BILL ANALYSIS �
AB 1671
Page 1
Date of Hearing: April 8, 2014
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Anthony Rendon, Chair
AB 1671 (Frazier) - As Introduced: February 12, 2014
SUBJECT : Delta water conveyance facilities
SUMMARY : Requires legislative authorization for any facilities
in the Sacramento-San Joaquin Delta (Delta) that would move
water from new north Delta intakes by tunnel to the State Water
Project (SWP) or Federal Central Valley Project (CVP).
EXISTING LAW :
1)Provides the Department of Water Resources (DWR) authority to
construct and operate the SWP and to construct, maintain, and
operate additional SWP units that further the purposes of the
SWP.
2)Establishes coequal goals in the Delta of a more reliable
water supply for California and protecting, restoring and
enhancing the Delta ecosystem while mandating that the coequal
goals are to be achieved in a manner that protects and
enhances the unique cultural, recreational, natural resource,
and agricultural values of the Delta as an evolving place.
3)Creates the Delta Stewardship Council (Council) which, among
other tasks, must develop and implement a long-term management
plan for the Delta that meets the coequal goals.
4)Requires that the Delta Plan promote options for new and
improved infrastructure relating to Delta water conveyance,
storage systems, and operations to achieve the co-equal goals.
5)Requires that the Bay Delta Conservation Plan (BDCP) project,
which would build new intakes in the North Delta and move
water by tunnel to the SWP and CVP, analyze a reasonable range
of Delta conveyance alternatives including through-Delta, dual
conveyance, and isolated conveyance.
6)Allows an appeal to the Council as to whether a determination
by the Department of Fish and Wildlife (DFW) that the BDCP
meets Natural Community Conservation Planning Act (NCCPA)
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standards and other requirements is proper.
7)Provides the State Water Resources Control Board (SWRCB)
authority to condition and enforce water rights permits,
including those that protect Delta municipal, industrial,
agricultural and fish and wildlife beneficial water uses.
FISCAL EFFECT : Unknown
COMMENTS : This bill would require legislative authorization
for any facility to move water from the North Delta via tunnel
to the SWP/CVP, including the BDCP. For a comprehensive history
on proposed new conveyance facilities in the Delta, including
BDCP, please see this Committee's analysis of AB 550
(Huber/2011). Both AB 1594 (Huber/2010) and AB 550 were similar
to this bill but more extensive. AB 1594 and AB 550 would have
required legislative authorization for new Delta conveyance
facilities but they would also have mandated an independent
cost-benefit analysis of any new facilities by the Legislative
Analyst's Office and prohibited such facilities from imposing
any cost on Delta landowners or adverse impacts on Delta water
rights and water quality. AB 1594 was held without
recommendation in this Committee and AB 550 failed passage in
this Committee.
BDCP
The BDCP planning process was started after it was discovered
during an August 23, 2005 oversight hearing of the Senate
Natural Resources and Water Subcommittee on Delta Resources that
DWR had never obtained a California Endangered Species Act
(CESA) permit for its SWP Delta facilities even though those
facilities were killing CESA-listed winter-run Chinook salmon,
spring-run Chinook salmon, and Delta smelt. Initially, DWR
claimed it had a "patchwork" of agreements that equated to a
permit. But in July 2006, after environmental organizations
filed litigation to enforce CESA, DWR, the federal Bureau of
Reclamation (Reclamation), which operates the CVP, several SWP
and CVP water contractors, and various other stakeholders,
entered into a planning agreement to draft a Natural Community
Conservation Plan (NCCP) for SWP and CVP Delta facilities that
would allow take authorizations that satisfied CESA and also
meet the requirements for a Habitat Conservation Plan (HCP)
under the Federal Endangered Species Act (FESA). The BDCP
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planning process is funded primarily by voluntary contributions
from state and federal water contractors who have also requested
that they be named as permit holders on any eventual project.
Currently, contractors for water and power do not hold
Endangered Species Act permits for the SWP, these are held by
the State through DWR.
The BDCP states it is a long-term strategy to secure
California's water supplies and improve the ecosystem of the
Delta. December 13, 2013 BDCP released its Draft Environmental
Impact Report/Environmental Impact Statement (DEIR/EIS) for
public review and comment through April 14, 2014. The DEIR/EIS
is meant to satisfy the requirements of the California
Environmental Quality Act and federal National Environmental
Policy Act and would provide the analysis upon which the lead
agencies could approve the NCCP/HCP and request new permits and
authorizations under CESA and FESA for a 50-year period. The
lead agencies on the DEIR/EIS are DWR, Reclamation, the U.S.
