Federal agencies release comments on the BDCP EIR/S

The federal lead agencies for the BDCP EIR/S, Bureau of Reclamation, US Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS),as well as the EPA and the Army Corps, released their comments on the administrative draft of the BDCP’s EIR/S on Thursday.

The comments outline areas that need more consideration.  “These comments are intended to be helpful and underscore the good collaboration that exists in this complex planning process,” said Will Stelle, NMFS West Coast Salmon Coordinator. “We anticipate that, like the issues that are currently being discussed in relation to the draft habitat conservation plan, these issues can be dealt with in a manner that is acceptable to both the state and federal agencies involved.”

Securing California’s foundational water supply for two-thirds of the state against the certainty of sea level rise and earthquakes remains a top priority of the Brown administration,” said Natural Resources Agency Deputy Secretary Jerry Meral. “In context, it is important to remember that regulatory agencies by their nature do not give out ‘gold stars’ for work, but roadmaps for improvement. We will continue to follow that map, because our water security relies on it. After meeting for two days with the federal and state agencies working on this project, we are confident that we can produce a good draft plan and EIS for the public to review, and that all the issues raised in the comments can be successfully resolved in the coming months.”

We have made significant progress in improving the overall integrity and accuracy of these draft environmental documents in the last year,” said DWR Director Mark Cowin. “Clearly, there is more work to be done, and our team has already taken up the challenge to improve and enhance these documents in order to meet the ambitious deadline agreed to by the Governor and Secretary of the Interior.”

  • Click here to read the federal agency comments, or scroll down for highlights.

Highlights of the agency comments:

Bureau of Reclamation:

  • “The language and content of the BDCP Adm. Draft EIR/EIS are advocating for the project.  From a NEPA standpoint, the language should be neutral to meet the regulatory requirement of a “full and fair discussion of significant environmental impacts. … “
  • “The identification of adverse and beneficial impacts is very subjective and appears to be based on a misreading of NEPA regulations. … “

Environmental Protection Agency:

  • There is broad scientific agreement that existing Delta outflow conditions are insufficient for protecting the aquatic ecosystem and multiple fish species, and that both increased freshwater flows and aquatic habitat restoration are needed to restore ecosystem processes in the Bay Delta and protect T & E fish populations. This includes statements from lead federal agencies.  If there is sound scientific information that supports the perspective that increased Delta outflows are not needed and habitat restoration alone would be able to restore ecosystem processes and protect fish species, it should be presented in this DEIS. (9)
  • Appendix 3-A: We are concerned that the above criterion may result in the elimination of alternatives that are less damaging to the aquatic environment, which presents a substantial CWA Section 404 permitting problem because CWA Section 404 permits are restricted to the LEDPA. (12)
  • Appendix 3-A: Unlike the preferred alternative for CM1, which would only minimally change flows through the estuary, this alternative would substantially increase flows through the estuary and provide greater protection for resident fishes. It is important to demonstrate that eliminating this alternative did not eliminate a potentially less environmentally damaging practicable alternative.  If such documentation does not already exist, a more complete analysis of this alternative may be required for a CWA permit.  (12)
  • Chapter 8: A table that shows how each CM1 alternative meets or exceeds narrative and numeric water quality standards for the water quality constituents that received more detailed analysis should be created. This comparison is important for NEPA disclosure and for permits, authorizations, and certifications that will be needed to build CM1. (14)
  • Chapter 8: Making beneficial use impairments measurably worse and exceeding chloride objectives presents significant challenges for concluding that the preferred alternative protects aquatic life and/or the Delta ecosystem. These conclusions also present a significant permitting challenge for CM1. Granting a CWA Section 404 permit is prohibited for projects that violate State Water Quality Standards … ” (15)
  • Chapter 8: We recommend modifying the text to explain why mitigation measures are not available to the
    applicant. It seems that increasing flows is a mitigation measure that is available to the project applicant. Although doing so may mean that operations change enough to be considered a separate alternative, but the action of increasing flows is possible. This sentence suggests that the action is not something that could be done. It can be done, which makes the negative impact something that can be mitigated. It would be useful to remind the reader of the selection criterion in Chapter 3A which restricts operational elements of the CM1 alternatives to those that do not require changes to water rights other than CVP/SWP contractors. This seems to be the primary reason increased flows are not chosen as a potential source for mitigation.
  • Chapter 8: The comparison of the tables underscores how little information we have about water quality in the Delta. This is acknowledged in the narrative. It must be remembered that assumptions are being
    made with no more than a snapshot of one day’s measurements in some cases. These point strongly
    to the need to act conservatively until current conditions are better understood through more robust monitoring, and the impacts of the project alternative can be predicted with reasonable confidence.
  • Chapter 8: The San Joaquin River currently contributes total ~10-15% of the flow to the Delta. The question is how much will that percentage change as a result of the project? Lower Sacramento River flow will increase the impact of higher selenium concentrations from the San Joaquin. (17)
National Marine Fisheries Service:
“NOAA’s National Marine Fisheries Service (NMFS) has reviewed the Administrative Draft Environmental Impact Statement (ADEIS) and concludes that it is currently insufficient and will need to be revised prior to formally publishing it as a DEIS with NMFS as a co-lead agency. … “
  • ISSUE AREA 1: There remains a lack of incorporation of and reference to the federal proposed action of issuing an incidental take permit by NMFS and the U.S. Fish and Wildlife Service (FWS). There is also no alternative that shows a different action to the proposed action of permit issuance. Descriptions of the alternatives throughout the ADEIS refer to the BDCP project only. The alternative descriptions must include the federal proposed action of issuing an incidental take permit (ITP). The document as a whole needs to incorporate the federal proposed action better.
  • ISSUE AREA 2: Some sections and analyses do not state whether or not an impact is adverse or significant. For those that do state there will be an impact, further details are not provided on the impact or how the conclusion was made.
  • ISSUE AREA 3: Both the language and the content of the ADEIS are advocating for the project and could be perceived as biased.
  • ISSUE AREA 4: All outstanding biological and analytical issues associated with the HCP also apply to this document. Key areas need to be resolved and incorporated into the EIR/EIS as well.
  • ISSUE AREA 5: NEPA documents should be clear, concise, and understandable.
  • ISSUE AREA 6: The cumulative impacts analysis needs to analyze the impacts of the no action alternative.
  • ISSUE AREA 7: The ADEIS provides a project specific analysis of Conservation Measure 1 (Water Facilities and Operation) and programmatic analyses for the other 21 conservation measures. This approach is acceptable from a NEPA legal perspective and has been the current trajectory for some time. NMFS raised concerns at the time this decision was made, and has continued to raise concerns about the slower time frame for restoration and lack of detail on the habitat components and challenges that this is likely to create.
  • ISSUE AREA 8: There are numerous technical issues that need to be resolved, including factual, consistency, and methodological and analytical issues.
  • ISSUE AREA 9: Several results and conclusions in Chapter 11 need to be changed to reflect current analyses and the best available science.
  • ISSUE AREA 10: The lack of analysis of upstream operations and related effects may render this document insufficient to provide NEPA compliance for the full suite of actions necessary to integrate the BDCP into CVP operations.

