DELTA STEWARDSHIP COUNCIL: Three amendments to Delta Plan adopted

The Delta Stewardship Council adopts amendments to the Delta Plan regarding conveyance, levee prioritization, and performance measures

At the April meeting of the Delta Stewardship Council, Councilmembers voted 5-2 to certify the environmental impact report and adopt three amendments to the Delta Plan.  The amendments, in development for years, address the prioritization of state investments in Delta levees, Delta conveyance, and Delta Plan performance measures.  It is the third time the Delta Plan has been amended since the Plan was first adopted in 2013.

BACKGROUND

The 2009 Delta Reform Act created the Delta Stewardship Council and charged it with developing a comprehensive long-term management plan for the Delta to achieve the coequal goals of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem.

In April of 2013, the first Delta Plan was adopted.  The Delta Plan is to be reviewed and updated every five years, and amended as needed when conditions change.  Since 2013, the Council has amended the Delta Plan twice, first in February 2016 to include refined performance measures, and again in September 2016 to exempt single-year water transfers from consideration as covered actions.

For the past several years, Council staff has been preparing proposals for Delta Plan Amendments addressing three topics: the Delta Levees Investment and Risk Reduction Strategy (DLIS Amendment); Conveyance, Storage, and the Operations of Both (CSO Amendment); and Performance Measures (PM Amendment).   After numerous workshops and council meetings, the text of the proposed Delta Plan Amendments was approved in concept at the Council’s June 2017 meeting, and staff was then directed to use the draft amendments as the project description for purposes of the required environmental review under CEQA.

At the April meeting last week, the Council considered certifying the final Programmatic Environmental Impact Report and adopting the three amendments.  Also part of the decision before the Council was to adopt the Delta Levee Investment and Risk Reduction Strategy as either a regulation and therefore legally enforceable through the Delta Plan’s consistency certification process, or as a recommendation.

THE AMENDMENTS UNDER CONSIDERATION

Delta Levees Investment and Risk Reduction Strategy – Amendments to Chapter 7: Reduce Risk to People, Property, and State Interests in the Delta

The Delta Reform Act requires that the Delta Plan 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 and that the Delta Plan recommend priorities for State investment in levee operation, maintenance, and improvements in the Delta, including both levees that are a part of the State Plan of Flood Control and non-project levees.

When the Delta Plan was adopted in 2013, one of the Plan’s policies provided interim priorities for the investments in Delta levees.  The Council, Council staff, and consultants then began developing the Delta Levee Investment Strategy and amendment to the Delta Plan in June 2014.  Through the development process, more than 40 meetings were conducted with technical experts, four public workshops were held, and the development of the strategy discussed at 27 Council meetings.  The result of this process is the proposed DLIS Amendment to Delta Plan Chapter 7, which was approved in June of 2017.

There were no changes to the DLIS Amendment resulting from responses to comments received on the Draft PEIR.

The objectives of the proposed amendment are to prioritize investment in levees to: (1) ensure that the limited public funds available are expended first for improvements that are most critical to protect lives, property, and State interests; and (2) protect State interests. Both objectives are to be achieved in a manner consistent with the following principles:

  1. Better protect life, property, and the State’s coequal goals for the Delta
  2. Do not use State funding to assist further urbanization of flood-prone Delta land.
  3. Expend funds that reduce risk
  4. Prioritize investments that protect urban areas first
  5. Prioritize investments that protect water conveyance and diversion infrastructure
  6. Prioritize investments in ecosystem enhancements that provide high benefits
  7. Consider system-wide needs—consider specific recommendations of the Delta Plan and State Plan of Flood Control
  8. Take into account the Delta’s unique values, including the Delta’s farmlands, historic communities, and natural and cultural resources
  9. Consider post-flood recovery response by local, State, and federal agencies and the efficacy and likelihood of financial assistance after flood damage

The Delta Stewardship Council, the Central Valley Flood Protection Board, and the Department of Water Resources have entered into an MOU and have been meeting weekly to develop implementation and management plan.  To date, the group has made a commitment to jointly manage and maintain the DLIS Tool, developed a methodology for incorporating the current and future prioritization into the Delta Levees Special Projects project selection process, developed a framework for reporting and tracking agency accomplishments and activities, and made progress toward the development of an Ability–to-Pay methodology that the Department could use to fulfill its statutory requirement.

Conveyance, Storage, and the Operations of Both – Amendments to Chapter 3: A More Reliable Water Supply for California

The Delta Reform Act also required that the Delta Plan promote options for improved conveyance in the Delta, and provided that if the Bay Delta Conservation Plan was completed as a habitat conservation plan, the BDCP’s conveyance provisions would have been incorporated automatically into the Delta Plan.  When in 2015, the State announced they would not complete the BDCP as a habitat conservation plan but instead would pursue conveyance facilities through the California WaterFix, the Council promptly began to review the issue of conveyance as well as storage and operations as mandated in the legislation.

