As the Delta Stewardship Council and staff shift their focus from building and developing the Delta Plan to implementing the Plan, questions arise about the economic and fiscal impacts of the proposed new regulations, near-term actions are discussed, and the Council takes a look at the Lower Yolo Ranch Habitat Restoration Project in this first of two-part coverage from the December 13th meeting of the Delta Stewardship Council.
DELTA PLAN UPDATE: WHAT’S NEXT FOR THE DELTA PLAN AND ITS EIR (AGENDA ITEM 7-A)
“We, as staff, are very excited,” began Delta Plan Manager Cindy Messer in her update to the Council on the schedule for the Delta Plan and it’s EIR. “We see the process evolving; we see it coming almost full circle. We see a plan that once it is finalized and adopted by this Council is going to do a series of very significant things. When it is adopted and we begin implementing the Plan, it is going to create a single blueprint for state and local agencies and their actions in the Delta that will help achieve the coequal goals,” she said.
The Delta Plan, in development since April of 2010, has produced 60 days of formal Council meeting time, 7 individual workshops, and 341 total formal comment days on the first six drafts of the Plan and its EIR, recounted Ms. Messer. The Council has received more than 10,000 comments from about 550 different entities on the Delta Plan and its EIR; many of those were incorporated and reflected in subsequent drafts of the Plan, she said.
Ellen Garber, a member of the legal team preparing the EIR, discussed the recirculated volume 3, which was issued for a 45-day public review and comment period on November 30. Volumes 1 and 2 were previously circulated after the fifth draft of the Delta Plan; Volume 3 evaluates the final draft Delta Plan. Recirculation is a process authorized under CEQA guidelines by which new info is made available to the public for review and comment, she explained. “What Volume 3 concludes is that the environmental impacts of the revised project, the final draft Delta Plan, will not differ substantially from the project that was reviewed in volumes 1 and 2,” said Ms. Garber. She noted that while there will be more construction impacts due to the projects encouraged by the final draft, there will be more long term environmental benefits. “Therefore this volume concludes that the revised project, the final draft Delta Plan, is the environmentally superior alternative because it is the most effective in arresting or reversing the decline in environmental conditions in the Delta. It does more to reduce reliance on Delta water supply and improve regional self reliance, encourages more projects to improve water quality, and it does more to limit agricultural land conversions than the prior version of the proposed project,” said Ms. Garber.
After the close of the comment period on Jan 14, all comments will be responded to, and the completed EIR will be presented to the Council for its in its upcoming decision on the Delta Plan, said Ms. Garber. While the Council has received several letters requesting extension of the comment period beyond the required 45 days, there is no legal requirement to do so, she said, noting that this volume is quite a bit smaller than previous volumes. It is being recirculated because the project has a substantial number of overall changes, although none of them are really significant; however, recirculation was a prudent course of action, she said.
MORE INFORMATION ON AGENDA ITEM 7-A
Click here for the staff report, Overview of Final Draft Delta Plan, Recirculated Draft Programmatic Environmental Impact Report (Volume 3) and Schedule
THE RULEMAKING PACKAGE: HOW MUCH WILL CONSISTENCY WITH DELTA PLAN POLICIES REALLY COST? (AGENDA ITEM 7-B)
Steve Hatchett, member of the consulting team and one of the leads for preparing the Rulemaking Package, said that the package has been filed with the Office of Administrative Law (OAL) and was published in California Regulatory Notice Register on November 30th, initiating a 45-day comment period. The rulemaking process is how the Delta Plan’s policies become enforceable state regulations. (A regulation is defined by the OAL as “a policy or procedure affecting the public or any segment of the public that implements, interprets, or makes specific a statute the State agency enforces or administers.”) After the close of the public comment period on January 14th, there will be a public hearing on the 24th of January after which the Rulemaking Package will be submitted to the OAL.
The OAL will then examine the regulations to make sure they meet the standards of authority, reference, consistency, clarity, non-duplication and necessity as specified in the Administrative Procedures Act. The regulations must be clear and easily understandable so the regulated community understands what they are being asked to do. They regulations must have a rationale and be the least burdensome, effective alternative. The OAL will have 30 days to approve it based on these standards.
An Initial Statement of Reasons is included with the Rulemaking Package which describes the purpose of the regulation and how it is reasonably necessary to achieve that purpose; it also discusses the benefits, the alternatives considered, and the reasons for selecting the proposed provision.
