Existing law, the Sacramento-San Joaquin Delta Reform Act of 2009, establishes the Delta Stewardship Council and requires the council to develop, adopt, and commence implementation of a comprehensive management plan for the Delta, known as the Delta Plan. The Delta Plan is required to further the coequal goals of providing a more reliable water supply and protecting, restoring, and enhancing the Delta ecosystem. The act requires the council to consider the Bay Delta Conservation Plan (BDCP) for inclusion in the Delta Plan and requires the incorporation of the BDCP into the Delta Plan if the BDCP meets certain requirements.

This bill would add a definition of the California Water Fix to the act. This bill would eliminate certain provisions applicable to the BDCP and would revise other provisions to instead refer to a new Delta water conveyance project for the purpose of exporting water. This bill would require new Delta water conveyance infrastructure to be considered as interdependent parts of a system and to be operated in a way that maximizes benefits for each of the coequal goals.

The act requires a state or local public agency that proposes to undertake a covered action that will occur within the boundaries of the Delta or the Suisun Marsh to prepare, and submit to the council, a specified written certification of consistency with the Delta Plan prior to taking those actions. The act defines the term covered action to mean a plan, program, or project, as prescribed.

This bill would delete certain exclusions relating to the Bay Delta Conservation Plan BDCP from the definition of a covered action. This bill would prohibit any certification of consistency for a new Delta water conveyance project unless specified requirements are met.

Existing law, the Sacramento-San Joaquin Delta Reform Act of 2009, establishes the Delta Stewardship Council and requires the council to develop, adopt, and commence implementation of a comprehensive management plan for the Delta, known as the Delta Plan.

This bill would add a definition of the California Water Fix to the act.

The act requires a state or local public agency that proposes to undertake a covered action that will occur within the boundaries of the Delta or the Suisun Marsh to prepare, and submit to the council, a specified written certification of consistency with the Delta Plan prior to taking those actions. The act defines the term covered action to mean a plan, program, or project, as prescribed.

This bill would delete certain exclusions relating to the Bay Delta Conservation Plan from the definition of a covered action.

The act requires the Department of Water Resources to coordinate with the Department of Fish and Wildlife, the State Water Resources Control Board, the California regional water quality control boards, and the State Lands Commission efforts to cooperate with the United States Bureau of Reclamation to construct and implement the Two-Gates Fish Protection Demonstration Project by December 1, 2010, to evaluate the effectiveness of the Three Mile Slough Barrier project, to expeditiously move ahead with certain near term actions, and to assist in implementing early action ecosystem restoration projects.

This bill would eliminate these requirements.

Date of Hearing: April 19, 2016

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Marc Levine, Chair

ABPCA Bill Id:AB 2583 (

Author:Frazier) – As Amended Ver:March 17, 2016

SUBJECT: Sacramento-San Joaquin Delta Reform Act of 2009

SUMMARY: Places new requirements on the approval, financing, and operation of any new conveyance facility in the Sacramento-San Joaquin Delta (Delta). Specifically, this bill:

1. Strikes reference in law to the Bay Delta Conversation Plan (BDCP) and replaces with new Delta water conveyance.
2. Defines California WaterFix as a covered action project in the Delta and eliminates specific activities currently excluded from a covered action.
3. Creates new requirements on the permit approval and financial commitments associated with new Delta conveyance.
4. Creates new requirements for consistency with the Delta Plan.

EXISTING LAW:

1. Provides the State Water Resources Control Board (State Water Board) authority to protect Delta municipal, industrial, agricultural and fish and wildlife beneficial water uses through the adoption and implementation of a Water Quality Control Plan (WQCP) for the Delta.
2. Provides the Department of Water Resources (DWR) authority to construct and operate the State Water Project (SWP) and to construct, maintain, and operate additional SWP units that further the purposes of the SWP.
3. Prohibits the DWR from constructing any diversion, conveyance, or other facility to divert from the Sacramento River to the south Delta until the State Water Board issues an order approving the change. Requires the State Water Board to include appropriate Delta flow criteria in any order approving a change in diversion.
4. Prohibits construction of any new Delta conveyance facility until the SWP and the federal Central Valley Project (CVP) contractors enter into a contract to pay for environmental and community impacts associated with construction, operation, and maintenance of the facility.
   
