Bay Delta Conservation Plan Update: A comparison of regulatory approaches

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Metropolitan’s Special Committee on the Bay-Delta is updated on the substantive differences between the change in the Bay Delta Conservation Plan from a HCP-NCCP approach to a Section 7 approach

At the April 28th meeting of Metropolitan’s Special Committee on the Bay Delta, committee members heard an update on the proposed change to the regulatory approach of the Bay Delta Conservation Plan, which has been the subject of numerous newspaper articles recently.

BDCP Slide 6At the beginning of the agenda item, General Manager Jeffrey Kightlinger informed the committee that the specifics of the new proposal have yet to be released, but Metropolitan has been in conversations about what it means. “Today, we’re just going to be looking at the legal regulatory framework under the state and federal endangered species act, and how the two approaches are different,” he said. “We don’t have specifics yet, but when we get the specifics, we’ll then actually be able to look at how the project would be changed under this approach.”

Mr. Kightlinger said that there are pros and cons to each approach, noting that Metropolitan does a lot of projects; some have separate permits from the state and federal wildlife agencies, some are habitat conservation plans. “The pro of the section 7 approach under federal ESA is that you’re managing to a jeopardy standard, which is a lower threshold, so the burden on the agencies is a little less, and you can go back in a little easier and change and amend and move from there in a more adaptive process,” he said. “And because the burden is less on the regulatory agencies to figure everything out ahead to time, they’re a little more likely to move more swiftly through the process.”

What I really like about the section 10 HCP approach, which we did on the Colorado, is that you have a long term game plan in place, which is up to 30 to 50 years,” he said. “We were looking for a 50 year permit here, so that gives you a good baseline of assurances. You’d still have adaptive management of changing circumstances. The conversations we’ve had with Cal Fish & Wildlife is that their concern really has to do with scientific uncertainty. The idea that we would be projecting how everything would be operating 50 years from now has just widened the uncertainty to such a range that they believe the modeling and the documents doesn’t lead to a functional permit at that point. Most of that uncertainty is being driven by the models on climate change and what climate change is going to do to the snowpack, salinity, survivability of certain species with rising temperatures, etc, that they believe that the projections are so wide that the permit conditions start to become meaningless, so they want to go back to a more narrower approach that is less that 50 year look ahead.”

He then turned the floor over to Steve Arakawa, Manager of Bay Delta Initiatives.

Mr. Arakawa noted that the presentation was developed with input from the legal and technical staff that understands the ins and outs of HCPs and other types of regulatory approaches, and it reflects the current thinking on what one approach would provide versus another.

Overview of the Bay Delta Conservation Plan

The Bay Delta Conservation Plan has been underway for a number of years; the intent was to develop a comprehensive approach to solving the issues in the Delta that deal with water supply reliability, Mr. Arakawa said. He noted that the Delta’s physical environment has undergone significant changes over the past 150 years for a variety of reasons: Loss of habitat, land use, subsidence, the flood control systems coming online, and the state and federal water projects have all impacted the Delta, as well as other stressors have affected the system.

The purpose of this conservation plan was to deal with all of those things, and at the same time, packaging these elements such that it would provide benefit for water supply reliability, and provide permits for operating the state and federal water projects, as well as provide the public benefit of restoration and dealing with the other stressors, because the Delta is an environment that state of California depends on beyond just the water supply that flows through there,” he said. “Recognizing the public benefit of that, that gets woven into the Bay Delta Conservation Plan.”

BDCP Slide 4When the planning process for the BDCP started, they set out to develop the federal Habitat Conservation Plan and the state Natural Communities Conservation Plan to improve water supply reliability as well as implement a multi-species approach, rather than targeting actions towards a specific species, Mr. Arakawa said. “The attempt was to develop a program that deals with multiple species, such that it has longevity; it deals with not only the listed species but unlisted species that may be feeling the effects of different stressors that are occurring out there today,” he said. “Importantly, it would be a basis for the state and federal projects operating under the Endangered Species Acts. It would contribute towards the state’s policy of coequal goals for water supply reliability and ecosystem restoration and that policy was established in legislation in 2009, so it wove in the idea that this would contribute towards those coequal goals.”

