Delta Stewardship Council meeting 8/23/12: Near-term actions, the Coalition for Delta Projects, and a BDCP update

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The Delta Stewardship Council held a one-day public meeting on August 23, in Sacramento.  Councilmembers Phil Isenberg, Randy Fiorini, Gloria Gray, Hank Nordhoff, and Don Nottoli were present. Among the items on the agenda, the Council considered near term actions for the Delta, heard about the stakeholder-driven Coalition for Delta Projects, received an update on the Bay-Delta Conservation Plan, and approved new appointments to the Independent Science Board.  I reviewed the meeting by webcast; here are the highlights:

COUNCIL CONSIDERS NEAR-TERM ACTIONS IN THE DELTA (AGENDA ITEM 8)

Now that the Final Draft of the Delta Plan is nearing completion, the Council is considering what actions can be undertaken in the next five years.  Staff is proposing laying out a framework and objectives for evaluating, prioritizing, coordinating and funding near-term actions.  Several agencies, stakeholders, and the Delta Plan itself have proposed numerous actions that could be implemented right now.  Possibilities include habitat restoration, Delta as a place projects, water quality work, levee reinforcement and flood control projects.  Council also discussed convening an “Interagency Implementation Committee” as required by legislation to implement the Delta Plan.

More on this agenda item:

THE COALITION FOR DELTA PROJECTS (AGENDA ITEM 8, continued)

Jonas Minton, water policy director for the Planning and Conservation League, spoke to the Council regarding the Coalition for Delta Projects, an effort he initiated along with Jason Peltier (Westlands Water District), Roger Patterson (Metropolitan Water District), Thomas Zuckerman (Central Delta Water Agency), Greg Gartrell (Contra Costa Water District), and Douglas Brown, (Delta Counties Coalition).  The Coalition for Delta Projects is a stakeholder effort to determine near-term projects for the Delta that could be broadly supported.  With a small amount of funding provided by DWR, Mr. Minton was able to bring in accomplished facilitator, Susan Sherry, with the Center for Collaborative Policy.  An open invitation was circulated around town with over 80 Delta stakeholders attending the first meeting.  Criteria for proposing a project were that the project must not conflict with current Delta planning processes, must be online in 5 to 10 years, be fundable, be supportable by affected landowners, and most importantly, be a project that could be broadly supported – no red-flagged projects allowed.   In the five subsequent monthly meetings, participants have heard presentations on 52 possible projects ranging from levee and habitat projects to dredging and toxic remediation, and including projects to enhance the Delta as a place.  With only one Coalition meeting remaining, Mr. Minton expects the Coalition will winnow the list down to 40 projects that can be broadly supported.  The Coalition’s final list will be presented to the Council in October.

Some highlights from this portion of the meeting:

  • Councilmembers Nordhoff and Isenberg spoke for the need to prioritize projects; facilitator Ms. Sherry responded that such an effort would require more time and more funding and is significantly harder to accomplish.  “We could get there, but that requires more money so we decided we wanted to hit while the iron was hot and push people into consensus-based projects and not get people pitted against each other.  We decided we wanted to give the policy world something rather than nothing,” Ms. Sherry said.
  • Mr. Isenberg called the success of the Coalition ‘remarkably significant’, but noted the funding challenges of presenting a long list of projects to legislators that far exceeds the amount of available funding.  The real art is taking $2 billion of projects on a want list, prioritizing them, and then matching those projects to funding possibilities, he said.  To make these projects more easily understood by policy makers, Isenberg spoke to the need for putting a ‘dollar fence’ around the numbers and then matching them up to existing funds.  “The attraction about [the Council] packaging something is that we can package it in a way that policy makers understand it and support it.”
  • Thomas Zuckerman, North Delta Water Agency, praised the process as being unique for involving Delta stakeholders.  “We’ve begun to feel that the most meaningful legislation that went into effect this year was the legislation that prevented the force feeding of ducks to make foie gras, because that’s the way we feel most of the time,” he joked.  While acknowledging the funding challenges, Mr. Zuckerman sees the Coalition’s success as a step forward.  “This is a pretty remarkable consensus that’s being developed here that might provide a good basis going forward to seek additional funds from statewide propositions,” he said.
  • All Councilmembers praised the efforts of the Coalition.  Councilmember Nordhoff said, “I’d like to applaud all of you.  It’s fantastic.  This is how it should be done.”  The group was invited by the Council to submit a proposal for either funding or support, should the group decide to work further to create a prioritized list.
  • Phil Isenberg:  “There’s something there.  The real interesting stuff in politics always happens when there is an odd coalition.”

More on this agenda item:

A LEGAL DISCUSSION ON THE BDCP AND INCORPORATING IT INTO THE DELTA PLAN (AGENDA ITEM 9)

Council staff began by briefly discussing the Bay-Delta Conservation Plan (BDCP) before turning it over to Tara Mueller, an expert on environmental law from the Attorney General’s office in Oakland, who discussed the legal aspects of the BDCP, including the conditions under which the BDCP is to be incorporated into the Delta Plan, the differences in requirements of Natural Communities Conservation Plan (NCCP) versus California endangered species regulations, and what regulatory assurances are.

