Commenting on the Bay Delta

Conservation Plan

Actually, a massive water grab Technically, a Habitat Conservation

Plan (HCP) allowing “take” of threatened or endangered species under Section 10 of the federal Endangered Species Act (ESA), and a Natural Communities Conservation Plan (NCCP) required for the same purpose by the California Department of Fish and Wildlife.

The Bay Delta Conservation Plan (BDCP)

To get a permit from the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), the applicant (here, the state and federal water contractors) has to submit a HCP, an Implementing Agreement, and draft National Environmental Policy Act (NEPA) analysis: an Environmental Impact Statement (EIS).

Under the California Environmental Quality Act (CEQA), the state requires an Environmental Impact Report (EIR).

EIR/EIS?

The water contractors could build the twin tunnels, but they can’t operate those tunnels unless they have permits from the fisheries agencies that allow them to “take” a certain percentage of fish in the course of their operations.

What’s the connection between the water grab and the habitat plan?

The water contractors have spent $250 million on preparing these documents and selling the idea to each other and to people in other parts of California who know nothing about the Delta. Venting to DWR now may make you feel better, but technically, the process is out of their hands.

BDCP CommentsRyan Wulff, NMFS650 Capitol Mall, Suite 5-100Sacramento, CA 95814 Email to BDCP.Comments@noaa.gov

Send comments to

Audience for comments: The fish and wildlife agencies that will decide whether to give BDCP 50-year “take” permits. The letters are addressed to the National Marine Fisheries Service (NMFS), the lead agency.

  Our primary objective: To convince these agencies that

BDCP is inadequate as a basis for issuing take permits.

Secondary objective: To highlight weaknesses in the documents that can be used later in litigation.

Audience and Purpose

The Draft Bay Delta Conservation Plan (the HCP/NCCP) – 9,000+ pages

  The EIR/EIS – 25,000+ pages Independent calculation shows over 40,000 pages.That’s 8 cases of 10 reams of paper, 5000 sheets (or only 4 cases if you were to print it double-sided). FORTUNATELY, YOU CAN HELP BY READING JUST SOME OF THIS.

Overview of the documents

BDCP website: Draft BDCP

http://baydeltaconservationplan.com/PublicReview/PublicReviewDraftBDCP.aspx

Draft EIR/EIShttp://baydeltaconservationplan.com/PublicReview/PublicReviewDraftEIR-EIS.aspx  BDCP Roadmap on Maven’s Notebook (includes

useful information for orienting you to the documents) http://mavensnotebook.com/the-bdcp-road-map/

Places to access the documents

The twin tunnels are referred to as “BDCP Proposed Action” in the Draft BDCP. (There are 9 other “take” alternatives, labeled A through I.)

  In the environmental documents (EIR/EIS), the twin tunnels

are referred to as #4, “CEQA Preferred Alternative.”  The tunnels themselves are only one part of this plan:

Conservation Measure 1 (CM1). Conservation Measures 2-22 (CMs 2-22) are all the other measures necessary for this to be promoted as a habitat conservation plan.

  The tunnels (CM1) represent about 2/3 of the project. The

other 1/3 includes everything related to habitat.

General facts to keep in mind:

The 2009 Delta Reform legislation called for meeting the coequal goals of water supply reliability and ecosystem restoration while protecting the Delta as an evolving place. Specifically, this objective is articulated in Water Code Section 85020 (b): “protect and enhance the unique cultural, recreational, and agricultural values of the California Delta as an evolving place.”  One requirement of an EIR/EIS is that it adequately disclose information about all facets of a project, including the setting and the impacts.  

SETTING AND IMPACTS

With over 50 Significant and Unavoidable Adverse Impacts, BDCP violates the intent of the 2009 Delta Reform legislation to protect the Delta as Place. The impacts are listed in Table 31-1 on pages 31-9 to 31-13 of Chapter 13 of the Draft EIR/EIS.

http://baydeltaconservationplan.com/PublicReview/PublicReviewDraftEIR-EIS.aspx

SETTING AND IMPACTS

Questions to consider if you are looking at impacts (found in EIR/EIS Chapters 13-28): 1. Does the project meet the requirements of the

Water Code as referenced above?

2. Has the EIR/EIS omitted any important information about the Environmental Setting/Affected Environment of the project? Has it omitted any relevant impacts?

SETTING AND IMPACTS

A Habitat Conservation Plan is required to identify funding for its implementation; funding must be sufficient for all proposed activities, and all financial contributors and planned allocation of funds must be identified.   This information is set forth in an Implementing Agreement. BDCP now says that this agreement will be made available 60 days prior to the final draft, which will not be completed until AFTER the end of this public comment period. So public comments will be made on a plan for which there is no financing commitment. This point should be included in every comment letter.

