The draft environmental documents analyze the environmental impacts of the implementation of the biological opinions on state and federal water project operations
On Tuesday, September 15, the Bureau of Reclamation held a public meeting in Los Banos, one of the four public meetings held across the state to gather public comment on the draft environmental impact statement (DEIS) for the Coordinated Long-Term Operation of the Central Valley Project (CVP) and the State Water Project (SWP).
The documents essentially evaluate the environmental impacts that could result from operation of the Central Valley Project and the State Water Project with the implementation of the 2008/09 biological opinions for the Delta smelt and salmonids. The documents were released for public review on July 31st, with the public comment period extending through September 29, 2015.
Theresa Olson, Chief of the Conservation and Conveyance Division for Reclamation’s Bay Delta Office discussed the background and recent court decisions associated with the documents, the range of alternatives, and how the public can provide comments.
Background and court history
Ms. Olson began with the history. In 2008, Reclamation prepared a biological assessment for the long term operations of the Central Valley Project and the State Water Project as required by the Endangered Species Act and delivered it to the US Fish and Wildlife Service and to the National Marine Fisheries Service. In 2008, the US FWS issued a biological opinion based on that biological assessment, determining that the operations of the CVP and SWP as described in the document jeopardized the Delta smelt. The biological opinion included a Reasonable and Prudent Alternative, which is an alternative way of doing the proposed action so that Reclamation would not jeopardize the Delta smelt, she explained. Reclamation then provisionally accepted the biological opinion and began operations under the biological opinion and the Reasonable and Prudent Alternative.
Similarly in 2009, the NMFS also issued Reclamation a biological opinion, determining that the long-term operation would jeopardize the continued existence of salmonid species, the green sturgeon, and the killer whale, and their associated critical habitats; it therefore included Reasonable and Prudent Alternatives so that Reclamation would not jeopardize those species. Reclamation once again provisionally accepted that biological opinion and began operations under the biological opinion and the associated Reasonable and Prudent Alternative.
“Once that happened, the Bureau of Reclamation, the USFWS, and the NMFS received several lawsuits, mainly from the State Water Contractors,” she said. “Those were consolidated into two separate court cases – the consolidated Delta smelt and the consolidated salmonid cases. The District Court of the Eastern District basically came in and presented a judgment that remanded portions of the biological opinions back to the Fish and Wildlife Service and the NMFS, saying that neither of the biological opinions were reasonable or prudent. The District Court also required Reclamation to complete National Environmental Policy Act or NEPA analysis to review the impacts on the human environment related to implementing those biological opinions.”
The court cases then were appealed to the Ninth Circuit, who in March of 2014 reversed the remanded Fish and Wildlife biological opinion, basically upholding that the Fish and Wildlife Service biological opinion was reasonable and prudent and met all the requirements; the Court of Appeals issued their mandate on September 16, 2014, and the District Court revised their final order on October 1st of 2014, she said. Two entities appealed the case to the US Supreme Court, submitting writs of certiorari on October 2 and 7, but in effect, the US Supreme Court denied hearing the writ on January 12, 2015, basically upholding the US FWS biological opinion.
Similar to that, the Ninth Circuit also reversed the District Court opinion in the salmonid cases on December 22, 2014; the judgment there was again in favor of the federal defendants and the defendant intervenors on all remaining claims. Basically this means the NMFS biological opinion and associated RPA was upheld and was found to be reasonable and prudent, Ms. Olson said. The Ninth Circuit issued their mandate in that case in February 17 of 2014 and the District Court revised their final order on May 5, 2015.
However, the Ninth Circuit did not change the District Court’s mandate on completing Reclamation’s completion of a NEPA document to analyze the potential effects related to the implementation of the biological opinions, said Ms. Olson. Reclamation was ordered to complete the EIS and the Record of Decision in the Delta smelt cases by December 1st of 2015, and by December 1st of 2016 for the consolidated salmonid cases.
