Bill Text: CA SB12 | 2009-2010 | Regular Session | Amended
Bill Title: Resources: Sacramento-San Joaquin Delta Council.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2010-01-27 - Placed on inactive file on request of Assembly Member Ma. [SB12 Detail]
Download: California-2009-SB12-Amended.html
BILL NUMBER: SB 12 PROPOSED
BILL TEXT
PROPOSED CONFERENCE REPORT SEPTEMBER 9, 2009
CONFERENCE REPORT NO. 1
PROPOSED IN CONFERENCE SEPTEMBER 9, 2009
AMENDED IN ASSEMBLY JULY 9, 2009
AMENDED IN SENATE JUNE 2, 2009
AMENDED IN SENATE MAY 5, 2009
AMENDED IN SENATE FEBRUARY 26, 2009
INTRODUCED BY Senator Simitian
DECEMBER 1, 2008
An act relating to Sacramento-San Joaquin Delta.
An act to amend Sections 6103.1 and 6103.4 of the
Government Code, and to amend Section 1120 of, to add Division 35
(commencing with Section 85000) to, to add Chapter 2 (commencing with
Section 85320) to Part 4 of Division 35 of, and to repeal Division
26.4 (commencing with Section 79400) of, the Water Code, relating to
resources.
LEGISLATIVE COUNSEL'S DIGEST
SB 12, as amended, Simitian. Resources: Sacramento-San
Joaquin Delta Stewardship Council. Council.
(1) Existing law generally provides that the state, or a county,
city, district, or other political subdivision, or any public officer
or body acting in its official capacity on behalf of any of those
entities, may not be required to pay any fee for the performance of
an official service. Existing law exempts from this provision any fee
or charge for official services required pursuant to specified
provisions of law relating to water use or water quality.
This bill would expand the exemption to other provisions relating
to water use, including provisions that require the payment of fees
to the State Water Resources Control Board (board) for official
services relating to statements of water diversion and use.
(2) Existing law requires the Secretary of the Natural Resources
Agency to convene a committee to develop and submit to the Governor
and the Legislature, on or before December 31, 2008, recommendations
for implementing a specified strategic plan relating to the
sustainable management of the Delta.
This bill would establish the Delta Stewardship Council as an
independent agency of the state. The council would be required to
consist of 7 members appointed in a specified manner. The bill would
specify the powers of the council. The council would be required to
establish a consultation process for the purposes of the act. The
bill would require a state or local public agency that proposes to
undertake certain proposed actions 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, created pursuant to AB 39 of the 2009-10 Regular
Session, prior to taking those actions. By imposing these
requirements on a local public agency, the bill would impose a
state-mandated local program. The bill would establish an appeal
process by which a person may claim that a proposed action is
inconsistent with the Delta Plan, as prescribed.
The bill would impose requirements on the Department of Water
Resources in connection with the preparation of a specified Bay Delta
Conservation Plan (BDCP). The BDCP would only be permitted to be
incorporated in the Delta Plan if certain requirements are met.
The bill would establish the Delta Independent Science Board,
whose members would be selected by the council. The bill would
require the Delta Independent Science Board to develop a scientific
program relating to the management of the Delta.
The bill would require the State Water Resources Control Board to
establish an effective system of Delta watershed diversion data
collection and public reporting by December 31, 2010. The bill would
require the board to develop new instream flow criteria for the Delta
ecosystem, as specified. The board would be required to submit those
determinations to the council. The bill would require the board, in
consultation with the council, to appoint a special master for the
Delta, referred to as the Delta Watermaster. The bill would grant
specified authority to the Delta Watermaster.
(3) The California Bay-Delta Authority Act establishes the
California Bay-Delta Authority in the Resources Agency. 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 repeal that act. The bill would impose
requirements on the council in connection with the repeal of that
act.
(4) These provisions would only become operative if SB 229, SB
458, AB 39, and AB 49 of the 2009-10 Regular Session of the
Legislature, relating to water use and resource management, are
enacted and become effective on or before January 1, 2010.
