BILL ANALYSIS �
AB 709
Page 1
Date of Hearing: April 30, 2013
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Anthony Rendon, Chair
AB 709 (Nestande) - As Amended: April 11, 2013
SUBJECT : Salton Sea
SUMMARY : Designates the Salton Sea Authority (SSA) as the lead
agency for restoration of the Salton Sea and requires the State
to grant the SSA a 99-year lease for all state-owned lands
within the Salton Sea ecosystem, including all state-owned lands
underlying the Salton Sea. Specifically, this bill :
1)Designates the SSA as the lead agency for CEQA purposes for
restoration of the Salton Sea.
2)Requires the State Lands Commission and any other applicable
state agencies to grant the SSA a 99-year lease for all
state-owned lands within the Salton Sea ecosystem, including
but not limited to all state-owned lands under the navigable
and tidal waterways of the Sea.
3)Requires the SSA by April 1, 2014 to develop a restoration
plan for the Salton Sea that is financially feasible to
accomplish the goals of: a) restoring long-term stable aquatic
and shoreline habitat; b) mitigating air quality impacts from
restoration projects; and c) protecting water quality.
4)Requires the restoration plan developed by the SSA to be
submitted to the Legislative Analyst's Office (LAO) for
review, and requires the LAO to complete his or her review by
June 1, 2014.
5)Requires, if the LAO determines the plan is financially
feasible and the SSA is capable of implementing the plan, that
any bond moneys made available under Proposition 84 for the
Salton Sea be continuously appropriated to the SSA to
implement the plan.
6)Requires, if the LAO determines the plan developed by the
Authority is financially feasible and the SSA is capable of
implementing the plan, that the plan be submitted to the
Wildlife Conservation Board (WCB). Requires the WCB to review
the plan and determine whether the plan is an eligible project
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under the federal Salton Sea Reclamation Act of 1998 to
receive federal matching funds. Requires the WCB if it finds
that the plan is an eligible project, to seek federal matching
funds, and requires any federal funds received to be deposited
in the Salton Sea Restoration Fund (SSRF) and continuously
appropriated to the SSA to implement the plan.
EXISTING LAW :
1)Establishes the Salton Sea Restoration Act which states
legislative intent that: a) the State undertake the
restoration of the Salton Sea ecosystem and the permanent
protection of the wildlife dependent on that ecosystem; b)
that restoration be based on the preferred alternative
developed as a result of a restoration study and alternative
selection process; and, c) that the preferred alternative
provide the maximum feasible attainment of specified
environmental objectives, including restoration of long-term
stable aquatic and shoreline habitat to historic levels and
diversity of fish and wildlife dependent on the Salton Sea,
elimination of air quality impacts from restoration projects,
and protection of water quality. Provides that for purposes
of the restoration plan the Salton Sea ecosystem includes the
Salton Sea, agricultural lands surrounding the Sea, and the
tributaries and drains within Imperial and Coachella Valleys
that deliver water to the Sea.
2)Requires the Secretary of the Natural Resources Agency, in
consultation with the Department of Fish and Wildlife (DFW),
the Department of Water Resources (DWR), the SSA, air quality
districts, and the Salton Sea Advisory Committee to undertake
a restoration study to determine a preferred alternative for
restoration of the Salton Sea, to prepare a Programmatic
Environmental Impact Report (PEIR) analyzing the alternatives,
and to submit a preferred alternative to the Legislature on or
before December 31, 2006.
3)Establishes the SSRF which is administered by the director of
DFW. Authorizes moneys deposited in the SSRF to be expended,
upon appropriation by the Legislature, for the following
purposes: a) environmental and engineering studies related to
restoration of the Salton Sea and the protection of fish and
wildlife dependent on the Sea; b) implementation of
conservation measures necessary to protect fish and wildlife
dependent on the Sea; c) implementation of the preferred
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Salton Sea restoration alternative; and d) administrative,
technical, and public outreach costs related to development
and selection of the preferred Salton Sea restoration
alternative.
