
The council would be required to adopt the plan on or
before January 1, 2011.
Until the plan is adopted pursuant to this division, the
Delta Vision strategic plan would serve as the interim plan
for the Delta.
1.Require the council by March 1, 2010, to appoint a Delta
Science and Engineering Board and create a Delta Science and
Engineering Program.
Program would be a replacement for, and a successor to,
the CALFED Science Program, and that the Board would be a
replacement for the CALFED Independent Science Board.
The board would consist of between 12 and 20 individuals
with natural science, social science, engineering, and
policy expertise. Members could serve a maximum of two
five-year terms. Lead scientists appointed by the council
would have a rotating appointment of three years. Lead
scientists would be formally engaged by an agency other
than the state.
In implementing the program, the Board would, among
other things:
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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 the 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.Require the Delta Protection Commission to:
Revise all of its plans and policies to be consistent
with the Delta Stewardship Plan.
Review and certify all city and county general plans for
consistency with the resource management plan and the Delta
Stewardship Plan.
Exercise direct consistency determination authority over
development proposals in the primary zone.
Review, hold public hearings and receive testimony, and
provide recommendations to the council on all proposed
projects subject to approval by the council.
Develop a regional economic development plan.
1.Create the Delta Stewardship Fund
The Commission would be required to deposit in the fund
any moneys received from federal, state, local, and private
sources for Delta stewardship.
Moneys in the fund would be available, upon
appropriation, for regional economic development consistent
with the Delta Stewardship Plan.
1.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.
2.Impose a state-mandated local program by requiring all general
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plans of cities and counties within the Delta to be consistent
with the Delta Stewardship Plan.
ARGUMENTS IN SUPPORT
According to the Author, "SB 457, the Sacramento-San Joaquin
Delta Stewardship Act, establishes the California Delta
Stewardship Council to balance the tri-equal goals of the Delta
ecosystem, water supply reliability and the Delta as a place by:
Developing a stewardship plan
Determining consistency of any project that may impact the
Delta witht e stewardship plan
Receiving and allocating funds for the Delta
SB 247 puts the Delta community as an equal in policy and
funding decisions in the Delta by requiring the needs of fish
and water supply be balanced with local needs."
ARGUMENTS IN OPPOSITION
According to the Association of California Water Agencies
(ACWA), while they support a new model of governance for the
Delta, many of the elements in this bill are of concern. In
particular, "ACWA is not convinced that a new overarching body
with broad authority over state and federal agencies is
necessary."
COMMENTS
Work In Progress . This bill, like most of the other bills
addressing the Delta, is still evolving. Consequently, there
are some inconsistencies and other 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.
Basic Structure. While the language of the bill is occasionally
inconsistent, according to the Author's office, the basic
structure is intended to be as follows:
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The Council:
Develops and approves the Delta Stewardship Plan.
Hears appeals from the DPC regarding the consistency of major
water projects in the Delta with the plan.
Review and determine consistency of the Bay Delta Conservation
Plan or EIR for any significant Delta Conveyance.
Assume responsibility for any conservation or habitat
management plan developed for the Delta by the state or
federal government.
Uses adaptive management to update the plan.
The DPC:
Revises all of its plans and policies to be consistent with
the Delta Stewardship Plan.
Reviews and certifies all city and county general plans for
consistency with the resource management plan and the Delta
Stewardship Plan.
Determines the consistency of major water, road, railroad,
utility, and levee infrastructure projects in the Delta with
the plan.
The Plan:
Meets the primary goals of the Delta Vision.
Build upon and integrate other plans, including the delta
Protection Commission Resource management Plan and the Central
Valley Flood protection Plan, modifying and extending them as
needed to meet its responsibilities.
Incorporates any species protection requirements that impact
Delta resources.
Incorporates requirements for water flow and water quality in
the Delta that achieve the coequal goals.
Defines state land use interests in the Delta, especially
those that impact the ecosystem, water supply reliability, and
flood concerns.
Provides principles and procedures for adaptive management.
Incorporates the recommendations of the Delta Vision Strategic
Plan.
Is updated every 5 years
Includes, in the 1st update, a consideration of the water
rights actions taken by the SWRCB to achieve accurate
accounting of real water in the Delta.
The Plan is the Key. Everything in this bill tees off from the
Delta Stewardship Plan - to the extent the plan fails to
adequately address one or more critical issue affecting the
delta, the likelihood of successfully achieving a revitalized
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Delta ecosystem and a reliable water supply for California,
while ensuring the Delta remains is a unique and valued area, 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, 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, using what
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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.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 the current 23 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 current structure of the
Commission to determine if a 23 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.
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
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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.
7.Existing Authorities. In order to achieve a revitalized Delta
ecosystem and a reliable water supply for California, while
ensuring the Delta remains is 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
that the author engages local agencies, the Administration,
and the federal government in such discussions, the better.
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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 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)
Planning and Conservation League
OPPOSITION
Association of California Water Agencies (Unless Amended)
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