Dan Ray began by stating that the Council would be receiving regular briefings on the elements of the BDCP because ultimately the Council will have several different important roles when the BDCP is released in draft form. Mr. Ray reminded the Council of what those were: “You and the Independent Science Board are authorized to make comments on the EIR and EIS, DWR will be consulting with you as they move towards its finalization; once the BDCP has been approved, you’ll be responsible for incorporating it into the Delta Plan; and there also is the potential that it could be appealed to the Council for review of the Department of Fish and Wildlife’s decision in approving it.”
The legislature expressed its intent that the Delta Plan, of which the BDCP will become an element if its approved, that there be a governance structure that effectively directs efforts across state agencies and creates a governance that has authority and the responsibility, accountability, adequate science support, and funding to achieve the goals of the law, explained Mr. Ray. “So we want to make sure that the Delta Plan and the BDCP and the Science Program all fit together to carry out that legislative intent.”
The Delta Reform Act required the Delta Plan include an adaptive management component, and the Natural Communities Conservation Planning Act, under which the BDCP is being developed, also requires an adaptive management program. “The BDCP recognizes that there’s considerable uncertainty about the Delta ecosystem and the likely outcomes of implementing the conservation measures so it does include an adaptive management monitoring program that’s designed to confirm that the Plan is being carried out, to test the efficacy of the conservation measures in achieving the biological objectives, and then also using new information and insights that are gained during the plan’s implementation to improve the strategies for meeting its goals.”
The BDCP includes an ambitious monitoring program, noted Mr. Ray. “The BDCP outlines more than 100 different actions that are supposed to be tracked in terms of their completion and then their outcomes,” he said. “Just by comparison, only about a dozen of these are partially dealt with by the current Interagency Ecological Program, so it’s a substantial expansion in the science effort underway in the Delta.” He also noted that the plan identifies 85 additional potential research actions that need to be undertaken to reduce the uncertainties about the Plan’s likely outcomes.
The Plan includes an adaptive management program that’s consistent with the Delta Plan’s three phase approach, and they’ve been consulting with the Delta Science Program and also other folks who have been involved in Delta science for many years, he said.
The success of the BDCP’s adaptive management program is critical, Mr. Ray said; with the decision tree approach, the difference between the lower end and the higher end of the range of flows is 900,000 acre-feet. “That caught my ear because 900,000 acre-feet, I think, is about three-quarters of the Metropolitan Water District’s typical Delta water deliveries,” said Mr. Ray. “It’s greater than the combined yield created by raising Shasta Dam, building Sites Reservoir, building Temperance Flat Reservoir, and raising Los Vaqueros Reservoir. … This is incredibly high stakes science, so it’s essential we get it right.”
The BDCP will have an Implementation Office overseen by a program Manager who will have the responsibility for addressing planning, budgeting, sequencing, scheduling BDCP’s implementation and coordinating work with us and others, said Dan Ray. “The BDCP can’t be implemented by a single agency; it’s not just a matter of DWR going out and constructing a couple of tunnels. There’s a variety of agencies that need to be involved, not all of whom are partners in the BDCP at this stage of the game, and there’s coordination that’s required with other functions that are outside of the BDCP and so knowing that there is an effective governance program to carry out the BDCP is important.”
The recent LAO report questioned whether the Implementation Office, which has no statutory authorities and relies on the cooperation of other agencies, doesn’t share some CalFed-like attributes, such as a lot of responsibility and not much authority, said Dan Ray.
And with that, Karla Nemeth and Carl Wilcox began their presentation.
Karla Nemeth, project manager for the Bay Delta Conservation Plan, began by saying that the public review of the draft Bay Delta Conservation Plan and the EIR/EIS will be publicly released on November 15, starting a 120 day public comment period that will extend to March 17. “We are all looking forward to those discussions and wanted to be responsive to requests for time necessary to review these documents that are very lengthy to accommodate holidays,” she said.
Ms. Nemeth said they have been addressing several sets of comments, including those received from the biological agencies regarding the contents of the plan, the governance structure and the decision making process. She also noted that a diagram of the governance structure will be included in the upcoming release.
“We are working to address all the comments that have been raised over the course of the last several months by the regulatory agencies,” said Ms. Nemeth. “They raised a lot of key issues. Some of those key issues were raised in a similar fashion by a recent report by Mount and Saracino that was released last week. The report’s analysis was conducted on the earlier drafts of the conservation plan, so I would say none of that came as a big surprise. We welcome that kind of input and look forward to addressing their comments in the public review draft as we develop an actual final conservation plan.”