There are a number of other documents included in the Rulemaking Package, but the document that generated the most discussion during the meeting was the Economic and Fiscal Impact statement, also known as standard form 399. This statement summarizes the potential economic effect of the regulation on private businesses and individuals, as well as summarizing the estimated fiscal effect on government entities. The impact statement is not intended to be a benefit-cost analysis, although it does include a narrative discussion of benefits. The Economic and Fiscal Impact Statement must be reviewed and approved by the Department of Finance.
The impact statement contains a wide range of estimates with many uncertainties, such as how many proposed actions would be determined to be covered actions, the nature, size and location of potential covered actions, and the number of policies implicated by the covered action; it describes and quantifies components to the extent reasonable, said Mr. Hatchett. Costs are attributed to Delta Plan policies only if they would not have been incurred in the absence of the proposed regulatory policy; items that would have already been required by existing laws or regulations are not considered new costs attributable to the Plan. Costs that do result from the Delta Plan that are initially imposed on the local or state agencies coming forward with the consistency process could potentially be passed along to that agency’s customers, ratepayers, or taxpayers in some form, he said.
Councilmember Nottoli pointed out that from a local government perspective, the irony is not lost that local authorities are supposed to pass those costs on and be responsible for telling the customer, whoever that might be, that the fees have gone up. There are limitations, he said: “We get a lot of pressure at the local level relative to what we charge. We try to remain competitive in the environment where people can actually do things that contribute to the betterment of a general locale.”
Councilmember Fiorini asked what is the range of costs per covered action and how were they calculated as the numbers seem extremely high? Mr. Hatchett answered that staff assumed there would be a range of 10 to 25 covered actions coming forward per year; the actual number could be higher or lower than that. The costs are going to vary, depending upon what the covered action is. If there are no other policies that layer other costs on and it’s only the consistency process policy, it’s relatively small. But if they are proposing restoration or levee work or something that would kick in one of the larger costs, then it would be much higher. Chair Phil Isenberg noted that the largest bulk estimated costs appear in the chart appear to be flood or flood protection related issues, and that seems logical, given the Delta is a flood-prone area.
Cindy Messer then briefed the Council on the next steps. January 14th will be the end of the public comment period for the supplemental EIR and the Rulemaking package; after that, the Council meetings will be focused on presentations, tasks, discussions, and direction requests from Council to keep moving toward final production of the EIR, Delta Plan, and Rulemaking package.
Councilman Don Nottoli expressed his concerns about the lack of a public hearing to take oral comments on the recirculated EIR, feeling that it is important to provide this opportunity. Council members discuss and concur with Mr. Nottoli; Chair Phil Isenberg offers the motion: “Council is prepared within a short period of time, to hold a meeting to allow presentation of verbal comments from any party who wishes to any aspects including the Delta Plan, revised supplemental EIR and notice of proposed rulemaking,” with Mr. Isenberg noting that it is not intended to replace the public hearing on the rulemaking package that is scheduled for January 24th. The motion is passed unanimously. Council staff later returned with a proposed date of Friday, January 11th.
During the public comment period at the end of the meeting, Erik Ringelberg, Sr. Environmental Scientist for BSK Associates, representing Local Agencies of the North Delta, expressed his concerns that determining if projects were consistent with the Delta Plan would increase costs anywhere from 200% to 800%: “This is a cycle of analysis for the sake of analysis and cost for the sake of costs that keeps us from getting to what we’re trying to talk about here which is near-term solutions for the Delta that are consistent with the Delta Plan.” Chair Phil Isenberg reminded Mr. Ringelberg that the law mandated that the Delta Plan be developed and state and local agencies to be consistent with it, and that the existing costs were mostly attributable to increased flood protection to protect the existing residents and property owners where they exist. Mr. Ringelberg disagreed; however, a discussion between Council members and Council staff ensued with the staff agreeing to look further into the increased costs of determining consistency with the Delta Plan.
FOR MORE ON AGENDA ITEM 7-B
Click here for the staff report on the Rulemaking Package.
Click here for the Office of Adminsitrative Law’s guide, How to Participate in the Rulemaking Package.
Click here for links to all the documents submitted with the Rulemaking Package.
NEAR TERM ACTIONS: NAILING DOWN THE SPECIFICS (AGENDA ITEM 7-C)
Delta Plan manager Cindy Messer briefed the Council on the status of near-term actions. Staff has streamlined and reorganized the strategies for near-term actions which are listed on page one and two of the staff report; they have also been building a spreadsheet and adding in details of the projects currently planned or underway in the Delta.
