BILL ANALYSIS �
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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BILL NO: AB 1095 HEARING DATE: July 3, 2012
AUTHOR: Buchanan URGENCY: No
VERSION: June 27, 2012 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL: Fiscal
SUBJECT: Sacramento-San Joaquin Delta Reform Act of 2009:
Covered Actions.
BACKGROUND AND EXISTING LAW
The Sacramento-San Joaquin Delta Reform Act of 2009 (Act), among
other things:
Established co-equal goals of providing a more reliable water
supply for California and protecting, restoring, and enhancing
the Delta ecosystem.
Created the Delta Stewardship Council (Council)
Required the Council to develop and adopt a Delta Plan to
achieve the co-equal goals.
Required all "covered actions" to be consistent with the Delta
Plan.
The Act defined covered actions as a plan, program, or project,
as defined in the California Environmental Quality Act (CEQA),
that meets all of the following conditions:
Will occur, in whole or in part, within the boundaries of the
Delta or Suisun Marsh.
Will be carried out, approved, or funded by the state or a
local public agency.
Is covered by one or more provisions of the Delta Plan.
Will have a significant impact on achievement of one or both
of the co-equal goals or the implementation of
government-sponsored flood control programs to reduce risks to
people, property, and state interests in the Delta.
The Act also defined a number of specific activities as not
being covered actions, including:
A regulatory action of a state agency.
Routine maintenance and operation of the State Water Project
or the federal Central Valley Project.
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Regional transportation plans.
Any plan, program, project, or activity within the secondary
zone of the Delta that the applicable metropolitan planning
organization has determined is consistent with the provisions
of SB 375 (Stats 2008, c. 728).
Routine maintenance and operation of any facility located, in
whole or in part, in the Delta, that is owned or operated by a
local public agency.
The Act further established that "Nothing in the application of
�the section of law regarding covered actions] shall be
interpreted to authorize the abrogation of any vested right
whether created by statute or by common law."
PROPOSED LAW
This bill would exclude from the definition of "covered actions"
the following:
1.Any project, as defined by CEQA, that is both within an urban
area or urbanizing area, as described in the Final Staff Draft
Delta Plan, and in the secondary zone of the Delta, and is
within the boundaries of the community's adopted sphere of
influence or urban limit line and substantially conforms with
an adopted general plan, as of September 30, 2009.
Any substantive expansion or amendment of the existing
boundaries of an urban or urbanizing area's sphere of
influence or general plan into the Delta would not be exempt
from the definition of "covered action"
2.Any upgrade to an existing drinking water, stormwater, or
wastewater treatment, storage, or conveyance facility, within
the existing physical footprint of that facility, to meet a
state/federal water quality compliance order consistent with
state/federal standards and which complies with CEQA/NEPA
(National Environmental Policy Act).
3.Any flood control project in the secondary zone of the Delta
that is consistent with the applicable provisions of the
Central Valley Flood Protection plan that would provide
protection to an urban or urbanizing area or existing public
infrastructure, and which has complied with CEQA, NEPA or
both.
ARGUMENTS IN SUPPORT
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According to the Delta Coalition, "The changes we seek would
provide an exclusion from the definition of 'covered action' for
a project or portion of a project that falls specifically within
'an urban or urbanizing area' with the Delta's secondary zone,
and is within the boundaries of the community's adopted sphere
of influence or urban limit line and substantially conforms to
an adopted general plan as of September 30, 2009. Only those
very limited situations approved by local governments prior to
the enactment of the Delta Reform Act would be exempt."
"We believe this change is needed to clarify that these projects
are consistent with the Delta Plan and do not need to re-apply
for a determination, thus avoiding any disruption for financing
of private developments in the final states. Some of those
projects being built out are more than 20 years old. Similar
operative provisions would apply to certain flood control
projects and levee projects already underway that have already
been deemed consistent with the Delta Plan."
ARGUMENTS IN OPPOSITION
According to a coalition of water agencies and business
interests, "AB 1095 is premature as no actions have been subject
to the consistency determination process to date. The author
seeks exemptions that are extremely broad and would seriously
undermine existing state policy designed to advance the co-equal
goals of water supply reliability and ecosystem restoration."
"We ? have sought to protect the integrity of the 2009 Delta
Reform package. The historic Delta package wisely chose to set
an achievable and balanced set of state policies to restore this
vital estuary and improve the reliability of water supplies if
they are given a chance to succeed. For all of the above
reasons, we must oppose AB 1095 ?"