Carl Wilcox, Policy Advisor on the Delta for California Department of Fish and Wildlife, then discussed the BDCP’s adaptive management program. “The fishery agencies and the permitted agencies have been working very hard to address the concerns that have been raised previously, particularly about decision making process and integration with the Delta Plan,” said Mr. Wilcox. “We have, from the Department’s perspective, recognized the importance of that integration and have taken steps to make sure that its clearly identified in BDCP’s adaptive management process how that integration and coordination occurs. My expectation over the implementation phase is that it’s going to be a very close relationship, and that we’ve tried to characterize that and include that in the public draft document.”
“We’ve tried to make it more clear that at the end of the day, when there is a decision about an adaptive management change that affects biological goals and objectives and their achievement, that the decision rests with the fishery agencies,” said Mr. Wilcox. “I think that’s been clarified within the revised document both within the chapter on the implementation structure chapter as well as the adaptive management section.”
Mr. Wilcox agreed with Dan Ray’s characterization of the monitoring and research program as being ambitious. “Great amounts of detail have not been included within the plan, but once we get done with getting the public draft out, there’s going to be more attention and ongoing discussions relative to the biological opinion remand process,” said Mr. Wilcox. “We’ll be better defining some of the key areas of investigation so by the time we get to the final, there will be quite a bit of detail on some of the most important components of the research programs to support adaptive management decision making, particularly as it relates to the decision tree.” He noted that there is already work underway, citing the fall low salinity studies (FLASH) that have been underway as a result of the biological opinions, and the report from the IEP’s MAST team which is currently taking public input right now.
“The fall low salinity study program is going to be updated and that process is underway and we’re engaged with a wide array of stakeholders from the contractors and the NGO community in adjusting that and adding additional studies to the program to better inform future decision making and ongoing decision making,” said Mr. Wilcox. “I think as we move forward, you’re going to see more detail during the review period when everybody else is working on providing comments on the environmental documents and the plan itself that the agencies and others will be working to better define some of the specific studies that will support the adaptive management program for inclusion later on.”
“One of the enduring themes of governance of water, ecosystem, and the Delta has been multiplicity of agencies with no ability to compel the reaching of a common decision and frustration about the inability to act in a timely fashion,” said Chair Isenberg. “The earlier drafts of BDCP set up a dispute resolution system that ultimately was voluntary, had no compulsion to it and no time frames. Are we likely to see significant changes in that?”
“We are likely to see changes,” responded Ms. Nemeth. “We heard that feedback about making sure that there was accountability in accordance with authorizations and the responsibilities of the various agencies involved. I would just offer a couple of things, particularly in light of the LAO’s commentary on the governance structure. One of the things that is very different about the BDCP as a conservation plan compared to the CalFed process is that while it’s a voluntary mechanism that one enters into to receive permits under state and federal endangered species laws, once those agreements are made, they are not voluntary agreements. Part of when we originally started looking at the variety of conservation measures that were likely needed to put into the plan, one of the things that we take a look at are the existing authorizations of the entities involved because one of the findings that the regulatory agencies need to make on a conservation plan is that all of these actions are reasonably certain to occur. So the authorizations necessary to pursue all of the conservation measures we believe exist with the existing entities that are entering into this permit agreement.”
One significant issue is the intensive coordination required with local governments, she said. “Secretary Laird and the Natural Resources Agency has certainly heard without any vagueness the very intense interest from the Delta counties to participate more substantially in the actual implementation of the plan in way that acknowledges that while water users who would benefit from the improvement to reliability that the plan would generate, they have a significant stake in how plan is implemented and that its implemented on time and on budget,” she said, noting that the Delta counties will have both temporary impacts of construction activities as well as long term impacts from land use changes. “We are engaging with the Delta county supervisors on adjustments to the governance structure that can provide for that kind of role in the implementation of the plan.”
“There are really two levels, if you will,” continued Ms. Nemeth. “There’s a macro level that we’ve been hearing a little bit about today which is how do we deal with scientific uncertainties around the performance of habitat restoration and/or the performance of water operations and some of these measures to address these other stressors, kind of writ large across the plan,” she said, noting that there will be annual work plans as well as five year evaluations of whether they are achieving their goals for the species. “I think on one level there’s potential for the involvement for local interests in understanding and participating in consensus building around the relative investments that need to be made in habitat restoration versus other conservation measures of the plan.”
