State Agency Comments Show Need to Improve BDCP

Earlier this month, state and federal agencies were invited to submit comments on the administrative draft Bay Delta Conservation Plan documents.  While comments from the federal agencies and some state agencies are not yet available (the state says they will be posted online later this week), comments from three independent state agencies (the State Water Resources Control Board, Delta Independent Science Board (available here), and the Delta Stewardship Council (available here)) show the need for significant improvement to the BDCP draft plan, as well as to the analysis of the effects of the plan and alternatives in the EIS/EIR.  Both the State Water Resources Control Board (SWRCB) and Delta Stewardship Council (DSC) are state regulators who will have to review and approve the BDCP before it can be implemented, so DWR and BDCP proponents should pay attention to their comments, some of which have been raised for years.  Below I’ve highlighted some of the key issues the comments raise regarding the proposed project and the NEPA/CEQA document.

Of particular importance, both the SWRCB and DSC commented on the need to improve flows into and through the Delta beyond what is proposed in the state’s draft proposal:

• The SWRCB comments demonstrated that the proposed “Decision Tree” does not significantly improve winter/spring Delta outflow, particularly in the drier years, which may not be sufficient to meet the Board’s legal obligations and is far less protective than the SWRCB’s alternative in the administrative draft EIS/EIR (SWRCB, pages 4, 7, 10, 13, 33-34, and Attachment 1). 
• Likewise, the Delta Stewardship Council called for more natural flows and improved flows and operations, asked how the SWRCB’s 2010 Public Trust flow criteria were being incorporated into BDCP, and asked how the proposal and EIS/EIR were consistent with the statutory mandate to analyze “operational requirements and flows necessary for recovering the Delta ecosystem and restoring fisheries under a reasonable range of hydrologic conditions [that] will identify the remaining water available for export and other beneficial uses” (Water Code § 85320(b)(2)(A)). (DSC, pages 2-4, 10) 

All three agencies also commented on the need to reduce reliance on the Delta and invest in local water supply development, consistent with the requirement of the Delta Reform Act of 2009.  The Delta Independent Science Board pointed out that, “The alternatives summarized on pages 3-14 and 3-15 do not presently include reducing California's reliance on water from the Delta and its tributaries... The BDCP and its EIR/EIS could go further in considering demand-reduction actions and relating them to the Delta Stewardship Council’s Delta Plan.” (DISB, page 2)  Similarly, the Delta Stewardship Council commented on several aspects of water supply reliability, pointing to the need to address levee improvements to maintain reliability, to reduce reliance on the Delta and invest in local water supplies to improve regional reliance, and to address potential new water storage projects and new local supply development that reduces reliance on the Delta in BDCP’s analyses. (DSC, pages 5-6, 9-10) In particular, the Delta Stewardship Council wrote that,

“In some cases, actions to improve storage or reduce reliance on the Delta may also warrant consideration as measures to mitigate BDCP alternatives’ impacts on water supplies, water quality, or other values, even if they are outside of the alternative projects considered in the EIS/EIR.  Such consideration could build off of the Delta Plan’s EIR/s’s evaluation of these actions, allowing BDCP to draw more fully on the full portfolio of measures available to address the state’s co-equal goals for the Delta.” 

(DSC, page 10) And the State Water Board wrote that,

“As discussed in the State Water Board’s letter to Gerald Meral of April 19, 2011 and other correspondence, in order for the State Water Board to consider changes to the Bay‐Delta Plan and water rights, the BDCP must evaluate a sufficiently broad range of alternatives. Alternatives that reduce reliance on water from the Delta should be included in this range. Accordingly, it seems appropriate to include reduced reliance on water from the Delta as a conservation measure for the project and as mitigation for impacts associated with impacts related to inadequate water supplies to meet all needs for water within and outside of the Delta.”

(SWRCB, page 3)  The agencies also pointed out significant problems in terms of the State’s proposed plan resulting in degraded water quality in the Delta and in failing to meet existing water quality standards to protect agriculture and other beneficial uses.  (SWRCB, pages 18-22; DSC, pages 14-16)  

In addition to concerns about the proposed project, the state agencies also identified concerns with the analyses used in the EIS/EIR, including:

• The SWRCB and DSC both pointed out flaws in the baselines used for comparisons in the EIS/EIR, in terms of the confusion from the use of multiple baselines, as well as the fact that BDCP excluded several of the habitat restoration and flow requirements of the existing biological opinions from the baseline.  (SWRCB, page 11; DSC, page 9)
• All three agencies raised concerns regarding the analysis of biological outcomes and the effects analysis in the BDCP plan, including assumptions that all conservation measures will be 100% successful, concerns that tidal marsh restoration may not be effective in reducing the need for flow, concerns about the lack of quantitative analysis of whether the project will achieve biological objectives, and concerns that the draft EIS/EIR relies heavily on the effects analysis, which two prior independent scientific peer reviews had found “wanting.” (DISB, page 1; DSC, pages 5, 9, 10-11, 16-17; SWRCB, pages 32-34)
• All three agencies raised concerns about the inadequate range of alternatives, and specifically raised concern that while the proposed project was analyzed in the effects analysis, the EIS/EIR provided far less detailed analysis of the impacts of other alternatives.  (DISB, page 2; DSC, pages 10-12; SWRCB, page 3).

Ultimately, these comments should come as no surprise to anyone who has been following the BDCP process closely for the past several years.  Indeed, in recognition of these concerns in 2009 the Legislature crafted specific new requirements in state law (in the 2009 Delta Reform Act) to help guide BDCP to a successful project.  These recent state agency comments track prior comments raised by federal and state fishery agencies, independent scientific reviews, and conservation groups over the past several years, including the 2013 Progress Memos from the U.S. Fish and Wildlife Service and National Marine Fisheries Service (available online here, here and here).  And I expect that the comments from other state and federal agencies (which should become public later this week) will identify similar concerns. 

Like NRDC, these agencies want to see BDCP succeed, and they recognize that a successful BDCP depends on the State and feds not only improving the quality of the EIS/EIR but also revising the proposed project to improve outcomes for fisheries, improve water quality, and hopefully to improve water supply reliability by including actions to reduce reliance on the Delta and invest in local supply development.  The Portfolio Alternative attempted to address many of these concerns by reducing diversions and improving flows, improving levees, and investing in local water supply development to provide a more cost-effective and environmentally preferable project.

Ultimately, these significant problems with the EIS/EIR and the proposed project should be fixed before the state and federal agencies release a draft EIS/EIR, which clearly means there’s a lot of work to get done before a draft NEPA/CEQA document is released. I hope and expect the state and feds will make these necessary changes to the project before releasing a public draft document, even if that means the proposal diverts less water from the Delta.