(1) Existing law requires various state agencies to administer
programs relating to water supply, water quality, and flood
management in the Sacramento-San Joaquin Delta. The
Johnston-Baker-Andal-Boatwright Delta Protection Act of 1992 creates
the 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. Existing
law requires the Secretary of the Resources Agency to convene a
committee to develop and submit to the Governor and the Legislature,
on or before December 31, 2008, recommendations for implementing a
specified strategic plan relating to the sustainable management of
the Delta.
This bill would declare legislative intent to enact legislation to
establish the Sacramento-San Joaquin Delta Stewardship Council.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6103.1 of the
Government Code is amended to read:
6103.1. Section 6103 does not apply to any fee or charge for
official services required by Parts Part 1
(commencing with Section 1000), Part 2 (commencing with Section
1200) , Part 3 (commencing with Section 2000),
and Part 4 (commencing with Section 4000) ,
Part 5 (commencing with Section 4999), or Part 5.1
(commencing with Section 5100) of Division 2 , Division 7
(commencing with Section 13000), or Division 35 (commencing with
Section 85000) of the Water Code.
SEC. 2. Section 6103.4 of the
Government Code is amended to read:
6103.4. Section 6103 does not apply to any fee or charge for
official services required by Section 100860 of the Health and Safety
Code , or Part 5 (commencing with Section 4999) of Division
2, or Division 7 (commencing with Section 13000), of the Water Code
.
SEC. 3. Section 1120 of the Water Code
is amended to read:
1120. This chapter applies to any decision or order issued under
this part or Section 275, Part 2 (commencing with Section 1200), Part
2 (commencing with Section 10500) of Division 6, Article 7
(commencing with Section 13550) of Chapter 7 of Division 7,
Section 85230, or the public trust doctrine.
SEC. 4. Division 26.4 (commencing with Section
79400) of the Water Code is repealed.
SEC. 5. Division 35 (commencing with Section
85000) is added to the Water Code , to read:
DIVISION 35. Sacramento-San Joaquin Delta Reform Act of 2009
PART 1. General Provisions
CHAPTER 1. SHORT TITLE AND LEGISLATIVE FINDINGS
85000. This division shall be known, and may be cited, as the
Sacramento-San Joaquin Delta Reform Act of 2009.
85001. The Legislature finds and declares all of the following:
(a) The Sacramento-San Joaquin Delta watershed and California's
water infrastructure are in crisis and existing Delta policies are
not sustainable. Resolving the crisis requires fundamental
reorganization of the state's management of Delta watershed
resources.
(b) In response to the Delta crisis, the Legislature and the
Governor required development of a new long-term strategic vision for
managing the Delta. The Governor appointed a Blue Ribbon Task Force
to recommend a new "Delta Vision Strategic Plan" to his cabinet
committee, which, in turn, made recommendations for a Delta Vision to
the Governor and the Legislature on January 3, 2009.
(c) By enacting this division, it is the intent of the Legislature
to facilitate the implementation of a program for the sustainable
management of the Sacramento-San Joaquin Delta ecosystem and to
establish a governance structure that will direct efforts across
state agencies to develop a legally enforceable Delta Plan.
85002. The Legislature finds and declares that the Sacramento-San
Joaquin Delta, referred to as "the Delta" in this division, is a
critically important natural resource for California and the nation.
It serves Californians concurrently as both the hub of the California
water system and the most valuable estuary and wetland ecosystem on
the west coast of North and South America.
85003. The Legislature finds and declares all of the following:
(a) Originally, 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. Salinity would fluctuate, depending on
the season and the amount of precipitation in any one year, and the
species that comprised the Delta ecosystem had evolved and adapted to
this unique, dynamic system.
(b) Delta property ownership developed pursuant to the federal
Swamp Land Act of 1850, and state legislation enacted in 1861, and as
a result of the construction of levees to keep previously seasonal
wetlands dry throughout the year. That property ownership, and the
exercise of associated rights, continue to depend on the landowners'
maintenance of those nonproject levees and do not include any right
to state funding of levee maintenance or repair.
