The San Diego County Water Authority (Water Authority), a member agency of Metropolitan Water District, is dependent on imported water both from the Delta and the Colorado River for up to 80% of its water supplies. The Water Authority has been conducting workshops to inform its board members about the Bay Delta Conservation Plan (BDCP).
At the October 24 board meeting pf the Imported Water Committee, water resources manager Larry Purcell gave an overview of endangered species regulations and the environmental review process as well as an informative presentation on baselines where he attempted to clear up any confusion about the use of three different baselines in the different analyses performed for the BDCP.
Endangered species act regulations
Larry Purcell began with a discussion on the Endangered Species Act (ESA). There are very strict requirements for any activities that propose to take an endangered species, he said, clarifying that his use of the term ‘listed species’ refers to a species that is formally listed by the state or federal government as threatened or endangered. The text of the federal ESA encompasses a wide range of activities that could be considered a take, he noted. “In fact, it’s so comprehensive that in a lot of cases, if you just want to go out and look for one of these species, you have to have a permit, otherwise you could be considered in violation of the harassment prohibition, “ he said.
A permit can be obtained that will authorize take under federal and state endangered species laws, but the federal and state regulatory agencies must find that your activity will not jeopardize the continued existence of that species, he said. “If it does, no permit, no activity, it’s as simple as that,” said Mr. Purcell.
“The BDCP has identified a number of federal and state listed species, and therefore it will require both state and federal permits,” he said. He then presented a slide that showed what times of the year there were pumping restrictions for the protection of endangered species. “The three species that are listed on the chart – salmon, Delta smelt, and longfin smelt – are either listed by the state or federal government or both,” he said. “And as a result of that, there are restrictions on what activities can be performed in the Delta, specifically pumping for water export. As you can see, there’s just a very narrow window where there are no restrictions currently and that’s during the summertime. And quite frankly, all we’d need to have a summertime species be listed, and we’d be in a world of hurt.”
The Bay Delta Conservation Plan is meant to stop the endless cycle of species listings and water restrictions by addressing the issues in a comprehensive fashion, he said. There are two ways to get permits under federal endangered species laws, and two ways to get permits under state endangered species laws, he explained. “One way just involves listed species,” he said. “The examples you are most familiar with are the 2008 and 2009 biological opinions that we’ve heard so much about; those were permits issued under Section 7 of the Endangered Species Act and only cover the listed species that are shown in those documents. There’s a similar process for the state called a Section 2081 permit, again covers only listed species.”
The other approach and the one being taken by the BDCP is the Natural Communities Conservation Plan/Habitat Conservation Plan approach. There are a number of benefits to this, he said. “The two in particular that we have found from our personal experience with the Water Authority having our own HCP and NCCP, is they provide long term assurances. So as long as we are implementing the provisions of that permit, then we are pretty much assured that the agencies will not come back to us asking for more money, more water, more land, or any other natural resources, so that is a huge benefit.”
“The other benefit of an NCCP/HCP that we consider to be huge is that it covers non-listed species,” said Mr. Purcell. “So rather than just dealing with listed species, you can be forward-looking and anticipate the listing of other species that might be declining now, include them in your plan, cover them as though they are listed, and should they get listed in the future, they are automatically added to your list. There’s no down time, no reconsultation, nothing required, they are just automatically listed and you can continue doing whatever you are doing.”
The BDCP is a conservation plan to comply with the endangered species acts. There are two coequal goals: to protect, restore and enhance the ecosystem of the Delta, and to provide greater reliability of water quality and water supply, he said. There are 22 separate conservation measures and should it be approved, it would result in a 50 year permit to operate facilities in the Delta.
The 22 conservation measures can be grouped into three categories: Conservation Measure 1, the water supply conservation measure; Conservation Measures 2 through 11 have to do with habitat conservation and restoration, and Conservation Measures 12 through 22 have to do with what are termed ‘other stressors’ in the Delta that don’t necessarily have to do with habitat or water, he explained.
An NCCP/HCP is more than just a mitigation plan, he said. “The standards for approval are higher so you can’t just mitigate to maintain the status quo. You must contribute to the recovery of the species that you are covering.”
