Bill Text: CA AB2583 | 2015-2016 | Regular Session | Amended
Bill Title: Sacramento-San Joaquin Delta Reform Act of 2009.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2016-05-27 - From committee: Without further action pursuant to Joint Rule 62(a). [AB2583 Detail]
Download: California-2015-AB2583-Amended.html
BILL NUMBER: AB 2583 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 17, 2016
INTRODUCED BY Assembly Member Frazier
FEBRUARY 19, 2016
An act to amend Section 85057.5 of,
Sections 85057.5, 85086, 85088, 85089, 85320, and 85321 of, to amend
the heading of Chapter 2 (commencing with Section 85320) of Part 4 of
Division 35 of, and to add Section 85053.5 to, and to
repeal Section 85085 of, the Water Code, relating to the
Sacramento-San Joaquin Delta.
LEGISLATIVE COUNSEL'S DIGEST
AB 2583, as amended, Frazier. Sacramento-San Joaquin Delta Reform
Act of 2009.
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.
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.
Under the act, until the State Water Resources Control Board
issues an order approving a change in the point of diversion of the
State Water Project and the federal Central Valley Project from the
southern Delta to a certain point on the Sacramento River the
Department of Water Resources is prohibited from commencing
construction of any diversion, conveyance, or other facility
necessary to divert and convey water pursuant to the change in point
of diversion.
This bill would apply the above prohibition to a new point of
diversion as well as a change in the point of diversion. This bill
would prohibit the board from granting final approval of the
requested change in or new point of diversion until the board has
completed its update of a specified water quality control plan.
The act prohibits construction of a new Delta conveyance facility
from being initiated until the persons or entities that contract to
receive water from the State Water Project and the federal Central
Valley Project or a joint powers authority representing those
entities have made arrangements or entered into contracts to pay for
certain costs required for the construction, operation, and
maintenance of the facility and full mitigation of property tax or
assessments levied for land use in the construction, location,
mitigation, or operation of the facility.
This bill would instead prohibit the construction until legally
binding financial agreements or contracts are signed by each of the
state and federal water contractors that will receive water supplies
that commit them to pay for the costs required for the federal
Central Valley Project, State Water Project, and any new Delta water
conveyance facility, as specified, and full mitigation of property
tax or assessments levied for land use in the construction, location,
mitigation, operation, or maintenance of the facility.
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. Section 85053.5 is added to the Water Code, to read:
85053.5. "California Water Fix" or "Water Fix" means a project,
within the meaning of Section 21065 of the Public Resources Code and
subdivision (a) of Section 85057.5, to construct new State Water
Project conveyance facilities in the Delta.
SEC. 2. 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) A plan, program, project, or activity within the secondary
zone of the Delta that the applicable metropolitan planning
organization pursuant to 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 a facility located, in
whole or in part, in the Delta, that is owned or operated by a local
public agency.
(6) A 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 project within the secondary zone, as defined pursuant to
Section 29731 of the 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.
(8) Leases approved by a special district if all of the following
apply:
(A) The uses proposed by the lease are authorized by the
applicable general plan and zoning ordinances of the city where the
special district is located.
(B) The uses proposed by the lease are approved by the city where
the special district is located and the city complies with Chapter 3
(commencing with Section 85225) of Part 3, if applicable, prior to
approval of the lease by the special district.
(C) The special district complies with the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code) prior to approving the lease.
(9) (A) Routine dredging activities that are necessary for
maintenance of facilities operated by a special district.
(B) For purposes of this paragraph, "routine dredging activities"
are limited to the following:
(i) Dredging to maintain the Stockton Deep Water Ship Channel at a
depth of 40 feet in the sediment trap at the confluence of the San
Joaquin River, between river mile 39.3 to river mile 40.2, and to
maintain the remaining Stockton Deep Water Ship Channel at a depth of
35 feet plus two feet of overdredge from river mile 35 to river mile
43.
(ii) Dredging designed to maintain the Sacramento Deep Water Ship
Channel at a depth of 30 feet plus two feet of overdredge from river
mile 0.0 to river mile 30, and at a depth of 35 feet from river mile
35 to river mile 43.
(C) Except as provided by this subdivision, it is the intent of
the Legislature that this exemption shall not be interpreted or
treated as changing or modifying current substantive and procedural
regulations applicable to the decision to approve dredging
operations.