U. S. Fish and Wildlife Service:

  • Issue Area 1: The ADEIS contains analysis and language that can be read as biased, favoring the
    preferred project; furthermore, it relies on similar analysis and language in the BDCP that has not yet
    been rectified.
  • Issue Area 2: The ADEIS is Missing a Clear, Full and Complete Project Description of the Proposed
    Action and Detailed Information Needed to do a Complete Project Specific Level Impact Analysis for
    CM1. Additionally, the ADEIS does not Provide an Equal Level of Analysis of All Alternatives.
  • Issue Area 3: The ADEIS is subjective in how it reports model outputs and makes comparisons against
    the NAA and across alternatives.
  • Issue Area 4: Significant Water Quality Conflicts Exist for Restoration-Related Conservation Measures
  • Issue Area 5: Inconsistencies in the ADEIS with the HCP, lack of a qualitative discussion of the effects,
    and need for greater incorporation by reference of the HCP into the ADEIS.
  • Issue Area 6: Cumulative Effects Analysis.

Army Corps of Engineers

  • Even with the user’s guide, this is a difficult document to review, having to hunt and peck around to find anything specifically relevant for the Corps (404/10). To me, that in itself is a fatal flaw, especially if DWR and USBR want us to adopt the EIS for Regulatory Program purposes.
  • Although the document contains an extensive amount of useful information it is encyclopedic. Some of the, material could be incorporated by reference and project level analysis could be part of a tiered EIS document.
  • The objectives in the Delta Plan include improved conveyance and storage of water and water supply reliability. Reliability objectives include implementation of water efficiency and water planning laws (and reduced reliance on the Delta). Is it inferred here that reliability objectives in the BDCP equate to increased water export? Chapter 5 should include (or provide reference to) a master list of all sources and current exports, compared with actual contracted amounts (including amounts not yet utilized but available per contracts).
  • Appendix 3-A: Further information and clarification is needed regarding seismic risk and the current conveyance system. Insert citations supporting the statement, “Recent DWR evaluations indicate a higher degree of risk to Delta levees from earthquakes than was previously understood during reparation of the CALFED analysis. The higher potential for levee failure could result in substantial sea water intrusion in the Delta channels that would increase the risk of water supply availability for the SWP and CVP, as well as for Delta water users and the Delta ecosystem.”  In a study conducted by the Seismological Earthquake Engineering Research Institute, Seismological Society of America, CA Governor’s Office of Emergency Services, US Geological Survey conducted a comprehensive simulation of the 1906 earthquake in the Bay Area and an analysis of potential losses due to the occurrence of such an event today. According to findings 10 million Northern CA residents would be affected. Delta levees (not properly engineered or maintained) are vulnerable to the effects of ground failure and could inundate large tracts of land. The findings also indicate that BART (Bay Area Rapid Transit) subsurface tube/tunnel, and associated infrastructure is vulnerable and an earthquake could cause damage and system failure. Bridges, levees, and other structures have a degree of vulnerability despite retrofitting. Further study/simulation of infrastructure vulnerability and associated costs should be completed to determine if constructing new conveyance or retrofitting old infrastructure is most beneficial to the public and the delta environment. (56)
  • (Chapter 4): It is not enough to simply commit to undertake and implement mitigation measures “as part of the project in advance of impact findings and determinations in good faith”.. If proponents are unable to implement these commitments/mitigations due to land access issues, regulatory conflicts, or the inability to create adequate habitat in floodplains, etc., would the project (i.e., CM1) continue to move forward? The reader may interpret this to mean it’s possible that intakes would be built prior to those assurances that mitigation measures would likely move forward. (64)

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