(c) In 1933, the Legislature approved the California Central
Valley Project Act, which relied upon the transfer of Sacramento
River water south through the Delta and maintenance of a more
constant salinity regime by using upstream reservoir releases of
freshwater to create a hydraulic salinity barrier. As a result of the
operations of state and federal water projects, the natural salinity
variations in the Delta have been altered. Restoring a healthy
estuarine ecosystem in the Delta may require developing a more
natural salinity regime in parts of the Delta.
CHAPTER 2. DELTA POLICY
85020. The policy of the State of California is to achieve the
following objectives that the Legislature declares are inherent in
the coequal goals for management of the Delta:
(a) Manage the Delta's water and environmental resources and the
water resources of the state over the long-term.
(b) Protect and enhance the unique cultural, recreational, and
agricultural values of the California Delta as an evolving place.
(c) Restore the Delta ecosystem, including its fisheries and
wildlife, as the heart of a healthy estuary and wetland ecosystem.
(d) Promote statewide water conservation, water use efficiency,
and sustainable water use.
(e) Achieve water quality objectives in the Delta.
(f) Improve the existing water conveyance system and expand
statewide water storage.
(g) Reduce risks to people, property, and state interests in the
Delta by effective emergency preparedness, appropriate land uses, and
investments in flood protection.
(h) Establish a new governance structure with the authority,
responsibility, accountability, scientific support, and adequate and
secure funding to achieve these objectives.
85021. The policy of the State of California is to reduce
reliance on the Delta in meeting California's future water supply
needs through a statewide strategy of investing in improved regional
supplies, conservation, and water-use efficiency. Each region that
depends on water from the Delta watershed shall improve its regional
self-reliance for water 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.
85022. (a) It is the intent of the Legislature that state and
local land use actions be consistent with the Delta Plan. This
section's findings, policies, and goals apply to Delta land-use
planning and development.
(b) The actions of the council shall be guided by the findings,
policies, and goals expressed in this section when reviewing
decisions of the commission pursuant to Division 19.5 (commencing
with Section 29700) of the Public Resources Code.
(c) The Legislature finds and declares all of the following:
(1) The Delta is a distinct and valuable natural resource of vital
and enduring interest to all the people and exists as a delicately
balanced estuary and wetland ecosystem of hemispheric importance.
(2) The permanent protection of the Delta's natural and scenic
resources is the paramount concern to present and future residents of
the state and nation.
(3) To promote the public safety, health, and welfare, and to
protect public and private property, wildlife, fisheries, and the
natural environment, it is necessary to protect and enhance the
ecosystem of the Delta and prevent its further deterioration and
destruction.
(4) Existing developed uses, and future developments that are
carefully planned and developed consistent with the policies of this
division, are essential to the economic and social well-being of the
people of this state and especially to persons living and working in
the Delta.
(d) The fundamental goals for managing land use in the Delta are
to do all of the following:
(1) Protect, maintain, enhance, and, where feasible, restore the
overall quality of the Delta environment and its natural and
artificial resources.
(2) Ensure the utilization and conservation of Delta resources
taking into account the social and economic needs of the people of
the state.
(3) Maximize public access to Delta resources and maximize public
recreational opportunities in the Delta consistent with sound
resources conservation principles and constitutionally protected
rights of private property owners.
(4) Encourage state and local initiatives and cooperation in
preparing procedures to implement coordinated planning and
development for mutually beneficial uses, including educational uses,
in the Delta.
(5) Develop new or improved aquatic and terrestrial habitat and
protect existing habitats to advance the goal of restoring and
enhancing the Delta ecosystem.
85023. The longstanding constitutional principle of reasonable
use and the public trust doctrine shall be the foundation of state
water management policy and are particularly important and applicable
to the Delta.
CHAPTER 3. MISCELLANEOUS PROVISIONS
85031. This division does not diminish, impair, or otherwise
affect any area of origin, watershed of origin, county of origin, or
any other water rights protections provided under the law. This
division does not limit or otherwise affect the application of
Sections 10505, 10505.5, 11128, 11460, 11461, 11462, and 11463, and
Sections 12200 to 12220, inclusive.
