Bay Delta Conservation Plan (BDCP), Delta Plan, Governance, Sacramento-San Joaquin Delta Reform Act of 2009, SWRCB

Delta Stewardship Council convenes for its first meeting

Yesterday was the first meeting of the newly-minted Delta Stewardship Council, a governing body that was established in last year’s legislative package as part of the Sacramento-San Joaquin Delta Reform Act of 2009.  This meeting comes fast on the heels of the Delta flow criteria hearings at the State Board, and both events tangibly demonstrate that California is moving forward with initial steps to carry out the requirements of the legislation.

The Delta Stewardship Council consists of seven members, including four appointees from the Governor (Randy Fiorini, Phil Isenberg, Hank Nordhoff, Richard Roos-Collins), Gloria Gray (appointed by Assembly Speaker Bass), Patrick Johnston (appointed by the Senate Committee on Rules), and Don Nottoli (as chair of the Delta Protection Commission).  Of course, like anything in California water, the appointments have already aroused controversy.  Assemblymember Huffman raised concern over Gloria Gray’s potential conflict of interest (since she sits on the Board of West Basin Municipal Water District), but Gray insisted that she will focus on serving the Council.  It is also alleged that Roos-Collins, who sits on the steering committee for the Bay Delta Conservation Plan, has a conflict of interest.

The Council will act as the successor to the California Bay-Delta Authority and CALFED, in fact absorbing the latter’s staff and resources.  But the first meeting was, as you would expect, introductory in flavor.  After electing Phil Isenberg as Chair, the Council began to get a grasp of the scope of its own authority, its obligations, and its schedule for the next couple of years.  There will be plenty of opportunity in the future to scrutinize the Council’s activities.  For now, it seemed worthwhile to get a feel for what the Council’s role will be in this newly launched Delta planning process.

Moving Toward a Delta Plan

Initially, the Council will oversee the development and implementation of the Delta Plan.  The Delta Plan is intended to be a comprehensive plan that will pave the way for better management of the Delta, all while furthering the “co-equal goals” of water supply reliability and ecosystem restoration.  The Council is charged with developing, reviewing, and adopting the Delta Plan within just 21 months.  The statutory deadline is January 1, 2012.  It’s an ambitious timeline indeed for what will likely be quite a complex plan.

What’s more, timely adoption of the Delta Plan depends on other entities meeting their own deadlines in this process, and those efforts feed into the Delta Plan.  The State Board is charged with developing flow criteria to protect public trust resources in the Delta by August 2010.  Those flow criteria are, in theory, supposed to inform the Bay Delta Conservation Plan (BDCP) — the development of which is largely taking place at the same time as the flow criteria process at the State Board.  And then, if the BDCP meets certain requirements, it may, in turn, be incorporated into the Delta Plan.

In other words, the path forward dictated by the Legislature requires that multiple state agencies, including the new Stewardship Council, work in succession (and to some extent, together) to produce a complex plan to manage a resource that has been badly mismanaged for decades.  And it all has to be completed in less than two years.

The Council’s early actions are not limited to the Delta Plan, however.  The Council will cooperate with the State Board to appoint a Delta Watermaster, who will basically act as a delegate of the State Board to enforce the terms of permits and licenses in the Delta.  The Delta Watermaster will serve a four-year term.  The Council is also required to appoint members to the Delta Independent Science Board, and also the lead scientist for the Delta Science Program, which will function as successors to analogous parts of the CALFED program.  The Independent Science Board will include at most ten members serving five-year terms.  Members should be prominent scientists with appropriate expertise, and they will report to the Council and oversee research efforts.  The buzz words of the day, as far as the science is concerned?  “Best possible unbiased scientific information” and “adaptive management.”

The Council’s Role After 2012

Once the Delta Plan is adopted and on the books, the Council is charged with overseeing its implementation and checking up with other governmental entities, to make sure that actions proposed by those other entities are consistent with the Plan.  The Council will oversee the various agencies that will be responsible for implementing components of the Plan.  The legislation endows the Council with the basic powers you would expect it to have, including the powers to receive and disburse funds, adopt regulations, hold hearings, sue or be sued, enter into contracts, delegate activities to staff, and comment on state EIRs reviewing projects located outside the Delta, but which will significantly impact the Delta.

The Council will spend some its time doing what one might call “consistency determinations,” for lack of a better word.  The Council will basically advise and check up on local and state agencies, to make sure their planning efforts are consistent with the Delta Plan.  A certain level of cooperation is required between the Council and metropolitan planning organizations (MPOs), and even more coordination is needed for MPO planning documents covering land area that is located in the Delta’s primary or secondary zones.  The Council is required to review documents prepared under Senate Bill 375 — sustainable communities strategies and alternative planning strategies — and advise MPOs as to whether those documents are consistent with the Delta Plan.  It makes a good deal of sense to have this kind of requirement.  MPOs should have a clear sense of the specific lands within their jurisdictions that have been set aside in the Delta Plan for ecosystem purposes, so that conflicting uses can be avoided earlier in the planning process.

One interesting aspect, from the perspective of governance, are the different roles that the Council is being asked to assume, and the degree to which those roles are in tension with each other.  The Council is a single body that will develop and adopt a Delta Plan; it will advise agencies about whether their planning documents are consistent with the Plan; and it will also act in an appellate capacity, carrying out an administrative appeal procedure that is provided in the Delta Reform Act.  In some sense, then, the Council is being made to act as legislature, attorney, or court, depending on the occasion.  When adopting the Delta Plan, the Council will act in a legislative capacity.  But in advising agencies and submitting comments regarding consistency with the Delta Plan, the Council will in some sense advocate on behalf of the Plan before those other agencies.  Finally, the Council will also act as an impartial adjudicative body when it hears appeals of proposed actions that appellants will claim are inconsistent with the Delta Plan and the co-equal goals.

There are, however, significant limitations to the Council’s consistency authority.  Although the Council should advise and cooperate with MPOs developing plans, MPOs are not bound to change the plan in the event that the Council finds inconsistency.  The legislation does require that state and local agencies make detailed findings that their actions are consistent with the Delta Plan, and they must certify those findings to the Council.  But these findings are only required for “covered actions,” and there are many categories of agency action that do not count as “covered actions.”  One notable exception is that “regulatory action[s] of a state agency” are not covered.  In other words, a state agency need not make consistency findings for its regulatory actions, and regulatory actions cannot form the basis of an administrative appeal.  We will see how this plays out, but it could prove to be a significant gap in the Council’s authority.

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