If all goes according to plan, and all the pieces come together, the Delta Plan will become operational on July 1, 2013, six months past the legislative deadline of Dec. 31, 2012, but phenomenally quick considering the mandate to create a new government entity to take action on longstanding problems in the Sacramento-San Joaquin Delta.
The Delta Reform Act of 2009 created the Delta Stewardship Council as an independent state agency to “develop, adopt and commence implementation of a comprehensive management plan for the Delta.”
The legislature directed the Delta Stewardship Council to “achieve the co-equal 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.”
The final draft Delta Plan was posted on Nov. 30, beginning a 45-day public review and written comment period that ends Jan. 14, 2013. At the same time, the recirculated volume three of the Program Environmental Impact Report and the Notice of Proposed Rulemaking and draft regulations were posted. The review and comment period for those two documents is the same as for the Delta Plan.
In introducing discussion of the Delta Plan update at the council’s Dec. 13 meeting, Executive Officer Chris Knopp said, “There is a sense of urgency to get this out on the street, completed and in effect.”
The meeting was held at the Ramada Inn and Suites in West Sacramento with all six council members present.
The Final Draft Delta Plan is the seventh iteration. The first draft was released to the public in February 2011. Knopp said, “The majority of this document is familiar to the public and other agencies.” He requested the council balance requests for an extended comment period against the urgency to “get this done.” Chairman Phil Isenberg confirmed the council had received requests for an extension of the comment period.
At the request of council member Don Nottoli, the council scheduled one additional opportunity for interested parties to make oral comments on the three documents before the deadline.
Isenberg, Nottoli and perhaps one other council member will be present on Friday, Jan. 11, from 1 to 3:30 p.m., at the Delta Stewardship Council offices, 980 9th Street, 2nd Floor, Room A, when a certified shorthand reporter will record public comments for inclusion and response in the formal Delta Plan, California Environmental Quality Act and Rulemaking records. The meeting may adjourn early if there are limited public comments.
A second opportunity to make oral comments on the proposed Rulemaking package only will be held at the regular council meeting on Thursday, Jan. 24, beginning at 9:30 a.m. at the Ramada Inn and Suites, 1250 Halyard Drive, West Sacramento.
Delta Plan update
Cindy Messer, Delta Plan program manager, led the discussion on the Delta Plan update. With her were some of the lead authors of the plan: Steve Hatchett, from CH2M Hill, who worked on Economic Sustainability and the Delta as an Evolving Place; Ellen Garber, from the law firm of Shute, Mihaly and Weinberger, in San Francisco; and engineer Gwen Buchholz, CH2M Hill vice president and Delta Plan environmental consultant.
Messer said the Delta Plan will do four things:
1) It will create a single blueprint for state and local agencies to guide their actions in implementing the Delta Plan and help achieve the co-equal goals.
2) The plan regulations will provide a series of new rules that apply to significant activities that state and local agencies undertake in the Delta, with the council serving as an appellate body to help enforce the new regulations in a fair and timely manner.
3) The plan will create a single science initiative through the Delta Science Plan to coordinate activities in the Delta and to improve accountability of the projects and actions undertaken.
4) Following the legislation, there will be a single coordinated entity to bring together the activities and actions in the Delta through the Implementation Committee.
She described an outline of the work that had been done. There were 60 days of Delta Stewardship Council meeting time. In 2010-11, seven workshops concentrated on finances and policy issues.
There were 172 comment days on the first six drafts of the Delta Plan, and 341 formal comment days on the first six drafts of the Delta Plan, along with the draft Program EIR.
More than 10,000 comments were received on the Delta Plan and draft Program EIR. Many of the comments were reflected in changes to the Delta Plan and draft Program EIR. Buchholz said that the comments came from about 550 individuals, agencies and entities.
Draft Program Environmental Impact Report update
Garber restated that the council approved recirculation of Vol. 3 of the draft Program EIR at its Nov. 30, 2012, meeting, with a 45-day public review and comment period ending Jan. 14. Recirculation gives the public and agencies an opportunity to see new information as a result of project change before the EIR is certified by the council.
Garber said Vol. 3 concludes that the environmental impacts of the revised draft will not differ substantially from volumes 1 and 2. The main difference is that Vol. 3 encourages more short-term construction projects to improve water quality. That results in more immediate impacts and more long-term environmental benefits. It is most effective in arresting or reversing decline in environmental conditions in the Delta, she said.
It does more to limit agricultural land conversions. It also does more to reduce reliance on Delta water supply and improve regional self-reliance, she said. She added that it is about one-quarter the size of previous volumes.
The Delta Reform Act of 2009 requires the Delta Stewardship Council to adopt a “legally enforceable” Delta Plan. In order for the plan to be legally enforceable, it must be reviewed and approved by the Office of Administrative Law.
Hatchett said the rulemaking package, containing five documents, was filed with the Office of Administrative Law and published in its Register on Nov. 30. The publication initiated the 45-day public review and comment period.