FISCAL EFFECT : Unknown. Requires, if certain conditions are
met, that any remaining bond funds in the SSRF be continuously
appropriated to the SSA.
COMMENTS : The author indicates the purpose of this bill is to
designate the SSA as the lead agency for restoration efforts at
the Salton Sea, in order to get restoration activities going,
rather than continuing to wait for the State to find the money
and the political will to do so. The SSA is a local Joint
Powers Authority (JPA) composed of Riverside County, Imperial
County, Imperial Irrigation District (IID), Coachella Valley
Water District (CVWD), and the Torres Martinez Desert Cahuilla
Indian Tribe. The author asserts that "for far too long a
viable solution to the looming environmental and economic crisis
facing our region, the decline of the Salton Sea, has eluded
policy experts and elected officials?.Despite millions spent on
studies, congressional hearings, and federal and state
legislation, achieving consensus on how to save the Sea has
proved maddeningly elusive." The author notes that in spite of
studies, serious environmental concerns continue from lack of
action. This bill would place control of restoration in the
hands of the SSA, which the author asserts will enable
restoration to begin to move forward.
Background : The Salton Sea, California's largest lake, is
located in a low-lying trough or desert sink in Southern
California, much of which is below sea level. The current sea
was formed in 1905 when the Colorado River flooded its banks at
a faulty irrigation diversion site. However, the sea bed has
periodically filled and receded numerous times, from prehistoric
times through the 1800s. The present sea is fed primarily by
agricultural runoff. Since it has no natural outlet, it is
becoming increasingly saline and today is considerably saltier
than the ocean. In 2003, the Legislature approved a package of
implementing legislation related to the Quantification
Settlement Agreement (QSA) and calling for restoration of the
Salton Sea. The QSA is a collection of agreements between the
IID, Metropolitan Water District, San Diego County Water
Authority, the CVWD, and the State, that included approval of
water transfers from IID, settled a number of claims to the
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Colorado River, and provided a transition period for the State
to reduce its consumption of Colorado River water to its 4.4
million acre feet entitlement. Under the QSA, the amount of
water flowing into the Salton Sea will be significantly reduced
after 2017. As a result, the Sea will shrink considerably in
size, increasing salinity and exposing large areas of dry sea
bed playa.
The Salton Sea is one of the most important wetland areas in
California for migratory waterfowl and shorebirds, since over
95% of California's historical wetlands have been converted to
other land uses. The Salton Sea supports over 400 species of
birds, and is an internationally significant stopover site for
hundreds of thousands of birds migrating along the Pacific
Flyway. Recently, fishery resources in the sea have declined
significantly due to increasing salinity, evaporation and
declining water quality. Once the QSA water transfers are fully
implemented, it is generally recognized that without restoration
efforts the ecosystem of the Salton Sea will collapse over the
next decade or two.
The State Natural Resources Agency in 2007 completed a
restoration study and released the Salton Sea Ecosystem
Restoration Program Plan and Final PEIR. The Agency estimated
that the preferred alternative identified in the PEIR would cost
over $8 billion, expended over a period of 75 years, to
implement. The preferred alternative included a saline habitat
complex at the north and south end of the Sea, a Marine Sea
extending around the northern shoreline in a horseshoe shape,
air quality management facilities to reduce particulate
emissions from exposed playa, a brine sink for discharge of
salts, sedimentation distribution facilities, and early start
habitat projects to provide habitat pending completion of other
habitat components. A detailed financing plan was never
developed for the preferred alternative, which has not been
endorsed by the Legislature. The PEIR also noted that even the
"no project" alternative would cost the State over $1 billion,
due to state and federal requirements to address air quality,
water quality and habitat issues even if no restoration plan is
pursued.