85032. This division does not affect any of the following:
(a) The Natural Community Conservation Planning Act (Chapter 10
(commencing with Section 2800) of Division 3 of the Fish and Game
Code).
(b) The California Endangered Species Act (Chapter 1.5 (commencing
with Section 2050) of Division 3 of the Fish and Game Code.
(c) The Fish and Game Code.
(d) The Porter-Cologne Water Quality Control Act (Division 7
(commencing with Section 13000).
(e) The application of the public trust doctrine.
(f) Any water right.
(g) The liability of the state for flood protection in the Delta
or its watershed.
85034. (a) (1) The council shall administer all contracts,
grants, easements, and agreements made or entered into by the
California Bay-Delta Authority under Division 26.4 (commencing with
Section 79400), as that division read on December 31, 2009.
(2) The exercise of the authority described in paragraph (1) is
not subject to review or approval by the Department of General
Services.
(3) A contract, lease, license, or any other agreement to which
the California Bay-Delta Authority is a party is not void or voidable
as a result of the implementation of this subdivision, but shall
continue in full force and effect until the end of its term.
(b) The council shall be the successor to and shall assume from
the California Bay-Delta Authority all of the administrative rights,
abilities, obligations, and duties of that authority.
(c) The council shall have possession and control of all records,
papers, equipment, supplies, contracts, leases, agreements, and other
property, real or personal, connected with the administration of
Division 26.4 (commencing with Section 79400), as that division read
on December 31, 2009, or held for the benefit or use of the
California Bay-Delta Authority.
(d) The council shall assume from the California Bay-Delta
Authority all responsibility to manage the science program element
that was required to be undertaken by Division 26.4 (commencing with
Section 79400), as that division read on December 31, 2009.
CHAPTER 4. DEFINITIONS
85050. Unless the context otherwise requires, the definitions set
forth in this chapter govern the construction of this division.
85051. "Acquisition" means the acquisition of a fee interest or
any other interest, including easements, leases, and development
rights.
85052. "Adaptive management" means a framework and flexible
decisionmaking process for ongoing knowledge acquisition, monitoring,
and evaluation leading to continuous improvement in management
planning and implementation of a project to achieve specified
objectives.
85053. "Bay Delta Conservation Plan" or "BDCP" means a natural
community conservation plan that complies with the Natural Community
Conservation Planning Act (Chapter 10 (commencing with Section 2800)
of Division 3 of the Fish and Game Code), and complies with Section
10 of the federal Endangered Species Act (16 U.S.C. Sec. 1531 et
seq.) and accompanying regulations.
85054. "Coequal goals" means the two goals of providing a more
reliable water supply for California and protecting, restoring, and
enhancing the Delta ecosystem. The coequal goals shall 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.
85055. "Commission" means the Delta Protection Commission
established in Division 19.5 (commencing with Section 29700) of the
Public Resources Code.
85056. "Conservancy" means the Sacramento-San Joaquin Delta
Conservancy established in Section 32320 of the Public Resources
Code.
85057. "Council" means the Delta Stewardship Council established
in Section 85200.
85057.5. (a) "Covered action" means a plan, program, project, or
activity that, in whole or in part:
(1) Will occur 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 a regulatory action of a
state agency.
85058. "Delta" means the Sacramento-San Joaquin Delta as defined
in Section 12220, the Suisun Marsh as defined in Section 29101 of the
Public Resources Code, and the Yolo Bypass.
85059. "Delta Plan" means the comprehensive, long-term management
plan for the Delta as adopted by the council in accordance with this
division.
85060. "Delta watershed" means the Sacramento River Hydrologic
Region and the San Joaquin River Hydrologic Region as described in
the department's Bulletin No. 160-05.
85064. "Public water agency" means a public entity, as defined in
Section 514, that provides water service, as defined in Section 515.
85066. "Restoration" means the application of ecological
principles to restore a degraded or fragmented ecosystem and return
it to a condition in which its biological and structural components
achieve a close approximation of its natural potential, taking into
consideration the physical changes that have occurred in the past and
the future impact of climate change and sea level rise.