Over the course of 2015, the Council proceeded with the process for development of an amendment to the Delta Plan to promote options for conveyance, storage systems and the operation of both. Numerous public meetings were held that included panels of experts and stakeholders to inform the development of the guiding principles.  At the November 2015 Council meeting, the Council adopted a problem statement and the 19 Principles for Water Conveyance in the Delta, Storage Systems, and for the Operation of Both to Achieve the Coequal Goals which provided direction for development of the draft CSO Amendment.

The initial draft discussion amendment was presented to the Council in February of 2017, and over the course of the first half of the year, through workshops and public meetings, the draft amendment was revised three times, and ultimately approved by the Council in June of 2017.  The staff was then directed to use the draft amendment as the project description for purposes of environmental review under CEQA and the Delta Independent Science Board (DISB) was then charged to review the draft CSO amendment and provide comments.

The result of this three-year process is the proposed CSO Amendment to Delta Plan Chapter 3. The proposed changes include replacing Delta Plan recommendation WR R12 Complete Bay Delta Conservation Plan with a series of proposed recommendations that promote options for water conveyance, storage systems, and the operation of both. These recommendations contain a suite of actions to be collectively pursued in an integrated manner with existing Delta Plan policies and recommendations.

Since the June Council meeting, staff has a made a number of non-substantive revisions to the amendment, including various typographical corrections, additional bibliographic citations, edits for stronger or lesser emphasis, and edits for clarification.

Performance Measures – Amendments to Appendix E of the Delta Plan

The Delta Reform Act of 2009 required the Delta Plan to include performance measures that enable the Council to measure progress in meeting the plan objectives. These performance measures are to be based on the best available scientific information, and include quantitative or other “measurable assessments of the status and trends” of the health of the Delta, as well as the reliability of the state’s water supply exported from the Sacramento and San Joaquin river.

The Delta Plan adopted by the Council in May 2013 included an initial suite of performance measures organized and presented by corresponding Delta Plan goals and strategies. Those performance measures were refined in February 2016; at the time, three types of performance measures were defined: administrative performance measures used to track various actions recommended by the Delta Plan; output performance measures used to track results of administrative actions; and outcome measures for tracking the impacts of those actions.

At the June 2017 meeting, the Council approved the draft Performance Measures Amendment in concept, directing staff to use this draft amendment as the project description for purposes of environmental review under CEQA.  Since that time, staff has made a number of non-substantive revisions and legal clarifications were made at the direction of Council legal staff.

THE MOTION BEFORE THE COUNCIL

Council staff presented a resolution to the council that included:

  • certifying the environmental documents,
  • adopting the findings and the statement of overriding considerations,
  • adopting the mitigation and monitoring program,
  • adopting the Delta Plan amendment for the Delta Levee Investment Strategy as a regulation,
  • adopting the Delta Plan amendment for Conveyance, Storage, and the Operations of Both,
  • adopting the Delta Plan amendment for Performance Measures,
  • directing Council staff to initiate the rulemaking process, and
  • directing the Executive Officer to correct errata, complete identified non-substantive changes, and to make changes required by the Office of Administrative Law to complete the rulemaking process.

THE COUNCIL DISCUSSES

Councilmember Skip Thomson notes that there are over 2300 pages to be reviewed, and the documents were just received a week ago; he moves to postpone the vote for 60 days.  Councilmember Mike Gatto seconds the motion.  There is a brief discussion on CEQA requirements and public engagement on the amendments; the Council then votes 2-5 and the motion fails.

THE PUBLIC WEIGHS IN

The meeting then moved to public comment.  Notably absent today were Restore the Delta and other Delta tunnel opponents, which made for a short public comment period.

Jennifer Pierre with the State Water Contractors and Rebecca Akroyd representing the San Luis-Delta Mendota Water Authority objected to some of the Performance Measures, specifically those related to reduced reliance on the Delta and the inclusion of Fall X2.

Bob Wright with Friends of the River implied the outcome was predetermined; he objected to the amendments and doesn’t believe the assertion that the amendments don’t promote any specific project.  “The amendment calls for new conveyance, including underground, so you are promoting the Cal Water Fix because that is the only thing out there, and it has approval from DWR,” he said.

Osha Meserve, speaking for local, community and other Delta water users, stated the concerns about substance of amendments and the EIR process, and said that despite public outreach efforts, the public doesn’t understand what the Council is doing and why.  The Delta Levee Investment Strategy amendment should be adopted as a recommendation and not a policy as several other agencies such as DWR, CVFPB, local reclamation and water districts, already have that authority, she said.

Alf Brandt, commenting from his perspective of being involved with writing the legislation for the Delta Reform Act, urged the Council adopt the Delta Levee Investment Strategy as a regulation; Gilbert Cosio, MBK engineers, argued that the levee strategy is based on old data and should be adopted as a recommendation.

That was the end of public comment.

THE COUNCIL DELIBERATES

Councilmember Mike Gatto spoke to Bob Wright, thanking him for his comment letter, noting that it was signed by numerous respected organizations, and acknowledged it made several good points.  He took issue with Mr. Wright’s assertion that the outcome was predetermined; he feels the Council is a deliberative body and that they do thoroughly review the materials given to them.

