Rulemaking to Implement Delta Plan Amendment Regarding Delta Levees Investment Strategy

Background

The Delta Stewardship Council (Council) recently proposed 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 (Flood Board), 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 revisions to Policy RR P1 that establish the DLIS priorities and directed Council staff to initiate a rulemaking process to amend Section 5012, as well as Section 5001 (Definitions) to implement Policy RR P1. Council staff initiated formal rulemaking under the California Administrative Procedure Act (APA) by filing a Notice of Proposed Adoption, published in the California Regulatory Notice Register on July 5, 2019.

Summary of Proposed Amendment

The proposed regulation would have amended Section 5012, as well as Section 5001 (Definitions) to implement Policy RR P1. The proposed regulation would have identified islands or tracts located within the legal boundaries of the Delta and the Suisun Marsh and assigned a DLIS priority of Very-High Priority, High Priority, or Other Priority for each specific Delta island or tract. The proposed regulation would have prioritized state funding for Levee projects at Very-High Priority islands or tracts before projects at High Priority or Other Priority islands or tracts. If available funds are enough to fully fund levee improvements at the Very-High Priority islands or tracts, then funds for improving levees on High Priority islands or tracts may be provided. If available funds are enough to fully fund levee improvements at the High Priority islands or tracts, then funds for improving levees on Other Priority islands or tracts may be provided. The proposed regulation would have also required the Department of Water Resources (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 Council held a public comment period from July 5, 2019 to August 19, 2019 and held a public hearing on August 22, 2019 during its regularly scheduled public meeting. The Council received many comments during the public comment period.

In 2019 the California Department of Water Resources published new Light Detection and Ranging (or LiDAR) elevation imaging of the Delta and Suisun Marsh for 2017. The LiDAR imaging provided updated information about the height of levees and island floors. To allow for more time to evaluate the LiDAR information to determine whether the priorities identified in DLIS, the 2018 Delta Plan amendments, and the proposed regulation needed to be modified because of changed levee or island conditions, the Council issued a Notice of Decision Not to Proceed with the proposed regulation on March 26, 2020. The Council also amended the Delta Plan to restore the version of Delta Plan Policy RR P1 adopted in 2013.

Current Amendment Status

Please be advised that the proposed rulemaking has been withdrawn. A new rulemaking for Delta Plan Policy RR P1 will be initiated in the near future. A new notice will be published at least 45 days in advance of any future public hearing. Comments submitted in response to the July 5, 2019, notice will not be considered as part of the official future rulemaking; however, these comments are being considered in the development of the future rulemaking.

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 Decision Not to Proceed

This document formally withdraws the proposed rulemaking.

Delta Stewardship Council Resolution 2020-01 Proceed

This document authorizes the Executive Officer to issue a Notice of Decision Not to Proceed on the proposed rulemaking for section 5001, definitions, and section 5012 (Delta Levees Investment Strategy) of Title 23 of the California Code of Regulations. It also amends Chapter 7 of the Delta Plan to revert to the 2013 version of Risk Reduction Policy 1, and directs Council staff to evaluate new information to determine of further modification to Chapter 7 is needed.

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.