California Senate Bill SB457 Amended / Bill

 BILL NUMBER: SB 457AMENDED BILL TEXT AMENDED IN SENATE MAY 5, 2009 AMENDED IN SENATE APRIL 13, 2009 INTRODUCED BY Senator Wolk FEBRUARY 26, 2009 An act to add Sections 29735.5 and 29759 to, and to add Division 17.5 (commencing with Section 27000) to, the Public Resources Code, relating to the Sacramento-San Joaquin Delta. LEGISLATIVE COUNSEL'S DIGEST SB 457, as amended, Wolk. Sacramento-San Joaquin Delta. Existing law requires various state agencies to carry out programs, projects, and activities on behalf of the Sacramento-San Joaquin Delta. The Johnston-Baker-Andal-Boatwright Delta Protection Act of 1992 creates the 23-member Delta Protection Commission and requires the commission to prepare and adopt a comprehensive long-term resource management plan for specified lands within the Sacramento-San Joaquin Delta. That act establishes a primary zone where further development is barred and a secondary zone surrounding the Delta where development may proceed under certain conditions. The California Bay-Delta Authority Act establishes in the Natural Resources Agency the California Bay-Delta Authority. The act requires the authority and the implementing agencies to carry out programs, projects, and activities necessary to implement the Bay-Delta Program, defined to mean those projects, programs, commitments, and other actions that address the goals and objectives of the CALFED Bay-Delta Programmatic Record of Decision, dated August 28, 2000, or as it may be amended. This bill would create a 9-member Delta Stewardship Council in the Natural Resources Agency with specified powers and responsibilities relating to the Delta, including approving the Delta Stewardship Plan to guide and shape management of the Delta. The bill would require the commission to present the council with a draft plan on or before October 1, 2010. The bill would require the council to adopt the plan on or before January 1, 2011. The bill would require the council to review, and if necessary, amend the plan at least every 5 years. The bill would require the council by March 1, 2010, to appoint a Delta Science and Engineering Board and create a Delta Science and Engineering Program. The bill would state the intent of the Legislature that the Delta Science and Engineering Program be a replacement for, and a successor to, the CALFED Science Program, with specified responsibilities, and that the Delta Science and Engineering Board be a replacement for the CALFED Independent Science Board. The bill would require the commission to require all general plans of cities and counties within the Delta, and the resource management plan, to be consistent with the Delta Stewardship Plan, thereby imposing a state-mandated local program on cities and counties. The bill would require the commission to revise all of its plans and policies to be consistent with the Delta Stewardship Plan, to review and certify all city and county general plans for consistency with the resource management plan and the Delta Stewardship Plan, to exercise  direct consistency determination authority over development proposals   appeal authority over actions taken by a local government or other local agency  in the primary zone, to review, hold public hearings and receive testimony, and provide recommendations to the council on all proposed projects subject to approval by the council, and develop a regional economic development plan. The bill would require the council to determine appeals from the commission on water conveyance and storage project decisions. The bill would create the Delta Stewardship Fund and would require the commission to deposit in the fund any moneys received from federal, state, local, and private sources for Delta stewardship. Moneys in the fund would be available, upon appropriation, for regional economic development consistent with the Delta Stewardship Plan. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Division 17.5 (commencing with Section 27000) is added to the Public Resources Code, to read: DIVISION 17.5. Delta Governance CHAPTER 1. GENERAL PROVISIONS 27000. The Legislature finds and declares that the Sacramento-San Joaquin Delta is a natural resource of statewide, national, and international significance, containing irreplaceable resources, and it is the policy of the state to recognize, preserve, and protect those resources of the Delta for the use and enjoyment of current and future generations. In implementing that policy, the state shall act pursuant to all of the following principles: (a) The revitalization of the Delta ecosystem and a reliable water supply for California are the primary goals for sustainable management of the Delta, which is a unique and valued area, warranting recognition and special legal status from the state. (b) The Delta ecosystem must function as an integral part of a healthy estuary. (c) California's water supply is limited and must be managed with significantly higher efficiency to be adequate for the state's future population, growing economy, and vital environment. (d) The foundation for policymaking regarding California water resources must be the longstanding principles of "reasonable use" and "public trust"; these principles are particularly important and applicable to the Delta. The goals of conservation, efficiency, and sustainable use must drive state water policies. (e) A revitalized Delta ecosystem will require reduced diversions of water, or changes in patterns and timing of those diversions upstream of the Delta, within the Delta, and exported from the Delta, at critical times. (f) Major investments in the