BILL ANALYSIS Ó
-----------------------------------------------------------------
| |
| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
| |
-----------------------------------------------------------------
BILL NO: AB 939 HEARING DATE: July 3, 2012
AUTHOR: V. Manuel Perez URGENCY: No
VERSION: June 19, 2012 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Salton Sea Restoration
BACKGROUND AND EXISTING LAW
1.In 2003, Senators Kuehl, Machado, and Ducheny authored
legislation that together implemented the Quantification
Settlement Agreement (QSA), a historic water agreement that
limited California's Colorado River water usage to 4.4 million
acre-feet annually. Key elements of the QSA include water
conservation measures, water transfers from the Imperial
Irrigation District (IID) to the San Diego County Water
Authority (SDCWA) and to the Coachella Valley Water District
(CVWD), environmental mitigation obligations, regulatory
provisions, and funding agreements.
Many of the potential impacts of the QSA could fall on the
Salton Sea, and many of the QSA's contractual agreements were
focused on mitigating those impacts. In particular, one of
the funding agreements, signed by the Director of the
Department of Fish and Game, provided that the state was
solely responsible for environmental mitigation costs
associated with the water transfers that exceed the $133 M
provided by IID, CVWD, and SDCWA.
The QSA legislation similarly included numerous provisions for
habitat and species protection, air quality, and the eventual
restoration of the Salton Sea by the State. Specifically, it
committed "the State of California Ŭto] undertake the
restoration of the Salton Sea ecosystem and the permanent
protection of the wildlife dependent on that ecosystem." To
do so, the Secretary of Resources was directed to develop a
Salton Sea restoration plan with a preferred alternative for
the restoring the sea. That plan, which recommended an
investment of nearly $9 B, was submitted to the Legislature in
1
May, 2007.
2.The restoration plan, as well as a separate analysis by the
Legislative Analyst's Office (LAO), highlighted the need for a
governance structure to oversee the state's continuing role at
the Salton Sea. The LAO recommended assigning Department of
Water Resources (DWR) the responsibility of implementing the
preferred alternative. The LAO also recommended codifying the
restoration and expenditure plan and establishing interim
priorities.
3.Following several years of discussion over the appropriate
governance structure to guide any Salton Sea restoration
efforts, in 2010, the legislature passed and the governor
signed SB 51 (Ducheny). This bill, among other things,
established the Salton Sea Restoration Council as a state
agency to oversee the restoring the Salton Sea. The bill
required the council to evaluate Salton Sea restoration plans,
including the $9 B preferred alternative and, by June 30,
2013, report to the Governor and the Legislature with a
recommended restoration plan. The council has never met and
this year's natural resources trailer bill (SB 1018) sunset SB
51's provisions regarding the Salton Sea Restoration Council
at the end of this year.
4.While the Legislature has not acted on the preferred
alternative for the Salton Sea Restoration, it has
appropriated funding to the Species Conservation Habitat (SCH)
Project.
The SCH Project is being developed as a conservation measure
for the protecting fish and wildlife species dependent on the
Salton Sea. The Project would be located at the southern end
of the Salton Sea. Alternative sites for implementing the SCH
Project are located near the mouths of the New and Alamo
rivers. The project is intended to serve as a proof of
concept for the restoring shallow water habitat that currently
supports fish and wildlife dependent upon the Salton Sea.
The Natural Resources Agency (NRA) is the lead state agency on
the Species Conservation Habitat Project. The Draft
Environmental Impact Statement/Environmental Impact Report was
issued August 2011. The state expects a final certification
within the next month or so.
5.The Salton Sea Authority (Authority) is a joint powers
authority composed of the Counties of Imperial and Riverside,
2
the Imperial Irrigation District, the Coachella Valley Water
District, and the Torrez Martinez Desert Cahuilla Indian
Tribe.
This year's budget bill (AB 1464) included language that
directed the Department of Fish and Game (DFG) to provide up
to $2 M to the Authority for a funding and feasibility study
on Salton Sea restoration to be completed by July 1, 2013. The
study was to update the analysis in previous restoration
planning efforts in light of current fiscal and environmental
circumstances, and include coordination with ongoing
restoration-related efforts, new restoration options,
including renewable energy uses, and comprehensive funding
strategies. The study was be guided by a Technical Advisory
and Guidance (TAG) Team composed of experts from the NRA, the
Authority member agencies, and environmental organizations.