Some of the important points:

  • The legal foundation of the BDCP rests on obtaining permits for ‘take’ of endangered species.  Both federal and state endangered species regulations prohibit a variety of human activities that will affect listed species.  Permitting processes exist that allow ‘incidental take’ provided certain conditions are met.  A Habitat Conservation Plan (HCP) is the federal permit process for authorizing take under federal endangered species regulations.  A Natural Communities Conservation Plan (NCCP) is the state permitting process for authorizing take under state endangered species regulations.
  • An NCCP applies to the BDCP.  CEQA regulations will apply to the BDCP EIR.
  • The Delta Reform Act requires that in order for the BDCP to be incorporated into the Delta Plan, the BDCP be permitted as Natural Communities Conservation Plan (NCCP) rather than under California Endangered Species Act (CESA) regulations.  Mueller explained that an NCCP has a higher conservation or recovery standard for protection of species and habitat than CESA regulations.  NCCPs are designed to recover listed species to the point where they no longer need to be listed; for unlisted species, NCCPs are designed to maintain or enhance them.  In contrast, state endangered species standards require only a ‘no jeopardy’ standard; those holding permits must keep listed species from going extinct or declining, but no affirmative contributions need to be made to aid in recovery.  To read a summary paper from Department of Fish & Game on HCPs, NCCPs, and the BDCP, click here.
  • The benefit to the permittees for undertaking these additional measures is to receive long-term operating permits that have ‘regulatory assurances’.  Regulatory assurances mean that if unforeseen circumstances occur that adversely affect a covered species, no additional mitigation measures will be required.  It is these regulatory assurances that distinguish an NCCP from CESA regulations; however, the NCCP must be being properly implemented for regulatory assurances to apply.
  • NCCPs were established in 1991, but significantly overhauled by legislation in 2002.  As such, there are still some significant open issues, especially in regards to exactly what is an “equivalent conservation measure.”
  • NCCPs include a provision to “ensure” adequate funding for conservation measures.  If funding is contingent, speculative or third party, there must be guarantees or a back-up plan in place.
  • Water Code section 85320(b) specifically lays out what the BDCP’s EIR must address.  These legislated requirements include: a comprehensive analysis of a reasonable range of flow criteria, climate change impacts, operational requirements to restore the Delta’s ecosystem and fisheries, the BDCP’s effect on fish, flood management and water quality, plus a range of specific Delta conveyance options including thru-Delta, dual and isolated conveyance options.
  • Ms. Mueller also discussed BDCP monitoring requirements, the Council’s duties as a responsible agency under CEQA for the BDCP EIR, and a brief discussion of the Council’s role should the BDCP be appealed.  Refer to the webcast for the full discussion on these issues.

More on this agenda item:

  • If you want to understand more about HCPs, NCCPs, and more about the legal aspects of the BDCP, be sure to listen to Tara Mueller’s informative presentation to the Council in Segment 13 of the Council webcast: http://dsc.videossc.com/archives/082312/
  • There’s also a lot more information in the materials Ms. Mueller submitted to the Council, so to view these materials, click here.
  • To read a summary paper from Department of Fish & Game on HCPs, NCCPs, and the BDCP, click here.
  • To view a power point on the requirements for the BDCP to be incorporated into the Delta Plan, click here.

BAY-DELTA CONSERVATION PLAN UPDATE: AGENDA ITEM 9 (continued):

Karla Nemeth updated the Council on the recent changes to the Bay-Delta Conservation Plan (BDCP):

  • In response to red-flag comments this spring, the proposed intake facilities have been downsized from 5 intakes to 3 and from 15,000 cfs capacity to 9,000 cfs.
  • Calling it still a work in progress, Ms. Nemeth said that how much water the project will yield has not yet been determined and instead will be decided by a ‘decision tree’.  The decision tree will be used to determine three sets of criteria (Ms. Nemeth was not specific on what the three criteria was, other than ‘outflow criteria for different species’).  Specific criteria for water project operations will have to be determined before the application can be submitted.  This information is also needed by the water agencies so they can determine whether or not participation they will participate in the project.
  • Ms. Nemeth that the decision tree process will do two things: “One, provide some sense of water supply yield coming from the project, and two, openly embracing the scientific uncertainties surrounding water operations criteria, and constructing around that a collaborative and open science process that can help us make those determinations.”
  • Ms. Nemeth advised the council that the governance structure is still being discussed and refined.  The proposed governance structure is outlined in the Joint Recommendations draft and now includes an implementation office and four groups with varying amounts of authority and input into the process.  Elements of the dispute resolution process are still being worked out.
  • Mr. Isenberg reflected on the difficulty of achieving the coequal goals in such a fractured governance system.  “For those of us under the mandate of the coequal goals, the dilemma is how do you achieve the coequal goals in a divided federal-state-water contractors system where everyone retains some of their own powers, mostly to say no over things they really care about?  That’s just a giant dilemma.”

More on this agenda item:

  • You can view Karla Nemeth’s presentation to the Council in segment 14 of the webcast: http://dsc.videossc.com/archives/082312/
  • You can read the Joint Recommendations draft outlining changes to the Plan since the release of the February documents by clicking here.

IN OTHER NEWS …, the Council unanimously approved the appointments of Dr. Harindra Joseph Fernando and Dr. Jay Lund to the Independent Science Board to replace Mike Healy, who stepped down in May, and Dr. Jeff Mount, who is retiring from UC Davis and has resigned from the Independent Science Board, effective October 31st.

For the meeting agenda, links to all meeting materials, and a link to the webcast, click here.

OTHER COVERAGE OF THIS MEETING:

 

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