(c) For purposes of this section, "special district" means the
Port of Stockton or the Port of West Sacramento.
(d) This section shall not be interpreted to authorize the
abrogation of a vested right whether created by statute or by common
law.
SEC. 3. Section 85085 of the Water Code is
repealed.
SEC. 3. Section 85086 of the Water Code
is amended to read:
85086. (a) The board shall establish an effective system of Delta
watershed diversion data collection and public reporting by December
31, 2010.
(b) It is the intent of the Legislature to establish an
accelerated process to determine instream flow needs of the Delta for
the purposes of facilitating the planning decisions that are
required to achieve the objectives of the Delta Plan.
(c) (1) For the purpose of informing planning decisions for the
Delta Plan and the Bay Delta Conservation Plan, the board shall,
pursuant to its public trust obligations, develop new flow criteria
for the Delta ecosystem necessary to protect public trust resources.
In carrying out this section, the board shall review existing water
quality objectives and use the best available scientific information.
The flow criteria for the Delta ecosystem shall include the volume,
quality, and timing of water necessary for the Delta ecosystem under
different conditions. The flow criteria shall be developed in a
public process by the board within nine months of the enactment of
this division. The public process shall be in the form of an
informational proceeding conducted pursuant to Article 3 (commencing
with Section 649) of Chapter 1.5 of Division 3 of Title 23 of the
California Code of Regulations, and shall provide an opportunity for
all interested persons to participate. The flow criteria shall not be
considered predecisional with regard to any subsequent board
consideration of a permit, including any permit in connection with a
final BDCP. new Delta water
conveyance project for the purpose of exporting water.
(2) Any order approving a change in the point of diversion of the
State Water Project or the federal Central Valley Project from the
southern Delta to a point on the Sacramento River shall include
appropriate Delta flow criteria and shall be informed by the analysis
conducted pursuant to this section. The flow criteria shall be
subject to modification over time based on a science-based adaptive
management program that integrates scientific and monitoring results,
including the contribution of habitat and other conservation
measures, into ongoing Delta water management.
(3) Nothing in this section amends or otherwise affects the
application of the board's authority under Part 2 (commencing with
Section 1200) of Division 2 to include terms and conditions in
permits that in its judgment will best develop, conserve, and utilize
in the public interest the water sought to be appropriated.
(d) The board shall enter into an agreement with the State Water
Project contractors and the federal Central Valley Project
contractors, who rely on water exported from the Sacramento River
watershed, or a joint powers authority comprised of those
contractors, for reimbursement of the costs of the analysis conducted
pursuant to this section.
(e) The board shall submit its flow criteria determinations
pursuant to this section to the council for its information within 30
days of completing the determinations.
SEC. 4. Section 85088 of the Water Code
is amended to read:
85088. Until the board issues an order approving a change in
the or a new point of diversion of the
State Water Project and the federal Central Valley Project from the
southern Delta to a point on the Sacramento River as specified in
subdivision (c) of Section 85086, the department shall not commence
construction of any diversion, conveyance, or other facility
necessary to divert and convey water pursuant to the change in
or new point of diversion. In order to ensure protection
of fish and wildlife and in-Delta beneficial uses of the
Bay-Delta estuary's waters, final approval by the board of a change
or new point of diversion described in this section shall not be
granted until the board has completed its update of the 2006 water
quality control plan for the Bay-Delta estuary that was initiated
with a notice of preparation in 2009.
SEC. 5. Section 85089 of the Water Code
is amended to read:
85089. Construction of a new Delta conveyance facility shall not
be initiated until the persons or entities that contract to receive
water from the State Water Project and the federal Central Valley
Project or a joint powers authority representing those entities have
made arrangements or entered into legally
binding financial agreements or contracts signed by each
of the state and federal water contractors that will receive water
supplies that commit them to pay for all costs,
including reimbursement to the state for any General Fund or water
bond funding used to date, that are associated with both of the
following:
(a) The costs of the environmental review, planning, design,
construction, and mitigation, including mitigation required pursuant
to Division 13 (commencing with Section 21000
21000) of the Public Resources Code),
Code, required for the construction, operation, and maintenance
of the federal Central Valley Project, the State
Water Project, and any new Delta water conveyance facility.
