The Bay Delta Conservation Plan’s regulatory assurances discussed at the Delta Stewardship Council meeting

At the February 27th meeting of the Delta Stewardship Council, Carl Wilcox from the Department of Fish and Wildlife gave a briefing on the Bay Delta Conservation Plan’s regulatory assurances.

DSC Dan Ray 1Deputy Executive Officer Dan Ray began by explaining that regulatory assurances are the commitments that the regulatory agencies make that provide a measure of financial and regulatory predictability for the BDCP water agencies.  “In recognition of the efforts to carry out the conservation measures that the BDCP proposes, the assurances are one of the ways that the plan would provide for a more reliable water supply because it would assure the BDCP water agencies of some level of predictability in the overall costs that they might face or the additional mitigation measures that they might be asked to support as the plan was implemented,” he said.

The Natural Communities Conservation Planning Act (NCCPA) provides that the regulatory assurances have to be commensurate or roughly equal or at least proportionate with the long term conservation assurances and the associated implementation measures that are part of the plan, said Mr. Ray, noting that the NCCPA does provide guidance as to what the DFW should consider, such as the level of knowledge about the status of the species, the adequacy of the science and analysis that supports the plan, the size and duration of the plan, the degree to which it considers the range of foreseeable circumstances that might affect the plan’s implementation in the future, and the sufficiency of the mechanisms for long-term funding.  Mr. Ray noted that the Act also spells out what actions the Department of Fish and Wildlife might take if the plan’s proponents fail to provide adequate funding or fail to provide rough proportionality in the plan’s implementation.

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Dan Ray then introduced Carl Wilcox, the policy advisor on the Delta for the Director of Fish and Wildlife.

Carl Wilcox

The Natural Communities Conservation Planning Act (NCCPA) standard for an Natural Communities Conservation Plan like the BDCP is to meet the conservation of the covered species through the implementation of its conservation measures and the achievement of its biological goals and objectives,” began Carl Wilcox.  “That conservation is in proportion to the extent that the covered species exist within the plan area, so there is a proportionality there.  An individual plan is not responsible in the absence of the only occurrence of that species for achieving that conservation objective.”

DSC Carl 1The biological goals and objectives are key to the plan and are the benchmarks against which the success of the plan and implementation of the plan will be evaluated, he said.  “In the construct of BDCP, I think you will see goals and objectives that are much more explicit than you have seen before, relative to things that occurred in CalFed or in other processes, and are probably more specific that you would see in most of the other NCCPs or HCPs in the state, or potentially nationally,” said Mr. Wilcox.

There are three levels of objectives within the planning process: landscape level, community level, and species level, Mr. Wilcox explained.  “The core of NCCPA is at the community level – it’s the conservation of natural communities within the plan area that supports the conservation of the species within the plan area.”

The implementation schedule set timelines and targets for implementation of the conservation measures, he said.  “An example would be the specific objectives for tidal restoration which are in CM4, which set timelines for achieving certain acreages of those habitats within specified times from the point of plan approval,” he said.  “The example would be 16,000 acres of habitat by year 10, approximately 26,000 acres by year 15, and completion of the 65,000 acres that are currently described in the plan by year 40.”  He noted that ultimately those amounts could be modified based on the adaptive management process if they are not achieving what they are intended to do.

In approving an NCCP, there are specific findings that the department needs to make that are described in fish and game code section 2810, he said.  He listed some of those specific findings: “The plan integrates adaptive management into implementation supported by a monitoring program, provides protection of habitat and natural communities and species diversity of the landscape at  the ecosystem level, conservation measures in the plan area provide for the conservation of species by conserving landscapes for ecological integrity and function and diversity, conservation of species within the plan area and linkage of both internally and externally  of those habitats with surround areas and amongst themselves within the plan area, and provides or protects environmental gradients, … and then connectivity between the habitat, and in this case, particularly the land and riverine processes within the delta and the estuarine character of the Delta or the tidal area, and then specific conservation measures that meet the needs of the covered species.”

There is a time frame and an implementation schedule,” said Mr. Wilcox.  “All plans have those, and there are certain weight points for specific conservation measures within that context.”

Provisions that ensure adequate funding – that’s always a tricky element of plan implementation because these are large scale plans,” he said.  “All of that doesn’t necessarily have to be there at day 1, but the mechanisms for achieving that over time need to be identified,” and he noted that there are examples of planning processes within the state where the plan has been approved but it took longer than anticipated for the local funding to come through, but there’s a mechanism for that, and consequently, there were issues with whether or not the plan would proceed until that occurred.”

The other question is how assurances would be granted in the context of that, said Mr. Wilcox.  “There are a number of things that relate to whether and to what extent the Department could make assurances in the context of the plan that there wouldn’t be additional obligations required, particularly in the light of changed circumstance or unforeseen circumstances occurring, so within the context of the plan, it identifies all of those things that can be foreseeably thought of that could affect the plan within the plan area and identifies actions and mechanisms to address those,” he explained.

The other element of assurance lies in how certain we are about the conservation measures and how they are going to achieve the objectives of the plan through their implementation,” Mr. Wilcox said.  “It’s relatively straightforward in many terrestrial plans that are really focusing on creating reserves and managing them for species. Here we’re managing at multi-dimensions of water quality, flow, habitat, flooding, what might happen to levees, upstream effects to the Delta, and ocean conditions at some point, and things that are occurring down bay, so there is a high level of uncertainty within the context of BDCP.

