BILL ANALYSIS �
SB 250
Page 1
Date of Hearing: June 12, 2012
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared Huffman, Chair
SB 250 (Rubio) - As Amended: August 29, 2011
SUBJECT : Delta export water conveyance: statutory deadline
SUMMARY : Requires, by February 15, 2013, that environmental
review and permitting be concluded for some as-yet-unspecified
new export water conveyance through the Sacramento-San Joaquin
Delta (Delta) which must then be built by December 31, 2025.
Specifically, this bill :
1)Declares California's water infrastructure is antiquated and
vulnerable to hazards, including earthquake.
2)Requires the Department of Water Resources (DWR) to complete,
by February 15, 2013, the environmental review and planning
for some type of new, unspecified, export water conveyance
facilities in the Delta, either separate from or as part of
the current Bay Delta Conservation Plan (BDCP) process, and
then construct those facilities by December 31, 2025.
EXISTING LAW :
1)Specifies, in accordance with the California Environmental
Quality Act (CEQA), that a public agency is prohibited from
approving a project that could have significant effects on the
environment if there are feasible alternatives or feasible
mitigation measures available which would substantially lessen
the significant environmental effects of that project.
2)Requires, under CEQA, that where a project will require a
joint Environmental Impact Report under CEQA and a federal
Environmental Impact Statement under the National
Environmental Policy Act (NEPA), the CEQA lead agency must
involve the federal agency in the preparation of the joint
document or federal law will prohibit the federal agency from
relying upon the state-prepared document.
3)States it is the policy of the state to reduce reliance on the
Delta in meeting California's future water supply needs
through a statewide strategy of investing in improved regional
supplies, conservation and water use efficiency.
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4)Declares that the coequal goals for the Delta are providing a
more reliable water supply for California and protecting,
restoring, and enhancing the Delta ecosystem. Requires that
the coequal goals be achieved in a way that protects and
enhances the unique cultural, recreational, natural resource,
and agricultural values of the Delta as an evolving place.
5)Requires, under the Sacramento-San Joaquin Delta Reform Act of
2009 (Delta Reform Act), that the Delta Stewardship Council
(Council) adopt a long-term management plan for the Delta
(Delta Plan) that meets the coequal goals. Requires that
projects in the Delta be consistent with the Delta Plan, as
determined by the Council upon the appeal of any party.
6)Requires that if the BDCP is to be included in the Delta Plan
and eligible for public funding, it must meet the California
Natural Community Conservation Planning Act (NCCPA) and
incorporate, in its CEQA document, a comprehensive review and
analysis that addresses, but is not limited to, operational
requirements and flows necessary for recovering the Delta
ecosystem and restoring fisheries; a reasonable range of Delta
conveyance alternatives and their potential for resiliency and
recovery in the event of catastrophic loss caused by
earthquake or flood or other natural disasters; and, water
quality, flood management, and climate change impacts.
FISCAL EFFECT : Unknown. This bill has not undergone a
relevant fiscal analysis. As introduced in the Senate this bill
made minor changes to the notice required when drilling a well.
It was then gutted and amended to create an exemption from
judicial review under CEQA for certain types of energy projects.
It was then gutted and amended to make technical,
nonsubstantive, nonfiscal changes regarding the addition or
deletion of a class of projects from the list of CEQA exemptions
and passed out of the Senate in that form.
COMMENTS :
The BDCP process has encountered significant delays when best
available science has failed to demonstrate that the proposal is
scientifically supported. Currently, the state and federal
agency leads for the BDCP process are reevaluating what elements
of a proposed project, including sizes of potential new
infrastructure, water operations, acreages of restoration, and
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other actions, could constitute a project that meets the coequal
goals and can be permitted under the NCCPA, federal Endangered
Species Act (FESA), and other state and federal laws.
Background
The environmental collapse of the Delta, particularly its
fisheries, is well-documented and has led to the listing of many
native fish species under FESA and the California Endangered
Species Act (CESA). The Delta is also the hub of California's
water export infrastructure. There have been many attempts to
address the conflict inherent in requiring an ecosystem that is
home to more than 750 animal and plant species to also provide
part of the export water supply for 25 million citizens in
southern California and 3 million acres of agricultural land,
principally in the San Joaquin Valley. The BDCP is the most
recent.
The BDCP seeks to obtain 50-year authorizations that satisfy
FESA and CESA for State Water Project export facilities in the
Delta through a federal Habitat Conservation Plan (HCP) and
state Natural Community Conservation Plan (NCCP). As explained
in more detail later, that would also result in new FESA
authorizations for the federal Central Valley Project (CVP).