The study was to do all of the following:
Evaluate near-term habitat improvement measures that
expand upon the Salton Sea Species Conservation Habitat
Project.
Thoroughly review the feasibility and cost of existing
alternatives and their components.
Identify any other feasible options that may be
incorporated to help fund the Salton Sea Species
Conservation Habitat Project, such as renewable energy and
desalination.
Identify components of existing alternatives that may be
used in various combinations to form a near-term plan.
Develop long-term strategies.
Identify funding and financing options.
The governor used his line-item veto authority to delete those
provisions from the budget bill. In his veto statement, the
governor noted the Salton Sea Restoration Fund had an
insufficient balance to fund the study, and using other
departmental funds would result in an unallocated reduction to
other DFG programs. He further wrote "I will be directing the
Department of Fish and Game to continue conversations with the
Salton Sea Authority and environmental stakeholders in an
effort to identify other options for conducting the proposed
feasibility study and enhancing restoration efforts."
PROPOSED LAW
This bill would eliminate the Salton Sea Restoration Council and
assign most of the authorities for restoring the Salton Sea to
3
the Salton Sea Authority.
The Authority would be directed to:
(1)Lead the Salton Sea restoration efforts, including all of the
following:
Early start species conservation habitat demonstration
projects.
Biological investigations.
Water quality, sedimentation, and inflows
investigations.
Air quality investigations.
Geotechnical investigations.
Investigations of access and utility agreements.
Analysis of feasible funding sources for restoration
program components and activities.
Analysis of economic development opportunities such as
renewable energy, biofuels and mineral development.
(1)Develop, by June 30, 2014, a recommended Salton Sea
restoration plan. The plan is to:
Be developed in coordination with the NRA, and with
advice from the Technical Advisory Group (see (3) below).
Address the current and future conditions of the Salton
Sea.
Consider the impacts of on air quality, fish and
wildlife habitat, water quality, and the technical and
financial feasibility of the restoration plan and
coordinate with other agencies that remain responsible for
air quality, endangered species, and other environmental
mitigation requirements of implementation of the QSA.
Evaluate the Salton Sea restoration plans, including,
but not limited to, the alternatives described in the draft
environmental documents for the Salton Sea Restoration
Program, and the program components of those alternatives.
Not delay the planning and implementation of ongoing and
planned mitigation projects such as the Species
Conservation Habitat or other ongoing mitigation measures.
(1)Form (in conjunction with the NRA) and supervise the
activities of the Technical Advisory Group (TAG). The TAG is
to:
Provide guidance to the Authority and the NRA in
evaluating, developing and refining Salton Sea restoration
plans.
Consist of technical representatives of Authority member
agencies, DFG, DWR, the California Energy Commission, the
California Air Resources Board, the United States
4
Geological Survey Salton Sea Science Office, environmental
groups and local stakeholders.
Evaluate ongoing and planned mitigation activities
connected with the implementation of the QSA, for the
purpose of developing a restoration plan pursuant to this
bill.
(1)Conduct its duties as follows:
Act consistent with the purposes of the Salton Sea
Restoration Fund.
Work collaboratively with the NRA, the DWR, and
interested parties.
(1)Provide ongoing "publicly derived" input to the Secretary
relating to the Authority's responsibilities under this bill,
including habitat objectives and actions, types and levels of
public access, and integration of air quality management and
habitat restoration.
DFG and DWR would be required to provide staff services, upon
request from the Authority, using staff currently dedicated to
Salton Sea activities, to assist the Agency in carrying out its
assigned functions, including the following:
Administering grants and expenditures from the Salton Sea
Restoration Fund or other sources, including, block grants
from other state boards, commissions, or departments.
Administering contracts.
Arranging meetings, agendas, and other administrative
functions.
Communication and public outreach, including all of the
following:
Public meetings with interested parties, presentations,
and workshops.
A regularly updated project-specific Internet Web site.
E-mail and paper newsletters in English and Spanish.
Evaluation and implementation of restoration alternatives
necessary for the Authority and NRA to fulfill their duties
pursuant to this bill.
The bill would also largely reenact existing legislative intent
regarding restoration goals for the Salton Sea, with the
following key differences:
Change the air quality goal from "eliminate air quality
impacts from restoration projects using the best available
technology," to "mitigate air quality impacts from restoration
projects."
