No love for the Delta Plan’s proposed regulations at the public hearing

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There wasn’t much love shown for the Delta Plan and its proposed regulations at last week’s Delta Stewardship Council hearing to take public comment on the proposed rulemaking package.  “I wanted to ask you to call on any speakers that had filled out the gold cards – those who are completely satisfied with the rulemaking package.  Did you call on all of those speakers?” joked Chief Counsel Chris Stevens at the conclusion of testimony.

The hearing brought out the water agencies, who, as the regulated community, expressed their discontent about the proposed regulations, especially zeroing in on the Council’s policy of reduced reliance and questionning the Council’s authority to judge local water management decisions occurring outside the legal Delta.  In-Delta water agencies expressed their concerns about additional burdensome and costly regulations hampering levee projects and creating additional obstacles for projects that are already difficult and costly to undertake.  Some environmental groups were present and commented, as well as a large contingent of residents from Discovery Bay, who, while not commenting directly on the proposed regulations, nonetheless added emotional overtones to the proceedings.

The Delta Reform Act requires the Delta Stewardship Council to adopt a legally enforceable Delta Plan; the rulemaking process is how the Delta Plan’s fourteen policies will become enforceable regulations.  The Council filed the necessary paperwork with the Office of Administrative Law and notice was published in the California Regulatory Notice Register on November 30th, initiating a 45-day comment period.  The public comment period closed on January 14 with the public hearing following on January 24.

At the conclusion of hearing, Executive Officer Chris Knopp said they’ve received about 120 letters with more expected by the end of the day.  So far, there are 580 comments on the Delta Plan, 660 on the environmental impact report, and another 380 on the proposed rulemaking package.

Chief Counsel Chris Stevens said that Council staff will return at the March meeting to discuss the comments received and deliberate any necessary changes.  If substantive changes are made, a 15-day public comment period will be required.  All comments received must be responded to and submitted to the Office of Administrative Law as part of the rulemaking package.

Once the final Delta Plan and the Rulemaking Package is approved by the Council, the rulemaking package will then be submitted to the Office of Administrative Law (OAL), who will examine the proposed regulations to make sure they meet the standards of authority, reference, consistency, non-duplication, and necessity as specified in the Administrative Procedures Act.  The OAL will have 30 days to review the proposed regulations and either approve them or send them back to the Council for further revisions. If the OAL approves the regulations, they are filed with the Secretary of State, printed in the California Code of Regulations, and usually become effective in 30 days.

The purpose for the hearing was to receive public testimony on the proposed rulemaking package.  It was a listening session only, and council members did not engage with speakers or ask questions.  The following are excerpts from the testimony:

Jan McCleery, Save the California Delta Alliance, Discovery Bay:

Talking about living in Discovery Bay: “Even if people do not live on the water, the economic basis and center of the community is the marina, boating, and the water.  That’s our concerns.  We are not in the main flow of the Sacramento River. We are far south, right above the pumps.  Due to its low flow, the SJR already contains extensive salts and chemicals leached out from the Westlands farms.  If the millions of gallons of water that now flow down through our community, particularly the cleaner Sacramento River water we now receive, is diverted around or under us, it’s hard to see how we won’t be negatively impacted.  If salt water intrudes, will our backyards be brackish and stagnant water?”

Mr. Nick Di Croce, Environmental Water Caucus:

The EWC’s overall critique of the Delta Plan process is that it still lacks three critical analytical components: a water supply analysis, a cost benefit analysis, and a public trust analysis.  And along similar lines, the EWC has deep concerns with your CEQA treatment.”

Regarding the State Water Board’s update of the Bay-Delta Water Quality Control Plan: “The Delta Reform Act does not allow the State Water Board to set Delta flows that are necessary to achieve the coequal goals as stated in 5507; rather, the Delta Reform Act and judicial precedent require the Board to set such goals consistent with the public trust doctrine, and the coequal goals are not synonymous with the protection of public trust resources.  As written, this section perverts the express language of the Delta Reform Act regarding the Board’s duty to abide by the public trust doctrine when setting Delta flows, and should either be removed or modified.”

Mr. Roger di Fate, Discovery Bay:

Water management and water flow are dramatically important to us, and I’m sure to you, but one of the things in reading your document I did not see was some alternatives … alternatives that will help the estuary and the community.  An example of this is on the St. Laurence Seaway, connecting New York and Canada, are 32 hydroelectric generators that run 24 hours a day, and locks adjacent to those that transport ocean going shipping through the St. Laurence Seaway.  I don’t see anything like that on your agenda or your schedule.  Where are the alternatives for our brilliant minds in technology in California?  We have people in California that are brilliant!  I don’t see that in the documents I read with you.  And maybe that’s because there’s not enough local involvement in your committees, because we have brilliant people waiting to help you.  If that document is representative of where we are going in California with our water management, we are doomed!  Get rid of those people and hire some new people with some new ideas.  Give us some really good alternatives because we need them.

