Politics Trumps Science in Delta Tunnels Decision

It is deeply disappointing, but unsurprising, that the Trump Administration issued biological opinions (permits under the Endangered Species Act) for the California WaterFix project today. There is no doubt that conditions in the Delta are awful for California’s native fish and wildlife, and for the thousands of fishing jobs that depend on a healthy estuary.  Today, winter-run Chinook salmon, Delta Smelt, longfin smelt, and other species in the Delta are at the very brink of extinction.  Indeed, state and federal agencies have concluded that existing protections in the Delta are inadequate to prevent these species from going extinct.  And yet, substantial scientific evidence – including analyses and modeling in these very biological opinions – demonstrates that the proposed tunnels project is going to make things worse for salmon and other endangered fish and wildlife than the status quo in the Delta.  

Late last year, these agencies submitted draft biological opinions for an independent scientific peer review, publicly revealing the adverse effects of California WaterFix.  Those draft biological opinions found, for instance, that WaterFix was likely to reduce the survival of juvenile winter run Chinook salmon migrating through the Delta, leading to an 8-25% reduction in abundance of this critically endangered species.  Several different models and analyses all showed that the reductions in Sacramento River flow below the new intakes would result in reduced survival of migrating salmon.  Similarly, the draft Delta Smelt biological opinion concluded that the project is likely to “[d]ecrease the abundance of delta smelt” (because WaterFix would decrease the amount and quality of Delta Smelt habitat, reduce turbidity, increase predation), and that the project “significantly threatens the ability of a self sustaining delta smelt population to recover and persist in the Delta ecosystem at abundance levels higher than the current record-lows.” And in addition to adverse impacts from operations of the project, the draft biological opinions found significant adverse effects as a result of the extensive in-river construction activities over 10 plus years.

Earlier this year, the independent scientific peer review of these draft biological opinions issued its final report, which concluded that,

“Using the best available science, the Fish Agencies have provided evidence that some aspects of the Proposed Action (PA) will have significant adverse effects on listed species and critical habitat…. Adverse effects of PA construction and operation will require significant mitigation beyond the conservation measures described in the BiOps in order to minimize impacts.”

The final biological opinions confirm that the project as proposed is worse than the status quo and does not adequately protect native fish and wildlife.  For instance, the FWS biological opinion admits that, "However, overall habitat conditions are not improved compared to the current baseline conditions." (page 292)  It summarizes many adverse effects of proposed construction and operation of WaterFix, including worsened habitat conditions, increased water clarity, reduced outflow and increased salinity, loss of habitat, and increased predation (see esp. pages 294-298). But instead of modifying the proposed project with specific measures to mitigate or eliminate these impacts, the final biological opinion kicks the can down the road for someone else to magically solve these problems, assuming that the project will be changed consistent with "Guiding Principles."

Likewise, the NMFS biological opinion also acknowledges that the project will have adverse effects on salmon and other endangered species (page 1).  The analysis demonstrates that salmon survival through the Delta will be substantially decreased under the proposed project, using several different models and analyses. For instance, for winter run Chinook salmon, the Delta Passage Model shows that, "Overall, the absolute mean reduction in smolt survival is 1% to 2% for the PA, resulting in a relative survival reduction of 2-7% depending on water year type when compared to NAA." (page 735).  That model shows that survival of fall run Chinook salmon, spring run Chinook salmon, and other species would also decline as a result of water diversions into the tunnels. Analysis using the Perry Survival Model likewise concludes that salmon survival through the Delta will be reduced as a result of water diversions into the tunnels (pages 749, 758-766). Even assuming that the tunnels are operated far less frequently than in the proposed project, as a result of real time operations that limit use of the tunnels unless bypass flows are greater than 35,000 cfs (page 99-100), salmon survival is still reduced compared to the status quo (page 775).  Both of the life cycle models used in the biological opinion conclude that winter run Chinook salmon abundance will be lower under the proposed project than today (pages 795-796, 799-801, 809).  

In the biological opinions, "Guiding Principles" and real time operations are a euphemism for “build it now and we’ll figure [email protected]#t out later” in the Governor’s zeal to “get [email protected]#t done.”  There’s no certainty that adequate measures to reduce these impacts will be identified and implemented, particularly when it is likely to require reduced diversions and increased flows.  After all, does anyone think it will be easier to require additional flows and reduced diversions after water districts have spent $15 billion on WaterFix? Even as the State Water Resources Control Board and other state and federal agencies are working to increase Delta outflow, which is one of the key indicators for the health of the delta and a major factor affecting the abundance of numerous fish species in the estuary, WaterFix proposes to worsen Delta outflow and increase diversions from this fragile estuary. 

And it gets worse: the biological opinions completely ignore the medium and long term effects of California WaterFix, only analyzing impacts through the year 2030 – even though the tunnels are not expected to be fully constructed and operational by 2030 (see NMFS biop at 22). Again, the biological opinions punt the issue for someone else to solve.

We will carefully review the final biological opinions. While today’s decision is disappointing, it doesn’t end the fight over the tunnels.  The fight will likely move to other venues, and to the State Water Resources Control Board, which is required under the Delta Reform Act to adopt and impose “appropriate flow criteria” on the project before any construction can begin.  Those permits from the State Water Resources Control Board won’t be issued until sometime in 2018, and are very likely to increase flows and reduce diversions compared to these biological opinions. After all, these biological opinions are only required to impose the minimum protections necessary for endangered species.  That means they don’t address the tunnels’ adverse impacts to fall run Chinook salmon, which form the backbone of the State’s salmon fishery.  Nor do they address the impacts to human communities in the Delta, who are threatened by years of extensive construction activities, worsened water quality in the Delta, and increased harmful algal blooms.  And the biological opinions don’t change the fact that WaterFix remains a bad deal for ratepayers, for whom the $15 billion price tag (closer to $60 billion including financing costs) will jeopardize the funding for sustainable water supply projects like water recycling, improved efficiency, and groundwater cleanup and banking.

Ultimately, the biological opinions demonstrate that WaterFix is worse than the status quo for the Bay-Delta environment and fisheries.  Unfortunately, in these permits NMFS and FWS have chosen to punt the hard decisions of how to fix those impacts for someone else to solve. 

About the Authors

Doug Obegi

Senior Attorney, Water program

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