Executive Officer Chris Knopp said that with near term actions, “it’s the family of agencies working in the Delta that are going to perform those actions and we’re not in the position to dictate to any of them what actions they are going to do.” The Council’s role is one of encouraging and facilitating getting work done: “We’ve been having conversations with those agencies and get their agreement that this is something in our mutual interest, that by doing this and presenting projects, moving from strategies to more specific projects, it is in everyone’s benefit and we can actually facilitate accomplishment within the Delta at a faster pace.” He noted that the effort does take time, and that staff needs another month to get a specific list of projects, costs, timelines, and start dates.
“I think our goal on this has got to be aimed at getting work done quickly, but work that matters. … Obviously we want to do something that has some substance that actually affects the ecology, the reliability of water supply, and that improves the Delta as a place. … People want some initial successes, some demonstration that in fact we can get something done. So the initial projects are going to be as effective as we can make them but will be completed as soon as possible so that we have a demonstration of effect,” said Mr. Knopp.
Mr. Isenberg added: “People tend to assume when looking at dollar figures that money being earmarked or money spent is the accomplishment when it’s not. … but it’s the outcome: a more reliable water supply or an improved Delta ecosystem. It is not simply the identification of money, the earmarking of money, or even the spending of money – it’s the actual outcome.”
The project is located in southern Yolo County at the southern end of the Yolo Bypass floodway near the north end of the Cache Slough complex. The site is part of an integrated network of restoration sites with other projects nearby at Liberty Island, Little Holland Track, and Prospect Island. The purpose of the project is to restore and support habitat that endangered and threatened species need, especially the Delta smelt and salmon, said Mr. Buck. The project will also enhance the regional food web productivity and support a broad range of other aquatic and wetland-dependent species, such as the Sacramento splittail.
Currently, the land is currently used for irrigated pasture so it will have minimal effect on the agricultural economics in the region, said Mr. Buck. However, since adverse economic impacts of restoration projects is a major issue for the Delta, the Agency hired an economics firm to analyze the effect of the project on the local economy over 50 years. Their analysis determined that the project will add $27 to 35 million to the local economy over the life of the project. Besides the investments up front for construction, the project will need workers for monitoring and maintaining the project site, a source of good paying jobs for the area: “We’re going to need people at an AA degree level doing surveys and finding out what’s going on at the sit. We think we can work with the counties and with the local community colleges to create a program that creates locally based, good paying jobs to be onsite – $20 to $35 an hour jobs,” said Mr. Buck, noting that while different projects will produce different benefits and impacts, this one has a very strong net plus.
The project has been in the planning stages for about 5 years; the land was purchased by Westlands Water District in 2008. The project involves removing the low and restricted height levees on the property and allowing tidal function to return. The land elevation is within tidal range and it is one of the last to be converted from natural wetlands so it’s more easily restored, Mr. Buck said. The location has potential to restore extensive wetland-upland transitional habitats and can accommodate sea level rise for many decades.
To date, about $4 million has been invested in planning and engineering. The land costs are $3000 per acre, and construction costs are estimated to be about $20,000 per acre, so the costs are really in the design and engineering of the physical changes. “These are not simple projects; we have 11 agencies we need permits from, and 17 permits when you add it up. There’s nothing simple in the Delta, nothing simple in this part of the world,” said Mr. Buck.
Dr. Goodwin said that from the science perspective, there has been outreach to a highly qualified interdisciplinary team of independent scientists who have added value to the process by rethinking excavation and habitat mixes in light of recent research. Dr. Goodwin explained that if you try to force a habitat on a landscape that doesn’t have the right physical processes, such as flows, sediment deposition, and vegetation, for the type of habitat you’re trying to create, it will be a continuous battle. “On these restoration projects, it’s all really about the physical processes. If you can get that right, then the function will follow form. “
Dr. Goodwin continued: “If restoration is going to be entirely driven by certain credits, you run the risk of opportunistic acquisition of land and the forcing of features into the landscape that really don’t make sense in terms of the total functioning. If you’re too prescriptive in what should be in point A or point B, you run the risk of ending up with this jigsaw puzzle of features that really don’t connect in a sustainable way. “
Mr. Buck closed with saying :”Perfect’s the enemy of good; we’re always going to learn more, all of these are experiments when you get down to it, so we’re spending a lot of time working with the agencies on doing a monitoring design that teaches us out of this and makes then the next project better. … We need some projects on the ground to learn from and recognize that we’re going to learn from them, and hopefully we’ve set up our adaptive management program so that we can go in and perhaps modify it in the future.”
FOR MORE INFORMATION ON THIS AGENDA ITEM:
Click here for a memo on the project from the State and Federal Contractors Water Agency