BILL ANALYSIS �
AB 2000
Page 1
Date of Hearing: April 24, 2012
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared Huffman, Chair
AB 2000 (Huber) - As Amended: April 16, 2012
SUBJECT : Bay-Delta governance and flood control
SUMMARY : Adds requirements to the Bay Delta Conservation Plan
process (BDCP), changes Delta Stewardship Council (DSC)
membership, and specifies remaining bond money for flood control
projects shall only be used by the Department of Water Resources
(DWR) for levee improvements. Specifically, this bill :
1)Requires DWR to withdraw from its existing amended Memorandum
of Agreement (MOA) with the export water agencies funding BDCP
planning and the U.S. Department of Interior, Bureau of
Reclamation (Reclamation).
2)Allows DWR to enter into a new MOA only if the BDCP does all of
the following:
a) Allows Contra Costa, Sacramento, San Joaquin, Solano and
Yolo Counties (Delta Counties) to participate in the making
of BDCP decisions including those regarding additional
conveyance alternatives, levee restoration, agriculture,
recreation, and habitat conservation;
b) Evaluates non-diversion alternatives in the environmental
impact report prepared pursuant to the California
Environmental Quality Act (CEQA) and National Environmental
Policy Act (NEPA).
c) Establishes technical working groups to address issues in
each of the Delta Counties;
d) Provides funding to the Delta Counties to study potential
BDCP impacts and alternatives;
e) Collaborates to integrate local habitat conservations
plan and natural community conservation plan efforts; and,
f) Coordinates with the Delta Counties to independently
review BDCP science.
3)Appropriates, to DWR, remaining flood control improvement funds
from the Disaster Preparedness and Flood Prevention Bond Act of
2006 (Proposition 1E) and the Safe Drinking Water, Water
Quality and Supply, Flood Control, River and Coastal Protection
Bond Act of 2006 (Prop. 84) and restricts those monies to
levee improvements.
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4)Changes the membership of the DSC by:
a) Terming out two of the four gubernatorial appointees on
January 1, 2013 instead of February 1, 2014; and,
b) Replacing those members with the Delta Protection
Commission (DPC) Vice-Chair and another member chosen from
within the DPC by its members.
EXISTING LAW :
1)Allows DWR to cooperate and contract with any agency of the
state or the United States in order to carry out its powers and
purposes.
2)Makes $3 billion available to DWR, upon appropriation, from
Prop. 1E for:
a) Evaluation, repair, rehabilitation, reconstruction or
replacement of levees, weirs, bypasses, and facilities of
the State Plan of Flood Control;
b) Improving or adding facilities to the State Plan of Flood
Control to increase urban flood protection; and,
c) Reducing the risk of Delta levee failure
1)Makes $275 million available to DWR, upon appropriation, from
(Prop. 84) for flood control projects in the Sacramento-San
Joaquin Delta (Delta) to increase DWR's ability to respond to
levee breaches and to reduce levee failures, including
acquisition, preservation, protection and restoration of Delta
lands.
2)Establishes the DSC as an independent seven-member body
comprised of four members appointed by the governor, two
members appointed by the Legislature, and the Chair of the DPC.
3)Requires the DSC, by January 1, 2012, to draft, adopt and
implement a long-term management plan for the Delta (Delta
Plan) that meets the coequal goals of improving California's
water supply reliability and protecting, restoring, and
enhancing the Delta ecosystem. Requires that the coequal goals
are achieved in a manner that protects and enhances the unique
cultural, recreational, natural resource, and agricultural
values of the Delta as an evolving place.
FISCAL EFFECT : Unknown
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COMMENTS : For almost half a century the debate has raged about
whether export water supplies could be improved by building a new
conveyance facility that would extend from the Sacramento River
in the northern Delta to the southern Delta where the State Water
Project (SWP) pumping plant operated by DWR and the federal
Central Valley Project (CVP) pumping plant operated by
Reclamation (collective "Export Projects") are both located in
close proximity to one another. More recently, the conversation
has included discussion of whether an alternative conveyance,
either across or under the Delta, would reduce the Export
Projects' current through-Delta impacts on fish and wildlife.