(b) Full mitigation of property tax or assessments levied by local
governments or special districts for land used in the construction,
location, mitigation, maintenance, or operation of a
new Delta conveyance facilities.
facility.
SEC. 6. The heading of Chapter 2 (commencing with
Section 85320) of Part 4 of Division 35 of the Water Code
is amended to read:
CHAPTER 2. BAY DELTA CONSERVATION PLAN
DELTA WATER CONVEYANCE
SEC. 7. Section 85320 of the Water Code
is amended to read:
85320. (a) The Bay Delta Conservation Plan (BDCP) shall be
considered for inclusion in the Delta Plan in accordance with this
chapter.
(b) The BDCP shall not be incorporated into the Delta Plan and the
public benefits associated with the BDCP shall not be eligible for
state funding, unless the BDCP does all of the following:
(1) Complies with Chapter 10 (commencing with Section 2800) of
Division 3 of the Fish and Game Code.
85320. (a) New Delta water conveyance
infrastructure shall be considered as interdependent parts of a
system and operated in a way that maximizes benefits for each of the
coequal goals. A certification of consistency pursuant to Section
85225 shall not be made for a new Delta water conveyance project for
the purpose of exporting water unless all of the following
requirements are met:
(1) The costs of the design, construction, and operation of the
water conveyance project and the associated mitigation and
maintenance costs are not eligible for state funding. This includes
implementation of existing habitat restoration requirements of the
Department of Fish and Wildlife Longfin Smelt Incidental Take Permit
for the State Water Project Delta operations and the United States
Fish and Wildlife Service and National Oceanic and Atmospheric
Administration National Marine Fisheries Service biological opinion
for the current coordinated operations of the State Water Project and
federal Central Valley Project. These costs shall be the
responsibility of the water agencies that benefit from the conveyance
project.
(2) The restrictions on the use of state bond funding for the
acquisition of water pursuant to Section 79709 are met.
(3) A legally binding finance agreement is signed by all
beneficiary state and federal water contractors committing them to
pay all water conveyance project construction, mitigation, operation,
maintenance, monitoring, and adaptive management costs, including
reimbursement of local agency property taxes and assessments pursuant
to subdivision (b) of Section 85089.
(4) An enforceable mitigation implementation plan and monitoring
and an enforceable monitoring and adaptive management plan are
completed and contain mechanisms, such as establishing an endowment
fund, to ensure adequate and ongoing funding necessary to mitigate
the impacts to communities and agricultural production in the project
area and to carry out the plans that are finalized and approved by
the Department of Fish and Wildlife. The Delta Independent Science
Board shall perform oversight regarding implementation of these plans
for the purposes of ensuring that implementation of all mitigation
measures required pursuant to Division 13 (commencing with Section
21000) of the Public Resources Code is roughly proportional in time
and extent to the impact on all resources analyzed in the
environmental impact report and to assess the effectiveness and
adequacy of mitigation performance, funding, and habitat protection
measures. The Delta Independent Science Board shall annually submit
its findings and recommendations to the department, the council, and
the Department of Fish and Wildlife.
(5) The council determines that the proposed changes in Delta
water conveyance are consistent with Section 85021 because each
region that will import water from the Delta using the new Delta
water conveyance demonstrates that it has improved its regional
self-reliance for water by 50 percent over average regional water
supply levels during the period of 2010 to 2015, inclusive, due to
reduced import demand from the Delta through investment in water use
efficiency, water recycling, advanced water technologies, local and
regional water supply projects, and improved regional coordination of
local and regional water supply efforts to the maximum extent
possible.
(6) Water exported from the Delta will match more closely the
surplus water supplies available to be exported based on water year
type, compliance with water quality objectives of the water quality
control plan for the Bay-Delta estuary, the coequal goals, and the
Delta water supply protections of Chapter 1 (commencing with Section
12220) of Part 4.5 of Division 6.
(7) Conveyance infrastructure and operations enhance Delta inflows
and outflows by reducing diversions in dry periods consistent with
the beneficial use needs of the Delta ecosystem and water users and
provide net benefits to the ecosystem beyond protecting the ecosystem
from further degradation.
(8) The water conveyance project complies with real-time
operational requirements in accordance with Section 85321.