85067. "Strategic Plan" means both the "Delta Vision Strategic
Plan" issued by the Delta Vision Blue Ribbon Task Force on October
17, 2008, and the "Delta Vision Implementation Report" adopted by the
Delta Vision Committee and dated December 31, 2008.
PART 2. Early Actions
85080. The council shall appoint a Delta Independent Science
Board, in accordance with Section 85280.
85082. The council shall develop and implement a strategy to
appropriately engage participation of the federal agencies with
responsibilities in the Delta. This strategy shall include engaging
these federal agencies to develop the Delta Plan consistent with the
federal Coastal Zone Management Act of 1972 (16 U.S.C. Sec. 1451 et
seq.), the federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.), and
Section 8 of the federal Reclamation Act of 1902.
85084. The council shall develop an interim plan that includes
recommendations for early actions, projects, and programs.
85084.5. The Department of Fish and Game, in consultation with
the United States Fish and Wildlife Service and the National Marine
Fisheries Service and based on the best available science, shall
develop and recommend to the board Delta flow criteria and
quantifiable biological objectives for aquatic and terrestrial
species of concern dependent on the Delta. The recommendations shall
be developed no later than 12 months after the date of enactment of
this division.
85085. The department shall do all of the following:
(a) Assist the United States Bureau of Reclamation in
implementation of a study of the Middle River Corridor Two-Barrier
pilot project.
(b) Evaluate the effectiveness of the Three Mile Slough Barrier
project.
(c) Construct demonstration fish protection screens at Clifton
Court Forebay.
(d) Assist the Department of Fish and Game in implementing early
action ecosystem restoration projects, including, but not limited to,
Dutch Slough tidal marsh restoration, Meins Island tidal marsh
restoration, and floodplain and floodway improvements in the Yolo
Bypass.
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) Pursuant to its public trust obligations, the board shall
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 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.
(2) Any order approving a change in 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 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 limits the board's authority in any
proceeding to review the water rights of a person who diverts water
in the Delta watershed, or to incorporate terms and conditions in
that persons' water rights to contribute to the implementation of the
flow criteria.
(4) 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 on
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.
85087. The board, by December 31, 2010, shall submit to the
Legislature a prioritized schedule and estimate of costs to complete
instream flow studies for the Delta and for high priority rivers and
streams in the Delta watershed, not otherwise covered by Section
85086, by 2012, and for all major rivers and streams outside the
Sacramento River watershed by 2018. In developing this schedule, the
board shall consult with the Department of Fish and Game as to the
timing of its submission of recommendations for instream flow needs.
85088. Until the 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 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 point of diversion.
PART 3. DELTA GOVERNANCE
CHAPTER 1. DELTA STEWARDSHIP COUNCIL
85200. (a) The Delta Stewardship Council is hereby established as
an independent agency of the state.
(b) (1) The council shall consist of seven members, of which four
members shall be appointed by the Governor and confirmed by the
Senate, one member shall be appointed by the Senate Committee on
Rules, one member shall be appointed by the Speaker of the Assembly,
and one member shall be the Chairperson of the Delta Protection
Commission. Initial appointments to the council shall be made by July
1, 2010.
(2) The initial term of office of each member of the council shall
be one, two, three, or four years, as specified in subdivision (c),
and all subsequent terms shall be four years.
(3) No member of the council shall serve two consecutive terms,
but a member may be reappointed after a period of two years following
the end of his or her term, except that those members of the council
that serve an initial term of one or two years may be immediately
appointed to a subsequent full four-year term.
(c) The Governor, upon his or her appointment of members pursuant
to subdivision (b), shall designate the appointees as serving initial
terms of either one or two years. One class shall have three members
and the other two classes shall have two members each. For the class
that has three members, the terms of office shall be one year. The
second class, composed of two members, shall serve two years. The
third class, composed of two members, one each appointed by the
Senate Committee on Rules and the Speaker of the Assembly, by July 1,
2010, shall serve four years. Thereafter, the terms of all
succeeding members shall be four years.
(d) Any vacancy shall be filled by the appointing authority within
60 days. If the term of a council member expires, and no successor
is appointed within the allotted timeframe, the existing member may
serve up to 180 days beyond the expiration of his or her term.