The Bay Delta Conservation Plan would also identify the sources of funding and the decision making process, adaptive management and monitoring to adjust to changes, Mr. Arakawa said.

At the start of the planning process, a planning agreement was established and signed by a variety of parties, including the state and federal government, the state and federal water contractors, and other non-governmental organizations with an interest in restoring and protecting the environment.

This process since October of 2006 has been a very extensive environmental review, with very extensive modeling and technical evaluation of how different factors affect the fish and how this proposed program would affect the fish,” he said. “I would say it’s the most extensive analysis of what’s going on in the Delta done to date. During this process, there was an opportunity for the broader interests and the public to see what was happening at steps along the way, so the state made a very deliberate decision to show their work through administrative drafts. …  An administrative draft was provided in March of 2012, a second administrative draft was provided in May of 2013, and then a release of a public draft. There was a comment period that went from December of 2013 through July of 2014 that also provided the official way that comments could be registered from all of the different interests, and then all of those comments could be taken into account as the agencies developed a final document.”

Today, we are past the close of public comment; the state has been reviewing all of the comments and at the same time, the approach for regulatory permitting has also been reviewed, he said. “The next step is a release of the recirculated documents as part of the environmental review process when they will undergo further public review,” he said. “It will reflect a lot of the approach to dealing with comments and also with dealing with the regulatory approach.”

Regulatory approaches

Mr. Arakawa noted that recent news articles have reported that the state was looking at alternative regulatory approach on how to move forward with both Delta conveyance and the mitigation, as well as the ecosystem restoration and other factors affecting the environment.

We are looking to in this recirculated document to see how this would be laid out, but what we do believe is that the water conveyance or the tunnels would be permitted would be through a permitting approach that required mitigation, so they would look at adding alternatives to the existing alternatives that they’ve already released for public review and adding alternatives that were targeted towards developing the tunnel project with mitigation under this EIR and making it a decision on that,” Mr. Arakawa said.

“There would also be a separate state process for implementing other actions that would not be covered under the decision to move forward with water conveyance with mitigation, so there would still be a parallel effort to move forward with actions that are necessary in the Delta beyond just water conveyance,” he said. “All of that contributes towards the coequal goals, and that’s very critical to demonstrate that the collective actions in the Delta would contribute to the coequal goals of water supply reliability and ecosystem restoration.”

The permitting for the water conveyance could be done as either a Section 7 permit under the federal Endangered Species Act and a Section 2081 permit under the California Endangered Species Act, or a Section 10 approach, with a federal Habitat Conservation Plan and the state Natural Communities Conservation Plan, he said.

The Section 10 approach is what was envisioned for the Bay Delta Conservation Plan, he said. “Section 10 is a provision under the federal ESA that allows for entities that are looking for project approval to put forward a Habitat Conservation Plan, and to get permits to build and operate that project over a period of time in return for certain commitments,” he said. “Then you would know the rules for how that project would be managed and operated over that period of time, versus an endangered species act section 7 federal biological opinion.”

Mr. Arakawa explained that the process for federal entities under Section 7 is that during the planning process, the federal lead agency seeking permit approval develops a project description and biological assessment that looks at how the project is intended to operate and what effects it would have. The fisheries agencies, having permit oversight, would look at that proposed project and determine how it would affect environmental resources that are listed under the Endangered Species Act; they then issue a biological opinion which determines whether that project or program would avoid jeopardy to listed species or not, and if it determines measures are needed to avoid jeopardy.  Those actions would be included in the biological opinion.

Similarly on the state’s side, the California Endangered Species Act, there’s a code 2081 that provides a mechanism for the state issuing a permit for state listed species which is comparable to the section 7 approach on the federal side, Mr. Arakawa noted.

