Coinciding with the release of the Implementing Agreement, the Natural Resources Agency held a media call this morning to discuss both the release of the agreement and the extension of the public comment period. Participating in the call were Karla Nemeth, Deputy Secretary for Water Policy at the Natural Resources Agency; Mark Cowin, Director of the Department of Water Resources; Chuck Bonham, Director of the Department of Fish and Wildlife; Dan Castleberry, Assistant Regional Director for Fish and Aquatic Conservation in the Pacific Southwest Region of the USFWS; and David Murillo, Regional Director of Mid-Pacific Region of the Bureau of Reclamation.
Here's what they had to say.
Karla Nemeth, Deputy Secretary for Water Policy at the Resources Agency
Today we are announcing that we are extending the public comment period for the BDCP and the EIR/EIS by 45 days to July 29. This is in response to several requests that we received over the last several weeks from various interest groups and folks who were looking to have an opportunity to review the conservation plan and the EIR/EIS in context with what’s called an Implementing Agreement for the Bay Delta Conservation Plan.
We are also releasing that for public review today. It’s a 60-day public review period such that all documents on the Bay Delta Conservation Plan, their public review and comment period will close on July 29.
With that, I’ll hand it over to Mark Cowin.
Mark Cowin, Director of the Department of Water Resources
This is the second time we are extending the public comment period for the BDCP documents. These are the documents other than the Implementing Agreement were released for official public review back in December of 2013. We continue to look forward to receiving comments on all of these documents. As we receive them, we review them and track them and when we publish a final environmental impact report and statement, we will include copies of those comments as well as responses, so we continue to look forward to comments that help us improve our plan.
Before we get into the Implementing Agreement that is being released today, I’d like to just step back briefly and provide some context for this document and the BDCP in total. It’s been awhile since we’ve talked about BDCP, and while the tunnels continue to get a lot of attention, BDCP is a lot more than a proposal for a big construction project.
As you all know, for decades, DWR and the USBR have been operating the SWP and the CVP in the Sacramento-San Joaquin Delta and complying with the US Endangered Species Act on a species by species basis. In other words, our water projects take certain measures at certain times as prescribed by federal and state fish and wildlife agencies, actions such as curtailing pumping or increasing river flows in order to prevent harm from occurring to fish species such as salmon or Delta smelt. While this approach is consistent with the ESA, it does not provide for a focus on the Delta ecosystem at large. Rather than see rebounds of populations of native fish as anticipated when the Congress passed the ESA, we have continued to see those populations decline.
We know we can do better than that. With the BDCP, DWR and Reclamation are seeking permits from fish and wildlife agencies to operate our water projects in the Delta while we take a suite of actions designed to help dozens of species on a large scale and over a sustained period of time. The biological goals and objectives of the BDCP set a higher standard, not just to prevent harm and mitigate for impacts, but to restore the basic ecological function of the Delta and provide for the conservation and recovery of populations of native fish.
The actions we propose include changing the way we pump water from the Delta of course, and that involves extensive infrastructure construction, but it also includes extensive restoration of different types of habitat in the Delta. There are two laws, one federal and one state, that encourage this kind of comprehensive habitat conservation planning and are the legal underpinnings of the BDCP. One is Section 10 of the US ESA, and the other is the NCCPA that was passed by the California legislature in 1991.
Before the California DFW can issue under the NCCPA, it has to make a finding that the habitat conservation plan provides for the conservation and management of covered species. Another requirement is that the parties to the habitat conservation plan must have an Implementing Agreement, and that’s the agreement we’ve been developing over the last months and have a public draft to release today.
I should mention up front that this is a public draft plan. As you review the document, you’ll see language that is prospective; it might have a tone that implies that certain findings have been made or certain actions agreed to; please understand that this is in the context of a draft plan and those findings or agreements aren’t final until we have a final signed executed agreement.
Some details of the agreement. The parties are the California DWR, California DFW, the US FWS, and NMFS, and certain SWP and CVP contractors that sign the original implementing agreement and have participated in developing this plan.
The NCCPA is pretty clear about what an implementing agreement must cover. It has to spell out the situations under which a permit could be revoked or suspended. It has to describe what happens if the parties to the habitat conservation plan fail to provide adequate funding or if they don’t maintain adequate proportionality between the impacts they have on covered species and the conservation measures we’re taking to improve conditions for fish and wildlife. The Implementing Agreement, by law, must describe what happens if the harm to endangered species is greater than anticipated and the processes we must follow if the plan needs to be amended.
In its basic form the agreement defines the roles and commitments of the parties as well as the assurance and remedies if any party does not perform. Through the BDCP, we’re all trying to find a way to achieve the goal that the legislature set forth when they passed the NCCPA that is broad based planning that provides for effective protection and conservation of the state’s wildlife heritage while continuing to allow for … (obliteration by cell phone …)
And with that music interlude, I’ll just conclude by noting that this release of the Implementing Agreement is another step forward in the BDCP process. We would have like to have had these documents completed and released for public review earlier, but the experts at the state and federal agencies that have been involved in crafting this IA are also dealing with this year’s severe drought conditions and of course drought response has taken precedence.
By extending our public comment period today, we’ll ensure that the public has sufficient time to review this document in conjunction with the other BDCP draft documents, and let me note that the highlight of today’s release is that the IA is a document is less than 100 pages long, so it’s a relative easy review compared to the 40,000+ pages that have been out for public review over 6 months now.
