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‘Covered Actions’ Draw Attention

January 2012

One of the more discussed elements of the Delta Plan is the concept of covered actions. The Delta Stewardship Council has openly encouraged a dialogue about covered actions, and held lengthy meetings to discuss and clarify this section with interested members of the public.

The Delta Reform Act, which created the Council, requires the Council to draft a legally enforceable Delta Plan that meets the coequal goals of ecosystem restoration and water supply reliability while protecting and enhancing the Delta as a unique place.

The legislation also identifies covered actions and requires that, “Existing developed uses, and future developments…are carefully planned and developed consistent with the policies of this division,” (Water Code Section 85022(c)).

Interested stakeholders, some of which could be potentially affected, have been working with Council staff to understand the step-by-step process of determining what is and is not a covered action. Essentially, a covered action is any plan or project occurring at least partially in the Delta that could significantly impact the coequal goals.

But referring to the Delta Reform Act legislation is the only way to know for sure.

According to the legislation, a plan, program or project will be considered a covered action if it fits the definition of a project under the California Environmental Quality Act (CEQA) and meets the four criteria under the Delta Reform Act (Water Code Section 85057.5), namely:

• It (the plan, program, or project) will occur, in whole or in part, within the boundaries of the Delta or Suisun Marsh;

• It will be carried out, approved or funded by the state or a local public agency;

• It is covered by one or more provisions of the Delta Plan; and

• It will have a significant impact on achievement of one or both of the coequal goals or the implementation of government-sponsored flood control programs to reduce risks to people

There are also a number of projects that meet all of the above conditions, but are exempted under previous water code spelled out in the legislation. These exemptions are highly sought and often misunderstood.

Agencies with actions or projects that are "covered" by the Delta Plan will need to certify that their action is consistent with the Delta Plan. The Council will become involved only if the lead agency's determination about an action's consistency with the Delta Plan is appealed to the Council by a third party.

These groups and others have expressed concern that this additional regulation would be costly and unnecessary.

The Council’s most recent meeting on covered actions took place in December at the Council’s office building in Sacramento with nearly 50 interested members of the public in attendance. The meeting provided a forum for those involved to understand, in detail, whether or not their agency would be regulated by the Council.

Council Executive Officer Joe Grindstaff said he doesn’t anticipate an abundance of covered actions in the first few years that the Delta Plan is in effect.

“Based on the volume of projects out there I think we can anticipate somewhere between 10-15 covered actions per year,” Grindstaff said. “This number could increase as the economy improves, but we’re looking at a very, very small number, based on what I understand.”

In order to help clear up any lingering confusion for those in attendance, Grindstaff committed to take any specific exemption requests or questions received by Jan. 1, 2012 to the Council to review. Also to assist state and local public agencies, Council staff has developed a Covered Actions Checklist, a draft Certification of Consistency Form for State and Local Agency use, and an Appeal Form for public use.

Chief Counsel Chris Stevens said he is happy with the free and frank discussions that have taken place and left the audience with a reminder that most actions in the Delta will not be considered covered actions.

“One of the first steps [as an agency] is to ask if the proposed action negatively impacts the coequal goals. If you can check ‘no’, you are consistent with the policy,” he said.

To learn more about covered actions, click here http://deltacouncil.ca.gov/covered-actions

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)