Fish and Wildlife Service and the National Marine Fisheries
Service. The DEIR/EIS analyzes a range of alternatives for BDCP
- primarily different combinations of intakes, tunnels and
habitat restoration sizes - with the proposed project as
"Alternative 4."
From the outset the primary component of BDCP, called
"Conservation Measure Number 1" or "CM1," is construction of a
new set of water diversion intakes in the north Delta with
either a canal around the Delta or tunnels under it that would
convey water to existing SWP and CVP pumping plants in the south
Delta. The main thesis of BDCP is that a system of "dual
conveyance" that adds new intakes with state-of-the-art fish
screens to the existing unscreened through-Delta pumping system
will provide greater flexibility to exclude fish and avoid some
of the "reverse flow" problems that occur when the existing
pumps draw fish and food productivity towards the south Delta
where the likelihood of survival for many at-risk native fishes,
including salmon, is much lower and for Delta smelt is almost
zero. DWR maintains that since CM1 would add new facilities to
the State Water Resources Development System, which was already
approved under prior legislation, then no further legislative
approval is necessary.
Under Alternative 4, CM1 would consist of three new intakes
capable of diverting 3,000 cubic feet per second (cfs) of water
each for a total of 9,000 cfs, together with two 40' diameter
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tunnels 30 miles long capable of conveying 15,000 cfs to the
existing south Delta pumps. To provide some context on size, the
largest current diversion in the Delta is about 300 cfs. In
contrast, these facilities, running at their maximum, could move
enough water each day to provide roughly 36,000 families of 4
with all of their household water needs for the entire year.
Based on a design that is 5-10% complete, the combination of
intakes and tunnels proposed under Alternative 4 are anticipated
to cost roughly $16 billion with a cost accuracy range of +50%
to -25%. Under current law the costs of the SWP, including costs
for the protection of fish and wildlife, are included in the
charges for water and power from the SWP. Likewise, the costs of
building CM1 - which would be a new unit of the SWP - and any
associated mitigation for CM1 are anticipated to be repaid by
the contractors who would receive water from the facility.
Funding for the rest of the BDCP is much less clear. In addition
to new intakes and tunnels, Alternative 4 proposes: over 150,000
aces of habitat restoration; "other stressors" actions (such as
reducing non-native invasive species); and, program oversight,
including monitoring, research and adaptive management. The
BDCP Highlights document (December 2013) concludes that "habitat
restoration provides a broad public value" and that
"accordingly, it is expected to be partially funded by a variety
of state and federal sources." The BDCP DEIR/EIS then lists
various state and federal programs, or future potential
programs, where funding could be sought.
Under Alternative 4, BDCP anticipates over 150,000 acres of
habitat restoration and preservation and theorizes that the
increased benefits to at-risk fish species from habitat
improvements will more than offset any increased negative
impacts of its proposed water operations. The DEIR/EIS
acknowledges that while the analysis for new intakes and tunnels
is on a project-specific level, the environmental analysis for
project restoration is only on a programmatic level and thus
additional project-specific review would be necessary.
Nevertheless, habitat restoration costs are estimated at $4.4
billion with an additional $1.7 billion for program oversight
and $2.6 billion to address "other stressors" for a total of
$8.7 billion. Of these costs BDCP anticipates the State will
pay $4.17 billion and the Federal governments will pay $3.35
billion, which is collectively $7.52 billion or almost 87% of
all non-conveyance costs.
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What is the State's financial risk from BDCP?
At this time, the full scope of potential financial exposure for
the public, including rate-payers is unclear. Usually, an NCCP
is prepared by one or more local agencies with land use
jurisdiction to provide for orderly development in its
undeveloped areas. Generally speaking, an NCCP does this by
identifying those areas where development should occur and those
areas where preservation is most advantageous for all of the
species listed as covered by the plan. Fees on the development
are then used to implement the preservation actions and both
sets of activities are supposed to stay "roughly proportional."
One of the primary reasons that local jurisdictions choose NCCPs
is to avoid piecemeal habitat preservation that does not
maximize benefits to species and so that they can provide
"assurances" to plan participants that if the requirements of
the plan are met then no further money, water, or land can be
required of them. In addition, the greater conservation standard
of an NCCP means that public funds, including state or federal
funds can also be invested. In contrast, BDCP is not being
prepared by the local jurisdictions where the plan will be
located. None of the five counties impacted by the plan was or
is a signatory to the planning agreement.