The environmental review process
In order to obtain the necessary state and federal permits, you have to do state and federal environmental compliance, Mr. Purcell explained. “Since the NCCP/HCP is a combined document, it makes sense to combine the environmental process for both the state process, the CEQA, and the federal process, the NEPA. It’s a common practice; they are very similar approaches, and the purpose behind those documents is to provide an analysis of the proposed effects if that project were to proceed.”
The Department of Water Resources is the lead agency for the state’s Environmental Impact Report (EIR), and the US Bureau of Reclamation, National Marine Fisheries Service, and US Fish and Wildlife Service are the co-lead agencies for the federal Environmental Impact Statement (EIS). He then presented a graphic that showed the steps of the two processes side by side. “You can see they are very similar,” he said. “There are some minor differences in the actual preparation of the document but in general the steps you have to go through to complete are very similar.”
We will soon be at the draft EIR/EIS stage, which will be followed by a state clearinghouse filing and the EPA filing, which kicks off the public review period, he said.
“In addition to being a joint EIR/EIS, the document is also a program and project level document,” Mr. Purcell explained. “Conservation Measures 2 through 22 are being addressed in a program level, which means that there’s not sufficient detail on the implementation of those measures to be able to analyze them to the level of detail necessary for approval, so when it comes time to implement those, there may be additional environmental review and additional EIR/EIS’s prepared for those particular components.”
However, the analysis for Conservation Measure 1, the water facilities, is project level, which means there will be no further environmental review necessary to build that project; however, they will have to get all remaining permits required for construction, he explained.
“There have been a lot of questions about baselines,” said Mr. Farrell. “How they were used in the various analyses. Why are they different? Does it matter? My goal today is to try to give you a better understanding of the different baselines and how they were used.”
Mr. Farrell acknowledged that three different baselines were used in the analyses: two different baselines for the federal and state environmental documents and a third for the economic benefits analysis. “It’s important to note that each baseline is used for a very specific purpose,” he said. “The baseline for the environmental documents is strictly to examine the environmental impacts or benefits and the mitigation of the various alternatives that are described in the environmental document. The economic baseline is used to examine the incremental benefits of the BDCP to water supply; there’s no environmental component whatsoever involved in that analysis.”
“What’s kind of neat about having three different baselines is that it gives you several possible views of the future if the BDCP does not proceed,” he added.
“For the EIR/EIS, and in fact for all baselines, it serves as a reference from which to compare the possible effects of an action,” he said. “For CEQA and NEPA, the baseline is defined in the regulations.” He explained that for CEQA, the baseline is fixed at the point the Notice of Preparation is issued, relatively early in the process. “Because they are legally defined, there are some limitations as to what you can and can’t include in the baseline. And again, for CEQA, it links to the Notice of Preparation.”
The CEQA baseline is also called ‘existing conditions’, he said, and it represents a snapshot in time of what the environmental conditions are at that specific moment, and then that’s held through the analysis. “The other thing both laws caution against preparers of documents is that you should not use artificial analysis of impacts that could mislead users or that is not supported by evidence,” he said.
He then presented a slide titled ‘How a baseline works.’ “This is a graphic with the affected environment along the horizontal axis which has a time component, current time to future; the vertical axis is level of impact; here we see the typical analysis that occurs,” he explained. “You have your existing baseline, a snapshot in time, and you have your proposed activity over time, you can see basically the level of impact increases, and what your project is responsible for is the environmental impact. That is what you will be mitigating for. The presumption using the horizontal existing baseline condition is that it will not change going forward. It will stay static into the future.”
“In a scenario where the baseline is not static, you know things are going to change into the future, regardless of your project – whether you build it or not, they are going to occur,” he said. “In this case, you do the analysis from the proposed action to the future baseline and that is the part of the impact that your project is responsible for.”
The baselines in the EIR/EIS are defined in law and there are limits to what can be included, said Mr. Farrell. “The CEQA (state) baseline is based on what was on the ground at the time the Notice of Preparation was issued. They used some of the 2008-2009 biological opinion terms and conditions, they included all the projects that were in the Delta in effect at the time in 2009 and they include continued operation of the State Water Project and the Central Valley Project, so the CEQA baseline is probably closest to that nice horizontal existing baseline that we just saw in the existing graph.”
