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Delta Plan Nears Completion; 2 Final Reviews Under Way

December 2012

The Delta Stewardship Council has begun the final rounds of public review for its long-term management plan for the Delta. The Council on Nov. 30 began 45-day comment periods on both a Recirculated Draft Programmatic Environmental Impact Report and a Notice of Proposed Rulemaking. Both documents are based on a final draft Delta Plan approved to be the basis for both reviews by the Council at its Aug. 12, 2012 meeting.

“The Delta Plan ensures that we as Californians achieve the coequal goals established by the legislature – a more reliable statewide water supply and a restored Delta ecosystem – and do so in a way that protects and enhances the unique and evolving characteristics of the Delta,” said Council Chair Phil Isenberg. “That’s why the Plan includes policies and recommendations for water supply, ecosystem restoration, water quality, risk reduction, and enhancement of the Delta as a place,” he said.

The Delta Plan

The Plan itself has evolved over an 18-month period, through seven drafts, a draft programmatic environmental impact report (PEIR), many public meetings and hundreds of public comments on the draft Plans as well as the draft PEIR. “The Plan that the Council approved in August reflects many of the recommendations that came from Council members, public agencies and stakeholders,” said Chris Knopp, Council executive officer.

Knopp joined the Council in September, following the retirement of former executive officer Joe Grindstaff. According to Knopp, when completed, the Delta Plan and its regulations will:

• Create a single blueprint for state and local agencies’ action to provide a more reliable water supply for California and restore the Delta ecosystem;
• Create new rules for significant state and local agency actions occurring wholly or partly within the Delta, with the Council as an appellate body to enforce those rules in a fair and timely manner;
• Create a unified science initiative and improved accountability to achieve the co-equal goals in the Delta;
• Create an effective interagency coordination body to implement the Delta Plan.

The Final Draft Delta Plan differs from the Fifth Staff Draft in that it contains expanded discussions of the background and the need for proposed policies and recommendations; two new policies and 19 recommendations derived from recommendations of the Delta Protection Commission, were added to provide increased emphasis on protecting farmland and other land uses in the Delta and enhance the Delta’s economy, including tourism and recreation.

In addition, some of the policies and recommendations in the Fifth Staff Draft have been revised and reorganized, including modifying some policies to make them recommendations. Burdensome rules have been minimized and opportunities have been strengthened for agencies and stakeholders to work together.

Environmental Review

The Draft Programmatic Environmental Impact report (PEIR) was released in November 2011, and was based on the Fifth Staff Draft Delta Plan. Because the draft Delta Plan contains policies and recommendations – but not specific projects – the environmental review took a programmatic approach, assessing impacts that potentially could occur depending on how policies and recommendations were implemented over time. The PEIR compared those impacts to a range of alternative plans based in part on recommendations from stakeholders.

Over the ensuing year, the underlying Delta Plan changed in response to Council recommendations and consideration of additional stakeholder comments. “As a result, it has changed substantially enough that we wanted to recirculate the plan for environmental impact review,” Knopp said. Those changes are now included in the Final Draft Delta Plan and are analyzed as a new alternative titled the “Revised Project”. As before, the recirculated draft PEIR assesses the potential impacts of this alternative, and compares it to the other alternatives in the original PEIR.

Release of the Recirculated Draft PEIR on Nov. 30 began a 45-day public comment period that will run through Jan. 14, 2013. Responses to comments received on both the November 2011 Draft PEIR and the Recirculated Draft PEIR will be published in the Final PEIR in the spring 2013.

In general, the recirculated draft PEIR concludes that the final draft Delta Plan is more effective than its predecessors at improving regional self-reliance and reducing dependence on the Delta watershed and increasing protections for Delta farmland, and it contains additional provisions to improve water quality, particularly for the Suisun Marsh and the Stockton Ship Channel.

The recirculated draft PEIR acknowledges this, and also notes that implementing the Delta Plan policies and recommendations likely means an increase in near-term construction projects (such as alternative regional water supplies like recycling and groundwater purification plants, as well as levee enhancements in the Delta) that will bring long-term environmental benefits.

Because the California Environmental Quality Act is specifically concerned with analyzing negative impacts to the environment, it does not necessarily provide a framework to adequately analyze beneficial impacts. The recirculated draft PEIR also discusses fish and wildlife habitat enhancements in the Delta. These, too, have the potential for near-term impacts that are outweighed by long-term environmental improvement.

Rulemaking process

One of the criticisms of earlier Delta efforts, voiced in reviews of the CALFED Bay-Delta Authority conducted by the state Little Hoover Commission, was that the Authority lacked the authority to implement the CALFED Bay-Delta Program and ensure consistency across federal, state and local agencies. In part to address this, the Legislature through passage of the Delta reform Act in 2009, directed the Council to develop an “enforceable” management plan for the Delta.

Primarily, the Delta Plan functions as a strategic document because it provides guidance and recommendations to cities, counties, and State, federal, and local agencies to restore the Delta ecosystem and provide a more reliable water supply for California. But the Delta Plan also contains a number of significant regulatory policies with which cities, counties, and State and local agencies are expected to comply. Collectively, these regulatory policies meet the legislative requirements of the Delta Reform Act for a legally enforceable Plan.

The policies contained in the Final Draft Delta Plan serve as the basis for circulation of a Notice of Proposed Rulemaking and draft regulations. This is the process required by the California Administrative Procedures Act that turns the Council’s policies into enforceable state regulations.

This rulemaking process includes a 45-day period for written comments that runs through Jan. 14, 2013, and a special rulemaking hearing following close of the written comment period. The hearing is scheduled for the Jan. 24, 2013 Council meeting.

This rulemaking process applies only to the policies in the Delta Plan, not to recommendations, and requires, among other things, an analysis of the fiscal impacts of the proposed rule.

Coequal goals

The Delta Stewardship Council was created in legislation to achieve the state mandated coequal goals for the Delta. "'Coequal goals' means the two goals of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem. The coequal goals shall be achieved in a manner that protects and enhances the unique cultural, recreational, natural resource, and agricultural values of the Delta as an evolving place." (CA Water Code §85054)