Rulemaking to Implement Delta Plan Amendment Regarding Delta Levees Investment Strategy

Background

The Delta Stewardship Council (Council) proposes to amend section 5012 (“Section 5012”) and section 5001 (“Section 5001”) in Title 23 of the California Code of Regulations to implement the Delta Levees Investment Strategy (DLIS).

Levees in the Sacramento-San Joaquin Delta and Suisun Marsh reduce flood risk to people, property, water supply, the Delta ecosystem, and infrastructure of statewide importance. However, levee failure can cause catastrophic flooding, and can potentially cause injury or loss of life, disrupt water supplies, and possibly damage property, infrastructure, and environmental resources of importance to the entire State. Though levee maintenance and improvements over the past three decades have reduced the frequency of levee failures, the State does not have a comprehensive method to prioritize its investments in operations, maintenance, and improvement projects for levees in the Delta and Suisun Marsh. Without a prioritization method, the apportionment of public resources into levees may not occur in a manner that reflects a broader, long-term approach. The Delta Reform Act requires the Council to adopt and implement the Delta Plan to further the coequal goals for the Delta (Water Code section 85300). Water Code section 85306 also requires the Council, in consultation with the Central Valley Flood Protection Board (CVFPB), to recommend in the Delta Plan priorities for State investments in levee operations, maintenance, and improvements in the Delta.

Pursuant to Section 85306, the Council adopted Delta Plan Policy RR P1 (Policy RR P1) in 2013 in the Delta Plan (codified as Section 5012) to outline a process to prioritize State investments in Delta levee operation, maintenance, and improvements. Policy RR P1 set interim priorities for State investments in these activities, and the Delta Plan called for longer-term guidelines and funding priorities for levee investments. Consequently, the Council developed a Delta Levees Investment Strategy (DLIS) that quantifies flood risk by considering the threats to Delta levees and the assets protected by these levees. DLIS establishes a three-tiered priority list for State investments in levee improvements for Delta islands or tracts: Very-High Priority islands or tracts, High Priority islands or tracts, and Other Priority islands or tracts. The priorities generally address the relationship between the flood risk of each island or tract, and the number of State interests that island’s or tract’s assets encompass.

At its April 26, 2018 meeting, the Council adopted Resolution 2018-1, “Certification of the Delta Plan Amendments Program Environmental Impact Report; Adoption of Findings and a Statement of Overriding Considerations, Mitigation Measures, and a Mitigation Monitoring and Reporting Program; and Adoption of the Delta Plan Amendments,” which (among other things) included amendments to Chapter 7 of the Delta Plan (Reduce Risk to People, Property, and State Interests in the Delta) and revisions to Policy RR P1 that establish the DLIS priorities. The Council also directed the initiation of a rulemaking process to amend Section 5012, as well as Section 5001 (Definitions) to implement Policy RR P1.

Summary of Proposed Amendment

The proposed amendments would implement and make specific the Section 85306 authority to set priorities for State investments in levee operation, maintenance, and improvements. The proposed amendment identifies specific islands or tracts that are located within the legal boundaries of the Delta and the Suisun Marsh subject to the proposed regulation and assigns a DLIS priority of Very-High Priority islands and tracts, High Priority islands or tracts, or Other Priority islands or tracts for each specific island or tract. The amendment would also direct the Department of Water Resources (DWR) to fund levee projects at Very-High Priority islands or tracts before approving projects at High Priority or Other Priority islands or tracts. It provides that if available funds are sufficient to fully fund levee improvements at the Very-High Priority islands or tracts, then funds for improvements or rehabilitation of levees on High Priority islands or tracts may be provided, and after those projects have been fully funded, then projects at Other Priority islands or tracts may be funded. The proposed amendment would also require DWR to annually submit to the Council a written report including certain specific information that identifies its decisions to award State funds for Delta levee improvements and levee rehabilitation projects.