“The federal EIS baseline went a little further,” he noted. “They are not quite as constrained as CEQA in the definition, so they included all of the 2008 and 2009 biological opinion conditions, it included continued operation of the State Water Project and the Central Valley Project, but it also included projects that were likely to occur in the absence of the BDCP, including full implementation of the fall salinity standard which is part of the 2008 biop. It included the effects of climate change and sea level rise through the year 2060, so this one might more reflect the future baseline on that graph that we just saw.”
“Let’s revisit the pumping graph one more time,” he said, displaying the graph but this time, adding the fall and spring salinity standards. “The fall salinity is outlined in the 2008 biological opinions, so once that gets through its legal problems and is implemented, you’re going to see that occur,” he said. “Also shown are the spring salinity issues dealing with the longfin smelt. Those are not part of either of those biological opinions, but the fisheries agencies are indicating that when the longfin smelt gets listed as a federal species, it’s their intention to protect that species by implementing this sort of a restriction, so I think we’ve kind of seen the future that the fisheries agencies are painting which is why the BDCP as a comprehensive approach is a good way to go.”
“So does the EIR/EIS baseline matter?” said Mr. Farrell. “Most of us are familiar with traditional construction projects where you build something, you impact the environment and you mitigate for it. In that case, the baseline is important, whether you use the existing baseline or the future baseline, as that defines the mitigation that your project is responsible for.”
“However, the BDCP is not a traditional construction project; it is a conservation plan,” he continued. “The goals and objectives have already been defined by science and they have to be achieved, regardless of your starting point of analysis, so your end point has been fixed. You have to get there to be successful. It may not be that important where you start from.”
“The water contractors are responsible for the costs involved with Conservation Measure 1, which is the water supply issue, for the construction of that, the baseline matters because the allocation of cost for mitigation of CM1 will fall to the contractors,” he said. “So we want to make sure we pay pretty close attention to the baseline that’s used for that. However, the construction mitigation is a very small component of the overall BDCP measures, so it may not matter that much in the big scheme of things.”
From an operational standpoint, the decision tree has been fixed, he said. “Our starting points for exports have been fixed at 4.7 to 5.6 MAF; it will be governed by the decision tree and adaptive management, so I’m not sure the baseline really factors into that equation.”
What about the economic benefits baseline? “It’s not tied to the environmental analysis whatsoever, so the legal restrictions on what can and can’t be in it don’t apply,” said Mr. Farrell. “It’s strictly a cost-benefit analysis comparing the BDCP to no BDCP. What they used in their baseline, of course, is different, which is why you have third baseline. They assume the fisheries in the Delta would continue to decline. They assume the fisheries agencies would further restrict exports to protect those species. They assume climate change, sea level rise and all other likely future conditions which include the development of additional diversions upstream, so some of those upstream diverters haven’t fully utilized their allocations, so they assumed at some point in time, they would. So for our purposes, it would appear that the economic benefits analysis is really the worst case in all of the documents that we’ve been able to examine to date. It’s a very conservative approach towards analyzing what would happen if the BDCP did not occur.”
“When there is a high Delta outflow required, exports are low; when there is a low Delta outflow required, exports can be higher,” he reminded. “Right now, this is how they are balancing the Delta today with outflows and exports. And we’re seeing that whipsaw as different species get listed and as different environmental conditions pop up in the Delta.”
He then displayed a chart titled ‘Incremental Supply Yield Benefit of BDCP.’ “This chart shows on the left the BDCP yields 4.7 MAF with a high outflow and 5.6 MAF with a low outflow, and it shows the split between a north Delta diversion and a south Delta diversion,” Mr. Purcell said. “To the right is the economic benefits analysis of no project with the same high outflow scenario and the low outflow scenario, so that’s the future condition as envisioned by the economic benefit analysis authors.”
“So what we’re seeing is, if you believe the BDCP economic analysis, then the incremental benefit of doing the BDCP is somewhere up to 2.2 MAF,” he said. “This is a simplified chart of the different baselines and the components that make up the baselines, just so you can compare and contrast the various major components that were used. The yields are off to the right. The BDCP yield is fixed for the decision tree; if you believe the EIR/EIS, the no-BDCP yield is 4.7 MAF, if you believe the economic benefits, it’s 3.4 to 3.9.”
“So that’s the big question that you as a board have to deal with,” said Mr. Purcell. “What picture do you believe is true? Is it the relatively flat existing baseline of the EIR/EIS, or is it the more conservative baseline of the economic benefits analysis?”