(2) Complies with
(9) The requirements of Division
13 (commencing with Section 21000) of the Public Resources
Code, Code are met, including a
comprehensive review and analysis of all of the following:
(A) A reasonable range of flow criteria, rates of diversion,
and other operational criteria required to satisfy the
criteria for approval of a natural community conservation plan as
provided in subdivision (a) of Section 2820 of the Fish and Game
Code, and other operational requirements and flows
necessary for recovering the Delta ecosystem and restoring
fisheries fisheries, in compliance with all of the
following, under a reasonable range of hydrologic conditions,
which will identify the remaining water available for export and
other beneficial uses. uses:
(i) Section 85031.
(ii) The federal Central Valley Project Improvement Act (Public
Law 102-575).
(iii) The federal Water Supply, Reliability, and Environmental
Improvement Act (Public Law 108-361).
(iv) The Department of Fish and Wildlife Longfin Smelt Incidental
Take Permit for State Water Project Delta operations.
(v) The United States Fish and Wildlife Service and National
Oceanic and Atmospheric Administration National Marine Fisheries
Service biological opinion for the current coordinated operations of
the State Water Project and federal Central Valley Project.
(B) A reasonable range of Delta conveyance alternatives, including
through-Delta, dual conveyance, and isolated conveyance alternatives
and including further capacity and design options of a lined canal,
an unlined canal, and pipelines.
(C) The potential effects of climate change, possible sea level
rise up to 55 inches, and possible changes in total precipitation and
runoff patterns on the conveyance alternatives and habitat
restoration activities considered in the environmental impact report.
(D) The potential effects on migratory fish and aquatic resources.
(E) The potential effects on Sacramento River and San Joaquin
River flood management.
(F) The resilience and recovery of Delta conveyance alternatives
in the event of catastrophic loss caused by earthquake or flood or
other natural disaster.
(G) The potential effects of each Delta conveyance alternative on
Delta water quality.
(c)
(b) The department shall consult with the council and
the Delta Independent Science Board during the development of
the BDCP. projects to construct new Delta
water conveyance facilities for the purpose of exporting water.
The council shall be a responsible agency in the development of the
environmental impact report. The Delta Independent Science Board
shall review the draft environmental impact report and submit its
comments to the council department, the
council, and the Department of Fish and Game.
Wildlife.
(d) If the Department of Fish and Game approves the BDCP as a
natural community conservation plan pursuant to Chapter 10
(commencing with Section 2800) of Division 3 of the Fish and Game
Code, the council shall have at least one public hearing concerning
the incorporation of the BDCP into the Delta Plan.
(e) If the Department of Fish and Game approves the BDCP as a
natural community conservation plan pursuant to Chapter 10
(commencing with Section 2800) of Division 3 of the Fish and Game
Code and determines that the BDCP meets the requirements of this
section, and the BDCP has been approved as a habitat conservation
plan pursuant to the federal Endangered Species Act (16 U.S.C.
Section 1531 et seq.), the council shall incorporate the BDCP into
the Delta Plan. The Department of Fish and Game's determination that
the BDCP has met the requirements of this section may be appealed to
the council.
(f)
(c) The department, in coordination with the Department
of Fish and Game, Wildlife, or any
successor agencies or joint powers authority charged with
BDCP implementation, implementation of a new
Delta water conveyance project, shall report to the council on
the implementation of the BDCP
implementation, funding, and schedule at least once a year,
including the status and effectiveness of mitigation
measures, monitoring programs programs,
and adaptive management.
(g)
(d) The council may make recommendations to
BDCP for the purpose of the Delta Habitat Conservation
and Conveyance Program and to the department, other Delta water
conveyance implementing agencies
agencies, and joint power authorities regarding the
implementation of the BDCP. BDCP implementing
a new Delta water conveyance project. Implementing agencies
shall consult with the council on these recommendations. These
recommendations shall not change the terms and conditions of the
permits issued by state and federal regulatory agencies.
SEC. 8. Section 85321 of the Water Code
is amended to read:
85321. The BDCP A new Delta water
conveyance project for the purpose of exporting water shall
include a transparent, real-time real-time,
annual, and long-term operational decisionmaking process in
which fishery agencies ensure that applicable biological performance
measures are achieved in a timely manner with respect to water system
operations.