The State Natural Resources Agency, jointly with the U.S. Army
Corps of Engineers, in 2012 prepared and released a draft Salton
Sea Conservation Habitat (SCH) Project Environmental Impact
Statement/Environmental Impact Report (EIS/EIR). The SCH
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Project EIS/EIR proposes a range of aquatic habitats to support
fish and wildlife species dependent on the Salton Sea. The
Natural Resources Agency's preferred alternative identified in
the EIS/EIR would include construction of 3,770 acres of habitat
ponds. The Agency has identified this alternative as the
preferred alternative because it would provide greater long-term
benefits by restoring the greatest amount of habitat, while
minimizing environmental impacts to the extent feasible. To
date, several million dollars in Proposition 84 bond funds made
available for the Salton Sea have been spent on habitat project
planning and environmental work, with some limited on the ground
restoration. The Governor in his 2013-14 proposed budget
proposes a $12 million increase in the amount of funds
appropriated from the SSRF to fund the first phase of
implementation of the SCH Project, including on the ground
construction of 800 to 1,200 acres of habitat ponds. Some
funding for implementation of the SCH Project has also been
authorized at the federal level but has not yet been
appropriated by Congress.
In addition to the state bond funds made available for the
Salton Sea, the SSRF also contains some funding paid by the
water agencies that are parties to the QSA. The water agencies
that are parties to the QSA are committed to funding $133
million in mitigation costs for habitat restoration and air
quality mitigation and monitoring at the Salton Sea (Note: the
$133 million is in 2003 dollars. The actual total amount being
expended by the QSA water agencies, which is paid over time, is
closer to $300 million). The State of California, under the
QSA-JPA agreement, agreed to assume the costs of mitigating the
effects of the QSA beyond the first $133 million. However, the
Third District Court of Appeal has ruled that while the State is
contractually liable for the excess mitigation costs, neither
the parties to the QSA nor anyone else can compel the
Legislature to appropriate funds to pay for the mitigation. In
other words, the State's contractual obligation under the QSA to
pay for excess mitigation costs may be unenforceable.
Another New Plan? : This bill requires the SSA to develop yet
another new plan for restoration of the Salton Sea within 90
days after this bill is enacted. The new plan would then be
submitted to the LAO, which would have 60 days to review the
plan and determine if it is financially feasible and if the SSA
is capable of implementing it. This bill does not specify where
the funding would come from for the SSA to develop the new plan,
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but provides that after the plan is developed, if it is
determined by the LAO to be financially feasible and within the
capability of the SSA to implement, then any remaining
Proposition 84 bond funds in the SSRF would be continuously
appropriated to the SSA to implement the new plan. The WCB
would also be required to seek federal matching funds for the
new plan, which would also be continuously appropriated to the
SSA if received.
Related Legislation : This Committee already heard and passed AB
71(V. Manuel P�rez), which takes a different approach than this
bill, on April 2, 2013. AB 71 requires the Secretary of the
Natural Resources Agency, in consultation and coordination with
the SSA, to lead Salton Sea restoration efforts. Rather than
leaving decisions totally up to the State, or transferring
authority completely to the local JPA, AB 71 takes a more
collaborative approach by providing that the State will continue
to have lead responsibility for restoration efforts but will
work in collaboration with the SSA. AB 71 also calls for
creation of a technical advisory committee, and, as heard by
this committee, would have authorized $2 million from the SSRF
to go to the SSA to pay for development of a new feasibility and
funding study. Amendments proposed by the author of AB 71 in
the Assembly Appropriations Committee removed the $2 million
expenditure authorization, and the author indicated he will
instead pursue funding for the study through the budget process.