BDCP
In 2006, the 18-agency state and federal planning process for the
Delta known as
"CALFED" identified a significant funding shortfall that
threatened to interrupt program implementation and put
agreed-upon CALFED "regulatory commitments" with state and
federal export contractors at risk. Thereafter, on July 28,
2006, a funding Memorandum of Agreement (MOA) was reached between
California Bay-Delta Authority (the state agency coordinating
CALFED), state and federal agencies implementing the program, and
export water agencies who had benefitted from the "regulatory
commitments." That MOA obligated the export water contractors to
voluntarily contribute funding to CALFED while also launching a
new effort: the BDCP. The BDCP was described as "a conservation
plan for the Delta and its upstream basins" with the express
mission of obtaining for SWP/CVP Delta operations the permits
necessary to comply with the California Endangered Species Act
and the Federal Endangered Species Act (FESA) through a state
Natural Community Conservation Plan (NCCP) and a federal Habitat
Conservation Plan (HCP). This made the BDCP distinct from CALFED
which had provided only a programmatic framework and no
endangered species act coverage for the state and federal water
projects.
Delta Stewardship Council and 2009 Historic Delta Legislation
In 2009, when California faced a third consecutive dry year,
former Governor Schwarzenegger called an Extraordinary Session of
the Legislature to address water issues that were still pending
at the close of the regular session. In the five-bill package
that was signed into law following those negotiations, SB 1
(Simitian, Chapter 5, Statutes of the 7th Extraordinary Session
2009-2010), addressed Delta governance and set co-equal goals for
the Delta in statute. SB 1 X7 also restructured the DPC to be a
more locally-representative body, and created the DSC as the
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governing body mandated to adopt the Delta Plan. Among its
provisions, SB 1 X7 established a policy of reduced reliance on
the Delta in meeting California's future water supply needs and
imposes specific detailed requirements on the BDCP. Among them,
it mandates that BDCP must be approved by DFG as an NCCP in order
to be incorporated in the Delta Plan and eligible for public
funding; it must include a reasonable range of flow criteria,
rates of diversion, and other operational criteria; it must
analyze a "reasonable range of Delta conveyance alternatives
including through-Delta, dual conveyance, and including further
capacity and design options of a lined canal, an unlined canal,
and pipelines"; and assess the "potential effects of each Delta
conveyance alternative on water quality." For any eventual
project, SB 1 X7 requires that "BDCP shall include a transparent,
real-time operational decisionmaking process in which �USFWS,
NMFS and DFG] ensure that applicable biological performance
measures are achieved in a timely manner with respect to water
system operations." Finally, SB 1 X7 establishes that any
determination by DFG that the BDCP meets both the NCCPA and the
requirements of SB 1 X7 can be appealed to the Council.
Current Status
Between February 29, 2012 and March 2, 2012, the BDCP made serial
releases of draft documents that, in total, comprised most of the
elements of what was termed by the California Natural Resources
Agency as the BDCP Administrative Draft. The Administrative
Draft effects analysis focused on new conveyance in the Delta
sized at the maximum combined pumping capacity of the SWP and
CVP, 15,000 cubic feet per second, along with habitat restoration
and "other stressors" measures. By its own analysis the
"conservation plan" would increase water exports above current
levels and could be worse for some at-risk native fish species
than current biological opinions designed to prevent jeopardy.
However, the analysis assumes that over time conditions would
improve for species due to habitat actions. To date the draft
BDCP plan has assumed that new conveyance would be paid for in
the same manner as other units of the State Water Resources
Development System; that is the cost of the facility would be
reimbursed through contracts for water and power. On the other
hand, so far the plan has assumed that the majority of the
habitat restoration costs will fall on the public.