BDCP has defined what would traditionally be a covered action,
construction of new infrastructure, as a conservation measure
and credited the cost of that infrastructure as the plan
participants' contribution to the plan. Therefore, BDCP's
covered activities do not fund its habitat restoration and
preservation actions. BDCP assumes that almost all habitat
preservation measures will be paid by the public. In addition,
BDCP anticipates offering State assurances to its water
contractors who, as noted previously, are also requesting to be
permit holders.
Depending on how assurances are written, unanticipated costs
from adaptive management such as money, land, or water required
for in-stream flows, could shift to the public. Currently, it is
legally unclear as to whether BDCP's assumption of anticipatory
funding meets the NCCP Act requirements that the CDFW must find
that the "plan contains provisions that ensure adequate funding
to carry out the conservation actions identified in the plan."
If funding becomes inadequate and there is no backstop, the plan
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would be out of compliance. One recourse would be for the CDFW,
which enforces the NCCP Act, to withdraw the associated take
permits. However, this would leave 25 million people and 3
million acres of agricultural development with uncertainty as to
a portion of their water supplies. Besides being politically
unrealistic, this could lead to litigation seeking to compel the
State financially to honor its "commitments."
Supporting arguments : The author states this bill is needed
because over the decades the State has "struggled with
controlling construction costs overruns on several State
mega-projects. Most recently, the San Francisco Bay Bridge,
which in 1996 was projected to cost $1.3 billion, is now set to
cost $6.3 billion, a nearly fivefold increase." The author
points out that since the introduction of the BDCP several
Legislative informational hearings have identified numerous
critical concerns, including: inadequate contingency funding;
uncertain State and Federal funding; unstated cost allocations
required to determine the water cost to farmers, businesses and
cities; unknown State liability from alteration of Delta flood
control systems; and, uncertain science. The author states
that Legislative oversight and approval will create a positive
partnership between the Legislature and the Administration that
will ultimately improve the project and strengthen its funding
structure. Supporters state that with potential costs estimated
as high as $67 billion, the BDCP is a megaproject on the same
scale as the San Francisco Bay Bridge and the High Speed Rail
Project and therefore "merits additional legislative oversight
before the state commits to this obligation."
Opposing arguments : Opponents, which include central and
southern California water interests and chambers of commerce as
well as building industry representatives and agricultural
organizations, view this bill as "a threat to achieving the
coequal goals of ecosystem restoration and reliable water
supplies" in the Delta. They state that BDCP is a "landmark
effort to advance both water system and ecosystem improvements
in the Delta" and that AB 1671 would "undermine this
science-based planning process with a political one that would
perpetuate a status quo that is neither in the interest of the
Delta nor California." Opponents advise the many layers of
protections contained in the 2009 legislative package will help
guide future conveyance decisions to achieve the co-equal goals
for the Delta and that AB 1671 is a "'Politics before Plumbing'
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approach which seeks to design California's future water systems
in the political environment of Sacramento."
Support
City of Stockton
Sierra Club California
Opposition
Bay Area Council
Burbank Water and Power
California Chamber of Commerce
Calleguas Municipal Water District
California State Council of Laborers
Castaic Lake Water Agency
Central City Association of Los Angeles
Chambers of Commerce Alliance,
Ventura and Santa Barbara Counties
Coachella Valley Water District
Cucamonga Valley Municipal Water Dist.
Eastern Municipal Water District
Elsinore Valley Municipal Water District
Greater Fresno Area Chamber of Comm.
Inland Empire Economic Parnership
Irvine Ranch Water District
Kern County Water Agency
Las Virgenes Municipal Water District
Los Angeles Area Chamber of Commerce
Los Angeles County Economic Development Corporation
Mesa Water District
Metropolitan Water District of So. Calif.
Mojave Water Agency
Orange County Business Council
Oxnard Chamber of Commerce
Pasadena Water and Power
Riverside Public Utilities
San Bernadino Valley Municipal Water Dist.
San Francisco Chamber of Commerce
San Gabriel Valley Economic Partnership
San Jose Silicon Valley Chamber of Commerce
Santa Ana Water Project Authority
Santa Clarita Valley Economic Develop. Corp.
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Silicon Valley Leadership Group
Simi Valley Chamber of Commerce
Southern California Water Committee
Southern California Leadership Council
Three Valleys Municipal Water District
United Chambers of Commerce,
San Fernando Valley and Region
Upper San Gabriel Valley Muni. Water Dist.
Walnut Valley Water District
West Basin Municipal Water District
Western Growers
Western Municipal Water District
Westlands Water District
Zone 7 Water Agency
Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916)
319-2096