(e) The council members shall select a chairperson from among its
members, who shall serve for not more than four years in that
capacity.
(f) The council shall meet once a month in a public forum. At
least two meetings each year shall take place at a location within
the Delta.
85201. The chairperson shall serve full time. Other members shall
serve one-third time. The council may select a vice chairperson and
other officers determined to be necessary.
(a) Each member of the council shall
receive the salary provided for in Section 11564 of the Government
Code.
(b) The members of the council shall be reimbursed for expenses
necessarily incurred in the performance of official duties.
(c) The council shall appoint an executive officer who shall serve
full time at the pleasure of the council.
(d) The executive officer shall hire employees necessary to carry
out council functions.
(e) The number of employees and qualifications of those employees
shall be determined by the council, subject to the availability of
funds.
(f) The salary of each employee of the council shall be determined
by the State Personnel Board, and shall reflect the duties and
responsibilities of the position.
(g) All persons employed by the council are state employees,
subject to the duties, responsibilities, limitations, and benefits of
the state.
85202. Council members shall possess diverse expertise and
reflect a statewide perspective.
85203. The headquarters of the council shall be located in
Sacramento.
85204. The council shall establish and oversee a committee of
agencies responsible for implementing the Delta Plan. Each agency
shall coordinate its actions pursuant to the Delta Plan with the
council and the other relevant agencies.
CHAPTER 2. MISSION, DUTIES, AND RESPONSIBILITIES OF THE
COUNCIL
85210. The council has all of the following powers:
(a) To sue or be sued.
(b) To enter into contracts.
(c) To employ the services of public, nonprofit, and private
entities.
(d) To delegate administrative functions to council staff.
(e) To employ its own legal staff or contract with other state or
federal agencies for legal services, or both. The council may employ
special legal counsel with the approval of the Attorney General.
(f) To receive funds, including funds from private and local
governmental sources, contributions from public and private sources,
as well as state and federal appropriations.
(g) To disburse funds through grants, public assistance, loans,
and contracts.
(h) To request reports from state, federal, and local governmental
agencies on issues related to the implementation of the Delta Plan.
(i) To adopt regulations as required for the implementation of
this division.
(j) To comment on state agency environmental impact reports for
projects outside the Delta that the council determines will have a
significant impact on the Delta.
(k) To hold hearings in all parts of the state necessary to carry
out the powers vested in it, and for those purposes has the powers
conferred upon the heads of state departments pursuant to Article 2
(commencing with Section 11180) of Chapter 2 of Part 1 of Division 3
of Title 2 of the Government Code. Any hearing by the council may be
conducted by any member of the council, or other designee, upon
authorization of the council, and he or she shall have the powers
granted to the council by this section, provided that any final
action of the council shall be taken by a majority of the members of
the council at a meeting duly called and held.
85211. The Delta Plan shall include performance measurements that
will enable the council to track progress in meeting the objectives
of the Delta Plan. The performance measurements shall include, but
need not be limited to, quantitative or otherwise measurable
assessments of the status and trends in all of the following:
(a) The health of the Delta's estuary and wetland ecosystem for
supporting viable populations of aquatic and terrestrial species,
habitats, and processes, including viable populations of Delta
fisheries and other aquatic organisms.
(b) The reliability of California water supply imported from the
Sacramento River or the San Joaquin River watershed.
85212. (a) The council shall adopt a consultation process for the
purposes of this division with all state agencies, departments,
boards, and commissions that have specified responsibilities to
develop, implement, monitor, and adhere to all or part of the Delta
Plan. The council shall ensure, to the maximum extent practicable,
that the actions of these entities are consistent with the Delta
Plan. Pursuant to this subdivision, the council may initiate
consultation when an action by a state agency is contrary to the
Delta Plan.
(b) Any affected person may seek review by the council of an
actual or proposed action of a state agency to determine whether that
action is consistent with the Delta Plan. The council shall
establish guidelines to implement this subdivision.
85220. Nothing in this chapter affects the authority of the
Department of Fish and Game or the board.
