Why is the California Department of Water Resources (DWR) collaborating with the Trump Administration to weaken protections for salmon and other endangered species in the Bay-Delta, even as the California Department of Fish and Wildlife (CDFW) has strongly opposed these rollbacks, and the State announced in November that it will sue to invalidate the Trump Administration’s environmental rollback in the Bay-Delta?
Confused? So are we. It’s time for DWR to stop acting like a Trump Administration agency and get on board with the Newsom Administration.
Sadly, water districts and the federal government agree with NRDC that DWR’s Draft Environmental Impact Report describes a proposal for operations of the State Water Project that is very similar to the Trump Administration’s biological opinions rolling back protections for endangered species in the Bay-Delta:
- According to the San Luis & Delta Mendota Water Authority, DWR’s proposal is “very similar to the federal Biological Opinions issued pursuant to the Reinitiation of Consultation on Long-Term Operations (ROC on LTO) of the CVP and SWP, which we fully support.”
- According to the U.S. Bureau of Reclamation, DWR’s proposed operations in the Draft Environmental Impact Report are “similar” to the Trump Administration’s biological opinions. They also say that “Reclamation finds the Proposed Project in the DEIR to be similar to the PA with critical exceptions as described above.”
- According to the Westlands Water District, “the state Department of Water Resources, as a co-applicant, was involved in preparing the new biological opinions,” (emphasis added) and Westlands “supports the Proposed Project, which is substantially similar to the action advanced by U.S. Bureau of Reclamation (“Reclamation”) for the Coordinated Long‐Term Operation of the Central Valley Project (“CVP”) and the State Water Project (“SWP”).”
(These comments and others are available online here).
There is also no question that DWR's proposed operations would significantly weaken environmental protections. Like the Trump Administration’s biological opinions, DWR proposes to significantly weaken or eliminate protections required under the 2008 and 2009 biological opinions, including eliminating the San Joaquin River inflow: export ratio in the 2009 NMFS biological opinion, and weakening pumping limits in the 2008 and 2009 biological opinions by allowing more negative reverse flows in Old and Middle River than allowed today, and weakening the Fall X2 requirement in the 2008 FWS biological opinion. DWR’s DEIR uses nearly identical CalSim modeling assumptions to the Trump biological opinions for the proposed project, and includes identical limits on number of fish that can be killed or salvaged at the pumps.
DWR is proposing to weaken environmental protections even though state and federal agencies have repeatedly emphasized the need to strengthen protections in the Bay-Delta to avoid extinction. In November 2019 the State publicly announced that the Trump Administration’s biological opinions “are not scientifically adequate and fall short of protecting species and the state’s interests,” and announced that the State intends to file litigation challenging those biological opinions. And earlier this month, the California Department of Fish and Wildlife wrote to DWR that,
In light of these existing impacts, and because both species reached these historic lows under existing conditions, it is reasonable to conclude that protections need strengthening, not weakening, and that any diminishment of existing protections could worsen these species conditions. Modeling used to support the Proposed Project shows that OMR flows will be more negative and Delta outflow will decrease during certain times of the year relative to existing conditions. This is important when considering declining population trends over the last 10 years and the need to consider the sufficiency of existing requirements in minimizing impacts to the smelt species….
CDFW’s conclusion that stronger protections are needed to prevent extinction echoes the August 2016 conclusion of the Secretary of the Interior. Indeed, CDFW has been expressing similar concerns over the Trump Administration’s proposal for several years now; for instance, in July 2018 CDFW wrote to the Feds that there was a need to “improv[e] protections for listed species that are in decline under the existing operations,” that the proposed project only included actions to increase water supply, and that the proposed operations didn’t include any actions to strengthen environmental protections “despite substantial evidence that 1) current BO protections are effective in minimizing impacts to listed species and 2) the abundance of Delta smelt and winter run Chinook salmon has declined substantially in recent years.”
What makes this even more confusing is that DWR’s proposed project in the DEIR is different from the proposed operations in DWR’s November 2019 press release and in the application for a CESA permit. However, DWR’s proposal in its CESA permit application also fails to comply with CESA; the proposal is similar to alternative 2B in the CEQA document in that it proposes some mitigation measures to try to limit the additional environmental damage caused by the proposed project in the CEQA document, but does nothing to actually improve environmental conditions compared to today and still relies on the same approach as the Trump Administration. CDFW’s January 2020 comment letter identifies significant flaws with this approach, including the unjustified reliance on real-time operations and lack of clear commitments to mitigation measures.