5. 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.
   
6. Creates the Delta Stewardship Council (Council) which, among other tasks, must develop and implement the Delta Plan a long-term management plan that meets the coequal goals.
7. Requires that the Delta Plan promote options for new and improved infrastructure relating to Delta water conveyance, storage systems, and operations to achieve the coequal goals. Requires the Delta Plan promote statewide water conservation, water use efficiency, and sustainable use of water.
8. States the intent that any covered action in the Delta be consistent with the Delta Plan.
   
9. Permits inclusion of the BDCP into the Delta Plan only if it complies with a Natural Community Conservation Plan (NCCP), the California Environmental Quality Act (CEQA), and that the CEQA analysis specifically looks at flow related operational requirements and a reasonable range of Delta conveyance alternatives.

FISCAL EFFECT: unknown

COMMENTS:

1. Author’s Statement: Fiscal accountability and protection of Delta water supplies and natural resources must be the foundation of any proposal by the State to expand its water conveyance facilities in the Delta. In response to the recent decision by the Administration to abandon the BDCP as originally proposed when the Legislature adopted the Delta Reform Act in 2009, the bill will provide new legislative guidance to ensure fiscal accountability and project management performance standards for any new SWP/CVP conveyance project proposed in the Delta. This bill protects California taxpayers by requiring legally binding fiscal assurances and proposes to prevent any change in diversion from unreasonably harming water users in the Delta or public trust resources, including fish and wildlife.
2. Background: There is broad agreement that the state’s water management system is currently unable to satisfactorily meet both ecological and human needs.  Under current water use, demands surpass supply;  especially, in times of drought.  The State has taken action through the Water Action Plan to lay out a path to sustainable water management.   This and other documents, necessarily put all options on the table to improve the water management system.  Those options include but are not limited to conservation, efficiency, stormwater capture, groundwater replenishment, recycled water, and desalination.  Due to limited resources it is important that the state invest first in actions of the highest value to create the greatest improvements in water reliability for human and natural requirements.

The Delta is crucial and is in decline: The Sacramento-San Joaquin Delta (Delta) is both the hub of the California Water System and the most valuable estuary and wetland ecosystem on the west coast of the Americas. The Delta provides water to more than 25 million Californians and 3 million acres of agricultural land. It supports a four hundred billion dollar a year economy, is part of the Pacific Flyway, is critical habitat to 700 native plant and animal species, and is home to more than 500,000 people.

California is an arid state with limited precipitation. The mountains in the northern part of the state serve as the state’s water catcher and largest natural surface reservoir. These mountains receive the bulk of their precipitation as snow in the winter. The majority of human needs in the state are hundreds of miles from the primary water source. This hurdle of time and place of use led to major reengineering of the hydrology of the state. Beginning in 1933 and largely culminating in 1968 a major redirecting of water from the mountains to the cities and valleys through the construction of the CVP and the SWP made the Delta the hub of water in California.

The Delta watershed and California’s water infrastructure are in crisis and existing pressures on the Delta are not sustainable. Among other human impacts the CVP and the SWP operations have altered the natural amount, duration, direction and timing of water flows. As a result, today there are about 100 Delta wildlife species, 140 plant species and 13 species of fish that have some form of legal or regulatory protection. There have been numerous species-related restrictions on the management of water exports from the Delta since 1991, with restrictions being in place continuously since 2008.

