With the task of developing and adopting the Delta Plan behind them, the Delta Stewardship Council is now preparing to fulfill it's next mandate: developing a strategy for prioritizing state investments in Delta levees. At the May 30th meeting of the Delta Stewardship Council, staff were before the Council, asking the Council to approve the contract to hire the firm ARCADIS to provide the needed technical expertise.
“This effort to prioritize state investments in Delta levees is just one element in a more comprehensive strategy for reducing risk to people, property, and to state interests in the Delta,” began Delta Plan Manager Cindy Messer, noting that the overall strategy includes the Delta Plan’s policies and recommendations, as well as other ongoing efforts of local and state agencies.
“The statutory requirements that have led us to undertake this particular project come out of the Delta Reform Act and include both water code section 853059(a) which states that the Delta Plan shall attempt to reduce risks to people, property and state interests in the Delta by promoting effective emergency preparedness, appropriate land uses, and strategic levee investments,” she said. “Also part of the Delta Reform Act is water code section 85306 which states that the council, in consultation with the Central Valley Flood Protection Board, shall recommend in the Delta Plan priorities for state investments in levee operation, maintenance and improvements in the Delta, including both levees that are part of the State Plan of Flood Control and non-project levees.”
Ms. Messer noted that the Delta Plan itself contains a number of recommendations and policies, including policy RR4 Actions for Prioritization of State Investment in Delta Levees, and policy RR P1 Prioritization of State Investments in Delta Levees and Risk Reduction. There are also a number of others in both chapters five and seven of the Delta Plan, which include recommendations for proposing to finance local flood management activities, funding actions to protect infrastructure from flooding and natural disasters, designating additional floodways within and upstream of the Delta, requiring adequate level of flood insurance for residences, businesses, and industries in flood prone areas, and a recommendation in Chapter 7 regarding limiting the state’s potential flood liability, she said. There are also several policies that have to do with land use measures as they relate to risk reduction in the Delta, including requiring flood protection for residential development in rural areas, as well as locating new urban development wisely within regions of the Delta, she said.
Ms. Messer said there are other efforts underway, such as the California Water Action Plan’s recommendation to prioritize this effort along with the Delta Protection Commission’s feasibility study looking at Delta flood risk management assessment district, and Council staff have been engaging in and monitoring all of the activities around the update of the Central Valley Flood Protection Board’s 2017 update to the strategic plan. “All of these plans and these activities that we are engaging and monitoring all overlap with the project that we will be undertaking,” she said. “It is definitely an integrated effort.”
Ms. Messer reminded that at the December meeting, the Council delegated authority to the Executive Officer to enter into an interagency agreement with the Department of Water Resources which provided $2 million for funding to help secure technical services to assist Council staff with this project. At that same meeting, Council members also directed staff to undertake a rigorous process in selecting the technical team. After completing the process which included utilizing a selection panel to review technical proposals and a pre-determined scoring system for the proposals, the staff has selected ARCADIS as the consultant and is here today to ask the Council to delegate authority to the Executive Officer to enter into the contract with ARCADIS.
William Hinsley, ARCADIS
“The ARCADIS team approach is one of focusing on assisting with decision support science,” began Bill Hinsley, noting that it’s both an engineering problem and a decision making matter. The first step is to build a tool for prioritizing these investments, which will involve an independent analysis and review of existing datasets, transparency and inclusiveness, focused CEQA compliance, and internal quality assurance from Arcadis as well as a team of independent world-class experts.
“Informing all stakeholders is a key component of this process so solid public and stakeholder engagement is of paramount importance,” said Mr. Hinsley. “The focus is to assist in building resilient levees in an evolving Delta, the reason being that if there are no levees, there’s no Delta … “
Vice Chair Phil Isenberg clarifies: “There’s no Delta as presently configured,” he said. “There would be some kind of Delta – it is one some people prefer not to see, but you can’t escape the fact that we have scientific information that sea level rise is likely to severely impact the configuration of the Delta unless the state’s prepared to do massive expenditures of money.”
