Bill Text: CA AB1095 | 2011-2012 | Regular Session | Amended
Bill Title: Sacramento-San Joaquin Delta Reform Act of 2009: covered
Spectrum: Slight Partisan Bill (Democrat 2-1)
Status: (Engrossed - Dead) 2012-07-03 - In committee: Set second hearing. Failed passage. Reconsideration granted. [AB1095 Detail]
Download: California-2011-AB1095-Amended.html
BILL NUMBER: AB 1095 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 27, 2012
AMENDED IN SENATE JUNE 19, 2012
AMENDED IN SENATE JUNE 12, 2012
AMENDED IN SENATE JUNE 22, 2011
AMENDED IN ASSEMBLY MAY 27, 2011
AMENDED IN ASSEMBLY MARCH 31, 2011
INTRODUCED BY Assembly Member Buchanan
(Principal coauthors: Assembly Members Bill Berryhill and
Galgiani)
FEBRUARY 18, 2011
An act to amend Section 85057.5 of the Water Code, relating to the
Sacramento-San Joaquin Delta.
LEGISLATIVE COUNSEL'S DIGEST
AB 1095, as amended, Buchanan. Sacramento-San Joaquin Delta Reform
Act of 2009: covered actions.
Existing law, the Sacramento-San Joaquin Delta Reform Act of 2009,
establishes the Delta Stewardship Council as an independent agency
of the state. Existing law requires a state or local public agency
that proposes to take 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. Existing law defines a
"covered action" to mean a plan, program, or project, as specified.
Existing law, the Johnston-Baker-Andal-Boatwright Delta Protection
Act of 1992, requires the Delta Protection Commission to review and
maintain a comprehensive long-term resource management plan for land
uses within the primary zone, as defined, of the Delta. Existing law
defines the secondary zone as all the Delta land and water area
within the boundaries of the Delta not included within the primary
zone, subject to the land use authority of local government, as
prescribed.
This bill would exclude from the definition of "covered action"
any project or portion of a project that falls
, as defined, as of September 30, 2009, that is within an
urban or urbanizing area within the Delta's secondary zone
and which is covered by a general plan, sphere of influence, specific
or master plan, community plan, or development agreement adopted by
the relevant local land use authority zone, within the
boundaries of the community's adopted sphere of influence
or urban limit line and substantially conforms with an adopted
general plan .
Existing law, the California Environmental Quality Act (CEQA)
requires a lead agency to prepare and certify the completion of an
environmental impact report on a project, as defined, that it
proposes to carry out or approve that may have a significant impact
on the environment or to adopt a negative declaration if it finds
that the project will not have that effect. The National
Environmental Policy Act (NEPA) requires federal agencies to prepare
environmental assessments or environmental impact reports that
contain statements of the environmental effects of proposed federal
agency actions.
This bill would exclude from the definition of "covered action"
any upgrade to an existing drinking water, stormwater, or wastewater
treatment, storage, or conveyance facility within the existing
physical footprint or legal property boundaries, as applicable, of
the facility, to meet a state or federal water quality compliance
order, as specified. This bill would also exclude from the definition
of "covered action" any flood control project undertaken within the
Delta's secondary zone that is consistent with the Central Valley
Flood Protection Act of 2008 and which would provide protection to an
urban or urbanizing area or existing public infrastructure. These
upgrades and projects would have to comply with CEQA or NEPA, or
both.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares
all of the following:
(a) The Legislature passed and the Governor signed Senate Bill 1
of the Seventh Extraordinary Session of 2009 (Chapter 5 of the
Seventh Extraordinary Session of the Statutes of 2009), which
establishes the framework to achieve the coequal goals of providing a
more reliable water supply to California and restoring and enhancing
the Delta ecosystem.
(b) This statute created the Delta Stewardship Council (DSC), an
independent seven-member body that is tasked with developing a
long-term plan for the Delta that meets the coequal goals of
providing a more reliable water supply for California while
preserving, enhancing, and protecting the Delta ecosystem and
respecting the unique cultural, recreational, natural resource, and
agricultural values of the Delta as an evolving place.
(c) The DSC is tasked with drafting and implementing the Delta
Plan, and requires that actions in the primary and secondary zones be
consistent with the plan as determined by the council upon an
appeal.
(d) Inherent in Senate Bill 1 of the Seventh Extraordinary Session
of 2009 is the subjective standard of consistency of the coequal
goals as interpreted by the DSC. Local government decisions on
private and public development within the primary and secondary zones
of the Delta are subject to decisions where statutory ambiguity
related to their sovereign powers is the cause of unintended
consequences.
(e) Several projects in the secondary zone are located in areas
that will not cause any findings of inconsistency with the coequal
goals, but are currently under a significant cloud due to this
ambiguity.
(f) The ambiguity will have the significant impact of either
stalling or destroying years of actions and local government
approvals for municipal private development, and local governments'
authority to comply with state and federal law with respect to flood
control projects in the secondary zone consistent with the Bay Delta
Conservation Plan or levee improvements are also clouded,
jeopardizing public safety.
(g) It is the intent of this act to provide a very narrow
description of enumerated actions in order to relieve the necessity
of these actions from being reviewed by the DSC for consistency,
including specific exclusions from the statutory definition of
"covered actions" as defined in subdivision (b) of Section 85057.5 of
the Water Code for specific areas of private development and for a
limited and specific number of levee and flood control projects
within the secondary zone.
(h) It is the intent of this act to relieve these enumerated
projects from the cloud of ambiguity of the consistency standard that
could disrupt financing of private developments in progress.
