Delta Stewardship Council votes to make first amendment to the Delta Plan

DSC Dec CouncilCouncil votes to exclude single-year transfers from the covered actions process

At the December meeting of the Delta Stewardship Council, councilmembers were poised to vote on the issue of whether to exempt single-year transfers from the Delta Plan’s covered action process or whether the current temporary exemption be extended for an additional three years. This is the first amendment to the Delta Plan since it was adopted in 2013.

At the November meeting, councilmembers considered two options proposed by staff: to exempt single-year transfers from the covered actions process or to do nothing and let the exemption expire, thereby making single-year transfers subject to the covered actions process. The Council did not support letting the exemption expire, but instead return in December with two options to consider: an option to exempt single-year transfers from the covered actions process permanently, and a second option to extend the sunset date for the current exemption for another three years.

DSC PearsonExecutive Officer Jessica Pearson briefly recapped the Council’s path to this point. “During the development of the Delta Plan, the hypothesis was essentially posited that one-year transfers may be purposefully or perhaps unintentionally circumventing established review processes that are required of multiyear water transfers,” she said. “At the time, we did not have a full analysis in front of us to make a decision, so as such, the board decided to put a sunset date at the end of 2016, on the exemption of one-year water transfers from the Delta Plan’s covered action process until such analysis could be performed, which staff has now completed.”

The conclusion based on a multi-year work effort and white paper from the Department of Water Resources and the State Water Board, testimony from a range of experts and practitioners, and finally input from our science program and our lead scientist is that single-year water transfers in the big picture are essentially de minimus and do not show patterns of being used to skirt environmental review and as such, do not have a significant impact on the coequal goals,” Ms. Pearson continued. “So the staff recommendation is before you; we also have brought a second option as requested at the last meeting. But the staff recommendation is to remove the sunset thereby clarifying that these types of transfers do not require consistency with the Delta Plan and as you’ll see, for either option, we recommend inclusion of a new recommendation in the Delta Plan which would further memorialize the recent improvements made to the transfer process by DWR and others.”

DSC SamsamSupervising Engineer Kevan Samsam noted that regardless of which option the Council chooses, the next steps are identical. “Staff will analyze if a supplemental EIR is necessary for the proposed amendment to the draft policy language. Staff will return in the future to have the Council certify that CEQA document. The Council will adopt proposed regulatory language; that language will then be turned over to the Office of Administrative Law, so regardless of which option you choose today, those steps will continue throughout the next 12 calendar months, and they will be complete before December 31, 2016. No further action will be taken by the Council after today until the environmental review process is complete.”

Discussion and vote …

DSC PiephoCouncilmember Mary Piepho pointed out that conditions can change. “It’s my opinion that the policy should retain some flexibility that single year transfers at some point could have cumulative effects, and flexibility should be considered therefore whether there should be a covered action. I am more comfortable looking at it in a longer term framework and continuing to revisit it versus making that determination today that they are not a covered action.”

Ms. Pearson pointed out that by no means is this a permanent exemption. “It’s as permanent as any recommendation or regulation in the Delta Plan which is that at any time, the Council or staff could recommend an issue be reexamined based on evidence that’s come before us,” she said.

DSC JohnstonCouncilmember Patrick Johnston said that the staff and the Council did what they set out to do, which was to examine the evidence, and the evidence does not indicate that one year transfers have been abused. “I’m comfortable exempting one-year transfers so we can continue to focus on the many other important jobs that staff and Council have to do and recognize that should at a future time, the Council discover evidence of abuse, that it can return to that.”

I think transfers have advanced to a level of transparency that I’m comfortable supporting staff’s recommendation,” said Councilmember Susan Tatayon. Councilmember Judge Damrell said he was in support of the staff’s recommendation as well.

DSC IsenbergCouncilmember Phil Isenberg said he thought it was a mistake, not strategically but tactically. “The role of the Council is not simply as a commenter on issues but to urge, and prompt and encourage and in some cases push and nudge other agencies and private parties into actually making changes,” he said. “The question of whether you want to grant another 3 year extension as option 1A does, but have an automatic review period at the end of that. If you don’t’ do that, there’s little chance in my judgment that we’ll review it again. … We can do it more effectively and have absolutely no impact on those who wish to do water transfers by granting the three year extension and reviewing it once again, just to see if there are other changes. So I do not support the staff recommendation, I support option 1A.”

DSC FioriniCouncil Chair Randy Fiorini said he too supports the staff’s recommendation. “I think that we have done our due diligence. We have investigated and the findings are overwhelmingly in favor of supporting Option 1. There was suggestions of abuse; we found none. There were suggestions that the system lacked transparency, and a credit to our process is that DWR implemented a web based reporting process soon after we discussed this issue, even before the Delta Plan was fully adopted. … I think we have fulfilled a very important role and it seems like our role now is simply to monitor and make sure the good work that has occurred over the last two or three years continues.”

After public comment supporting staff’s recommendation, the Council voted to accept staff’s recommendation to exempt single-year transfers as a covered action on a vote of 5 – 2, with Councilmembers Piehpo and Isenberg voting no.

What’s next …

The Council’s approval now triggers an environmental review by staff; no final action will be taken by the Council until the environmental review is complete. The amended regulation will not take effect until the rulemaking process is complete.

For more information …

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