“Correct.” Mr. Hinsley continues. “Resilient levees are required for the coequal goals, focusing on both environmental protection and the water supply reliability. The notion, both through the Delta Reform Act and as stated in the Delta Plan is all who benefit should contribute and really ultimately you need priorities to guide how the state invests its money in these Delta levees.”
There are numerous challenges to prioritizing investment in Delta levees, and hundreds, if not thousands, of costly options have been deliberated, discussed, and sometimes implemented over the years, he said. “There are diverse and conflicting goals and objectives amongst different beneficiaries or stakeholders, and there is significant uncertainty about the future. In all, there’s a large amount of detailed and technical information involved in this discussion, but it comes down to the point of making decisions.”
It’s difficult to prioritize investments with the system models alone because such models do yield outcomes, but don’t consider tradeoffs among multiple goals, budget considerations and other real world constraints, he said. “Thus, the cornerstone to our approach is a planning tool that incorporates and takes in constraints and the priorities of different stakeholders into the planning tool, which we propose to be developed with the staff and with stakeholders to support a deliberation with analysis.”
Mr. Hinsley gave the example of coastal Louisiana’s land loss problem, with projections that they could lose up to 1800 square miles of land by 2060. “Numerous plans have looked at addressing this land loss problem, and coastal storms exacerbate flood risk and ecosystem degradation,” he said. “From a flood control perspective, the state expects increased flood damages in the order of magnitude between $5B and $19B per year. Likewise, the land loss problems are creating the situation where numerous ecosystems services are at risk.” He said proposed projects and alternatives have been around for 40 years, and that ARCADIS and RAND developed a planning tool to help balance their coequal goals of reducing flood threats and ecosystem degradation. The planning tool helped in the development of the 2012 Master Plan that was unanimously passed by their legislature in 2012, he said, noting that the planning tool will continue to be used to support additional changes and updates to the plan.
The planning tool ARCADIS will develop will use the best available information to prioritize investments for the Delta, utilizing the wide datasets available such as DRMS and other resources that will capture all of the work that’s been done. “In addition, we’ll take what we know about constraints and preferences from interactions with stakeholders to develop that tool along with you,” he said.
Part of the work includes gathering asset information and exposure, information of risk within the Delta, and reviewing and synthesizing existing data, as well as looking at the likelihood and the consequences of the risk in the Delta and calculating expected annual damages, Mr. Hinsley said.
“The critical part of the project will be working with stakeholders to develop and evaluate appropriate levels of protection and tolerable levels of risk within the Delta,” he said. “For example, different areas may warrant higher a level of protection than others. This could be based upon life, safety, damages, and Delta values, recent experience that we bring from within the US and elsewhere, consistency with other state policies, and stakeholder engagement. Our work with stakeholders in this tool will enable us to evaluate different levels of protection in support of prioritization.”
“We’ll use a collection of knowledge, both from the agencies and stakeholders and the public, that will be brought together to build understanding of the tool and the processes, and credibility for the effort,” he said. As data and information is gathered, we’ll seek preferences and values as the tool is developed, and we’ll share the results that will yield refinement in the tool and ultimately the outcomes, he said.
Stakeholder engagement will occur at multiple levels, with Council and other agencies, technical workgroups, workshops with beneficiaries, community members and interest groups, as well as meetings with elected officials and technical experts. “We’re not starting from scratch,” he said. “We’ll build upon existing documents to ultimately build the appropriate environmental assessment report for the levee investment prioritization.”
The project will be reviewed by a panel of experts: Dr. Gerry Galloway, a worldwide flood expert; Dr. Greg Beacher, who was a key advisor for DRMS; and Dr. Ed Link, who served as project manager for the Army Corps’ risk assessment after Hurricane Katrina.
“In summary, the approach that the Arcadis team brings is that of building a tool for the prioritization of investments, working with the experts for technical analysis, and reviewing existing datasets, building upon a foundation of solid stakeholder and public participation and engagement, and netting in a focused CEQA compliance document while all along ensuring project management and a quality management process,” Mr. Hinsley said.
