BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 147
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          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.









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          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,  








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            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  








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            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









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          Analysis Prepared by  :  Lawrence Lingbloom / NAT. RES. / (916)  
          319-2092