Delta and the statewide water management system must integrate and be consistent with specific policies in the Delta Vision. In particular, these strategic investments must strengthen selected levees, improve floodplain management, and improve water circulation and quality. (g) The current boundaries and governance system of the Delta must be changed. It is essential to have an independent body with authority to achieve the goals of ecosystem revitalization and adequate water supply for California, while also recognizing the importance of the Delta as a unique and valued area. This body must have secure funding and the ability to approve spending, planning, and water export levels. (h) Discouraging inappropriate urbanization of the Delta is critical both to preserve the Delta's unique character and to ensure adequate public safety. (i) Institutions and policies for the Delta should be designed for resiliency and adaptation. 27001. The Legislature finds and declares that the Delta is in crisis and existing Delta policies are not sustainable in the long term, particularly in light of the threat of climate change and sea level rise to state water supplies and water availability. Protecting the public trust and improving the stewardship of the precious resources of the Delta require fundamental reorganization of the state's management of those resources. 27002. The Legislature finds and declares all of the following: (a) Before California's statehood, the Delta had developed over millions of years of sedimentary deposits from California's two great rivers. When European settlers arrived, the Delta was a shallow wetland with water covering the area for many months of the year. Natural levees, created by deposits of sediment, allowed some islands to emerge during the dry summer months. As with other river estuaries, salinity would fluctuate, depending on the season and the amount of precipitation in any one year. (b) Not long after statehood, settlers began building larger levees to keep water off certain islands for the entire year. In this way, they gained a property interest in the created island. Into the 20th century, numerous islands and a maze of Delta channels emerged, along with a robust agricultural economy relying on the fertile peat soils that had been deposited over millions of years. Cultivation of these peat soils, however, caused oxidation and subsidence, leading to some areas of the Delta lying as deep as 30 feet below the adjacent water level. (c) In 1933, the Legislature adopted the California Water Plan, which envisioned a set of northern California reservoirs to hold water in the Sacramento River watershed for subsequent transfer across the Delta into the San Joaquin Valley. The 1933 plan also envisioned a reservoir on the main stem of the San Joaquin River, which would hold back water that otherwise flowed to the Delta and transfer that water south into the Tulare Lake and Kern River basins. Because California did not have the resources to finance the plan at that time, the federal government agreed to implement the plan through the United States Bureau of Reclamation, which constructed the Central Valley Project. (d) In 1959, the Legislature approved construction of a State Water Project, again drawing water from a northern California reservoir across the Delta to serve agricultural uses in the Tulare Lake and Kern River basins as well as urban uses in southern California and the San Francisco Bay area. In 1960, California voters approved the issuance of one billion seven hundred fifty million dollars ($1,750,000,000) in bonds to pay for the State Water Project, which began exporting water from the Delta in 1968. 27003. The Legislature finds and declares all of the following: (a) As demands on the Delta's resources have expanded, the Delta has suffered conflict and deterioration. As water quality and fishery have declined, litigation over water quality standards and fishery protection has raged for several decades, ultimately leading to a 1994 agreement between the state and the federal government on Delta water quality standards. Thereafter, the two governments developed the CALFED Bay-Delta Program to improve conditions for four critical issues: water supply, ecosystem restoration, water quality, and levee system integrity. The two governments signed a Record of Decision to establish a 30-year Delta improvement program on August 28, 2000. (b) Since the 2000 CALFED Record of Decision, water project pumping has increased to record high levels and certain fish populations have declined to record low levels, with the Delta smelt approaching extinction. Studies of the Delta's ecosystem crisis have indicated that the recent decline has been caused by three categories of problems for the Delta: water project operations, toxic contaminants, and invasive species. All three of these categories of problems have worsened in recent years, arising out of the growth and development of the Central Valley economy. (c) Recent years also have demonstrated the fragility of the Delta levee system. After a 2004 levee failure on a clear summer day, not during a flood event, the state has focused increased attention on the conditions of the Delta's levees, which are mostly owned by private parties or local reclamation districts. Continued farming on peat soils has led to greater subsidence to levels far below adjacent water levels in some parts of the Delta. These conditions put greater hydraulic pressure on Delta levees and increase the risk of levee failure. The Department of Water Resources has identified a possible risk scenario where an earthquake could