On an individual conservation measure basis where it occurs in a discrete jurisdiction, such as the Yolo Bypass, the county would have a particular interest in how that conservation measure is implemented and the site specific environmental review that would be required, said Ms. Nemeth. “How we can reflect better engagement with local interests in the implementation in specific conservation measures is another topic and another concept that I think we want to discuss in more detail with Delta interests and have that input reflected in any final plan.”
“When Secretary Salazar and the Governor held their famous press conference in 2012, they were saying that science was going to guide water exports, not just ecosystem restoration,” said Mr. Isenberg. “I didn’t find that very clear in the earlier drafts of BDCP. Are there likely to be more specific changes there?”
“I think that will show up in the real time operations component as well as the science component,” said Mr. Wilcox. “Basically the Plan incorporates criteria for water operations that achieve certain levels of protection that the fishery agencies believe are necessary to provide for the conservation objectives within the plan. So the decision tree would be a classic example relative to making that decision. At some point in the future when the north Delta diversions would begin operation as to what the outflow objectives need to be.”
“Is Carl Wilcox going to be saying yes or no to operational decisions on a daily, weekly, monthly basis on both water operations and ecosystem, or is this a longer time planning or the hopes that there’s a provision that you’re supposed to meet this standard, it will be met?” asked Mr. Isenberg.
“On real time operations, the fishery agencies working as they do now with the facility operators will make recommendations and decisions about what operations are relative to providing protection for covered fish species,” replied Mr. Wilcox. “Ultimately the decision relative to a particular operational response for the protection of fish will rest with the fishery agency that has the authority, whether it’s the Department and the Fish & Wildlife Service for Delta smelt, or the Department and National Marine Fisheries Service for salmon.”
“A decision to increase or decrease exports of a significant amount … ?” prompted Mr. Isenberg.
“It’s not really increasing or decreasing exports; real time operations is something that happens on a daily but more likely weekly basis, based on where fish are and what the risk to those fish are relative to a particular aspect of water project operations,” said Mr. Wilcox. Using Old and Middle River flows as an example, Mr. Wilcox said, “By adjusting the degree of negativity of Old and Middle River flows which create an entrainment problem, the more negative potentially they are, if the fish are where they could be subject to those negative flows and entrained to the pumps, the fishery agencies would be, as they do now, monitoring the distribution of species, assessing the potential risk to those species relative to those operations and making recommendations through the real time operations team on what Old and Middle River flows should look within bounds that are described in the operating criteria of the Plan.”
“I guess I’ll wait for the draft … I know where you are headed but I can’t say I understand with clarity yet,” said Mr. Isenberg. “You had mentioned the biological opinion litigation settlement discussion and the continuation and development of a plan to deal with legally enforceable biological obligations. … Are we likely to see any different or interesting there? Because it is an existing legal obligation, not a future, theoretical obligation.”
“I think the objective of the stay in the remand order was that the litigants work together to develop a science program that can better inform the new biological opinions that would emerge under the remand order, and to do that, as part of that, the objective or the requirement is to submit a collaborative science and adaptive management science program to the court,” said Mr. Wilcox. “It’s a decision relative to the Court providing additional time to implement those programs.”
“The court order said that an extension of time would be considered by the court upon the demonstration of serious advancement – it was a structure of decision making and science and governance,” said Mr. Isenberg.
“Yes, and that’s what this report would describe and that’s what the collaborative adaptive management team is trying to create,” replied Mr. Wilcox.
“That will be a part of the Court order, will it not?” asked Mr. Isenberg.
“Ultimately what is developed there will be memorialized in some ways, but since I’m not a lawyer, I can’t comment on how the court will do that,” said Mr. Wilcox, “but if it’s acceptable to the court, there will be an extension of time to implement that. The alternative is that if it is not adequate to the Court, things go back to the existing timeline which are very constrained. The idea here is that the expectation was basically we would see the existing biological opinions reappear with a NEPA document to support them and there probably wouldn’t be any change to the way things worked. This is an effort to try to collaboratively address some of the issues in the underlying litigation and try to get those to a point where the new biological opinions are not something that’s going to be litigated and are tolerable to everybody.”
“I can assure you they will not be tolerable to everybody,” joked Mr. Isenberg. “We are in a subject area where that is an impossibility.”
“I think this process, though, is the test drive of what adaptive management will look like so I think that’s why everybody is doing their best to work collaboratively and generate the product that a court will accept,” said Mr. Wilcox.