Administrative Procedure Act Rulemaking Process Comment Period

The public comment period for this proposed rulemaking commenced on July 5, 2019 and concludes on August 19, 2019. Any interested person, or her or his authorized representative, may submit written comments relevant to the proposed regulatory action.

The Council will also accept written and oral comments submitted on the day of the public hearing on August 22, 2019. The public hearing will occur at a regularly scheduled public meeting of the Council, which is anticipated to commence at 9:00 a.m. This item may be heard at any time during the regularly scheduled meeting. The public hearing item will remain open as long as attendees are presenting testimony. Please consult the agenda, which will be available at http://deltacouncil.ca.gov at least ten (10) days before August 22, 2019, to determine the time at which this item will be heard.

Please address written comments (e-mail is preferred) to: oal_amendRRP1@deltacouncil.ca.gov
or to:

Erin Mullin, P.E., Senior Engineer
Delta Stewardship Council
980 Ninth Street, Suite 1500
Sacramento, CA 95814

Or

Anthony Navasero, P.E., Senior Engineer
Delta Stewardship Council
980 Ninth Street, Suite 1500
Sacramento, CA 95814

The following documents were submitted to the Office of Administrative Law and assigned the notice file number: Z-2019-0625-05. They are available for download and review by clicking on the links provided below:

Notice of Proposed Rulemaking (92 KB)

http://deltacouncil.ca.gov/pdf/dlis/2019-07-05-01-rrp1-notice-proposed-rulemaking.pdf

This document announces the availability of the rulemaking documents for review and the time and location of the public hearing. The Notice includes a summary description of the proposed regulation, the authority under which it is proposed, its relationship to other laws and regulations, and a statement summarizing any fiscal and economic impacts.

Initial Statement of Reasons (including Attachment 1, Economic and Fiscal Impact Assessment) (4.70 MB)

http://deltacouncil.ca.gov/pdf/dlis/2019-07-05-02-rrp1-isor-with-att1-efia.pdf

This document describes the purpose of each provision in the proposed amendment to the regulation and how the provision is reasonably necessary to achieve that purpose. It also discusses the benefits, reasonable alternatives considered, and the Council's reasons for selecting the amendment to the proposed regulation. Additionally, Attachment 1 is a supporting document evaluating the questions addressed in the Economic and Fiscal Impact Statement (Form STD. 399) as well as a Cost Analysis describing expected costs and benefits of the proposed rulemaking.

Proposed Amendment to Existing Regulation (371 KB)

http://deltacouncil.ca.gov/pdf/dlis/2019-07-05-04-rrp1-proposed-reg-text.pdf

This document identifies the text of the proposed regulation amendment.

Economic and Fiscal Impact Statement (401 KB) (Form STD. 399)

http://deltacouncil.ca.gov/pdf/dlis/2019-07-05-06-rrp1-std-399.pdf

This document is a standardized form that summarizes the potential effects of the regulation on private businesses and individuals, including effects on the cost of housing. It also provides an assessment of the proposed regulation's fiscal impact on local governments, state government, and federal funding of state programs.

Environmental Review

Resolution 2018-1, adopted by the Council at its April 26, 2018 meeting, certified that the Environmental Impact Report (EIR) for the Delta Plan Amendments was prepared in compliance with the requirements of the California Environmental Quality Act (Public Resources Code section 21080.5 et seq. (CEQA)) and approved the Delta Plan Amendments. The Delta Plan Amendments included “pursuant to section 85305 and 85306 of the Water Code, updated and new Delta Plan recommendations and regulations regarding strategic investment in Delta levees for risk reduction, and emergency preparedness, response and recovery, all based on best available science, including repealing interim Delta Plan policy RR P1 and adopting new Delta Plan policy RR P1, referred to as the Delta Levee Invest[ment] and Risk Reduction Strategy (“DLIS”).” The DLIS priorities adopted in the Delta Plan Amendments and certified in the EIR are the same as in this proposed amendment. The proposed amendment is within the scope of the project analyzed in the certified EIR and approved by the Council in the Resolution, and the EIR adequately describes the proposed amendment for purposes of CEQA.