Delta Stewardship Council prepares for a new role: Considering Delta conveyance ~ MAVEN'S NOTEBOOK

Considering Delta conveyance and ecosystem restoration without the Bay Delta Conservation Plan

It was the 2009 Delta Reform Act that created the Delta Stewardship Council and directed it to develop a long-term management plan for the Delta’s resources that would achieve the coequal goals of water supply reliability and ecosystem restoration while protecting and enhancing the Delta as an evolving place. At the time the legislation was drafted, the Bay Delta Conservation Plan (BDCP) process was already well underway, so the legislature laid out a pathway for the BDCP to be integrated into the Delta Plan that was distinctly different from the consistency certification process defined for other Delta projects.

This pathway to inclusion, however, came with the requirement that the Bay Delta Conservation Plan be approved as a Natural Communities Conservation Plan (NCCP), and so the Governor’s announcement that he would no longer pursue the project as an NCCP but instead split the project into Cal Water Fix and Cal Eco Restore is a real game changer for the Delta Stewardship Council. For one, since the BDCP will not meet the NCCP requirement set forth in the legislation, both the tunnels and the restoration will be subject to the Delta Plan’s consistency certification process and its implementing regulations. Also, the consistency certifications can be challenged by anyone who claims that an action is inconsistent with the Delta Plan – a significantly different and much broader basis of appeal than the limited scope defined in the legislation that would have otherwise applied.

Furthermore, the Delta Stewardship Council pledged in May of 2013 when it adopted the Delta Plan that if the BDCP was not completed by January 1st of 2016, they would ‘revisit the issue of conveyance to determine how to facilitate improved conveyance facilities without the BDCP.’

At the June meeting of the Delta Stewardship Council, Chief Deputy Executive Officer Dan Ray updated the Council on the latest changes to the BDCP by the Brown administration and apprised the Council of their changing role.

“Maybe six weeks ago, the administration announced that the BDCP would not be completed as a Natural Communities Conservation Plan, but instead they would pursue two derivative initiatives coming out of the BDCP framework: the Water Fix and the Eco Restore initiative,” said Dan Ray. “The Water Fix would upgrade the State Water Project’s Delta conveyance system with three new Sacramento River intakes near Hood and Clarksburg with each having about 3000 cfs capacity; then there’s the two gravity fed tunnels that lead under the Delta to the pumping plants at Clifton Court. It provide an average yield of about 4.9 MAF.”

It’s similar to the project that the Department of Water Resources presented in January, but it has been somewhat refined, Mr. Ray said. “The north Delta intakes now have been converted from a previously proposed concrete sedimentation basin into two earthen bays, and that change eliminates the need to drive hundreds of piles into the ground, that will further reduce the noise and other construction impacts, noise, traffic, and the volume of concrete that needs to be used. That would include 2100 acres of habitat restoration as part of the Water Fix initiative to mitigate the impacts of construction and operation of the new water facilities. That acreage is in addition to the habitats that would be restored through the Eco Restore initiative.”

“The Eco Restore program would accelerate the implementation of a suite of long-planned habitat restoration actions that would improve the health of the Bay Delta ecosystem for native fish and wildlife,” he said. “About 30,000 acres are proposed for habitat restoration; that includes 17,500 acres of floodplains, most of which are within the Yolo Bypass and about 9,000 acres of tidal and sub-tidal habitat restoration projects, as well as 3500 acres of freshwater wetlands that would be managed for subsidence reversal and carbon management.”

Mr. Ray noted that the Eco Restore program includes other aquatic, riparian, and upland habitat projects that would be developed in coordination with local Habitat Conservation Plan; it also includes a commitment to cooperate with the Delta Science Plan and the science program to leverage collaborative science actions, including those identified in the Science Action Agenda. He noted also that DWR has been consulting with them about next steps regarding plans for Delta conveyance, and Council staff are participating with other agencies in discussions convened by David Okita who is overseeing the Eco Restore initiative.

The Council staff is waiting for the BDCP’s recirculated EIR documents to be released, which they have been informed it will be soon. “We’re ready; we have ARCADIS under contract, and the ISB is standing by,” he said. “We expect drafts of our comments will be available to present to the Council for discussion in the coming months, the scheduling is going to depend on the scope of the recirculated draft EIR and the duration of the review schedule, which is not yet completely clear.”

When the comment period has concluded, the EIR along with other information, provides potential support for four subsequent decisions, he said:

The first is certification of Delta Plan consistency. “It’s a covered action for the conveyance Water Fix proposals and of course that entails the potential for appeal to the Council.”
It will help support the water board’s action to consider the requested change in point of diversion, another public process.
Fish agency actions on incidental take permits and other endangered species decisions will also be supported by those documents as well as other decisions.
Ultimately the Corps of Engineers 404 permits which have to consider the whole range of public interests, water quality as well as other public trust issues, will also be supported by those documents.

Mr. Ray said the over the coming months, they will continue their consultations with DWR through the routine early consultation processes; they are also reviewing other agency’s processes to better understand whether the Delta Science Program can provide technical support to those facing difficult decisions, as well as what opportunities are for the Council to participate in decisions about these related permits.