CHAPTER 3. CONSISTENCY OF STATE AND LOCAL PUBLIC AGENCY
ACTIONS
85225. A state or local public agency that proposes to undertake
a covered action, prior to initiating the implementation of that
covered action, shall prepare a written certification of consistency
with detailed findings as to whether the covered action is consistent
with the Delta Plan and shall submit that certification to the
council.
85225.5. To assist state and local public agencies in preparing
the required certification, the council shall develop procedures for
early consultation with the council on the proposed covered action.
85225.10. (a) Any person who claims that a proposed covered
action is inconsistent with the Delta Plan and, as a result of that
inconsistency, the action will have a significant adverse impact on
the achievement of one or both of the coequal goals or implementation
of government-sponsored flood control programs to reduce risks to
people and property in the Delta, may file an appeal with regard to a
certification of consistency submitted to the council.
(b) The appeal shall clearly and specifically set forth the basis
for the claim, including specific factual allegations, that the
covered action is inconsistent with the Delta Plan. The council may
request from the appellant additional information necessary to
clarify, amplify, correct, or otherwise supplement the information
submitted with the appeal, within a reasonable period.
(c) The council, or by delegation the executive director, may
dismiss the appeal for failure of the appellant to provide
information requested by the council within the period provided, if
the information requested is in the possession or under the control
of the appellant.
85225.15. The appeal shall be filed no later than 30 days after
the submission of the certification of consistency. If no person
appeals the certification of consistency, the state or local public
agency may proceed to implement the covered action.
85225.20. The appeal shall be heard by the council within 60 days
of the date of the filing of the appeal, unless the council, or by
delegation the executive director, determines that the issue raised
on appeal is not within the council jurisdiction or does not raise an
appealable issue. The council shall make its decision on the appeal
within 60 days of hearing the appeal.
85225.25. After a hearing on an appealed action, the council
shall make specific findings either denying the appeal or remanding
the matter to the state or local public agency for reconsideration of
the covered action based on the findings of the council. Upon
remand, the state or local public agency may determine not to proceed
with the covered action or may modify the appealed action and
resubmit the certification of consistency to the council. A proposed
covered action appealed pursuant to these provisions and remanded to
the state or local public agency shall not be implemented until the
council has adopted written findings, based on substantial evidence
in the record, that the covered action, as modified, is consistent
with the Delta Plan.
85225.30. The council shall adopt administrative procedures
governing appeals, which shall be exempt from Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code.
CHAPTER 4. DELTA WATERMASTER
85230. (a) The board, in consultation with the council, shall
appoint, for a term of four years, a special master for the Delta,
whose title shall be "the Delta Watermaster."
(b) The board shall adopt internal procedures delegating authority
to the Delta Watermaster. The Delta Watermaster shall exercise the
board's authority to provide timely monitoring and enforcement of
board orders and permit terms and conditions. The Delta Watermaster's
delegated authority shall include, but not be limited to, authority
to require monitoring and reporting, authority for approvals
delegated to an officer or employee of the board by the terms of a
water right permit or license, authority to approve temporary urgency
changes, and authority to issue a notice of proposed cease and
desist order or administrative civil liability complaint.
(c) The internal procedures adopted by the board shall provide for
due process in adjudicative proceedings, and may establish
procedures for the issuance of a stay of any order or decision of the
Delta Watermaster for which a petition for reconsideration is filed
or reconsideration is ordered under Section 1122. The board may
provide any additional duties or needs of the Delta Watermaster that
the board deems necessary for effective day-to-day enforcement of its
decisions.
(d) The Delta Watermaster shall submit regular reports to the
board and the council including, but not limited to, reports on water
rights administration, water quality issues, and conveyance
operations.
CHAPTER 5. DELTA INDEPENDENT SCIENCE BOARD AND DELTA SCIENCE
PROGRAM
85280. (a) The Delta Independent Science Board is hereby
established in state government.
(1) The Delta Independent Science Board shall consist of no more
than 10 members appointed by the council. The term of office for
members of the Delta Independent Science Board shall be five years. A
member may serve no more than two terms.