During the discussion period, Mr. Hinsley said it’s an 18 month schedule to focus on the prioritization effort and then about another 6 months for the environmental compliance efforts.
Councilmember Isenberg asks when there will be a draft statement of investment priorities. About 15 months out, Mr. Hinsley says.
Mr. Isenberg says this sounds like DRMS all over again. “I have increasingly been concerned that what we’re trying to do is smooth over all the political fights that have been going on for a hundred years when no one is going to be able to do that, in my judgment,” he said. “Instead, what is lacking is some kind of relatively clear set of investment strategies for the state of California that people can react to as opposed to negotiating terms and conditions with everyone. … [In regards to DRMS], what’s different here?”
“From the outset what we’re looking to do is build a transparent process that supports the deliberation and discussion of different values,” responded Mr. Hinsley. “The planning tool within the context in Louisianna was built and it did take time in a transparent manner that involved the input of data and values and constraints to yield basically an informed analytical discussion of how those values and constraints affect outcomes.”
“How do you interpret the statutory language in water code section 85032(j) which says that the liability for the state in the Delta and its watershed is not affected by the Delta Protection Act,” said Mr. Isenberg. “I read that as a clear as statement as possible that the state is not interested in having its financial liability expanded. Now maybe there’s a different interpretation, but if this is a state investment strategy, this is fundamentally about who pays for what, and at what point do you grapple with that and what point can we turn to consultants and say what’s your best recommendation? Fifteen months is a long way away. We promised to deliver recommendations to legislature in Jan of 2015.”
Executive Officer Jessica Pearson notes they are behind schedule as it took a year to negotiate with DWR to get funding in place, and that they are doing everything possible under this contract to expedite the outcome.
Chair Randy Fiorini notes that the outcome of this process will be that some parts of the Delta will receive money for the levees that the locals will be happy with, while other areas won’t and might not be so happy. “What was your experience in Louisiana with the process you went through? Were you able to devise a plan that made everybody happy? Or were there some areas that were dissatisfied with the outcome because they weren’t going to receive the level of assistance they had historically received or hoping to receive?”
“Within the context of Louisiana, consensus in some respects was not achievable, but what was developed was the understanding and the transparency in the decision making process such that the plan was supported and adopted,” responded Mr. Hinsley.
Mr. Isenberg refers to the statute in 1992 which said the Delta is inherently flood-prone. “If that is the starting point for an investment strategy, that leads in various directions that are deeply controversial to local property owners and local governments in particular because it implies that land use limitations to limit liability of the state and to limit the risk to new people, new property and so on are very much in play,” he said. “If you don’t start with those kinds of entry points, you’ll never end up with them, you’ll simply have the endless argument of what people prefer, and the preferences are always different … for me the notion is to pick the things that we already know are in statute. We have a holding action in the Delta Plan and it truly is a holding action until this develops. … I would think for a state investment strategy, we might want to consider an option that says no extension of liability for state responsibility without a specific enactment of the legislature assuming liability, because otherwise the Paterno case has taught us, we’re going to back in to that liability and that exposure on money, because we’ll say, here are the protection levels everybody wants, it’s just a matter of assembling how much money that might cost, and let’s go find somebody to pay for it. That is not an investment strategy, that’s a wish list. I want to avoid the wish list.”
Mr. Hinsley says that the planning tool allows you to input constraints and preferences, and then look at the prioritization of the list. Mr. Isenberg points out that if the Council are to make those choices, they will need to outlined in writing what questions will need to answered. Mr. Hinsley says that these questions will be developed beginning with the kickoff meeting.
Councilman Larry Ruhstaller asks why there is a CEQA process.
“It’s really obvious when you’re building something physical that you probably need CEQA but when you’re doing a policy level action, you really have to scrutinize it to say, does this have a chain of events that leads to the physical effects that are covered under CEQA,” responded Leslie Molson. “Like a general plan or an ordinance, this policy may very well have land-based physical action consequences; that’s why we need to scrutinize what is the change in direction if any that you’ll be applying to the state’s investment policy. We need to follow the chain of events, but it is imaginable that there will be physical consequences that come out of this policy guidance, this decision you make.” She noted that it is program level EIR.