lead to mass levee failure and the creation of a deep, saline water body where deeply subsided islands formerly stood. This type of mass levee failure would interrupt water exports from the Delta, as saline water approached the water project pumping facilities in the south Delta. (d) Finally, increasing urbanization on the fringes of the Delta has led to greater stress on the Delta's resources. In 1992, the Legislature passed the Delta Protection Act of 1992 (Division 19.5 (commencing with Section 29700)), which established a primary zone where further development is barred and a secondary zone surrounding the Delta where development may proceed under certain conditions. The Delta Protection Commission, created by the Delta Protection Act of 1992, has succeeded in large part due to the leadership of local officials who represent those who live and work in the Delta. CHAPTER 2. DEFINITIONS 27050. Unless the context otherwise requires, the definitions set forth in this chapter govern the construction of this division. 27052. "Commission" means the Delta Protection Commission established in the Delta Protection Act of 1992 (Division 19.5 (commencing with Section 29700)). 27054. "Council" means the Delta Stewardship Council established in Chapter 3 (commencing with Section 27100). 27056. "Delta" means the Sacramento-San Joaquin Delta estuary, as defined in Section 12220 of the Water Code. 27058. "Delta Vision" means the report titled "Delta Vision: Our Vision for the California Delta" as adopted by the Blue Ribbon Task Force on November 30, 2007. 27060. "Plan" means the Delta Stewardship Plan adopted pursuant to Chapter 5 (commencing with Section 27300). 27062. "State Water Project" means the State Water Resources Development System. CHAPTER 3. DELTA STEWARDSHIP COUNCIL 27100. (a) There is hereby created the Delta Stewardship Council in the Natural Resources Agency, consisting of nine members. Eight members shall be appointed by the Governor, subject to Senate confirmation, and shall have the responsibility for the stewardship of the Sacramento-San Joaquin Delta and all its natural resources. It is the intent of the Legislature that the membership include diverse expertise and perspectives, policy and resource experts, strategic problem solvers, and individuals having successfully resolved multi-interest conflicts. One member shall be the chairperson of the Delta Protection Commission. (b) The council shall do all of the following: (1) Approve the Delta Stewardship Plan. (2) Determine appeals from Delta Protection Commission water supply decisions of whether a project proposed by or approved by a state agency or local government that may impact the Delta is consistent with the plan. (3) Assume responsibility for any conservation or habitat management plan developed for the Delta by the state or federal government. (4) Establish a process to ensure federal and state consistency with the plan. (5) Review  ,  and determine consistency with this division of ,  the Bay Delta Conservation Plan or an environmental impact report for any significant Delta conveyance facility. (6) Be designated a trustee agency pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000)). (7) Determine the consistency of major water, road, railroad, utility, and levee infrastructure projects in the Delta with the plan and communicate that determination to the responsible agencies. (8) Assess policies applied outside the Delta that are critical to meeting Delta Vision goals and convey the results of that assessment to the responsible agency. (9) Work with the Delta Science and Engineering Program and the Delta Science and Engineering Board on adopting sound principles of adaptive management. (10) Receive and allocate funds to advance policies and programs related to the Delta. (11) Include issues of environmental justice in the plan and in future Delta decisionmaking. (12) Adopt procedures for use of alternative approaches to dispute resolution, such as joint fact finding and arbitration to reduce reliance on litigation and the courts. (13) Have the power to sue to ensure compliance with the plan. (14) Establish policies and procedures that ensure that day-to-day operation of water export systems is consistent with the plan. 27101. Each member shall serve for five years. The length of the initial terms of office shall be staggered. CHAPTER 4. DELTA SCIENCE AND ENGINEERING PROGRAM 27200. (a) The Legislature finds and declares that California should maintain a strong and consistent investment in science and engineering important to the Delta. There should be a more direct link between scientific investigation and real-world management and policy. To achieve this, the council will need both a permanent science and engineering staff and an independent Delta Science and Engineering Board that reviews council actions. (b) It is the intent of the Legislature that the Delta Science and Engineering Program should be a replacement for, and a successor to, the successful CALFED Science Program, and that the Delta Science and Engineering Board should be a replacement for the CALFED Independent Science Board. (c) The council, by March 1, 2010, shall appoint a Delta Science and Engineering Board, consisting of between 12 and 20 individuals with natural science, social science, engineering, and policy expertise. Members may serve a maximum of two five-year terms. Lead scientists appointed by the council shall have a rotating appointment of three years. Lead scientists shall be formally engaged by an agency other than the state. (d) The council, by March 1, 2010, shall create a Delta Science and