The existing project operations under the State Water Project are permitted under a section 7 approach today, he said. “That was the topic of court decisions and biological opinions were issued earlier, back in the 90s and 2000s, when those were upgraded or revised and challenged in court; we got to the federal court and the Wanger decision, and the outcome of that Wanger decision – that was all related to Section 7 decisions that were made and biological opinions.

In contrast, a project could get permitted through a Section 10 approach with a Habitat Conservation Plan that covers a period of time with commitments; the Natural Community Conservation Plan is another approach under state Endangered Species Act that’s comparable to the Habitat Conservation Plan, he said. “While a 2081 permit would look at how you protect the species and mitigate, the NCCP is a little broader and deals with how to improve and restore the situation,” he said. “Under the BDCP, it had 22 conservation measures that would contribute towards the environment and the protection of the environment in the Delta.”

He then walked through a comparison of the considerations for each approach.

BDCP Slide 8The Section 7 approach is consistent with how the project has been operating to date, so that’s how the State Water Project delivers water through the Banks Pumping Plant; they also have conditions under the state Endangered Species Act for those listed species for the State Water Project,” he said. “The BDCP is intended to be a new compliance approach for operations.”

Regulatory assurances

With the Section 7 approach, there are no explicit regulatory or water supply assurances, he said. “There is a means of reconsulting when things change; but the biological opinion would not provide a 50 year permit term with identified commitments and then all the parties knowing exactly what was necessary,” he said. “Under the section 7 or the 2081 permit, there are more opportunities to revisit and reopen and look at what’s changed in the system and what the commitments ought to be, and so those conditions or commitments could be imposed on the project owners or operators.”

With the Section 10 approach, there would be more explicit regulatory assurances dealing with water supply and operations, he said. “The intent is when you sign an implementing agreement, you would know, once that’s been executed, what your obligations are for that permit term,” he said. “There would be adaptive mechanisms to change options, to look at things and to revisit, but how that process would work would be spelled out and what the exposure is for cost and supply, and that would be written into those assurances.”

Coverage of species

The Section 7 and the 2081 are targeted towards specific species, so they would be looking at what’s required for salmon, what’s required for Delta smelt, what’s required for longfin smelt,” he said. “With the Bay Delta Conservation Plan or HCP approach, there would be mechanisms for coverage of unlisted species. For example, those 22 conservation measures were developed and analyzed with the idea in mind that it would cover more than just the listed species.”

Permit duration

A section 7 has very likely a much shorter duration permit duration. “There’s an effective term for the permit, but the reopening process is much more fluid,” he said. “For a Section 10, there would be an explicit term for the permit; for example, on the BDCP looking for 50 years.”

Funding

Under a Section 7 approach, the funding for the water conveyance and the mitigation of that project would be spelled out, and the need for moving forward to fund that project would be the obligation of the project proponents, he said. “In this case the state and federal water projects and its contractors would be responsible for not only for the project but for the full mitigation for that project.”

A Section 10 approach would have a combination of funding sources, both a water contractor portion and the broader public benefit portion, he said. “There have always been issues of what if the state or federal funding didn’t materialize, what would happen then, and that all became part of the discussions on the implementing agreement, what would be the decision making if that funding did not come to pass.”

Input to the process

The Section 7 and 2081 permit really does more explicitly involve and engage the two water project operators, the Department of Water Resources for the State Water Project and the Bureau of Reclamation for the Central Valley Project, and it is in many ways is more limiting as far as the water contractors than the Habitat Conservation Approach,” he said. “The Habitat Conservation Plan approach provided a mechanism for applicant status for those contractors to be engaged and be involved.”

These are the considerations that we are evaluating and dealing with as the alternative regulatory approach is spelled out when it comes forward in the public documents,” he said.

Existing operations are governed by a U.S. Fish and Wildlife Service Biological Opinion for Delta smelt and a National Marine Fisheries Service Biological Opinion for salmon and steelhead, which were issued in 2008 and 2009, respectively, he said. “Those went through a lengthy court process through the federal court system in Fresno, and went all the way through the appeals process, but that’s what the projects have been operating under,” he said. “There is a defined term of period, but there are reconsultation provisions that allow for a much more fluid decision making process as we go through time on what the requirements will be.”