Simply receiving more precipitation does not appear to be sufficient to resolve the challenges for species and deliveries in the Delta as a significant part of the problem stems from the fact that the infrastructure associated with deliveries itself is environmentally damaging. 2016, an average precipitation year, is an example of what the future of this environmental and infrastructure challenge would appear to hold. CVP Sacramento Valley interests are projected to receive 100% of their deliveries while many CVP San Joaquin Valley interests are projected to receive 5% of deliveries. It seems that further restrictions on deliveries from the Delta and continued ecological decline are a certainty under the status quo.

The expectation behind proposed changes in conveyance in the Delta has always been that it will improve the reliability of water deliveries out of the Delta. A concern that has always gone along with that expectation is what the environmental impacts of that reliability will be, and what the impacts would be on the people who live in the Delta.

Long Look at Conveyance and Delta Management: Since prior to the completion of both the CVP and the SWP there has been an ongoing debate about how to manage the Delta. Management and conveyance in the Delta have been and continue to be closely linked together. Because management and conveyance have been the responsibility of federal, state, and local governments, plans have not always been coordinated and have occurred in overlapping ways. Much of the debate on coordination, conveyance, and management was settled in legislation that was passed in 2009. While the legislation contemplated Delta management under the scenario where BDCP did not move forward, the legislation specifically built BDCP into Delta management.

Delta Legislation 2009

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 Extraordinary Session produced several pieces of legislation including SB 1 (Simitian, Chapter 5, Statutes of the 7th Extraordinary Session 2009-2010). Among numerous changes, this legislation tied Delta conveyance, governance, and funding together. SB 1 x7 clarified that any new conveyance facility could not be constructed without approval from the State Water Board. It required the State Water Board to develop new flow criteria for the Delta and include that flow criteria in any approval for new conveyance.

SB 1 x7 set environmental bars for BDCP beyond those required under CEQA with specific analysis required for numerous conveyance alternatives, and included a reasonable range of flow criteria, rates of diversion, and other operational criteria. Importantly, SB 1 x7 required BDCP to be approved as a federal Habitat Conservation Plan (HCP) and a state Natural Community Conservation Plan (NCCP) in order to be eligible for public funding.

Additionally, SB 1 x7 established the Delta Stewardship Council (Council) as a governance body for the Delta. Part of the Council’s responsibility is to develop a Delta Plan and make determinations of consistency for construction in the Delta with the Delta Plan. Any new conveyance facility would fall under an action that would be evaluated by the Council for consistency with the Delta Plan.

Among other things, the Delta Plan is required to:

• Further the restoration of the Delta through advancing the coequal goals of providing water reliability and enhancing the Delta ecosystem in a manner that protects the unique culture of the Delta.
• Promote statewide water conservation, water use efficiency, and sustainable use of water.
• Promote options for conveyance, storage, and operation that achieve the coequal goals.
• Be based on the best available science and promote a healthy Delta ecosystem.

WaterFix 2015-Present

In 2015 federal agencies determined that BDCP likely would not meet the requirements of an HCP and that the Delta conveyance associated with BDCP would not receive long-term permits for operation. This effectively led to the end of the BDCP and resulted in the Department splitting BDCP into WaterFix, the Delta conveyance piece of BDCP, and EcoRestore the ecological restoration piece of BDCP.

Recent estimates put the cost of WaterFix at $17 billion and EcoRestore at $8 billion. Under existing law, the CVP and the SWP contractors will have to pay the cost of WaterFix. The funding for EcoRestore is less clear and while the CVP and the SWP contractors will have to pay the mitigation costs associated with any new conveyance it is not clear if that mitigation will cover all costs associated with EcoRestore.

Much of SB 1 x7 still applies to how conveyance and governance continue to be carried out in the Delta. Importantly, the approval process for conveyance at the State Water Board and the Council remains in place.