Mr. Bob Wright, Friends of the River:

From our perspective, we really don’t know if it’s actually the intention of the Council to plan for, recommend, encourage, or call for new conveyance, optimizing diversions, the massive new upstream conveyance in the form of the Delta tunnels that the exporters want. Because we recognize that it’s possible, that given in your own draft EIR, you were anticipating and set forth, you are expecting the BDCP Plan and EIR/EIS with all the information that would presumably contain to be out in mid 2012, and that did not happen, that perhaps the Council doesn’t really have the intention to, at this point in time, start us down the course of massive new conveyance upstream from the Delta.

Mr. Wallace from East Bay MUD:

We want to ask the Council to reconsider the inclusion of covered actions that have a beneficial impact on achieving the coequal goals.  I’ve heard the explanation for this from staff and I understand it, but overall the concern is when you look at the near-term actions, they’ve unfortunately become sometime maybe actions.  There are already so many obstacles in the way of achieving things we all recognize are actions that need to take place in the Delta, and including those as covered actions and submitting a consistency determination with all the costs involved is another regulatory barrier.  I know that’s part of the Delta Plan but we would ask you rethink that.“

Mr. Jim Hall, Discovery Bay

I do own property in Southern California … Orange County, Los Angeles County, and we’ve had some in San Bernardino County, and we’ve owned these properties since the mid-70s.  So we’ve been back and forth between the Delta and Southern California, and we’ve seen some of the issues that we’re dealing with.  And one of the things that I’ve noticed, since the mid 70s, we have never seen a concerted effort in the Southern California area to conserve water.  I’ve been up here, when I came up from Southern California and seen people having to water every other day, their lawns went brown, and people were very interested in conserving water and dealing with those issues.  This has never really caught on in the Southern California area, which is going to be one of the end major users of the water we’re diverting from the Delta.“

Cindy Gau, Santa Clara Valley Water District:

We are concerned that the proposed regulation to reduce reliance on the Delta attempts to give the Council the discretion to review and judge local water management decisions outside the legally defined Delta.  The Delta Reform Act does not provide the Council with this authority. … The proposed regulations also state that water shall not be exported from, transferred through, or used in the Delta if one or more water suppliers that would receive this water have failed to adequately to reduced reliance on the Delta and improved regional self reliance.  This requirement puts at risk a water wholesaler’s ability to provide water supply reliability if one or more of its retailers is not fully compliant.  The District is a wholesaler that provides water supply to thirteen retailers over which it has not regulatory authority.  Even if the District and the region as a whole comply with the policy, or even over-complies, the independent actions of a single water retailer, over which the District has no control, could reduce the reliability of 40% of the Santa Clara County’s water supply.”

Thomas Zuckerman, Central Delta Water Agency:

What I am going to urge you to do is to step back from the process a little bit, and try and collect yourselves as to where the whole process is going.  I’ve talked to you about near-term actions in the past, I’ve talked to you about loading too much of the burdens of the correction of the Delta on the Delta itself, on the people that live there, on the people that work there, on the businesses that are conducted there, and on the fish and wildlife that live there.  And really in sum, what you’re doing is … you’re making it more difficult for people who are trying to carry out their responsibilities in the Delta by imposing additional requirements, another level of review and so forth on it.

In particular, I would refer to the many times I have sat here and talked to you about the efforts of the people in the Delta to generate flood control projects.  It really is going to be much more difficult for us to carry out our efforts under the proposals you are making, and I don’t think that’s in your best interest, in my best interest, or anybody else’s best interest.  We’ve made remarkable progress on flood control in the Delta, we’re trying every day to improve that, and to put a bunch of new criteria in there that would be new and would be burdensome I think is a horrible mistake at this time.”

Mr. Jon Rubin, Senior Staff Counsel for the San Luis & Delta Mendota Water Authority:

In the comments that the Authority submitted, the Authority also raised concerns with the cost analysis that was prepared for the proposed regulations.  And that cost analysis, too, is deficient.  I wanted to highlight one point that we did make in our comments.  The analysis suggests that the regulations do not add substantive requirements beyond what is already required under existing law.  That assumption is not explicitly stated or supported by citation, which is a legal deficiency, in and of itself.  But the assumption made would render the regulations unlawful because of the necessity requirement established by the Administrative Procedures Act and OAL’s regulations.  Also, the assumption, if made, would be arbitrary, given the expansion of authority identified by the Water Authority in its comments and by the State Water Contracts in its comments.”

Terry Erlewine, State Water Contractors:

Our water agencies have evolved, for the past 20 years, have evolved to the strategy suggested by the Delta Plan of taking more water in wet years when it’s available and taking less in dry years.  Unfortunately, the situation we’re in now is that the water in wet years is being reduced, and that’s a challenge.”