Engineering Program. (e) It is the intent of the Legislature that the program do all of the following: (1) Research critical scientific issues of both the physical Delta and elsewhere in the state relevant to Delta management. (2) Organize, assess, and synthesize the best available science for policymakers and the council. (3) Review all major projects undertaken to advance the goals of the Delta Vision. (4) Conduct independent science and engineering reviews of the work of government agencies or consultant work upon the request of the council, the conservancy, or other state agencies. (5) Establish communication channels to effectively transmit science and engineering results to broader and more diverse audiences. (6) Develop discussion papers and interactive lectures. CHAPTER 5. DELTA STEWARDSHIP PLAN 27300. The Legislature finds and declares all of the following: (a) The Delta Stewardship Plan is intended to guide and shape management of the Delta to ensure its revitalization and create a statewide reliable water delivery system. (b) The current lack of a legally binding, cohesive plan has caused agencies and Delta stakeholders to work in a vacuum, developing policies and programs that lack context. The CALFED Record of Decision included most elements of such a plan but failed to be implemented for three reasons: those in charge had no authority to ensure its implementation, those who were implementing it had no accountability, and, in the end, there was no money. (c) In addition, all parties recognize that the management of the Delta is rife with uncertainty. Any functional governance structure must be flexible and adaptable to changing circumstances. A governance structure built around a plan can achieve this flexibility by incorporating periodic revisions and grounding management directions in adaptive management principles. Importantly, management and scientific understanding must evolve together. Management decisions and plan provisions must incorporate the best available science, and be formulated in such a way that scientific knowledge can be generated through direct observation of the Delta's response to various actions. (d) The plan is intended to achieve the primary goals of the Delta Vision. It should build upon and integrate other plans, including the Delta Protection Commission  Resources Management Plan   resource management plan  and the Central Valley Flood Protection Plan, modifying and extending them as needed to meet its responsibilities. (e) Existing policies and programs in the Delta lack cohesion and integration. The aim of this proposed plan is to remedy those two faults. The plan should be developed and adopted by the council before January 1, 2011. (f) All state, regional, and local agencies with planning responsibilities should be required to carry out their actions in conformity with the plan, while providing the flexibility needed to meet the Delta's management challenges. Approving a plan governing the Delta thereby ensures consistency among existing federal, state, regional, and local agencies and provides the flexibility needed to meet the Delta's management challenges. (g) Local governments and other state and federal agencies should continue planning, decisionmaking, and operations consistent with the plan. 27301. The Legislature further finds and declares that the plan should do all of the following: (a) Incorporate any species protection requirements that impact Delta resources. (b) Incorporate requirements for water flow and water quality in the Delta that achieve the  coequal   primary  goals. (c) Define state land use interests in the Delta, especially those that impact the ecosystem, water supply reliability, and flood concerns. The commission and local governments should provide the oversight to protect those interests consistent with the plan. In the case that these state interests extend from the Delta into adjacent areas, the commission should work with relevant local governments to address the linkages. (d) Provide principles and procedures for adaptive management. (e) Provide for the modeling, data collection, management, monitoring, analysis, and interpretation to support policy decisionmaking. (f) Ensure flexibility and resiliency in managing the Delta. (g) Incorporate the recommendations of the Delta Vision Strategic Plan. (h) Include an accurate up-to-date assessment of water supply availability. (i) Articulate a detailed financing plan that identifies costs, benefits, and revenue sources. (j) Serve as a foundational document for a programmatic environmental impact statement or environmental impact report, as well as any projects undertaken requiring permits pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000)) or the federal National Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et seq.). 27302. (a) The commission shall do all of the following: (1) Identify and address, by December 31, 2010, any inconsistencies in the water quality plans adopted by the State Water Resources Control Board and the plan. (2) Present the council with a draft plan no later than October 1, 2010. (b) The council shall review, and, if necessary, amend the plan at least every five years. (c) The Delta Science and Engineering Board, with the support of the Delta Science and Engineering Program, shall develop a science-based adaptive management program to provide for continued study of, and adaptation to, actions implemented by federal, state, and local agencies in the Delta. 