BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 147
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          ASSEMBLY THIRD READING
          AB 147 (V. Manuel Pérez)
          As Amended  May 24, 2013
          Majority vote 

           WATER, PARKS & WILDLIFE     15-0NATURAL RESOURCES   9-0         
           
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          |Ayes:|Rendon, Bigelow, Allen,   |Ayes:|Chesbro, Grove, Bigelow,  |
          |     |Blumenfield, Bocanegra,   |     |Garcia, Muratsuchi,       |
          |     |Dahle, Fong, Frazier,     |     |Patterson, Skinner,       |
          |     |Beth Gaines, Gatto,       |     |Stone, Williams           |
          |     |Gomez, Gray, Patterson,   |     |                          |
          |     |Yamada, Williams          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |     |                          |     |                          |
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           APPROPRIATIONS      17-0                                        
           
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          |Ayes:|Gatto, Harkey, Bigelow,   |     |                          |
          |     |Bocanegra, Bradford, Ian  |     |                          |
          |     |Calderon, Campos,         |     |                          |
          |     |Donnelly, Eggman, Gomez,  |     |                          |
          |     |Hall, Ammiano, Linder,    |     |                          |
          |     |Pan, Quirk, Wagner, Weber |     |                          |
          |     |                          |     |                          |
          |     |                          |     |                          |
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           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).  Specifically,  this bill:
           
          1)Makes extensive findings regarding the Salton Sea, the  
            Quantification Settlement Agreement (QSA) and the air  
            pollution caused by the exposed dry lake bed, and defines  
            relevant terms for purposes of the bill.

          2)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.









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          3)Requires ARB, if it concludes additional mitigation planning  
            is necessary, to submit recommendations to the QSA-JPA.

          4)States that the bill does not modify existing roles,  
            responsibilities or liabilities of the QSA's state and local  
            government parties.

           EXISTING LAW  :

          1)Regulates, under the federal Clean Air Act 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)States, in the Salton Sea Restoration Act 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 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.

           FISCAL EFFECT  :  According to the Assembly Appropriations  
          Committee, increased one-time costs to the ARB in the $200,000  
          range and ongoing costs in the $200,000 to $400,000 range.   
          These costs would likely either be reimbursed or paid out of the  
          Salton Sea Restoration Fund. 

           COMMENTS  :  The Salton Sea, located in the Imperial Valley and  
          Coachella Valley of southern California, is California's largest  
          lake, covering approximately 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  








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          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 lakebed.  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 the Department of Fish and Wildlife (DFW), the Coachella  
          Valley Water District (CVWD), IID and SDCWA.

          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 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  








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               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. 

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


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