Related Budget Actions : This bill would, if certain conditions
are met, require that any remaining Proposition 84 bond funds in
the SSRF be continuously appropriated to the SSA. As explained
above, the Governor's 2013-14 budget proposes an increase of
$12.1 million in the amount of Proposition 84 bond funds
appropriated from the SSRF to DWR and DFW for the restoration of
between 800 and 1,200 acres of habitat. The proposal will
implement a pilot project to create habitat through the
construction of ponds at sites where the sea bed is exposed
because of evaporation. The proposal also requests
re-appropriation of funds to provide additional funding for the
restoration project, which is estimated to cost approximately
$28 million to complete. If this appropriation is approved as
part of the final 2013-14 state budget, the balance of the
original $47 million in Proposition 84 bond funds made available
for the Salton Sea, and still unappropriated and available for
purposes of this , would only be about $3 million. It is also
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worth noting that the Governor's budget only appropriates
funding for implementation of a portion of the SCH Project.
Additional Issues for committee consideration : While it is
understandable that local communities and groups at the Salton
Sea are frustrated with the lack of progress on Salton Sea
restoration efforts, the committee may wish to consider whether
shifting all state responsibility and authority to the SSA, a
local JPA, is the most appropriate solution. Even if the state
transfers authority and funding to the SSA to undertake
restoration activities at the Salton Sea, the state would
presumably still be responsible for ensuring that state laws
requiring compliance with air quality standards, habitat
mitigation, and water quality laws are met, but would have given
up control over the limited state funding currently available
for these purposes. In addition, this bill requires that the
State grant a 99-year lease to the SSA of all state lands in the
Salton Sea ecosystem. The Salton Sea ecosystem, as currently
defined in the Fish and Game Code, includes the Salton Sea, the
agricultural lands surrounding the Sea, and the tributaries and
drains within the Imperial and Coachella Valleys that deliver
water to the Salton Sea. The state lands required to be leased
to the SSA would also include all state owned lands that
underlie the navigable and tidal waterways of the Salton Sea.
This bill further requires that any remaining state bond funds
in the SSRF be continuously appropriated to the SSA if the LAO
makes certain findings. This raises several issues. First, the
Legislature has generally disfavored continuous appropriations
because they diminish state oversight over the expenditure and
accountability of state funds. Second, while the LAO fulfills
an important and valued role in providing advice and analysis to
the Legislature, the Legislature does not generally give the LAO
the authority to determine future state expenditure decisions
for the Legislature. This bill would require that existing
state funds be continuously appropriated to a local JPA for
implementation of a future plan that has yet to be developed,
with the only precondition being that the LAO make a
determination that the plan is financially feasible and capable
of being implemented by the SSA. Third, if all of the limited
state bond funds remaining in the SSRF are appropriated to the
SSA, these funds would not be available to implement the SCH
Plan already prepared by the State, which even some of the
members of the SSA agree should be implemented, and includes
shovel ready habitat conservation projects which the Governor is
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proposing to fund in the 2013-14 state budget.
Additional questions the committee may wish to consider include:
In light of the various feasibility issues, complexities and
questions that have arisen regarding the 2007 proposed
restoration plan, does the SSA have the capacity and resources
to develop a new financially feasible restoration plan within
just 90 days? How would the development of the plan be paid
for? Is it realistic to assume that the LAO could review the
proposed plan and make a determination as to feasibility and
capacity within just 60 days? Assuming a viable restoration
plan could be developed by the SSA in 90 days, if there is only
$3 million in unappropriated Proposition 84 bond funds left
available for the Salton Sea, is this the best use of those
funds?
Finally, since this bill takes a different approach to
governance of Salton Sea restoration activities than AB 71 (V.
Manuel P�rez), which this committee already approved, the
committee may wish to consider that if the committee were to
pass this bill as well it would be taking a position
inconsistent with the policy approach already approved by the
committee in AB 71.
Support Arguments : Supporters assert this bill will kick start
restoration of the Salton Sea and is crucial to the future of
the Salton Sea and the communities around the Sea.
REGISTERED SUPPORT / OPPOSITION :
Support Opposition
Coachella Valley Economic PartnershipNone on file.
Indio Chamber of Commerce
Palm Springs Chamber of Commerce
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096