BILL ANALYSIS Ó AB 147 Page 1 Date of Hearing: April 29, 2013 ASSEMBLY COMMITTEE ON NATURAL RESOURCES Wesley Chesbro, Chair AB 147 (V. Manuel Pérez) - As Amended: April 22, 2013 SUBJECT : Environment: Salton Sea: dust mitigation SUMMARY : Requires the Air Resources Board (ARB) to evaluate and make recommendations regarding Salton Sea dust mitigation planning completed by the Quantification Settlement Agreement Joint Powers Authority (QSA-JPA) and authorizes use of the Salton Sea Restoration Fund (Fund) for this purpose. EXISTING LAW : 1)The federal Clean Air Act regulates fine particulates in dust (PM10) and requires attainment of health based air quality standards for particulates. Requires use of best available mitigation measures and development of a plan for attainment of air quality standards. 2)The Salton Sea Restoration Act states legislative intent that the state undertake restoration of the Salton Sea and that the maximum feasible attainment of specified environmental objectives be achieved, including but not limited to, elimination of air quality impacts from restoration projects. 3)Establishes the Salton Sea Restoration Fund (Fund) for the restoration of the Salton Sea. 4)Implements the QSA, which was entered into by various parties in 2003 to budget their portions of California's apportionment of Colorado River water and to provide a framework for conservation measures and water transfers for a period of up to 75 years, and provides for a framework to mitigate the environmental impacts on the Salton Sea caused by the QSA water transfer. THIS BILL : 1)Makes extensive findings regarding the Salton Sea, the QSA and the air pollution caused by the exposed dry lake bed, and defines relevant terms for purposes of the bill. AB 147 Page 2 2)Specifically authorizes use of the Fund for air quality evaluations conducted by ARB for purposes of providing the QSA-JPA with guidance on how to appropriately mitigate the air quality impacts resulting from the QSA. 3)Requires ARB, upon execution of an agreement with the QSA-JPA, to evaluate and determine if the air quality planning completed by the QSA-JPA is sufficient to mitigate the air quality impacts of the QSA. 4)Requires ARB, in making this determination, to evaluate: a) The quantified current and projected exposed sea lake bed arising from the QSA. b) The quantified current and projected exposed sea lake bed arising from factors other than the QSA. c) The profiled sea lake bed aerosols, given chemicals that have historically drained into the sea from both agricultural runoff and water coming from Mexico over the New River, including Dichlorodiphenyltrichloroethane or "DDT." d) The prioritization of mitigation measures that can be instituted to enable Imperial and Coachella Valleys to meet National Ambient Air Quality Standards for particulate matter, including the applicability of measures used to mitigate ambient dust pollution at Owens Lake. 5)Requires ARB, if it concludes additional mitigation planning is necessary, to submit recommendations to the QSA-JPA, in a manner to minimize costs to the QSA-JPA including: a) The appropriate agencies or departments with whom the QSA-JPA may work, including the Imperial County and South Coast air districts for purposes of accessing work the air districts have already completed as part of their state implementation plan planning activities. b) The appropriate number, model, and placement of air quality monitors in the Salton Sea basin to ensure aerosols arising from the sea are properly monitored. 6)States that the bill does not modify existing roles, AB 147 Page 3 responsibilities or liabilities of the QSA's state and local government parties. 7)Requires moneys in the Fund to be expended by ARB for purposes of the bill, upon appropriation by the Legislature. FISCAL EFFECT : Unknown COMMENTS : 1)Background. The Salton Sea, located in the Imperial Valley and Coachella Valley of southern California, is California's largest lake, covering 365 square miles, and it serves as an important stop on the annual Pacific Flyway migratory route, supporting over 400 species of birds and representing over two-thirds of all birds in the continental United States. In 2003, the Legislature enacted statutes (Chapters 611, 612 and 613 of the Statutes of 2003) to facilitate the execution and implementation of the QSA and related agreements, including a transfer of conserved water from the Imperial Irrigation District (IID) to the San Diego County Water Authority (SDCWA). As part of those statutes, the Legislature declared its intent that the state undertake the restoration of the Salton Sea ecosystem and the permanent protection of wildlife dependent on the ecosystem. Implementation of the water transfer will reduce agricultural drainage inflow to the Salton Sea, reducing the sea's depth and result in the exposure of currently submerged sea lakebed. The exposure of previously submerged sea lakebed has the potential to significantly increase fugitive dust emissions as winds blow across fine-grained sediments and salts exposed by the dry lake bed. At Owens Lake, a lake drained by the Los Angeles Department of Water and Power, the cost of mitigation fugitive dust emissions arising from the exposed lakebed has reached $1.2 billion. As part of the QSA, the state entered into the QSA-JPA for purposes of financing the mitigation of the environmental impacts resulting from the QSA. The parties of the QSA-JPA include the state, acting by and through DFW, the Coachella Valley Water District (CVWD), IID and SDCWA. 2)The QSA-JPA agreement purports to impose a huge liability for dust and other environmental mitigation costs on the state. Under the terms of the QSA-JPA Agreement, CVWD, IID and SDCWA are required to contribute a total of $133 million for environmental mitigation resulting from the QSA water AB 147 Page 4 transfers, including air quality impacts. The state, acting through DFW, agreed to cover the additional costs. The agreement states: The State is solely responsible for the payment of the costs of and liability for Environmental Mitigation Requirements in excess of the Environmental Mitigation Cost Limitation. The amount of such costs and liabilities shall be determined by the affirmative vote of three Commissioners, including the Commissioner representing the State, which determination shall be reasonably made. The State obligation is an unconditional contractual obligation of the State of California, and such obligation is not conditioned upon an appropriation by the Legislature, nor shall the event of non-appropriation be a defense. It should be noted a recent ruling by the Third District Court of Appeal held that although the State is contractually obligated to pay excess mitigation costs associated with the QSA, the agreement does not give the other QSA parties "or anyone else" the right to enforce the obligation by taking money out of the State Treasury. Rather, it is solely up to the Legislature to appropriate such funds. The California Supreme Court has denied all appeals for review, but at the time of this writing, QSA litigation continues at the Superior Court level on remanded or un-adjudicated issues, including claims based upon the Brown Act and the California Environmental Quality Act. At the federal level, a decision of the U.S. District Court for the Southern District of California, dismissing legal challenges to the QSA based upon the Clean Air Act and National Environmental Policy Act, is currently on appeal before the Ninth Circuit Court of Appeals. REGISTERED SUPPORT / OPPOSITION : Support None on file Opposition None on file AB 147 Page 5 Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916) 319-2092