FUNDING

From BDCP Chapter 7, Implementation Structure Of eight management decision areas listed under Program Management, six vest final authority in the Authorized Entity Group (AEG) or their selected Program Manager. The remaining two management decision areas list the Permit Oversight Group (POG) as the final authority, but only after review and approval of the AEG.  Thus, the makeup of the AEG is important in determining whether ecosystem restoration will be accomplished. “The Authorized Entity Group will consist of the Director of DWR, the Regional Director for Reclamation, and a representative of the participating state contractors and a representative of the participating federal contractors.” (BDCP 7.1.3).

IMPLEMENTATION STRUCTURE

Adaptive Management and Monitoring on Table 7-1 references an entity called the Adaptive Management Team (AMT). There are seven voting members of this team: Four votes controlled by the representatives of DWR, Reclamation, and two participating state and federal water contractors (one each representing the SWP and CVP). The other three voting members will represent the California Department of Fish and Wildlife (CDFW), the U.S. Fish and Wildlife Service (USFWS), and the National Marine Fisheries Service (NMFS).

IMPLEMENTATION STRUCTURE

Some questions to consider:1. Is it reasonable to assume that the only

interested and affected entities are the agencies that move water and the contractors that buy it? 

2. Does the proposed composition of the Adaptive Management Team suggest a reasonable balance between the coequal goals of water supply reliability and ecosystem restoration?

IMPLEMENTATION STRUCTURE

To satisfy the requirement for stakeholder involvement, BDCP creates a Stakeholder Council to provide a forum for interested parties to consider, discuss, and provide input on matters related to the implementation of the BDCP. The Stakeholder Council will be convened a minimum of four times per year, by the Program Manager, who will also serve as a member of the council. (BDCP 7.1.10, page 7-19)

The Stakeholder Council will consist of a minimum of 40 plus members not including an undesignated number of “delta civic organizations and members of the general public.” (page 7-20)

IMPLEMENTATION STRUCTURE

However,

“For those matters in which the Stakeholder Council has provided input, the position of the council, including any dissenting views, will be conveyed to the Implementation Office in a timely manner. Those position(s) will help inform decisions regarding the specific matter at hand. The objection procedures and dispute resolution process described above provide a means by which issues properly before the Stakeholder Council may be considered by the decision maker with the locus of responsibility for making the final decision with respect to the issue in controversy. This dispute resolution process, however, does not create a legal right nor does it give rise to a right of action with regards to the members of the Stakeholder Council nor may it be used by any member of the council to delay, or otherwise impede, the proper implementation of the BDCP. The Implementation Office, or other parties responsible for developing proposals or rendering decisions regarding implementation actions, will execute their responsibilities notwithstanding a pending unresolved dispute within the Stakeholder Council.” (BDCP 7.1.10.3, page 7-21)

IMPLEMENTATION STRUCTURE

Question to consider: How effective do you think the Stakeholder Council as described here will be?

IMPLEMENTATION STRUCTURE

The 2009 Delta Reform legislation called for meeting the coequal goals of water supply reliability and ecosystem restoration but said, “The policy of the State of California is to reduce reliance on the Delta in meeting California’s future water supply needs through a statewide strategy of investing in improved regional supplies, conservation, and water use efficiency.” (Water Code Section 85021)

PROJECT OBJECTIVES

The primary conservation measure for BDCP – CM1 Water Facilities and Operation – calls for exports in a range of 4.71 to 5.59 MAF per year (Chapter 9, Table 9-3. Take Alternatives Overview, page 9-14). EIR/EIS Chapter 2, Project Objectives and Purpose and Need, includes the following as a purpose for the proposed actions under BDCP:“Restore and protect the ability of the SWP and CVP to deliver up to full contract amounts, when hydrologic conditions result in the availability of sufficient water, consistent with the requirements of state and federal law and the terms and conditions of water delivery contracts held by SWP contractors and certain members of San Luis Delta Mendota Water Authority, and other existing applicable agreements.”

PROJECT OBJECTIVES

Some questions to consider:1. Given that average annual exports over the first

decade of the 21st century were about 5 MAF, given declines of fish species over that period, and given growing climate uncertainties, does the proposed range of exports seem consistent with reducing reliance on the Delta? 

2. Given the demonstrated tendency of regulators, especially during this drought year, to waive water quality standards in favor of maintaining exports, can we expect the state and federal terms and conditions of water delivery contracts as referenced here to be honored when there appears to be insufficient water?

PROJECT OBJECTIVES

Be sure to reference the section of the document you are referring to.

These documents are supposed to enable the public to comment.  If you are a reasonably intelligent citizen and you can't figure out what they are talking about, then the documents are inadequate.  Don't hesitate to say "This doesn't make sense."

Be civil and rational.   Get your comments in by June 13, 2014.

Final suggestions