The level of assurances are how the conservation plan is structured to allow for implementation,” said Mr. Wilcox, “and that’s one of the things that we’re wrestling with right now is how to structure that so that there’s more certainty.  To some degree, what you see in the decision tree, relative to the idea of habitat really works or other stressor conservation measures, can potentially offset the need for outflow and that kind of thing, and that’s a key component of it. … The concept there is that there’s more certainty in the effects of flow based on what we know over 40 years as opposed to some of the other aspects, and we’re going to have to learn about those through the adaptive management process.”

Dan Ray asks Carl if he would talk about the “what if” things.  “What if we fall off track, what if the funds that are expected aren’t provided or if other impediments to implementing the plan occur, what are the steps that the Department of Fish and Wildlife could take under the regulatory assurances?”

I don’t know that they are taken under the regulatory assurances, per se; they are taken under the implementation of the plan,” replied Mr. Wilcox, noting that it has happened with other plans where the conservation is not being implemented in roughly proportional or rough-step to the impacts of the plan.   “This is a little bit different from terrestrial plans in the context of BDCP is that those plans generally authorize some amount of land development in exchange for conserving a reserve system and the problem arises if the development is happening faster than the conservation.  The intent is to keep things roughly proportional as you are moving forward.  BDCP is a little bit different in that it is complicated with many factors at play through the implementation of conservation measures.  We have a decision point at some point that will have significant bearing on what it looks like, so it’s how the plan as a whole is being implemented and not any particular component of it.”

There are meet and confer provisions within the implementing agreement and allowed for under the Act to remedy this situation short of pulling the permit,” said Mr. Wilcox, “and mechanisms, particularly through the adaptive management process, to look at how effective any particular conservation measure may be within the context of the plan and whether or not resources that are associated with that one may be better put towards achieving other objectives.”

I don’t’ know that there’s a clear answer,” he said.  “It’s a relatively dynamic process short of just being totally out of compliance and having to reassess the situation in moving forward.  Keep in mind that in the context of NCCPA, this is a conservation plan – it’s not a mitigation plan so at some point, you may revert to standard permitting processes if all else fails.”

The BDCP assumes a substantial contribution of public funding, which is where the greatest concern lies with BDCP, relative to its price tag, but it could be argued that there is a fairly strong track record of conservation spending through bond measures in the past, he said, and noting that many of the terrestrial conservation plans receive substantial funding through the federal government for their implementation.

He pointed out that the Contra Costa County and the East Contra Costa NCCP were approved just before the housing bubble burst, so development stalled.  “There hasn’t been much development contribution to implementation of the plan but they’ve already implemented probably one-third of their conservation actions through aggressive pursuit of state and federal funding for implementing the conservation aspects, as well as a substantial local commitment through the efforts of the East Bay Regional Parks District in a partnership that they have …  and they’ve also benefitted from the fact that the economy hasn’t been very good and land has been readily available because people were willing to sell.  Their proportionality went way ahead of where they need to be in a long-term plan.”

Councilmember Larry Ruhstaller asked Mr. Wilcox to explain that the implementation agreement is and what its status is.

The implementation agreement is the agreement between the permittees and the agencies on how the plan will be implemented and is one of the mechanisms for permitting,” replied Mr. Wilcox.  “The implementation agreement is currently being worked on, and is part of the reason for the extension in the comment period.  It needs to be out for public review concurrently with review of the public documents, and so the target is to have it available by the middle of April.”

“The implementation agreement basically describes the relationships and the specifics of how the plan would be implemented, how disputes or problems would be resolved, where the assurances lie, and that type of thing,” Mr. Wilcox said, noting that one issue is how much of the plan will be re-quoted as opposed to referred to in the implementing agreement.

DSC Johnston 1Councilmember Pat Johnston and Carl Wilcox discussed the differences between no surprises, changed circumstances and unforeseen circumstances.

Mr. Wilcox said that the ‘no surprises’ rule is a federal policy relating to a federal section 10 permit and doesn’t really relate to the NCCPA, he said.  “The changed circumstances is a situation where it’s something like you can foresee, so for example a levee failure, and what the consequences of the levee failure might be on the implementation of the plan.  And so consequently, the BDCP lists a number of situations which in the context of the plan can be foreseen as happening, identifies actions that would be taken to address those within the context of the plan, and identifies a funding source …  so there are resources there to address those changed circumstances to maintain the viability of the plan because you can anticipate that they may happen within the life of the plan.”

Unforeseen circumstances are more in the category of acts of God that can’t be anticipated and can’t be really addressed within the context of the plan,” Mr. Wilcox continued.  “A catastrophic levee failure in the Delta would not be addressed within the context of the plan.  That’s going to affect the state as a whole, and all of those affected by it are going to be mobilized to deal with it, so it’s bounded within the extent to which that event would affect the conservation measures within the plan, so there’s a limitation there.”

Unforeseen circumstances are addressed in all plans in that if you have to identify those things that are in effect beyond the control of the permittees and their ability to address those changes on their own,” Mr. Wilcox continued.  “There may be changes that are outside their scope; for salmon, we could see poor ocean conditions and a significant decline in salmon populations that would be beyond the ability of the project to deal with, or climate change may overcome BDCP’s particular abilities to deal with those fish if through the best efforts.  Keep in mind that BDCP’s sphere of influence is the Delta, it’s not reservoir operations per se.  It may be that through climate change in the life of the plan, we see a more precipitation driven environment, temperatures go up at higher elevations and it becomes impossible to maintain a cold water pool in a reservoir to sustain the tailwater fisheries below that, and that would be an unforeseen circumstance that BDCP on its own wouldn’t have a responsibility to address … “

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