So what are the implications for the Delta Plan if the BDCP is not completed? “The BDCP would have been incorporated into the Delta Plan to address the issues of promoting conveyance and comprehensive ecosystem restoration if it had been completed successfully as anticipated,” said Mr. Ray. “The Delta Plan relied on the BDCP to provide provisions about conveyance options and how conveyance could be coordinated with new storage and for a more comprehensive long-term program ecosystem restoration. Because we’d expected that the BDCP would be automatically incorporated in the Delta Plan if it had been approved, and it would have trumped whatever work we might have done in the interim regarding those issues, it made sense at the time the plan was drafted to rely on it, but the plan also pledged that we would revisit these issues of conveyance and ecosystem restoration if the BDCP wasn’t completed successfully by the end of this year.” He referenced Appendix A of the Delta Plan, included with the council member’s meeting materials, which states that ‘should the BDCP process not be completed by Jan. 1, 1016, the Council intends to revisit the issue of conveyance to determine how to facilitate improved conveyance facilities without the BDCP.’

He also noted that Chairman Fiorini send a letter to the agencies involved in the Delta Plan Interagency Implementation Committee, signaling the intention to begin the potential reassessment of these issues.

Mr. Ray then turned to discuss revisiting the ecosystem and conveyance issues, and the approaches that the Council might consider. “As to the ecosystem restoration actions that are involved in the Eco Restore program, it’s our determination that the Delta Plan today provides an adequate framework for reviewing the restoration actions that make up that initiative,” he said. “We’ve been aware of almost all these projects for several years; most of them predate the Delta Plan’s drafting, and so we had them in our minds as the plan was developed. We’re confident that for now, the Delta Plan provides adequate guidance to ensure that these projects further the coequal goals.” He noted that they might want to revisit the Delta Plan’s current strategies and performance measures for ecosystem restoration as well as to incorporate other work that’s been done in the years since the Delta Plan was completed. “But we think that for now, we’re in good shape and we could set aside for the time being the need to update the ecosystem restoration work as a first priority.”

As for conveyance, per water code section 85304, the plan is supposed to promote options for new and improved infrastructure related to water conveyance in the Delta and for storage systems and for the operation of both to further the coequal goals, said Mr. Ray. “The current plan does outline some key issues; it provides some guidance about conveyance and storage, and their coordinated operation,” he said, noting that it is summarized in attachment 2 of the staff report. “Regulatory policies require that for all projects in the Delta that are about water management, ecosystem restoration, and conveyance and storage initiatives be based on the best science, and include adaptive management programs and that they include mitigation measures that are equivalent to those that are in the Delta Plan’s mitigation and monitoring program. Actions have to comply with the water board’s standards regarding flows in the Delta; and that we should make sure that we don’t interfere with habitat restoration opportunities, mitigate risks of introducing invasive species, and consult with local governments and the Delta Protection Commission to make sure that we’re doing the best we can to reduce or avoid land use conflicts.”

The Delta Plan’s narrative discusses the conveyance and storage issue, and how they work together. “It concludes that the current water system has inadequate storage and conveyance and is too inflexible,” he said. “It says that conveyance systems improve the resilience of the state and federal water projects against risk of flooding and earthquakes as well as regulatory risks and suggest that risks can be reduced by conveyance alternatives that provide multiple diversion points. It talks about the importance of improving conveyance in ways that reduces mortality of fish at the pumps by changing the diversion point. It talks about conveyance operations and storage that could provide a more natural flow regime, it recites the best science that tells us that the pattern and timing of Delta diversions need to be shifted to that more water can be exported in wet years and less in dry years, kind of the big gulp in wet years and the little sip in dry years.”

“Our past expectation that every year we could export the same amount of water have turned out to really undermine the reliability of the state and federal projects and is not really very realistic,” Mr. Ray continued. “Conveyance is going to be much more successful and provide greater benefits if it is linked together with storage so that we can move water in the years when its available, take that big gulp and move it into storage, particularly south of the Delta, so that then it would be available for later reuse.”

“We need to somehow increase the operational flexibility of our system consistent with the needs of ecosystem restoration,” he said. “As I recall, when the ISB did their review of the BDCP, one of their big observations is they realized how restricted the operations were by the huge variety of prescriptions that are applied through the various regulatory programs.”

Mr. Ray pointed out that they’ve learned a lot about these issues since the adoption of the Delta Plan two years ago, some of it through the review of the BDCP’s EIR, the environmental documents for the CalFed feasibility studies are largely complete, and there’s new scientific information regarding the Delta smelt and the drought, as well as the Prop 1 funding that may begin be disbursed next year. “All of this suggests to us that now is a key time to reexamine what the Delta Plan says about conveyance and storage operations. It would be a way for us to provide some guidance for our review of the water fix proposals as they might come before the Council or as we work with the DWR on certification for their water fix initiative. It might inform the water commission’s guidelines and actions on storage, and it might provide a basis for you to participate as an interested party in other agency’s actions relating to these issues as well.”

Mr. Ray concluded his presentation at that point and asked if there were any questions.

“It seems you are recommending we focus initially on the conveyance-storage operations component of the Delta Plan,” said Chairman Fiorini. “Is that enough direction for staff to begin assembling a meeting sequence of events over the next few months?”

Executive Officer Jessica Pearson says that they will bring back further information at the July meeting and perhaps a panel or two. “If there is a decision to amend the Delta Plan, it must be based on best available science, so we want to reach out to the science community on some of the issues that we’ve learned since the adoption of the Delta Plan to inform anything you might do going forward … so today we’re kicking off a conversation that staff can help to organize in July to hopefully lead us to some decisions later this fall.”

Council member Mary Piepho adds that she would like the review to include the different options for Delta conveyance. “There’s obviously the Cal Water Fix proposal, there’s thru-Delta exports or conveyance, and there’s also a few western Delta intake proposals, there’s the Dr. Pyke proposal, there’s one from a company called SolAgra that I just received yesterday, and then Delta Diablo with some Bay Area water providers that has a western Delta intake proposal that I want to make sure that we’re looking at as appropriate, but at least at this level, make sure they are on the table.”