And with that …
Chuck Bonham, Director of California Department of Fish and Wildlife
I want to take a quick minute and just talk about the IA and describe what’s really normal about today, and close with what’s unusual about today. …
Part of today is very standard. In any broad conservation planning effort, typically federal or state, under the habitat conservation planning effort or the state analog, you will have an IA released for public review and comment. So that’s the very normal part of today.
And to put that in context, the DFW in California manages a NCCP program, and you can internet search that and find our pages about that program. We started it in 1991 when the state legislature passed the NCCPA, and the main purpose of this program is to conserve natural communities of plants and wildlife, across broad landscapes. And so not thinking just about an individual species or a narrow specific project or one acre at a time; rather thinking across a much broader playing field, and doing so in a way that accommodates compatible land use and water use. So the purpose is to prevent the controversies and gridlock that typically occur when you’re going individual species by individual species, and change the focus to the long term stability, the needs and the key interests in that broader landscape.
Within that framework, the IA could be characterized as the contractual document that outlines the expectations, the assurances, and the protections between the various parties in any of the planning program, and then it also sets forth the remedies and the recourses available if someone fails to perform obligations during the implementation of the program. So that’s the NCCP program our Department runs. That’s how the IA fits. It’s actually required under statute, if you want to look it up, it’s our Fish & Game Code 2820(b). So that’s the part that’s normal.
I would put an underscore on Director Cowin’s comment that when you read the IA, you’ll find a tense and prospective set of languages. They are anticipating future findings, none of which have been made today.
So out in the public domain are our draft EIR/EIS, our environmental documents, the draft plan, and the draft IA. After all public comment and review, the final subsequent step at a future date would be the conforming permits and the final plan and the final IA. Something farther down the road. Now that’s the normal part.
Now here’s what’s the not so normal part. We’re engaged in a conservation planning effort, the BDCP, that is anything but easy. It’s about the biological and ecological value of one of the west coast’s most important national treasures, the Bay Delta ecosystem. It’s about the place that serves as a hub for our water delivery system in California for over 20 million people, and it’s about sorting through something that has been stuck in courtrooms and litigious dispute for many years when there’s the potential for a superior outcome through dialog and conversation.
So why our Department is thankful that the DWR is pursuing a conservation plan is based on these couple of principles. If you really can come to a common table and talk about conservation planning across 54 species and thousands of acres, that’s a superior approach for the stewardship of resources in our experience. This effort is committed to the higher legal standard of really bringing these species back, not simply focused on what’s the bare minimum to avoid extinction. It involves a pretty incredible commitment to adaptive management, to learn from science over time and adjust when science tells us we’re getting it wrong. And it’s a planning commitment rather than allowing ourselves to be controlled by various positions in the courtroom on any given day.
So that’s kind of a walkthrough of what’s normal. It’s a typical IA that comes out in this kind of process. What’s not normal is that we’re engaged in such a broad scale ambitious effort to turn things around in the Delta.
I’ll stop there …
Dan Castleberry, Assistant Regional Director for Fish and Aquatic Conservation in the Pacific Southwest Region of the USFWS
I don’t have a lot to add to what Chuck just said. I think he wrapped it up pretty nicely and much of it is very similar for the Fish and Wildlife Service. I do want to emphasize that the FWS has been closely involved in preparing the draft IA and the other documents that remain out for review. None of that as Chuck and Mark both said, we’re not finished with those. There are no decisions that have been made at this point, and we are very interested in receiving the public comments on all of those documents, and are committed to continue to work with the other agencies on the phone, the applicants in this process, to bring the process overall to closure as we address the public comments.
And so with that …
David Murillo, Regional Director of Mid-Pacific Region of the Bureau of Reclamation
I agree with what was said today by the people that spoke for the state today. And I also want to reiterate as stated, this is another step forward with respect to the BDCP, and it does advance some of the discussions we’ve been having. This is a draft document and as mentioned before, final commitments are made with the final documents. We’ve been able to work very closely and really do appreciate it. We’ve been able to work very closely with the state in providing input and helping develop these documents and I think as was stated before, I think we look forward to the comments that are going to be received and see what type of adjustments we need to make.
And I think that’s it …
Discussion highlights …
The question was asked if the documents would be translated into other languages.
Richard Stapler, Natural Resources Agency: We’ve had the comment period open for BDCP now for just about six months. We’re extending it now for another two months, so of course we appreciate that input this late in the comment period on this issue. That said, for the entire time and for the entire process, we have actually have had an 800# where all of those languages, people can ask questions in all of those languages and get answers. There is a prohibitive cost associated particularly with translating technical language, if it’s even possible to translate some of that technical language, so that is a significant issue. But we are extremely sensitive to those populations and any suggestion otherwise is more just political rhetoric than anything else. So we do have some materials that are available in different languages. We are currently translating some other fact sheets and such for those populations, making extra additional well above and beyond what is necessary under CEQA to reach out to the groups that represent those communities to be sure that they are being properly educated and have the opportunity to ask questions about those impacts.
Follow-up question: So you’re not going to translate either the IA or the BDCP documents?
Stapler: The 35,000 page BDCP document, no.
For more information …
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