Status Quo vs Certain Improvement

Part of the consideration that went into passage of SB 1 x7 was the reality that the Delta watershed and California’s water infrastructure are in a crisis and existing Delta policies are not sustainable. As a result, the legislation considered the scenario where BDCP did not move forward. That scenario placed even greater importance on the Delta Plan, and specifically, the adaptive management strategy adopted in the Delta Plan. The adaptive management strategy currently adopted is one that provides for making management decisions using the best available science to build better approaches that move decisions beyond repeated delay in action until more information is available. The purpose of the adaptive management strategy is to increase the likelihood of success in managing natural resources where there is considerable uncertainty.

There is no silver bullet for solving the crisis in the Delta. At this point, the best available science only tells us the status quo is a sure fire path to failure. In short, the best available science says we must do something if we are to meet the coequal goals, but it doesn’t tell us what that something is.

SB 1 x7 envisioned new Delta conveyance being directly tied to environmental standards. Specifically, SB 1 x7 stated the intent that Delta conveyance be part of the Delta plan and conditioned the inclusion of BDCP in the Delta plan to BDCP becoming compliant with an HCP/NCCP, and further required specific analysis on flow that would meet an NCCP in the CEQA analysis, among other things.

Now that BDCP is no longer under consideration, an important question centers on the ability of the Delta Plan and its adaptive management strategy to reduce uncertainty; will the adaptive management strategy provide for a meaningful process to improve Delta management in meeting the coequal goals over time?

The Council has recently begun the process of updating the Delta Plan, has submitted a Budget Change Proposal in the budget process to pay for that update, and has established new principles for conveyance, water storage, and operations.

Where Do We Go Post BDCP?

The straight forward issue this bill raises is now that BDCP is a thing of the past, should the process approved in 2009 be improved to provide greater evaluation, financial assurances and environmental protection?

This bill lays out three broad ways in which it would adjust SB 1 x7:

• Provide financial certainty that every impact associated with a new Delta conveyance will be paid for.
• Provide for additional evaluation necessary to meet approval of new Delta conveyance from the State Water Board.
• Provide additional requirements necessary to meet approval of new Delta conveyance from the Council.

This bill sets a high bar in all three of those areas.

The financial requirements are expansive, including all costs to date, associated with the SWP and the CVP. It is questionable if the state has the ability to impose these costs on federal CVP contractors. It may be unconstitutional to require funding used for fish and wildlife enhancement associated with the SWP to be restricted or repaid. The language would require each state and federal water contractor to sign a legally binding financial agreement. This would essentially give any water contractor veto power over new Delta conveyance.

Potential Considerations

The committee may wish to clarify the following that the financial agreements will apply only to contractors who enter into a financial agreement; that for the project to move forward there is sufficient funding to meet the expected costs of construction; that in addition to identified mitigation there is a funding mechanism put in place to finance the adaptive management plan long-term; and that the CVP contractors will be requested, not required, to pay costs; that fish and wildlife enhancement associated with the SWP will continue to have elements of state funding, or provisions in existing law requiring that state funding be changed.

One of the requirements of BDCP was that a reasonable range of flows would be evaluated to meet the needs to recover fish and that only water beyond those requirements would be available for export. Existing law requires the State Water Board to uphold the public trust. It also requires the State Water Board to approve any new conveyance. This bill would require the update of the Bay-Delta water quality control plan be completed before the State Water Board could approve any new conveyance. The water quality control plan is a four phase plan that was initiated in 2009 and has yet to complete phase 1.

The committee may wish to reinstate the requirement that fish flow requirements be met. The committee may further wish to require that fish flow requirements be built into the Delta plan, or explicitly into the adaptive management plan.

The bill imposes numerous new requirements on any new conveyance to meet a certification of consistency with the Delta Plan. In total these requirements would establish a bar that would be essentially unattainable for new conveyance to meet a certification of consistency. Moreover, certification of consistency is a point in time event. Some of the requirements in this bill are ongoing, inherently raising the question if there is an ability to meet these requirements to gain a certification of consistency.