Add a new goal to "enhance economic development opportunities
5
that will provide sustainable financial improvements
benefiting the local environment and economic quality of life
for communities around the sea."
ARGUMENTS IN SUPPORT
The County of Riverside's letter is typical. "Under current
law, the Salton Sea Council, a state agency, is responsible for
overseeing the restoration of the Salton Sea. Many local
residents do not believe that sufficient progress is being made
regarding the sea's restoration. Indeed, these same individuals
worry about the prospects of dust storms that will occur with
greater intensity and frequency Ŭas] the sea's water level
drops. Then, too, there is the issue of the huge die-offs of
fish and aquatic birds."
"The state's woeful fiscal situation does not allow for the
resources necessary to adequately address the restoration of the
Salton Sea. Moreover, that same lack of available resources
necessarily renders the sea to a lower priority than might
otherwise be the case. A local agency approach would be more
practical and workable at this point in time. The obvious
agency to take the lead on restoration of the sea is the Salton
Sea Authority, an agency that is already 'on the ground' and
dedicated to finding solutions to the Salton Sea's myriad
problems."
ARGUMENTS IN OPPOSITION: None received
COMMENTS
Well, That Didn't Work. Then Senator Ducheny toiled for some
years before she was able to resolve all of the conflicting
governance concerns regarding the Salton Sea and ultimately
enact SB 51. The bill was barely in effect before Governor
Brown proposed to eliminate it. According to the 2011-2012 May
Revise Budget Summary, "While the Administration supports the
restoration efforts at the Salton Sea, it is inefficient to
create a new department for a limited time with only one
employee. Furthermore, it would be premature to develop
preferred alternatives until a viable funding plan is created.
The cost estimates for the existing preferred alternatives are
estimated in the billions of dollars." While the legislature
did not grant the governor's wish in last year's budget, this
year he prevailed.
The State Is Still On The Hook. The state plainly has
statutory, contractual, and common law responsibilities
regarding restoring the Salton Sea (though there may be some
6
dispute as to the precise nature of those responsibilities).
Yet for some reason, the state has been incapable of leading the
effort. It is not clear if the problem is an unwillingness on
the part of the state to lead or an unwillingness on the part of
others to be led. Regardless, unless and until there is some
sort of concerted effort to restore the Salton Sea that
addresses both state and local concerns, things will only get
worse.
So They Develop A Plan, Then What? The bill requires the
Authority to "report to the Governor and the Legislature by June
30, 2014, with a recommended Salton Sea restoration plan." It
is not clear what is supposed to happen next. Is the
expectation that NRA would recirculate the environmental
documents for the plan it submitted to the Legislature in May,
2007, incorporating the Authority's restoration plan? Or
perhaps the Authority would assume full responsibility for
restoring the sea and initiate its own CEQA review? Or maybe
the expectation is simply for a legislative oversight hearing?
Some clarity about next steps would be helpful.
How to Protect State Interests? This bill includes lots of
language such as "provide guidance to the Agency" and "in
consultation with the Agency" but provides no actual decision
making authorities for the NRA. Presumably, this means the
Authority would be responsible for determining precisely what
the state's interests are, and ensuring that the recommended
plan adequately addresses those interests. Some clarity on this
point would be helpful as well.
Funding? The governor's veto of the budget bill language
discussed above in the Background means that it is not clear how
the Authority will cover its costs of complying with this bill.
State Staff for Local Admin. While state agencies occasionally
assign staff to provide technical assistance to local agencies
when there is a state interest in the program or project, staff
are unaware of an occasion where the legislature has authorized
the use of state resources for purely administrative functions.
Major Shifts in Policy? Recent amendments change the
legislative findings language; changing the air quality goal
from "eliminate air quality impacts from restoration projects
using the best available technology ?" which, incidentally,
mirrored language governing the soon to be eliminated Salton Sea
Restoration Council, to "mitigate air quality impacts from
restoration projects." It is not clear why the legislature or
7
affected residents would be interested in lowering the air
quality goal.
SUGGESTED AMENDMENTS: None
SUPPORT
Coachella Valley Economic Partnership
Coachella Valley Water District
County of Imperial
County of Riverside
Imperial Irrigation District
RBF Consulting
Salton Sea Authority
OPPOSITION
None Received
8