Since 2006 the BDCP planning process, which began as an offshoot
to the CALFED Bay-Delta Program, has attempted to find the
appropriate mix of new infrastructure, ecosystem restoration,
and other actions that will both increase water exports out of
the Delta over the levels currently allowed by CESA permits and
FESA authorizations, and restore the Delta ecosystem. That has
proven elusive despite the fact that, as the author of this bill
points out, the BDCP planning process has expended over $153
million for planning and held over 300 meetings.
The level of time and money expended on BDCP combined with
growing likelihood that while there may be a more reliable
supply of water, exports may not increase, has caused intense
frustration on the part of the export water agencies that are
funding the planning process and at various times those agencies
have threatened to pull their support. In response to one such
threat, on August 9, 2011, California Natural Resources Agency
Secretary John Laird sent a letter to Deputy Secretary of the
Interior David Hayes and Undersecretary for the Department of
Commerce Dr. Jane Lubchenco, thanking them for their leadership
and commitment to the BDCP process and confirming that the state
and federal agencies working on BDCP had agreed to an
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"aggressive schedule" that would result in a completed "Effects
Analysis" of BDCP by March 2012 and "a draft EIS/EIR by June
2012 if not sooner." Attached to Secretary Laird's letter was a
document entitled BDCP EIR/EIS Schedule 8/9/11 (EIR/EIS
Schedule) and a second document entitled BDCP Chapter 5 (Effects
Analysis) Schedule 8/9/11 (EA Schedule).
The Effects Analysis is the heart of BDCP. It is intended to
provide the best scientific assessment of the likely effects of
BDCP actions on the species of concern and ecological processes
of the Bay-Delta system. In other words, it is the scientific
rationale and evidence that the approach taken in the BDCP can
be successful. That means it is also the lynchpin of the BDCP
EIS/EIR. The EA Schedule indicated a final Chapter 5 Effects
Analysis would be complete on April 9, 2012 and then the BDCP
public review draft of all Chapters could be released on June
22, 2012. In keeping with that Schedule, a final draft of the
EIS/EIR would issue December of 2012 and, following required
hearings and response to comment, the agencies would certify and
approve a final document with a federal Record of Decision and
state Notice of Determination on February 2013. This bill takes
the August 2011 Schedule and codifies that February date for
approving the project. Less clear is what the 2025 construction
completion date in this bill is based upon.
The Deadlines in this Bill Are Already Delayed
Following release of the Schedules, the Natural Resources Agency
directed the BDCP consultant team to analyze only one project
alternative in the Effects Analysis: 1A. The primary features
of Alternative 1A were five new intakes out of the Sacramento
River in the north Delta with new pipeline/tunnel diversions
capable of exporting up to 15,000 cubic feet per second (cfs) of
water (an increase over existing export rates) and up to 113,000
acres of habitat restoration and preservation. By April 13,
2012, when the consultant team made various segments of the
Chapter 5 Effects Analysis publicly available, the BDCP was
already behind schedule. More importantly, following a "Red
Flag" review of the Effects Analysis by the California
Department of Fish and Game, the U.S. Fish and Wildlife Service
(USFWS), the National Marine Fisheries Service (NMFS), and the
U.S. Department of Interior, Bureau of Reclamation
(Reclamation), it was clear that many of the conclusions in the
Effects Analysis were "essentially unsupported," "unjustified,"
"contradictory," and "not protective" of at-risk native fish and
that it was difficult to demonstrate that the proposed project,
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when compared to existing conditions, would contribute to
species recovery -- which is the legally-required standard under
the NCCPA.
In response to the "Red Flag Review," Natural Resources
Secretary Laird sent a letter to Deputy Secretary of the
Interior Hayes on May 3, 2012 stating, "we have made significant
headway in formulating a proposed project for the �BDCP] that
will meet the dual goals of water supply reliability and Delta
ecosystem restoration. Thanks to our continued efforts together,
we are on track to present a real and workable plan? That said
there will be some workable delays in the release of the
environmental documents. From the outset, we have all agreed
that science should drive the design of the project and our
plans for its implementation. The fish and wildlife agencies are
currently reviewing and responding to a substantially improved
scientific analysis of habitat restoration, water flows, and
other ecological measures to achieve the regulatory standards of
�FESA and NCCPA]. As a result, we anticipate that we will soon
be able to announce some significant adjustments in the overall
program that will reflect our commitment to using the best
science."