SEC. 2. SECTION 1. Section 85057.5
of the Water Code is amended to read:
85057.5. (a) "Covered action" means a plan, program, or project
as defined pursuant to Section 21065 of the Public Resources Code
that meets all of the following conditions:
(1) Will occur, in whole or in part, within the boundaries of the
Delta or Suisun Marsh.
(2) Will be carried out, approved, or funded by the state or a
local public agency.
(3) Is covered by one or more provisions of the Delta Plan.
(4) Will have a significant impact on achievement of one or both
of the coequal goals or the implementation of government-sponsored
flood control programs to reduce risks to people, property, and state
interests in the Delta.
(b) "Covered action" does not include any of the following:
(1) A regulatory action of a state agency.
(2) Routine maintenance and operation of the State Water Project
or the federal Central Valley Project.
(3) Regional transportation plans prepared pursuant to Section
65080 of the Government Code.
(4) Any plan, program, project, or activity within the secondary
zone of the Delta that the applicable metropolitan planning
organization under Section 65080 of the Government Code has
determined is consistent with either a sustainable communities
strategy or an alternative planning strategy that the State Air
Resources Board has determined would, if implemented, achieve the
greenhouse gas emission reduction targets established by that board
pursuant to subparagraph (A) of paragraph (2) of subdivision (b) of
Section 65080 of the Government Code. For purposes of this paragraph,
"consistent with" means consistent with the use designation,
density, building intensity, transportation plan, and applicable
policies specified for the area in the sustainable communities
strategy or the alternative planning strategy, as applicable, and any
infrastructure necessary to support the plan, program, project, or
activity.
(5) Routine maintenance and operation of any facility located, in
whole or in part, in the Delta, that is owned or operated by a local
public agency.
(6) Any plan, program, project, or activity that occurs, in whole
or in part, in the Delta, if both of the following conditions are
met:
(A) The plan, program, project, or activity is undertaken by a
local public agency that is located, in whole or in part, in the
Delta.
(B) Either a notice of determination is filed, pursuant to Section
21152 of the Public Resources Code, for the plan, program, project,
or activity by, or the plan, program, project, or activity is fully
permitted by, September 30, 2009.
(7) (A) Any project within the secondary zone, as defined pursuant
to Section 29731 of Public Resources Code as of January 1, 2009, for
which a notice of approval or determination pursuant to Section
21152 of the Public Resources Code has been filed before the date on
which the Delta Plan becomes effective.
(B) Any project for which a notice of approval or determination is
filed on or after the date on which the final Bay Delta Conservation
Plan becomes effective, and before the date on which the Delta Plan
becomes effective, is not a covered action but shall be consistent
with the Bay Delta Conservation Plan.
(C) Subparagraphs (A) and (B) do not apply to either of the
following:
(i) Any project that is within a Restoration Opportunity Area as
shown in Figure 3.1 of Chapter 3: Draft Conservation Strategy of the
Bay Delta Conservation Plan, August 3, 2009, or as shown in a final
Bay Delta Conservation Plan.
(ii) Any project that is within the alignment of a conveyance
facility as shown in Figures 1 to 5, inclusive, of the Final Draft
Initial Assessment of Dual Delta Water Conveyance Report, April 23,
2008, and in future revisions of this document by the department.
(8) (A) Any project, as defined by Section
21065 of the Public Resources Code, or part of a project,
including, but not limited to, subsequent entitlements and supporting
infrastructure improvements required for implementation of a
project, that is both within an urban area or urbanizing area, as
shown in Figure 5-1 in the Final Staff Draft Delta Plan (dated May
14, 2012), and in the secondary zone, as defined by Section 29731 of
the Public Resources Code, and is contained within the boundaries of,
covered by, and substantially conforms with, a general plan, sphere
of influence, specific or master plan, community plan, or a
development agreement adopted by the applicable local land use
authority within the urban or urbanizing area. if, as
of September 30, 2009, all of the following conditions are met:
(i) The project is within an urban area
or urbanizing area, as shown in Figure 5-1 in the Final Staff Draft
Delta Plan (dated May 14, 2012).
(ii) The project is in the secondary
zone, as defined by Section 29731 of the Public Resources Code.
(iii) The project is within the
boundaries of the community's adopted sphere of influence or urban
limit line and substantially conforms with an adopted general plan.
(B) Any substantive expansion or
amendment of the existing boundaries of an urban or urbanizing area's
sphere of influence or gener al plan into the Delta shall
not be exempt from the definition of "covered action ."
(9) Any upgrades to existing drinking water, stormwater, or
wastewater treatment, storage, or conveyance facility, within the
existing physical footprint or legal property boundaries, as
applicable, of that facility, to meet a state or federal water
quality compliance order, or both, consistent with state standards or
federal standards, or both, and which complies with the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code) or the federal National
Environmental Protection Act (42 U.S.C. Sec. 4321 et seq.), or both.
(10) Any flood control project in the secondary zone of the Delta
that is consistent with the applicable provisions of the Central
Valley Flood Protection Act of 2008 (Part 6 of Division 5 (commencing
with Section 9600)), which would provide protection to an urban or
urbanizing area, as shown by Figure 5-1 in the Final Staff Draft
Delta Plan (dated May 14, 2012), and as defined by Section 65007 of
the Government Code, or existing public infrastructure, and which has
complied with the California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code) or the
National Environmental Quality Act (42 U.S.C. Sec. 4321 et seq.), or
both.
(c) Nothing in the application of this section shall be
interpreted to authorize the abrogation of any vested right whether
created by statute or by common law.