Supporting Arguments : The author states this bill is needed to
"ensure the Delta counties are fully able to participate in
addressing the problems that currently face the �Delta] via the
BDCP process" and that a reevaluation of the current BDCP
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timeline and approach is needed. The author states that each
county needs to be able to evaluate the impacts of the BDCP
proposals and potential alternatives and that, with the exception
of Yolo County, none of them have been provided the resources to
do so. The author also advocates that "while the BDCP garners
the bulk of the attention, spending already allocated bond
funding on levee repair projects is an important action that will
benefit both the Delta Counties and the BDCP." Supporters also
state that the BDCP is conducting business on an aggressive
timeline that "does not allow for reasoned and appropriate
involvement by the Delta counties and in-Delta interests and
stakeholders."
Opposing Arguments : Opponents state that this bill "would
disrupt the �BDCP] process and delay it for years, if not
indefinitely, and threatens a process adopted in the 2009 Delta
Reform Act that created a path towards new Delta conveyance and
ecosystem recovery." Opponents also question the legality of
requiring "DWR to abandon the existing �MOA] funding agreement
during the final months of the planning process." With regard to
the appropriation of levee bond funds in this bill, opponents
recommend that those investments should wait until the DSC is
given the opportunity to develop a strategic risk reduction
investment plan that identifies levee improvements with the
greatest public benefit, ensures economic and ecological
sustainability and which contributes to the achievement of the
coequal goals. Finally, in addressing proposed changes to the
DSC composition, opponents state that the current structure was
"designed to fairly balance diverse expertise and a statewide
perspective" and that this bill "will disrupt this critical
balance."
While in-Delta interest may have legitimate concerns with regard
to the breakneck pace of BDCP and their difficulty in engaging in
any meaningful fashion in project development or discussions,
this bill's proposed elimination of agreements and shifting of
decisionmaking is troubling. Those concerns are compounded by
the elimination of two gubernatorial representatives from the DSC
and replacing those seats with two more members of the Delta
Protection Commission, which would effectively give the Delta
Protection Commission three of the Council's seven seats. The
DSC was structured to be independent and the BDCP and the Delta
Plan are separate efforts. Therefore, it is unclear why the
author's concerns regarding BDCP are translating to proposed
changes on the DSC. The DSC does provide an "appellate" role
with regard to any determination by the Department of Fish and
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Game that BDCP complies with SB 1 X7 and the NCCPA. But, again,
that does not appear to be a justification for changing the
composition of the DSC.
In a similar vein the author has not explained how the
appropriation of all remaining Prop. 1E and Prop. 84 Bond Funds
to DWR for levee improvements achieves in-Delta objectives.
Simply appropriating remaining bond funding to DWR does not
prioritize how or where those funds are spent. It is also
unclear what other flood control projects, which are currently
eligible for funding under the broader mandates of Prop. 1 E and
Prop. 84, would no longer be eligible.
REGISTERED SUPPORT / OPPOSITION :
Support
Building Industry Association of the Delta
Jim Cox Sport Fishing Charters
Lower Sherman Island Duck Hunters Assoc.
Restore the Delta
San Joaquin Council of Governments
Stockton East Water District
Western Delta Chapter California Striped Bass Association
Multiple individual letters
Opposition
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Alameda Flood Control and Water
Conservation District Zone 7
Association of California Water Agencies
California Chamber of Commerce
Calleguas Municipal Water District
Castaic Lake Water Agency
Coachella Valley Water District
Cucamonga Valley Water District
Desert Water Agency
East Valley Water District
Eastern Municipal Water District
Friant Water Authority
Inland Empire Utilities Agency
Irvine Ranch Water Agency
Opposition continued
Kern County Water Agency
Kings River Conservation District
Las Virgenes Municipal Water District
Metropolitan Water District of So. Calif.
Newhall County Water District
Orchard Dale Water District
Rowland Water District
San Bernardino Valley Muni. Water Dist.
Santa Clara Valley Water District
Southern California Water Committee
Three Valleys Municipal Water District
Upper San Gabriel Municipal Water District
Valley Ag Water Coalition
Western Growers Association
Western Municipal Water District
Westlands Water District
Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916)
319-2096