Mr. Arakawa then listed some of the considerations that would trigger a reconsultation. “Normally, as these permits are issued, they spell these criteria out in the biological opinion, the key ones being a take level or the numbers of that specie that could be taken or affected by the operation or implementation of the project,” he said. “Once you hit that take level, that provides for an opportunity to reconsult and the fisheries agencies could retrigger that reconsultation.”

If there is new information on the effects of the project or its operations that was not considered in the biological opinion, that could trigger a reopener, as well as a change in the project, he said. “This is targeted towards specific species, so in the case of salmon and Delta smelt, there are biological opinions that are targeted towards those species and if there are new species or critical habitat associated with those species, that could actually change the rules for how the project is operated.”

BDCP Slide 11There is a lot more that goes to these kinds of issues, but on the one hand, when you talk about assurances, Section 7 is more fluid – what you know and what you can count on over time is much less than maybe what you would have under a conservation plan and the implementing agreement under that conservation plan,” he said. “So then the challenge is how to develop a Section 7 approach, that provides some options for how that could work under existing law, provide some level of increasing those assurances, and that could be through a scientific process for how the decision making would be made with regard to the science, it could be in terms of how the contractors might be engaged or involved in the process, it could be agreements that would be set out as part of supporting this process, and in the end, when the project is implemented, what are the project controls to assure that things are being done properly to make sure that there’s a successful outcome with the approach. These are all options that would need to be considered when determining whether a Section 7 approach makes sense or not.”

Mr. Arakawa noted there are a number of things we don’t know yet, as we need to see the recirculated documents, which are expected in the next month or two. He said he’d be return with more when the documents are released, such as what is the complete project description, what are the mitigation measures that are going to be part of this proposal, what are the operating criteria and Delta outflow requirements or other permit conditions as part of Section 7, does it meet water supply reliability needs, what kind of supply capability would it provide under different year types and long-term averages, and what are the real time operations and restrictions that would be spelled out in any kind of biological opinion.

There are other questions regarding the implementation mechanism and project construction controls and the contractors role, the cost and schedule, as well as how to address uncertainties and the flexibility to revisit flow requirements, he said.

Next steps

We would want to evaluate the approach, we would want to determine and review with you the policy goals that your board set forth at the beginning of this process and to make sure that either we’re meeting those goals or you have a chance to review and talk about those goals,” he said. “Then assess the business case for our continued involvement in moving forward, to evaluate the supply capability as part of that business case, and define what the roles of the water agencies would be including Metropolitan, and when available, develop any kind of protections that could be part of an implementing approach. So those are the kinds of things we would want to talk about out in the future.”

That completes my presentation,” Mr. Arakawa said.

Discussion highlights

Director Peterson noted that when the legislature put the legislation forward in 2009, they asked for coequal goals. “Do you believe that Section 7 and Section 10 both accomplish that, or can accomplish that? By the basis of building the tunnels, it’s already the biggest environmental benefit, but I’m just wondering beyond that, do they both meet those goals?

Under Section 10, certainly the intent was to contribute towards the coequal goals,” replied Mr. Arakawa. “If you’ve seen some of the quotes from the Director of Water Resources, it’s still his intent and he says he remains committed to pursuing both the water conveyance and the other habitat restoration options as part of contributing towards the coequal goals. I think that what we’ll see when the specificity comes forward, is how the state would pursue the other actions that were included in the BDCP. For example, the habitat restoration, doing that under a broader California Water Action Plan, assuring that those projects and programs are moving forward in parallel to reach that objective of contributing towards the coequal goals, so I think that’s very important. The tunnel project itself does have the benefit of new intake and more flexible operations that over my career, the California Fish and Wildlife has been on record saying that is one of the most important measures that could be taken to help with the fishery. They’ve taken that position over a period of time, certainly under their permitting authority, they are going to wait to see this proposal, but in the past, they’ve always indicated that how and where that water is taken from the Delta is very key to protecting the fisheries, and so the tunnel ought to be considered as an environmental action as part of contributing to those goals.”