The package contains the Notice of Proposed Rulemaking, the proposed regulation plus related appendices, the Initial Statement of Reasons, Economic and Fiscal Impact Statement, and the Cost Analysis for Proposed Delta Plan Regulations.
The regulation describes the consistency process and the policies from the Delta Plan, said Hatchett. “Most of the text is taken verbatim from the Delta Plan, with some language added for clarification. “There’s nothing new in it,” he said.
Council member Patrick Johnston inquired about the purpose of the OAL review. Are they looking to see that we’re “not making underground law, not making new laws?” he asked.
Chief Counsel Chris Stevens responded the OAL has six standards for new regulations: 1) consistency with the law; 2) clarity; 3) non-duplication; 4) necessity; 5) rationale; 6) focused on purpose.
The OAL has 30 days to approve, said Stevens. “Typically the OAL works with the agency on refinements.” If there are significant problems, the agency can rework the regulation, which will require an additional 15-day public review and comment period. If the OAL does not approve a regulation, the agency can appeal to the Governor’s Office.
Council member Don Nottoli questioned whether the council should extend the written comment period for the rulemaking process 10 days from the Jan. 14 deadline to the scheduled date for oral comments on Jan. 24. Stevens said the AOL typically has oral comments after the closing of the written comment period.
Economic and Fiscal Statement (Form 399)
Hatchett said this statement will be reviewed by the Department of Finance. It is not intended to be a benefit/cost analysis. It describes state policy to implement what the legislation requires the council to do.
The statement only considers changes in costs that would occur to private entities and local governments as a result of the Delta Plan. The economic section refers to impacts on private entities. The fiscal section refers to impacts on governmental agencies.
For example, Hatchett said, under state law water districts already have to file water management plans. The Delta Plan has an additional requirement that they demonstrate reduced reliance on water from the Delta. His team made a reasonable attempt to assess what that might add to the cost of those plans.
He said that at this point there are “layers of uncertainty” as to how the plan will be implemented. In answer to some questions on the form, the team developed a range of numbers, and in other instances they simply stated “Unknown,” and added an explanatory addendum. “We tried not to be overspeculative just to come up with a number. We don’t know how many covered actions will come forward from year to year.”
Another consideration is that the costs that result from the Delta Plan will initially be imposed on the local and state agencies that will be going through the consistency process. Those costs will have to be passed on to the agencies’ customers, ratepayers and taxpayers.
Don Nottoli, District 5 Sacramento County supervisor, represents communities in and around the Delta. He chairs the Sacramento County Board of Supervisors and the Delta Protection Commission.
At the end of Hatchett’s presentation, Nottoli said, “From the local government perspective, the irony is not lost here in regards to the legislation and additional layers of authority in the land-use area that’s going to put regulations for covered actions on not only state agencies, but local governments.… “Again, in reading this [Form 399] – and this is not necessarily a criticism – it’s the reality of where local government sit in the overall chain of command, and I guess in the food chain as well. Counties have a unique relationship with the state in a lot of respects.…
“Yes, there’s the ability to do that. I can tell you we get lots of pressure at the local level relative to what we charge and remain competitive in the environment for people to actually do things that do contribute to the betterment of the general locale, whether it be a city or county, not just in the Delta, but throughout the state. I think it’s important to point out – cities, counties, Delta Protection Commission, reclamation districts and others – that it’s just a matter of fact how things are structured.”
Hatchett responded, “That was the purpose we had also – to just make it clear that that is the likely mechanism. Our role is not to take a stand on whether it is or isn’t the right policy.”
The Delta Stewardship Council is under the gun to wrap up the three phases of the Delta Plan by the end of the fiscal year. Stevens said that it is important to have everything done by June 30 in order to secure funding for implementation. Council member Hank Nordhoff referred to that date as a “hard stop.”
Stevens explained that a law passed in 2012 requires that legislation that is passed throughout the session become effective on quarterly dates. If the effective date of actual implementation of the regulations on July 1 is missed, the next opportunity would be Oct. 1.
In the next six months, the Program EIR must be certified, The Department of Finance must approve the Economic and Fiscal Statement, the Office of Administrative Law must approve the proposed regulations and send them to the Secretary of State between March 1 and the end of May.
Messer said that following the close of time to receive oral and written comments on all the pieces, staff will categorize the comments and prepare responses. She anticipates a meeting at the end of March for staff and the council to review the comments and make any necessary revisions to the final draft Delta Plan, draft Program EIR and proposed Rulemaking package.
The comments and responses will be posted on the Website.
The next step will be to publish the final Delta Plan, the final Program EIR and draft Regulations. Following publication, the Council will certify the Program EIR, adopt the Delta Plan and adopt the Regulations.
An Implementation Committee composed of the council’s executive officer, the Delta Science program lead scientist, and executive officers and directors of around 25 state and federal agencies will oversee the plan in action.
For more information, visit deltacouncil.ca.gov.