On Thursday (11/21) we may find out whether the California Department of Water Resources (DWR) is proposing operations of the State Water Project that are significantly more protective than the Trump Administration’s biological opinions, or whether DWR will be aligning with the Trump Administration. We understand that DWR will release a draft CEQA document that identifies their preferred alternative for the operations of the State Water Project in the Delta, which is necessary for the State Water Project to obtain its permit to kill salmon and other endangered species under the California Endangered Species Act (CESA). The California Department of Fish and Wildlife (CDFW) has repeatedly raised significant concerns with the operations proposed in the Trump Administration’s biological opinions (for instance, see this letter to the Bureau of Reclamation).
This permit for the State Water Project is a big test for the Newsom Administration. First, it will send a strong signal whether the Newsom Administration will embrace or fight the Trump Administration’s rollback of Endangered Species act protections in the Bay-Delta. Second, it will also indicate whether the Voluntary Agreements are a real effort to increase flows through the Delta to protect fish and wildlife, or is just a shell game to increase water diversions by the SWP and CVP at the expense of upstream, senior water rights holders. Finally, in light of the fact that the State Water Contractors and MWD are supporting the Trump Administration's biological opinions and lobbying DWR to embrace this plan for extinction (see here and here), it is also a test of whether DWR will stand up to its contractors.
Here are five key issues that we’ll be looking for as we review the documents:
1. Does DWR propose to increase or reduce Delta outflow compared to today?
The Trump Administration’s biological opinions would significantly reduce Delta outflow in the winter and spring months and would reduce Delta outflow in the fall months of wetter years. In contrast, the California Department of Fish and Wildlife and State Water Resources Control Board have repeatedly concluded that increased winter-spring Delta outflow is necessary to protect longfin smelt and other species, and CDFW has repeatedly rejected efforts to weaken fall outflow protections for Delta Smelt. Moreover, the Resources Agency’s Voluntary Agreement process is supposed to increase Delta outflow in the winter and spring months. Will DWR propose to reduce Delta outflow in the winter and spring months, consistent with the Trump biological opinions, or will DWR propose to increase Delta outflow to protect longfin smelt and other species listed under CESA?
2. Does DWR find that reduced Delta outflow would cause a significant environmental impact?
Relatedly, numerous state agencies have found that reducing Delta outflow in the winter and spring months would cause a significant adverse impact under CEQA, because of the adverse effects on longfin smelt and other species. The Bureau of Reclamation admitted in its draft NEPA document that the proposal “potentially could negatively affect Longfin Smelt abundance,” and CDFW's recent letter to the Bureau of Reclamation identified a likely need to mitigate this impact by increasing Delta outflow from January to June. Will DWR’s draft CEQA document conclude that reducing Delta outflow in the winter-spring months would cause a significant adverse impact that must be mitigated?
3. Does DWR propose limits on Delta pumping (reverse flows in Old & Middle Rivers) that are similar to existing limits, including during storm events?
Under the 2008 and 2009 biological opinions, the CVP and SWP are operated in real time within a range of Old and Middle River flows (-1,250 to -5,000 cfs OMR), based on information about fish distribution and abundance, turbidity, delta flows, water quality, and other factors to determine pumping levels, provided that Delta pumping results in OMR that is less negative than -5,000 cfs. The Trump Administration’s biological opinions eliminates those existing limits on Delta pumping during undefined storm events, with no limit on the magnitude, frequency, or duration of waivers of OMR requirements. The biological opinions also eliminated more stringent pumping restrictions in April and May. Instead of managing based on real time data within this range, under the Trump Administration’s biological opinions in general reduced pumping is only required when there are enough dead fish at the pumps. CDFW has raised significant concerns with this proposal, and the State Water Resources Control Board has indicated that it planned to incorporate protections like those in the 2008/2009 biological opinions into the Bay-Delta Water Quality Control Plan. Will DWR propose OMR limits and other pumping restrictions that are similar to those in place under the 2008 and 2009 biological opinions, or will it embrace the Trump Administration's Orwellian "Storm-Related OMR flexibility"?
4. Does DWR have to ensure adequate flows to prevent extinction by backstopping the harm caused by CVP operations, or just provide a “proportional” share of the flows needed to prevent extinction?
Thus far, there is no indication that the State will require the federal Central Valley Project to comply with CESA, unlike the State Water Project. Yet Delta outflow and Old and Middle River flows are affected by the coordinated operations of the CVP and SWP, such that if the Feds pump more water, the State has to reduce pumping to maintain the same Delta outflow or OMR levels. Thus, there's a big question of what DWR will propose when the Feds are operating to a less protective operations. Will the CESA permit require DWR to offset the impacts of the coordinated operations of the CVP and SWP, so that if the Feds pump more water, the State has to reduce pumping to maintain Delta outflow or the -5,000 cfs OMR limit? Or will DWR propose that the State Water Project only has to provide a proportional share of the water needed to prevent extinction, even if that drives salmon and other species extinct, and even though CESA’s “rough proportionality” standard does not apply to DWR?
5. Does DWR propose that CDFW have the final say on real time operations?
The Trump Administration’s biological opinions eliminate the role of the federal fishery agencies in overseeing real time water project operations, which was required in 2008 and 2009 after years of the Bureau of Reclamation and DWR rejecting the recommendations of the fishery biologists to reduce pumping, which lead to the crisis in the Delta. Will DWR give CDFW the final say over real time operations of the SWP?
These five questions go to the heart of whether the State will fight the Trump Administration’s rollbacks of Endangered Species Act protections in the Bay-Delta or will embrace them. We will be carefully scrutinizing the draft CEQA document regarding these issues in the preferred alternative, as well as the other alternatives that are included in the document.
But if the State continues to give the federal Central Valley Project a free pass from complying with stronger state protections, a scientifically sound CESA permit would require the SWP to reduce water diversions, impacting the State Water Contractors. That would be a bitter pill to swallow for MWD and the State Water Contractors, given that they urged the Governor to veto SB1 (which would have codified the State's longstanding position that the federal Central Valley Project must comply with CESA, helping to protect the environment and water supply for SWP contractors) and have lobbied in favor of the Trump biological opinions.