Mr. Farrell then concluded with a couple of final observations. “As far as environmental review and permitting, we do believe the NCCP/HCP is the way to go for resolving the Delta and endangered species issues. It provides the most certainty; it’s a tough process to go through but over the long haul, it’s probably the preferred way to address issues up there,” he said.
All the permits can be issued administratively by the two wildlife agencies, but to implement the BDCP, additional permits, such as the Clean Air Act or the rest of the permits that are typical with a construction project, he said. “The good thing is that the EIR/EIS will complete CEQA and NEPA for Conservation Measure 1, which is the water facilities conservation measure. The lead agencies can certify the document and complete that process without any further approvals. Again the other conservation measures, 2 through 22 will require additional review and approval.”
“As I noted, the EIR/EIS has two baselines, and it reflects the differences in law as to what those agencies can include in the baseline,” said Mr. Farrell. “From our opinion, it appears that the environmental baselines aren’t driving the selection of the alternative; again you’ve got this end point of the BDCP that you have to achieve, and you have to get there regardless of where you’re starting point is.”
“In the economic benefits analysis, they use even greater future conditions than in the EIR/EIS, and they include specifically discussions they have had with the fisheries agencies as to what the future would, could, might hold if there is no BDCP, and so we’re considering that a conservative approach for evaluating the benefits of the BDCP over the existing conveyance system,” he said.
“So for the economic benefits, is that a conservative approach to how much water is being developed or is it a conservative approach of the economics, or both?” asked Director Arant.
“It’s conservative in the meaning that more water is going out of the Delta in high outflow,” answered Mr. Purcell.
“Which means you get the largest incremental difference from that … so that’s a conservative assumption. It’s not that the economics then that are driven off of that are conservative … “
“Correct,” answered Mr. Purcell.
“The incremental additional water from no project to with a project is the most in this analysis,” said Director Arant.
Unknown staff person: “Because they took the future predictive baseline that spent the most amount of effort predicting the future, so you have the fisheries agencies, you have what NEPA did in using the fall salinity standard, then you had the fisheries agencies are being pressed to do – what are you going to do in the future, and they are saying we’re going to control everything through outflow, and that we’ve identified high outflow and low outflow as really the ratchet we’re going to turn and if that is the way it goes … “
“That assumption is saying if you do nothing, things will get a lot worse than they are now,” said Director Arant.
Unknown staff person: “Exactly, and here’s how it would get worse because this type of operating criteria would be imposed.”
“A few slides before that, it talked about the differences in the environmental analysis,” said Director Arant. “It was a different criteria, but I didn’t understand why the environmental analysis wasn’t based on the same doom and gloom that the economic analysis was based on.”
“It all has to do with how baseline is defined in those regulations,” replied Mr. Purcell. “The agencies doing the analysis are, their hands are tied as to what they can and can’t include in the baseline. … In the economic analysis, they had no constraints whatsoever in what they included in the baseline, so they chose the worse case to evaluate.”
“So our job is to figure out where in between those two, the future might really lie,” said Director Arant. “One end or the other or some place in the middle. And it makes a big difference on the economic analysis.”
Unknown staff person: “We were hoping we were going to clear up some of the confusion over some of the baselines. I think what is clear to staff, and we want to make sure the Board understands this, is that the baselines used in the EIR especially, the CEQA portion of that, does nothing to really to predict the future, and we would not look at that in terms of making a decision on what the risk is of doing nothing, because they didn’t take any effort to look out in the future. We’re also saying that the EIR/EIS baselines, for whatever they are worth, they didn’t really drive the scope and the cost of the whatever alternative gets selected because it’s not really mitigating off a baseline.”
“We think you do have to look out into the future conditions, and what that is,” he continued. “It may be something that we need to ask for more clarification on, but the EIR and even the EIS is inconsistent with what the decision tree is, and I think what we tried to talk about last month was this whole thing about the operating rules are everything and the operating rules are being governed by how much flows out of the Delta, and that’s really going to affect what the yield is so if you’re evaluating things on the high Delta outflow criteria, you are looking at a conservative operating scenario, and when you look at yield, and we’d say that’s really where you want to focus on, because everything else is more unknown, and is there a risk of that being turned around? … That’s why we were hoping to express and clear up the confusion on baselines. … “