Councilmember Frank Damrell agreed, pointing out that in the judicial system, nobody knows why the judge made the decision.  In contrast, he said he feels this has been quite the opposite – a transparent process.   Even Councilmember Skip Thomson defended his colleagues, saying, “Even though I’ve been at the short end of most of the votes on this Council, I think my colleagues have tried to listen to the public, take all that information in, and make an informed vote that recognizes the public’s disagreement.”

Vice Chair Susan Tatayon responded to Gil Cosio’s remark, noting that the Department maintains its ability to decide what projects it funds and although the regulation does set priorities, the Department can still fund one of those low priority projects and report to the Council it’s rationale for funding that project.  “DWR’s hands are not as tied as you’re interpreting, so I hope that sets your mind at ease a bit,” she said.

Councilmember Skip Thomson said the Delta Levee Investment Strategy should be a adopted as a recommendation and not a regulation, so that it is more flexible.  Councilmember Maria Mehranian said the levee strategy should be adopted as a regulation, otherwise all the work ‘goes to waste’.  Councilmember Mike Gatto agreed that it’s appropriate to adopt the levee strategy as a regulation.

Councilmember Ken Weinberg acknowledged the controversy, but pointed out that their job is to balance.  He defended the amendments, saying that having the northern intakes is what science says is best for the fish and building the tunnels underground will reduce impacts to the communities, and the community’s comments and concerns about impacts have been addressed in the amendments.  “We had top of mind, how do you protect the Delta as a place during this kind of disruptive activity, and that was a key priority,” he said.  “With respect to the Delta Levee Investment Strategy, the main problem is funding.  This is a money issue, and you have to start with prioritizing for funding.”

THE MOTION AND THE VOTE

With discussion completed, Vice Chair Susan Tatayon moved to adopt the resolution as written; Councilmember Maria Mehranian seconded the motion.

Councilmember Skip Thomson then reiterated that the Delta Levee Investment Strategy should be a recommendation and not a regulation as agencies dealing with levees need flexibility due to changing conditions, and the map and narrative of the islands is too specific, he said.  “We often think just about levees, but there are people and there are legacy communities that are involved here, so the biggest problem with the DLIS is that it rejects the imperative for a Delta wide improvement of levees to the Bulletin 192-82 standard, and thus is insufficiently attentive to protecting and enhancing the unique Delta values.”

We were given a job to prioritize state investment in Delta levees for a reason and we took that really seriously,” said Chair Randy Fiorini.  “We have a regulation in place today that was adopted in May of 2013. It wasn’t a recommendation, it was a regulation, because we felt to achieve and fulfill the assignment that the legislature gave us in statute, it was worthy of a regulation.  We promised at the adoption of the May 2013 Delta Plan that we would further refine the details and provide a list.  We employed the RAND Corporation who successfully helped the Louisiana Coast deal with post Katrina issues to help direct investments in the levee system in that area.  So this wasn’t something that was done without a great deal of expertise.”

Chair Randy Fiorini pointed out that he has engaged frequently on this issue with the purpose of achieving two goals: to fulfill the job the legislature gave to the Council which is to develop a prioritization list, and to do that in a manner that provides flexibility to the Department of Water Resources and the Central Valley Flood Protection Board to make judgments based on changing conditions.  “This regulation achieves both of those goals,” he asserted.  “There is a variance provision in the regulation that allows DWR to alter the investment to a lower priority, anticipating that there may be changing conditions and they simply have to report to the Council at least annually as to where the investments were made and the reasons why they were made, and if they are not keeping with the highest priorities and on down, the reasons why.”

Mr. Fiorini noted that the Delta Stewardship Council staff continues to meet with staff from the Department of Water Resources and the Central Valley Flood Protection Board to develop an implementation plan, and that work needs to continue, whether or not this is a recommendation or a regulation.

Councilmember Skip Thomson then acknowledged the lack of votes siding with his position, but he did state his opposition for the record.  “I’ve already talked about the lack of what I think is enough time for those of us and the public to weigh in and study this enormous document,” he said.  “I don’t think there has been enough focus on the priorities of the Delta Plan, and what I mean by that, is that there’s been too much focus on conveyance, and at the expense or peril of the local communities, farms, and the region itself.  There’s no place to store water during high flows and that’s the obvious time that we need to store the water for future needs.  The SWP will require system-wide improvements sooner than later, and not enough focus on other priorities to develop new and more reliable water sources.”

There is not enough focus on reduced reliance on the Delta, and consideration of all the plan chapters together,” he continued.  “We’ve taken one chapter here, one chapter there, and it doesn’t flow very well.  And I believe it was Mr. Wright that talked about the environmental document ought to be able to picked up by the average public concerned citizen and have some ability to read it, and when you have to look at one appendix to another, it just doesn’t work well.  Finally, we don’t even know how much water we have.  We’re assuming there’s x amount of water, but we really don’t know, and I think these are the things that we need to address before we start moving forward with a plan I think it is materially flawed.”

The Council then voted with Councilmembers Ken Weinberg, Frank Damrell, Susan Tatayon, Randy Fiorini, and Maria Mehranian voting in favor; Councilmembers Mike Gatto and Skip Thomson voting no.  The motion passed 5-2.

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