Mr. Isenberg asks who made the legal determination that an EIR was necessary. Chris Stevens reminds Mr. Isenberg that he had given him a legislative analysis on the issue, and suggests Phil read it into the record. Mr. Isenberg agrees. “This is from Senator Reading Analysis of SBX 7-1, from 2009, and under the category on page 11, essentially the Delta Reform Act, says under title ‘Levee/Flood Protection’, the bill requires the Delta Plan to reduce risk to people, property and state interests in the Delta, with emergency preparedness, appropriate land uses and strategic levee investments. The Delta Plan will include recommendations for priorities for state investments in levees. These recommendations in combination with the Council’s authority to ensure that state agencies act consistently with the Delta Plan will ensure that levee spending in the CVFPB reflect these priorities. The legislature generally does not appropriate funding to specific Delta levee projects, and has not succeeded in imposing priorities in state levee spending in the Delta. Instead, the state budget leaves the discretion to DWR and the CVFPB to determine how to spend state money on both levees in the State Plan of Flood Control and non-project levees. These priorities will affect both Delta levees subvention program, non project levees, and the special projects program, levees with a state interest.’”
“The state spends money or it doesn’t spend money, but there’s no system for doing it,” said Mr. Isenberg. “My interpretation is that it’s ad hoc, episodic … “
“I don’t know if I’d say ad hoc and episodic, but it resides with different agencies and it’s not necessarily consistent with a unified state plan, so the legislature decided in its wisdom that this was a duty that would best be served by this new entity – you,” responded Mr. Stevens. “I think the important piece, together with your consistency review authority, is that you will ensure that in the future, once you come up with these state priorities, that all of the spending should be consistent with the unified state plan. I think it reflects the legislature’s and other’s frustration with the past way of doing business, but to your direct point then, of whether or not CEQA is required, you’ll recall we went through a three year planning process where you unanimously adopted the Delta Plan. After certifying your own EIR, we took the regulatory policies out of the plan, ran them through the state rule making process, those were approved by OAL and became effective last September. One of those regulations that’s now in effect is the policy that Cindy had referred to, the interim policy … now you’re embarking on the grander task … once you get this work product back, consider its merits … this will be an update to the regulatory process.”
“Is this process an amendment of the Delta Plan?” asks Mr. Isenberg.
“The intent will be to amend the Delta Plan,” responds Mr. Steven. “This process is gathering the information that then you will take to decide whether or not you think this is the priority that you want to update the Delta Plan. In turn, if you decide yes, you would take those updated priorities and update your rules as well, so the interim rule that you have in effect would be superseded by this grander project, but right now, what we’re trying to do is hire a consultant to help us with the effort that the legislature tasked us with.”
Mr. Isenberg notes he has not problem with hiring Arcadis, but he’s concerned the process is scattered and duplicative. “What is needed is to articulate a relatively simple, clear statement of principles,” he said. “Once you have the statement of principles, you then apply those principles … that’s more like a project illustration. I’m looking at this, and this is not an 18 month process, this is a three to four year process. If we don’t get the skeleton outline of the principles early, we’ll never get to a set of recommendations. We will always study the implications of what people fear or imagine or hope the principles would be applied at.”
Dr. Goodwin notes that developing a methodology that can stand up is a concern, so as part of the structure very early on, there will be a review panel of national experts that come in and take a hard look at the methodology. “Many of the questions that you’re asking for will be exactly the charge that the panel will be looking at, and that would occur before there’s any major investment on behalf of the consultants,” he said.
Council then takes public comment, after which Cindy Messer then explains that the action item to the Council is to delegate authority to the Executive Officer Jessica Pearson to enter into the two year contract with Arcadis for $1,981,491. The Council approves 6-0.
Chair Randy Fiorini says he’s going to think about appointing a subcommittee of the Council to work with the consultant on this project. “This is really a significantly big step for the Council, and we expect good things to come of this process,” he said.