(2) Members of the Delta Independent Science Board shall be
nationally or internationally prominent scientists with appropriate
expertise to evaluate the broad range of scientific programs that
support adaptive management of the Delta. The members shall not be
directly affiliated with a program or agency subject to the review
activities of the Delta Independent Science Board.
(3) The Delta Independent Science Board shall provide oversight of
the scientific research, monitoring, and assessment programs that
support adaptive management of the Delta through periodic reviews of
each of those programs that shall be scheduled to ensure that all
Delta scientific research, monitoring, and assessment programs are
reviewed at least once every four years.
(4) The Delta Independent Science Board shall submit to the
council a report on the results of each review, including
recommendations for any changes in the programs reviewed by the
board.
(b) After consultation with the Delta Independent Science Board,
the council shall appoint a lead scientist for the Delta Science
Program.
(1) The lead scientist shall meet all of the following
qualifications:
(A) Hold an advanced degree in a field related to water or
ecosystem management.
(B) Have a strong record of scientific research and publication in
peer-reviewed scientific journals in a field related to water or
ecosystem management.
(C) Have experience advising high-level managers in science-based
decisionmaking in the areas of water management and ecosystem
restoration.
(D) Have the capability to guide the application of an adaptive
management process to resource management policy decision in the
Delta.
(2) The term of office for the lead scientist shall be no more
than three years. The lead scientist may serve no more than two
terms.
(3) The lead scientist shall oversee the implementation of the
Delta Science Program. In carrying out that responsibility, the lead
scientist shall regularly consult with the agencies participating in
the program.
(4) The mission of the Delta Science Program shall be to provide
the best possible unbiased scientific information to inform water and
environmental decisionmaking in the Delta. That mission shall be
carried out through funding research, synthesizing and communicating
scientific information to policymakers and decisionmakers, promoting
independent scientific peer review, and coordinating with Delta
agencies to promote science-based adaptive management. The Delta
Science Program shall assist with development and periodic updates of
the Delta Plan's adaptive management program.
(c) The Delta Science Program shall function as a replacement for,
and successor to, the CALFED Science Program and the Delta
Independent Science Board shall replace the CALFED Independent
Science Board.
SEC. 6. Chapter 2 (commencing with Section 85320)
is added to Part 4 of Division 35 of the Water Code
, to read:
CHAPTER 2. BAY DELTA CONSERVATION PLAN
85320. (a) The Bay Delta Conservation Plan (BDCP) shall be
considered for inclusion in the Delta Plan based on the provisions of
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.
(2) Complies with Division 13 (commencing with Section 21000) of
the Public Resources Code, 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 under a reasonable range of
hydrologic conditions, which will identify the remaining water
available for export and other beneficial uses.
(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 conveyance alternatives in the
event of catastrophic loss caused by earthquake or flood or other
natural disaster.
(G) The potential effects of each conveyance alternative on Delta
water quality.
(c) The department shall consult with the council and the Delta
Independent Science Board during the development of the BDCP. 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 and the Department of Fish and Game.
(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
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) The department, in coordination with the Department of Fish
and Game, or any successor agencies charged with BDCP implementation,
shall report to the council on the implementation of the BDCP at
least once a year, including the status of monitoring programs and
adaptive management.
(g) The council may make recommendations to BDCP implementing
agencies regarding the implementation of the BDCP. BDCP 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.
85321. The BDCP shall include a transparent, real-time
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.
85322. This chapter does not amend, or create any additional
legal obligation or cause of action under, Chapter 10 (commencing
with Section 2800) of Division 3 of the Fish and Game Code, or
Division 13 (commencing with Section 21000) of the Public Resources
Code.
SEC. 7. The bill shall only become operative if SB
229, SB 458, AB 39, and AB 49 of the 2009-10 Regular Session of the
Legislature, relating to water use and resource management, are
enacted and become effective on or before January 1, 2010.
SECTION 1. It is the intent of the Legislature
to enact legislation to establish the Sacramento-San Joaquin Delta
Stewardship Council.
____ CORRECTIONS Heading--Amended date.
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