The document and the alternatives
“The purpose of this document is to continue the operation of the Central Valley Project in coordination with the State Water Project for the authorized purposes in the manner that is similar to the operational parameters with certain modifications, and that it is consistent with federal reclamation law, other laws, federal permits and licensing, and the state of California’s water rights permits and licensing,” she said. “It also enables Reclamation and the Department of Water Resources to satisfy their contractual obligations to their fullest extent possible.”
The document evaluates the period until year 2030, and considers both climate change and sea level rise for all alternatives, she said. The extent of the study area encompasses all of the CVP and SWP service areas; it encompasses all of the reservoirs associated with those service areas, and all of the rivers downstream of those reservoirs.
The document has a No Action Alternative, a ‘Second Basis of Comparison,’ and five alternatives. Ms. Olson then explained the difference between the different alternatives.
“The No Action Alternative basically is a continuation of existing policy and management direction for the Year 2030,” she said. “Because Reclamation began implementing the biological opinions before the scoping for this document, Reclamation assumes that the RPAs are included in the No Action Alternative, so the CVP and SWP operations are included with the full implementation of the RPA actions in the 2008 and 2009 biological opinions.”
“Because the court said that we needed to look at and analyze what the effect of those RPAs are, Reclamation came up with what is called the ‘Second Basis of Comparison,’” she continued. “It’s not a true alternative, but what it does is it compares the action without the implementation of the RPAs, so the Second Basis of Comparison is the CVP and SWP operations that would have occurred without any implementation of either the 2008 or 2009 biological opinions.”
“And then we have alternatives 1 through 5,” she added.
Ms. Olson then presented a slide to show the relationship of the alternatives, noting that the No Action Alternative represented on the left and the Second Basis of Comparison is represented on the right. “As you see here, there is no line that connects Alternative 1 to the Second Basis of Comparison, and that is because Alternative 1 is exactly like the Second Basis of Comparison,” she said. “We did this so that Reclamation would have the opportunity or the option to choose the Alternative 1 as a preferred alternative.”
Some of the assumptions that are included in all of the alternatives include the continued implementation of the Central Valley Project Improvement Act programs, the Red Bluff Pumping Plant which is already constructed, the Whiskeytown Lake temperature control devices, the Lower American River flow management standards, San Joaquin River Restoration Program, and habitat restoration, she said.
Ms. Olson then reviewed the alternatives:
Alternative 1 is identical both in operations and non-operational actions to the Second Basis of Comparison.
Alternative 2 is based on the proposed action that was described in Reclamation’s scoping document. The operations of the CVP and the SWP are identical to the No Action Alternative; however, it does not include any of the actions in that were identified in the biological opinions that would need construction, such as fish passage, temperature management devices, ecosystem restoration projects along the Stanislaus River, and improvements to the Tracy and Skinner Fish Collection facilities, she said.
Alternative 3 was based on scoping comments received from the State Water Contractors and others. CVP and SWP operations are similar to the Second Basis of Comparison, without the RPA actions, but it does include an Old and Middle River criteria that reduces the reverse flow in the central and southern Delta, but one less stringent then the No Action Alternative; it also includes non-operational actions, such as predation control, trap and haul fish passage, trap at head of old river and barge to Chipps Island, and it includes ocean harvest limit revisions, she said.
Alternative 4 was based on scoping comments received mainly from water contractors; it is very similar in operations to the Second Basis of Comparison without the RPA actions; however there are some differences in the non operational actions, mainly the ocean harvest limits are stricter than what they are in Alternative 3, she noted.
Alternative 5 is based on scoping comments received primarily from environmental entities. CVP and SWP operations in this alternative are similar to the No Action Alternative that includes the RPA actions; they do include a more stringent Old and Middle River criteria that says no reverse flow conditions in April and May and includes Delta Cross Channel operations for an ongoing pilot study. The non operational actions are very similar or the same as the No Action Alternative, she said.
Ms. Olson reminded that the end of comment period is September 29, 2015. The final Environmental Impact Statement is expected to be published in late October. She noted that the court has mandated Record of Decision by December 1, 2015.
Reviewing the documents and submitting your comments
For the documents, pick your poison: For the Bureau’s page of documents, click here; for the Notebook’s Road Map, click here.