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: SB 1495 HEARING DATE: April 10, 2012
AUTHOR: Wolk URGENCY: No
VERSION: Introduced CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Sacramento-San Joaquin Delta Reform Act of 2009.
BACKGROUND AND EXISTING LAW
The Sacramento-San Joaquin Delta Reform Act of 2009, 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 coequal 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.
PROPOSED LAW
This bill would exclude from the definition of "covered actions"
both of the following:
1.Leases approved by a special district formed under the Harbors
and Navigation Code if all of the following apply:
The uses proposed by the lease are authorized by the
applicable general plan and zoning ordinances of the city
where the special district is located.
The special district complies with CEQA prior to
approving the lease.
1.Dredging activities and projects conducted by the federal
government or a special district formed under the Harbors and
Navigation Code to improve interstate and international
commerce through the navigable waters of the United States.
ARGUMENTS IN SUPPORT
According to the author, "The Sacramento and Stockton ports
provide important hubs for goods movement within our region. The
2009 Water Package gave broad authority to the Delta Stewardship
Council to review 'covered actions' for consistency with the
Delta Plan. The covered actions review process adds a new level
of review and delay for some port activities within the Delta.
Two actions that are currently considered covered actions are
lease approvals and routine dredging of ship channels. SB 1495
would provide a narrow exemption for these two actions from the
definition of 'covered actions' in order to ensure that these
time sensitive port activities proceed without unnecessary
delays."
ARGUMENTS IN OPPOSITION
According to the Association of California Water Agencies
(ACWA), "ACWA is concerned that dredging operation by the ports
that go beyond routine maintenance and operation (which appears
to be exempt under existing law), is the type of activity that
should be reviewed for consistency with the Delta Plan. ACWA is
also concerned that the enactment of SB 1495 would encourage
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others to seed 'covered action' exemptions for their activities
in and around the Delta."
COMMENTS
Two Ports. The Delta is home to two deep water ports, the Port
of Stockton and the Port of West Sacramento. They both move
ships through the Delta via deep water channels; the Sacramento
Deep Water Channel roughly parallels the Sacramento River along
the west side of the Delta, the Stockton Deep Water Channel
largely follows the main stem of the San Joaquin River up to
Stockton.
What is a "Significant Impact?" As noted in the background
discussion above, the Act establishes a four part test to
determine if a plan, program, or project is a "covered action."
The first three items are relatively unambiguous. The fourth
test, whether it will have a significant impact on achievement
of one or both of the coequal goals or the implementation of
government-sponsored flood control programs, is less clear-cut.
The Council, in its 5th staff draft of the Delta Plan, "has
determined that 'significant impact' means a change in existing
conditions that is directly, indirectly, and/or cumulatively
caused by a project and that will significantly affect the
achievement of one or both of the coequal goals or the
implementation of government-sponsored flood control programs to
reduce risks to people, property, and State interests in the
Delta."
Accordingly, the Council has established "administrative
exemptions" to the "covered actions." Specifically, "The
Council has determined that the following types of projects are
not covered actions because they will not have a significant
impact under Water Code section 85057.5(a)(4):"
"'Ministerial' projects under CEQA (because they only require
the application of fixed standards or objective measurements
set forth in an ordinance or other legal or regulatory
provision)"
"'Emergency' projects under CEQA �citation omitted]"
"Temporary water transfers of up to 1 year in duration."
It might be that subsequent drafts of the Delta Plan will
address the issues raised by this bill by further refining the
list of "administrative exemptions."
Are We Missing A Step? The Port of Stockton asserts that
because updates to the general plan are covered actions, as long
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as the leases are consistent with the general plan, any issues
associated with leases of Port lands have already been
considered and so the leases should not, in and of themselves,
be considered covered actions.
Two points: First, it might be that they are not covered
actions because they do not meet the "significant impact" test
discussed above. Second, the Port's argument holds only if the
city finds that the leases are consistent with the general plan
and the city has complied with the requirements for covered
actions. (See Amendment 1)
Maintaining Vs. Expanding Channel Capacity. The definition of
covered actions in the statute explicitly excludes routine
maintenance and operations of the SWP, CVP, or any facility
located in the Delta that is owned or operated by a local public
agency. Routine dredging to maintain channel capacity is
arguably consistent with this construct. However, dredging to
expand channel capacity could reasonably have a "significant
impact," and so should remain a covered action. (See Amendment
2)
Technical Corrections. Senate Engrossing and Enrolling found a
typo that needs correcting. (See Amendment 3)
SUGGESTED AMENDMENTS
AMENDMENT 1: On page 3 line 29, after "(B)" insert:
The uses proposed by the lease are approved by the city
where the special district is located, and the city
complies with Chapter 3 (commencing with section 85225), if
applicable, prior to approval of the lease by the special
district.
(C)
AMENDMENT 2: On page 3, delete lines 32 through 35
inclusive and insert:
(9) Routine dredging activities that are necessary for
maintenance of facilities operated by special districts
formed under the harbors and navigation code.
AMENDMENT 3: On page 3 line 4, after "of" insert "the"
SUPPORT
Port of Stockton
OPPOSITION
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Association of California Water Agencies
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