The committee may wish to establish requirements to be included in the Delta Plan that address the fact that BDCP will no longer be included in the Delta Plan. That may include some of the requirements currently proposed in this bill for a certification of consistency.

Approval of new Conveyance

A ballot initiative in this November’s election would require the state to seek voters' permission before funding projects of $2 billion or more with revenue bonds. The administration had been and may still propose such bonds for new Delta conveyance.

Any large scale conveyance project that moves water from the Sacramento River to the South Delta CVP and the SWP pumping plants would have to comply with CEQA and all of the associated requirements for approval of the project.

In addition, exclusive to the BDCP process, at least part of the ability to gain approval for a Delta conveyance facility was clearly laid out through SB 1 x7 and that process must be adhered to today. Among other things that process required the Council to make a certification of consistency with the Delta plan. It is not clear whether the Council will find new Delta conveyance to be consistent with the Delta Plan, but it seems likely that process would inform any CEQA challenge.

1. Prior and Related Legislation:

AB 1713 (Eggman) of 2016, requires an initiative vote to authorize construction of any Delta conveyance. AB 1713 is pending in this committee.

AB 550 (Huber) of 2011, would have prohibited construction of a peripheral canal unless there was expressed legislative approval. The bill failed passage out of this Committee.

AB 1594 (Huber) of 2010, would have prohibited construction of a peripheral canal unless there was expressed legislative approval. The bill was held in this Committee.

SB 1 x 7 (Simitian) Chapter 5, Statues of the 7^th Extraordinary Session of 2009-2010, established the Sacramento-San Joaquin Delta Reform Act requiring Delta management to meet the coequal goals.

1. Supporting Arguments: AB 2583 will ensure that appropriate fiscal and environmental safeguards are applied to any new Delta conveyance. New Delta conveyance is not automatically incorporated in the Delta Plan as was the case with the BDCP. Specific criteria to guide approval and implementation of any new Delta water conveyance infrastructure that exports water out of the Delta is necessary. Greater environmental safeguards are necessary beyond those established in 2009 in order to ensure the protection of fish and wildlife and in-Delta beneficial uses. Requiring a completed update of the 2006 water quality control plan for the Bay-Delta estuary is crucial in protecting the Delta’s environment.
2. Opposing Arguments: This bill would create onerous new requirments that would delay or even stop the construction of the California WaterFix. These provisions would cause years of delays and greatly reduce the reliability of water supplies for 2/3 of the state. This bill attempts to significantly change the rules for operation, funding, management, and construction of the project. These new rules will undo the collaborative, exhaustive process that has brought us to this point. Arriving at a Delta solution is a complex process. State and federal agencies have been working in collaboration with stakeholders and the science community for years to weigh alternatives in order to develop the best plan possible to ensure that the coequal goals are met.

REGISTERED SUPPORT / OPPOSITION:

Support

Bay Institute, The

California Central Valley Flood Control Association

California Delta and Chambers Visitors Bureau

Central Delta Water Agency

City of Rio Vista

Contra Costa County Farm Bureau

County of Sacramento

Delta Caucus

Delta Counties Coalition

Greater Stockton Chamber of Commerce

Local Agencies of the North Delta

North Delta Cares Action Committee

Planning and Conservation League

Restore the Delta

Sacramento County Farm Bureau

San Joaquin County

San Joaquin County Farm Bureau

Sierra Club California

Solano County Board of Supervisors

Solano County Farm Bureau

South Delta Water Agency

Yolo County Farm Bureau

Opposition

Alameda County Zone 7 Water Agency

American Council of Engineering Companies

Associated General Contractors of California

Association of California Cities, Orange County

Association of California Water Agencies

California Alliance for Jobs

California Asian Pacific Chamber of Commerce

California business Properties Association

California Chamber of Commerce

California Contract Cities Association

California Professional Firefighters

California Small Business Association

California State Association of Electrical Workers

California State Building & Construction Trades Council

Calleguas Municipal Water District

Camarillo Chamber of Commerce

Central City Association of Los Angeles

Chambers of Commerce Alliance of Ventura and Santa Barbara Counties

Coachella Valley Water District

Cucamonga Valley Water District

Eastern Municipal Water District

El Toro Water District

Elsinore Valley Municipal Water District

Engineering Contractor’s Association

Foothill Municipal Water District

Gateway Chambers Alliance

Great Bakersfield Chamber of Commerce

Greater Conejo Valley Chamber of Commerce

Greater Fresno Area Chamber of Commerce

Greater Los Angeles African American Chamber of Commerce

Greater Riverside Chambers of Commerce

Huntington Beach Chamber of Commerce

Imperial County Building & Construction Trades Council

Inland Action

Inland Empire African American Chamber of Commerce

Inland Empire Economic Partnership

Insulators & Allied Workers Local Union 5

International Association of Heat and Frost Insulators and Allied Workers Local Union 16

International Brotherhood of Boilermakers Local Union 549

International Brotherhood of Electrical Workers Local Union 6

International Brotherhood of Electrical Workers Local Union 11

International Brotherhood of Electrical Workers Local Union 45

International Brotherhood of Electrical Workers Local Union 234

International Brotherhood of Electrical Workers Local Union 332

International Brotherhood of Electrical Workers Local Union 428

International Brotherhood of Electrical Workers Local Union 441

International Brotherhood of Electrical Workers Local Union 477

International Brotherhood of Electrical Workers Local Union 551

International Brotherhood of Electrical Workers Local Union 684

International Union of Painters & Allied Trades, District Council 36

Ironworkers Local Union 433

Kern County Taxpayer Association

Kern County Water Agency

Kern, Inyo and Mono Counties Building and Construction Trades Council

Las Virgenes Municipal Water District

Los Angeles Area Chamber of Commerce

Los Angeles County Business Federation

Los Angeles/Orange County Building & Construction Trades Council

Marin County Building & Construction Trades Council

Mesa Water District

Metropolitan Water District of Southern California

Mojave Water Agency

Monterey/Santa Cruz Building & Construction Trades Council

Moreno Valley Chamber of Commerce

Municipal Water District of Orange County

Natural Heritage Institute

North Orange County Chamber of Commerce

Northeastern Counties Building & Construction Trades Council

Oxnard Chamber of Commerce

Piping Industry Progress and Education (P.I.P.E)

Pistachio Producers of California

Port Hueneme Chamber of Commerce

Redondo Beach Chamber of Commerce

San Bernardino Valley Municipal Water District

San Diego County Building & Construction Trades Council

San Francisco Chamber of Commerce

San Francisco Peninsula Fire Safe Council

San Gabriel Valley Economic Partnership

San Gorgonio Pass Water Agency

San Jose Silicon Valley Chamber of Commerce

San Jose/Silicon Valley NAACP

San Mateo County Building & Construction Trades Council

Santa Clara/San Benito County Building & Construction Trades Council

Santa Margarita Water District

Sheet Metal, Air, Rail & Transportation Workers 105

Sonoma, Mendocino and Lake Counties Building & Construction Trades Councils

South Bay Association of Chambers of Commerce

South Bay Labor Council

Southern California Water Committee

Southwest California Legislative Council

Southwest Riverside County Association of Realtors

Stanislaus, Merced, Tuolumne and Mariposa Counties Building & Construction Trades Council

Three Valleys Municipal Water District

Torrance Area Chamber of Commerce

Tulare Kings Hispanic Chamber of Commerce

United Association of Plumbers and Steamfitters Local Union 484

United Chambers of Commerce San Fernando Valley & Region

Valley Ag Coalition

Valley Industry & Commerce Association

Ventura County Taxpayers Association

Western Growers Association

Western Municipal Water District

Yorba Linda Water District

Analysis Prepared by: Ryan Ojakian / W., P., & W. / (916) 319-2096