In our comments on the DEIR, NRDC and our partners raised significant concerns with the document and the proposed operations. Virtually all of the commenters (water districts, USBR, CDFW, NRDC) agree that the DEIR is flawed, that the DEIR and CESA permit application describe different projects, that the DEIR fails to analyze the proposed project in the CESA permit application, and that recirculation of the DEIR is required under CEQA. Our comments explain that DWR that the DEIR violates CEQA for a number of reasons, including:
- The DEIR fails to provide an accurate and stable project description: The DEIR violates CEQA not only because of the inconsistencies between the project described in the DEIR, CESA application and press release, but also because: (1) the DEIR inconsistently describes whether the project is operations of the SWP and CVP and will ensure the flows needed to protect fish and wildlife, or if the project is only operations of the SWP and will only provide a proportional share of flows needed to prevent extinction; (2) the DEIR fails to accurately model and analyze the project described in the DEIR;
- The DEIR fails to consider a reasonable range of alternatives: The DEIR violates CEQA because it fails to consider any alternative that would strengthen protections in the Delta, and because it fails to consider any alternative that would increase Delta outflow in the winter-spring months, as numerous agencies have found is necessary based on the best available science.
- The DEIR fails to consider the whole of the action: The DEIR violates CEQA because it only analyzes impacts in the Delta, despite the fact that SWP operations occur and have adverse effects upstream (for which DWR apparently has no permit under CESA).
- The DEIR fails to adequately analyze environmental impacts of the COA Addendum, climate change and droughts, and cumulative impacts: The DEIR violates CEQA because it fails to adequately analyze: (1) the adverse environmental impacts of the Addendum to the Coordinated Operating Agreement (which reduced carryover storage at Oroville and increased the likelihood of drought waivers and upstream temperature problems), despite the Notice of Preparation stating it would analyze these impacts; (2) the adverse effects of climate change and operations during droughts when the agencies waive environmental protections, like they did in 2014 and 2015 (the modeling in the body of the DEIR excludes consideration of the effects of climate change); and, (3) cumulative impacts, because it admits there are significant cumulative impacts from water diversions in the Bay-Delta but claims that the SWP's role in those impacts is not significant).
- The DEIR fails to adequately analyze and disclose significant impacts of the proposed project: The DEIR violates CEQA because it fails to disclose how the proposed operations would cause significant impacts by reducing the abundance and survival of endangered species. In particular, for Longfin smelt, DWR has engaged in statistical manipulation regarding the effects of reducing Delta outflow that is not scientifically credible.
While numerous water districts criticized the DEIR as flawed, their solution is to fully embrace the Trump Administration’s biological opinions by moving forward with the nearly identical proposed project in the DEIR. Like Westlands threatening to walk from the Voluntary Agreements unless the State backs off on filing litigation to challenge the Trump Administration’s biological opinions, these water districts are urging the State of California to join with the Trump Administration to weaken Delta protections in order to increase water diversions from the estuary. Indeed, as noted above, Westlands has accused the State of being intimately involved in developing the Trump Administration’s biological opinions.
So DWR seems to be endorsing the Trump rollbacks while CDFW is fighting those same rollbacks. It’s rare that we see this kind of inter-agency conflict spill into the open. That’s in part because under prior Administrations, DWR usually ran roughshod over the Department of Fish and Game, and the status of endangered species in the Bay-Delta reflects that longstanding imbalance of power between those who want to divert more water and those who want to protect the environment. And it seems like this inter-agency struggle is ongoing, since the State has not followed through on its November announcement by filing litigation against the Trump Administration’s biological opinions.
I’m cautiously optimistic that the State will follow through on its announcement and will sue the Trump Administration, and that DWR will significantly revise its proposed project and recirculate the DEIR. For one thing, I can’t imagine that the Newsom Administration wants to be seen as collaborating with the Trump Administration in weakening environmental protections. And equally important, it seems crazy that the State Water Contractors would be the only ones responsible for increased Delta outflows and other protections necessary to protect the health of the estuary, rather than forcing the CVP to help share the burden of sustaining salmon and prevent extinction.