Overall, we are seeing the Delta Plan as being an opportunity to provide coordination for all the various activities in the Delta.  I think that has been replaced to some extent by more of an emphasis on a regulatory approach, which we don’t think is very helpful, and we’re concerned that some of the regulatory actions being taken are beyond the scope of what the Delta Stewardship Council’s authorized to do.”

Osha Meserve, Local Agencies of the North Delta:

We’re very concerned about the additional analysis of covered actions that our districts might be undertaking in the future, and how that will make what are already projects that are difficult to carry out because of their costs, like levee improvement projects … now there will be a lot of new requirements to justify not building setback levees which really are inappropriate for many locations in the Delta … Also, a lot of additional analysis to explain compliance with reduced reliance on the Delta for in-Delta water users, which as we’ve explained previously, in-Delta water users don’t have any choice but to rely on Delta water, so we don’t agree with the policy.”

We continue to be concerned that the Delta Plan … continues to blindly promote the BDCP and the new conveyance, which, unlike the projects I’m talking about – levee maintenance, small water projects for in-Delta water uses where land use is already extremely restricted … – this BDCP has the most potential to substantially impact implementation of the coequal goals, more so than any of the actions that local agencies would propose in the Delta, and yet the Plan blindly promotes completion of it without attempting to provide any guidance to it.”

Brenda Burman, Metropolitan Water District:

Within the [reduced reliance] policy, the Council gives itself broad discretion to review and judge local water management decisions outside the legally defined Delta.  It also expands state law in calling for and implementation of urban water management plans and agricultural management plans, something that is not currently called for in state law.  It expands state law by calling for an ambiguous yet-to-be-defined provision that will go into 2015 urban water management plans and agricultural water management plans in the future.  We believe that is an expansion that is outside the authority that was granted the Council to act; we believe that’s true from the plain language of the act, but we also have in the detailed comments from the State Water Contractors and the San Luis Delta Mendota Water Authority, detailed comments looking at the legislative history.  And that legislative history looks at previous versions of the act, it looks at quotes from the sponsors of the different provisions of the Delta Reform Act, and has quotes from those sponsors looking at the detailed provisions of even just the reduced reliance policy, so I urge you to review those.”

Mr. Mike Mc Cleery, Discovery Bay resident:

Everybody’s here, we’re all being parochial if you will … protecting our own issues, and as a taxpayer, we’re looking to the Delta Stewardship Council to provide an overall comprehensive plan.  Since the water from the Delta provides water to a substantial part of California, I think the Delta Stewardship Council here needs to look at all water users and mandate things like conservation.  I didn’t see anything in the Plan that mandates conservation for agriculture, for example.  I come from a business environment so I’m used to an organizational chart where you can see clear lines of authority and responsibility. If you look at charts involving the water in the Delta, it is confusing at best.  What I am hoping as a taxpayer is that the Delta Stewardship Council will take charge, be at the top of this organizational chart, and try to manage all these parochial agencies and their particular requests.  If we don’t do that, we’re going to see a big decline of Delta water quality.”

Melinda Terry, Central Valley Flood Control Association:

Regarding the costs analysis for the proposed Delta Plan regulations: “The costs that are talked about on these are quite expensive … the concern here is I think there is a real misunderstanding about the budget that a Delta reclamation districts has compared to an urban district, so the costs associated with just trying to provide the analysis to show that they can’t do a setback levee for whatever reason may exist on that island is really concerning because of their budgets.  You’ll have the unintended consequence of them not being able to do these levee rehabilitation and improvement projects.  I don’t think that is your intention and it goes against the statutes to protect people from flood and protect the Delta as a place.

The setback in the regulations for widening the floodplain and expanding riparian habitat – those are benefits to the broader public if you will, not just to that island and those that are protected by those levees.  There is a broader public good here, yet the cost burden is really being born only by those people to provide that greater good.”

Steve Dinger, Discovery Bay resident:

I can understand why you might want to pump water, some of the best water that the Delta ever sees, directly down south.  It makes sense for the people down south.  It does.  It’s automatic, the quality of water is good.  But where I have a difficulty with, is where the water will be better in the south than it will be here.  And because of that saline solution going up the Delta, we’re all going to be affected by it.  … Eventually, you’d have to put desal plants down south, but problem is if you do what you’re expecting to do, then we really have trouble because we’ll have the desal plants right here in our backyard.  Because the salt water will be here.  And it will be very awkward to make good water out of that without doing the desal.  Now why you didn’t start this process down south 20, 30 years ago, I have no idea.


  • Video of the hearing will be posted at this link at some point in the future.
  • Click here for the proposed rulemaking package.
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