Director Morris asks which of the agencies is driving this change in direction and why? “Because I have a perception of it here that it’s kind of trumping coequal goals, and I also have a concern that we’re going to end up in an endless do loop with the reconsultation for the existing six species plus many more that are going to come in the future. That’s my major concern.”

It was US Fish and Wildlife Service that first championed the idea that we should pursue an HCP and a lot of it was based on their experience in the Platt River, which has a very comprehensive HCP, as well as the Missouri, and what we did on the Colorado,” replied Mr. Kightlinger. “They were drawing on their national experience, and Cal Fish and Wildlife thought that was a good idea, too. What’s driven this revisit or review of it has been frankly the do loop we’ve been in modeling. How do we interpret the models that are going 50 years out with all the range of uncertainty? And they just can’t get themselves, they feel, comfortable enough, given that wide range of uncertainty with the Section 10 NCCP approach.”

In terms of a retraction on the coequal goals, the governor has laid out a California Water Action Plan in the last year, and this water action plan has the coequal goals in it, and so the idea is that not everything would be within a BDCP,” Mr. Kightlinger continued. “I think they felt that burden was getting to be too much within the BDCP. And so seeing how the coequal goals work in how the state lays out how they will pursue those other pieces of it. It’s fairly clear how you could lay out the Section 7, go build tunnels, that’s relatively straightforward: here is an engineering-construction project, here’s the permitting process for it; that we’re familiar with. How are they going to lay out the habitat development pieces of it, the other stressors approach, if they are not built into an engineering project, that’s something we’re waiting for the state to lay out as part of the California Water Action Plan, and that’s something we’d have to analyze.”

Director Steiner notes that under reconsultation, we have the right to reconsult now. “Of course it can get better or it can get worse in reconsultation as we reevaluate under the 7 option, right?

The reconsultation is between the project operators and the permitting agencies, so if DWR were identifying a change or a situation that would require reconsultation, they would take that to the fishery agencies,” said Mr. Arakawa.

The way it was always forseen is that there was about a ten year interim period between a project go and full online status, about roughly a decade with all the design and construction, and whatever litigation issues, so the concept that we’ve been looking at is we want to see a very robust cooperative collaborative science program,” said Mr. Kightlinger. “We believe we’ve learned a lot this last 5 years, and really seeing how we’re going to ensure that robust science program happens because we believe that will lay out, should this project go forward, a good operating scheme, and there would naturally be a reconsutlation on that, based on this decade of work. That’s something we have made very clear to the state, we need that laid out very clearly within the Governor’s plan and where the funding would come for a lot of that.”

We’ve developed some partners in the environmental community as well as in the Northern Delta community on the tunnels with the idea of mitigation and what we were going to do with the 50 year guarantee and the permit, so it would seem that while we may technically be able to move forward here, we are going to have more difficulty politically, as a result of this thought process,” said Director Steiner. “In moving forward here, we’re going to really have to see if we’re still going to be meeting the coequal goal of reliability, because if what we’re going to end up with is what we have today, but with tunnels, recognizing that means less fish entrained because it’s north, it’s still going to be a very different idea than most of us were hoping for to come out of this.”

I think one thing has to be very clear is that how much of this is a regulatory change and how much of it is a physical change, so if there is a clear plan on attacking the other stressors, developing the collaborative science, developing and implementing habitat, then there are no physical changes between the two, and it’s really just a matter of your paperwork with the regulatory agencies and the assurances within them,” said Mr. Kightlinger. “So that is a big issue, the legal regulatory framework, but the Governor, his comments were that this is about a path to permitting, but doing the same thing, and to the real assurances, because they always have reopeners under HCPs and NCCPs, the real assurances are that everything works.”

The other real assurance that I think we were looking for was protection from lawsuits as a result of the increased permitting that we would have gotten under the HCP NCCP,” said Director Steiner.

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