The Legal Effect of this Bill is Unclear
It is unclear what legal force and effect the deadlines in this
bill for completing environmental review and building a project
would have, if any. With respect to CEQA, the lead agency deems
the environmental review complete when it is satisfied that
there is substantial evidence in the record that it has
incorporated project alternatives or mitigation measures that
have reduced potentially significant environmental impacts to
below a level of significance. If it has identified impacts
which will still remain significant after all feasible
alternatives and mitigation, it must also adopt a statement of
overriding considerations. Forcing an agency to deem a project
"complete" on a date certain whether or not its record is
complete would only create legal vulnerability.
The State Legislature Cannot Set a Deadline for the Federal
Government
The BDCP environmental review and analysis is occurring as a
joint federal and state EIS/EIR. DWR operates the SWP and
Reclamation operates the CVP but, in fact, both projects are
operated jointly and have been since the state and federal
governments entered in to the 1986 Coordinated Operation
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Agreement (COA). So, while the BDCP contemplates potential new
export water conveyance facilities as units of the SWP, their
construction and operation would impact these joint operations
and trigger a federal ESA re-consultation on the CVP. In
addition, the USFWS and NMFS would need to approve the BDCP as
an HCP, which is a major federal action under NEPA. Therefore,
while DWR is the state lead agency on the BDCP project,
Reclamation, USFWS and NMFS are all federal co-lead agencies as
well.
The federal government is sovereign and cannot be subject to
state law without its consent. This bill could cause additional
legal uncertainty, litigation, and policy confusion because the
deadlines it sets would be unenforceable on the parties
responsible for the EIS half of the EIS/EIR. There was language
in federal legislation that instructed the federal agencies to
jointly coordinate their efforts with the state on BDCP with the
goal of reaching a February 15, 2013 deadline to complete the
EIS/EIR, but that language was advisory and specified that it
did not modify existing federal law requirements such as
adequate NEPA review. If this bill forced the SWP to take a
separate approach from the CVP in meeting its CESA and ESA
obligations, or allowed the state to be compelled to do so by
court action, state and federal water operations could decouple
and become adversarial - an outcome it is unlikely that any
party would want.
The Legislature Has Already Weighed In
In the past four years, the Assembly Water, Parks and Wildlife
Committee (AWPW) and the Senate Natural Resources and Water
Committee (SNRW) have held multiple oversight hearings on Delta
issues that included BDCP or addressed BDCP exclusively. These
bipartisan oversight hearings have allowed members from both
houses and different regions of California to get up-to-date
information on the BDCP and address the state administration
directly. In just the past two years these included a May 10,
2011 AWPW Delta Governance and the Delta Plan hearing, an
October 19, 2011 AWPW Bay Delta Conservation Plan Status and
Update, a February 28, 2012 SNRW Update on Delta Plans and a
March 13, 2012 SNRW Delta Plan and Bay-Delta Conservation Plan
hearing discussing the BDCP Effects Analysis, among other
topics.
On October 25, 2011, California Senator Michael Rubio, the
author of this bill, sent a letter to U.S. Department of the
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Interior Secretary Ken Salazar and California Natural Resources
Secretary Laird expressing "strong support for the �BDCP
Schedule] to complete the effects analysis and draft �EIS/EIR]
by June 2012 and finalize the environmental review process by
February 2013." Senator Rubio stated, "I also applaud your
efforts to maintain transparency and ensure that all interest
groups have a vested voice in the process. The BDCP is crucial
to protecting our state's water system and preserving the Delta.
It is also the single most important project for California's
economy as it is projected to create at least 129,000 jobs over
the next 7 years with no cost to the State General Fund."
Senator Rubio went on to advise that from his point of view "the
urgency of this issue stems from the risk of earthquake to the
Delta region." On November 2, 2011, Senator Rubio then held a
"Town Hall" where constituents were able to speak directly to
State officials regarding the BDCP, including California Natural
Resources Agency Deputy Secretary Jerry Meral, and DWR Director
Mark Cowin, among others.
In contrast, on November 22, 2011, seventeen members of the
California Legislature wrote to U.S. Interior Secretary Salazar,
California Natural Resources Agency Secretary Laird, and Bureau
of Reclamation Commissioner Mike Connor, to express "serious
concerns" with the direction of the BDCP including "a failure of
transparency in the process; the limited set of alternatives
being considered; scientific inadequacy, including a lack of
flow criteria for the San Francisco Bay and Sacramento-San
Joaquin Delta Estuary; the absence of cost/benefit analyses; and
the undue influence granted to State and Federal export water
agencies �in the process] to the exclusion of a meaningful role
for other public interests." These seventeen legislators were
concerned about "a rushed timeline for completing the plan,
making adequate scientific analysis and consensus-building
impossible."