27303. The commission shall develop the plan in accordance with all of the following: (a) The plan shall be consistent with the procedural and substantive requirements of the federal Coastal Zone Management Act of 1972 (16 U.S.C. Sec. 1451 et seq.). (b) The commission shall coordinate with stakeholders as well as federal, state, and local agencies. (c) The plan shall be based on the Delta Protection Commission  Resources Management Plan   resource management plan  , the Central Valley Flood Protection Plan, and any other water supply and species protection plans it determines as foundational. (d) The commission shall encourage the participation of federal, state, and local agencies to help to better integrate their responsibilities and capacities into the plan. (e) The commission shall ensure that the plan recognizes and addresses the uncertainty involved in Delta decisionmaking and design an adaptive management plan to ensure that ongoing Delta management builds knowledge about the ecosystem and provides information for improved decisionmaking. The adaptive management plan should build upon the work of the CALFED Science Program to do all of the following: (1) Synthesize existing knowledge about the Delta as a physical system. (2) State hypotheses about the effects of management actions recommended in the plan on the ecosystem, water supply, and other values. (3) Recommend to the council additional management actions expected to yield desired ecosystem or water supply outcomes or designed to generate useful knowledge about the Delta. (4) Design monitoring programs to systematically gather needed data. (5) Identify and put in place the processes by which the data will be synthesized, hypotheses evaluated, and new management actions recommended. (6) On the five-year cycles on which the plan is reviewed and updated, the results should be integrated into a report on the knowledge of the Delta, an assessment of the success of current policies and management, and the identification, assessment, and recommendation of possible changes in policies or management. (7) Beginning with the first five-year update, the council shall consider water rights decisions made by the State Water Resources Control Board to achieve an accurate accounting of the actual water in the Delta. 27304. (a) The council shall adopt the plan on or before January 1, 2011. (b) Until the plan is adopted pursuant to this division, the Delta Vision  strategic plan   Strategic Plan  shall serve as the interim plan for the Delta. CHAPTER 6. DELTA STEWARDSHIP FUND 27400. The Delta Stewardship Fund is hereby created in the State Treasury. The commission shall deposit in the fund any moneys received from federal, state, local, and private sources for Delta stewardship. Moneys in the fund shall be available, upon appropriation by the Legislature, for regional economic development consistent with the plan. SEC. 2. Section 29735.5 is added to the Public Resources Code, to read: 29735.5. The commission shall request federal agencies, including, but not limited to, the United States Army Corps of Engineers, the United States Fish and Wildlife Service, and the United States Bureau of Reclamation to participate in nonvoting liaison capacities with the commission to better assess and coordinate flood protection, water supply, and ecosystem protection issues. SEC. 3. Section 29759 is added to the Public Resources Code, to read: 29759. (a) The commission shall require all general plans of cities and counties within the Delta, and the resource management plan, to be consistent with the Delta Stewardship Plan adopted pursuant to Division 17.5 (commencing with Section 27000). (b) The commission shall do all of the following: (1) Revise all of its plans and policies, including the resource management plan, to be consistent with the Delta Stewardship Plan adopted pursuant to Division 17.5 (commencing with Section 27000). (2) Review and certify all city and county general plans for consistency with the resource management plan and the Delta Stewardship Plan.  (3) Exercise direct consistency determination authority over development proposals in the primary zone. The commission shall make an affirmative determination that any project approved by a city or county within the primary zone is consistent with the resource management plan and the Delta Stewardship Plan.   (3) Exercise appeal authority, pursuant to Chapter 6 (commencing with Section 29770) of Division 19.5, over actions taken by a local government or other local agency in the primary zone. Notwithstanding Section 29771, the commission shall deny the appeal if the commission finds, based on substantial evidence in the record, that the action is consistent with both the resource management plan and the Delta Stewardship Plan. If the commission does not make that finding, the commission shall remand the action to the local government or local agency for reconsideration. Upon remand, the local government or local agency shall modify the appealed action and resubmit the matter for review to the commission. A proposed action appealed to the commission shall not be effective until the commission makes the findings required by this subdivision and Section 29771.  (4) Review, hold public hearings and receive testimony, and provide recommendations to the Delta Stewardship Council on all proposed projects subject to approval by that council. (5) Develop a Delta regional economic development plan to support increased investment in agriculture, recreation, tourism, and local communities. (6) Review for consistency any water conveyance or storage project proposal. Any of  there   these  decisions may be appealed to the council within 30 days of action taken. SEC. 4. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.