COMMENTS
Who's In Charge? Many local governments in and around the Delta
are concerned that the Delta Plan might inappropriately impinge
on their land use decision making authorities. This begs the
question, "Who makes what land use decisions in the Delta?"
The legislature has said that the Delta Plan is to be the
comprehensive, long-term management plan for the Delta. The
legislature further said that all "covered actions" must be
consistent with that plan, and provided a fairly narrow list of
exceptions - generally things that would not change the existing
footprint or profile of any project or facility.
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This bill, among other things, says that general plans and
spheres of interest in place when the Legislature began its
final effort to pass the Delta Reform Act, should govern land
use decisions in the secondary zone of the Delta. General plans
establish long term land use policies, and spheres of influence
establish who makes those long term land use policies.
If the Delta plan and local general plans are allowed to
independently establish long-term land use policies for the
Delta, conflicts are inevitable.
Who Determines What Is A Covered Action? According to the Final
Staff Draft, the "State or local agency that carries out,
approves, or funds a project is the entity that determines
whether a proposed plan, program, or project is a covered
action." "Should an agency determine that the proposed plan,
program, or project is not a covered action, the determination
is not subject to Council review but may be subject to judicial
review."
Aren't Vested Rights Already Protected? As noted above in the
Background, the statute clearly states that it does not
"authorize the abrogation of any vested right whether created by
statute or by common law." Typically, development rights are
vested either at the time of approval of a development agreement
or the approval or conditional approval a vesting tentative map.
Some of the proponents of the bill appear to want the
assurances that accrue to vesting to occur earlier in the
development process, such as at the time of approval of a
general plan or general plan amendment.
High Anxiety. There was a problem last fall, when staff of the
Council sent comment letters to proponents of land use projects
undergoing CEQA review. These letters suggested that there was
a potential for the project to be considered a covered action
that would then need to comply with the Delta Act. This cause
much confusion and consternation among those contemplating land
use projects in and around the Delta. Upon becoming aware that
staff were issuing such letters, the Council directed staff to
stop and took the necessary internal actions to ensure such
letters aren't issued in the future. Nonetheless, there may be
some lingering apprehension about the Councils' intention
regarding covered actions and land use projects.
Still, to the extent there is such apprehension, it derives more
from the fact that the Delta Plan has not yet been finalized, it
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is not yet clear precisely how the plan will be applied, and it
is not known whether the courts will agree with the Council's
interpretation of the statutes.
Premature? By most accounts, the Final Staff Draft of the Delta
Plan is a significant improvement over the previous draft, and
they aren't done yet. The Council is considering the Final
Staff Draft. If the Council determines it does not need to
recirculate the environmental documents, it is likely to adopt
the Final Delta Plan sometime in the October-December 2012 time
period. If it is necessary to recirculate, then it would be an
additional 3 months or so before final adoption. Then, once the
Council adopts the plan, the Council would need to promulgate
regulations to implement the plan. That process can take up to
a year. So, it will likely be another year and a half before we
know precisely how covered actions would be regulated under the
Delta Plan.
Related Bills. SB 1495 (Wolk) would exempt from the definition
of covered actions:
Leases approved by a special district formed under the Harbors
and Navigation Code if specific conditions apply.
Routine dredging activities that are necessary for maintenance
of facilities operated by special districts formed under the
Harbors and Navigation Code.
Should AB 1095 and SB 1495 both continue moving through the
legislative process, chaptering amendments would likely be
necessary.
SUGGESTED AMENDMENTS: None
SUPPORT
A.G. Spanos Companies
California Building Industry Association
City of Stockton
Contra Costa County
Delta Coalition
Grupe Corporation
Sacramento County
Sacramento Regional County Sanitation District
San Joaquin County
Stockton East Water District
OPPOSITION
Association of California Water Agencies
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Burbank Water and Power
California Chamber of Commerce
Castaic Lake Water Agency
Coachella Valley Water District
Eastern Municipal Water District
Friant Water Authority
Glendale Water and Power
Inland Empire Utilities Agency
Irvine Ranch Water District
Kern County Water Agency
Las Virgenes Municipal Water District
Metropolitan Water District of Southern California
Mojave Water Agency
Orange County Business Council
Santa Clara Valley Water District
Southern California Water Committee
Three Valleys Municipal Water District
West Basin Municipal Water District
Western Growers Association
Western Municipal Water District
Westlands Water District
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