Thereafter, on December 19, 2011, Senator Rubio and twenty-one
other legislators sent a letter to Secretary of the Interior
Salazar, California Natural Resources Secretary Laird, and
Bureau of Reclamation Commission Connor urging them to "keep the
�BDCP] process on track toward the release of a draft �EIS/EIR]
next year and a final Record of Decision in February 2013" and
reiterating the amount of money spent on planning and the job
potential of the project.
Supporting arguments : The author states that this bill is
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necessary because "seismic activity could potentially devastate
California's Bay Delta Region and jeopardize the water supply
for 25 million people in Southern California and hundreds of
thousands of acres of highly productive farmland" and that
"building and improving our Delta conveyance will create jobs
and give a boost to California's economic recovery" and that
this bill will ensure that BDCP "remains on schedule."
Supporters state that "the timeline to finish BDCP is consistent
with the schedule endorsed by the California Natural Resources
Agency and the U.S. Department of Interior" and that the BDCP
will "be a significant step in restoring the ecosystem and
providing infrastructure improvements that are necessary to
protect public health and safety and revitalize California's
economy."
Opposing arguments : Opponents state that "any legislative
efforts to speed up the �BDCP] would preclude achieving the
coequal goals" for the Delta and that "the BDCP is a long way
from adopting a project alternative that will contribute to
recovery of the key fish species" including that the "draft
effects analysis finds that the project alternative would
actually increase the risk of extinction for some species."
Opponents also note that this bill, as currently drafted,
"requires the Department of Water Resources to complete its
development of conveyance facilities by February 2013 and
requires construction of such a facility by 2025. However, a
legislatively mandated date for completion of BDCP could be read
to override the essential analysis required by state laws,
including the Delta Reform Act requirements regarding
development, review, and approval of BDCP...Ensuring that BDCP
uses sound science and analysis is critical to its success, and
the Administration has already acknowledged that more work (and
more time) is needed to complete development of BDCP. By
imposing this unnecessary statutory deadline, �this bill] could
increase the challenges facing the BDCP process and decrease its
likelihood of success."
REGISTERED SUPPORT / OPPOSITION :
Support
Alhambra Chamber of Commerce
American Council of Engineering Companies of California
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Association of California Water Agencies
Bell Gardens Chamber of Commerce
Burbank Chamber of Commerce
Burbank Water and Power
California Building Industry Association
California Chamber of Commerce
California-Nevada Conference of Operating Engineers
California State Council of Laborers
Cerritos Regional Chamber of Commerce
City of Arvin
City of Avenal
City of Burbank
City of Coalinga
City of Corcoran
City of Delano
City of Dinuba
City of Downey
City of Fowler
City of Huron
City of Kerman
City of Lemoore
City of Mendota
City of Merced
City of Orange Cove
City of Parlier
City of San Joaquin
City of Selma
City of South El Monte
City of Wasco
County of Fresno
County of Kings
County of Kern
County of Tulare
Calleguas Municipal Water District
Construction Industry Coalition on Water Quality
Cucamonga Valley Water District
Downey Chamber of Commerce
Eastern Municipal Water District
El Monte/South El Monte Chamber of Commerce
Fresno County Farm Bureau
Gateway Chambers Alliance
Irwindale Chamber of Commerce
Kern County Water Agency
Kings County Farm Bureau
La Verne Chamber of Commerce
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Long Beach Area Chamber of Commerce
Manhattan Beach Chamber of Commerce
Mayor Bill Bogaard, City of Pasadena
Metropolitan Water District of Southern California
Mojave Water District
Palmdale Water District
Palos Verdes Peninsula Chamber of Commerce & Visitors' Center
Redondo Beach Chamber of Commerce and Visitors Bureau
Regional Chamber of Commerce - San Gabriel Valley
San Diego County Water Authority
San Gabriel Valley Council of Governments
San Gabriel Valley Economic Partnership
San Gabriel Valley Legislative Coalition of Chambers
Santa Clara Valley Water District
Simi Valley Chamber of Commerce
South Bay Association of Chambers of Commerce
South Gate Chamber of Commerce
Southwest California Legislative Council
State Building and Construction Trades Council of California
Support - continued
Three Valleys Municipal Water District
Torrance Area Chamber of Commerce
Tulare County Farm Bureau
United Chambers of Commerce San Fernando Valley and Region
Upper San Gabriel Valley Municipal Water District
Walnut Valley Water District
Western Growers
Western Municipal Water District
Westlands Water District
Opposition
Defenders of Wildlife
Delta Counties Coalition
Natural Resources Defense Council
Planning and Conservation League
Sierra Club California
Solano County Board of Supervisors
Yolo County
Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916)
319-2096
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