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Council Improves Its Comprehension of Covered Actions

May 2011

The Delta Stewardship Council is closer to understanding and clarifying a complex piece of the Delta Plan...covered actions.

Covered actions were created by the Legislature to be part of the Delta Plan. The third staff draft, which was released Apr. 22, offered the best description to date of covered actions. Then, at its April meeting, the Council received legal guidance from its consulting attorney, processed research and insight from staff and listened to public input to ultimately help them better understand and explain those components.

According to statute, a covered action is any plan, program or project that fits the definition of a project under the California Environmental Quality Act (CEQA) and meets the four criteria specified in the Delta Reform Act. Those four criteria are:

• 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, property and state interests in the Delta.

The Council directed staff to offer more examples of what covered actions are, exemptions of covered actions and to enhance a graphic that is an integral part of the explanation.

With so many possible aspects and scenarios, determining and defining covered actions is a difficult assignment, but Council Chair Phil Isenberg reminded his colleagues what they are truly being asked to do.

“The statute [the Delta Reform Act] determines what a covered action is,” Isenberg said. “The Delta Plan is in pursuit of the coequal goals and the objectives. And to the extent that a covered action determined by statute might impact the Delta Plan and otherwise meet the test of law, then we’d hear it.”

Chief Counsel Chris Stevens, added that other groups will be responsible for these decisions.

“The ultimate determination of whether or not a proposed project is a covered action rests with the proponent, the state or local agency,” Stevens said. “That’s the way the statute’s drafted…we are not the ultimate decision maker…but we’d be happy to work with agencies to figure it out and give our advice.” Decision Tree for State and Local Agencies on Possible Covered Actions

Simply put, covered actions require consistency with the Delta Plan. According to the statute, only those seeking to initiate a covered action are required to comply with the regulatory aspects of the Delta Plan. While the statute is clear about the Council’s role regarding covered actions, there are still lots of questions about what they are. One example of a covered action is a water transfer that goes through the Delta.

Council member Don Nottoli is concerned that what he called “ministerial actions” (laws requiring the following of instructions without the power to exercise any personal discretion in doing so) will cause confusion among cities and counties because they are difficult to define.

“If we have to create another bureaucracy or more paperwork at the local level, that doesn’t serve any of us well,” Nottoli said.

Executive Officer Joe Grindstaff agreed, saying, “We have to make sure we simplify the process. That’s one of the concerns we all have.”

The Delta Plan will contain both policies and recommendations to further the coequal goals of providing a more reliable water supply for California and protecting, restoring and enhancing the Delta ecosystem.

In general, policies establish rules that apply to state and local agency plans, programs and projects that occur at least in part within the Delta and meet other specified criteria. These are the "actions" that are covered by the Delta Plan. Recommendations are made either to the Legislature and/or other state agencies for actions only they have the authority to implement under the Delta Plan.

But there are situations that require the Council\'s review. In most cases, the Plan functions as a strategic document for guidance and recommendations, but in some instances, state or local agencies attempt to take actions that are "covered."

The group that attempts to carry out, approve or fund a covered action needs to certify the consistency of the action with the Plan and files a certificate with the Council. The fourth draft Delta Plan will be released on June 13. To view the earlier drafts, please click here.

To view the Frequently Asked Questions about covered actions, please click here.

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)