Delta Protection Commission prepares to comment on Cal Water Fix

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The September meeting includes an update on the preparation of comments, and input from Delta stakeholders on the project

As the state agency whose mission is in part to protect, maintain, enhance, and enrich the overall quality of the Delta environment and its economy, the Delta Protection Commission has an interest in commenting on the Cal Water Fix or Delta tunnels project. At the September 17 meeting of the Delta Protection Commission held in Walnut Grove, commissioners heard from staff about the progress being made on the preparation of comments on the Cal Water Fix project, as well as received input from Delta stakeholders about the project.

Delta Protection Commission Logo with nameExecutive Director Erik Vink began by reminding the commissioners that at the Delta Protection Commission’s meeting last July, they voted to request a 120-day extension to the comment period. That letter was forwarded to the project proponents about the same time a 60-day extension October 30 was announced. More recently, a bipartisan group of congressional members requested an additional extension to December 29, but there’s been no response to that as of yet, so Commission staff is proceeding as if October 30th is the comment deadline, he said.

Mr. Vink also noted that at the last meeting, the Commission authorized the Executive Director to submit comments on behalf of the Commission, so with the additional time, there is an opportunity for the Commission to review the letter and approve it should they so choose, but that would require an additional special Commission meeting in October.

We will be prepared to meet that deadline, and will present a draft comment letter if that is the desire of the Commission,” he said. “Short of that, we’ll proceed under the direction you provided at the last Commission meeting and we’ll work to complete a letter that will go out under your Executive Director’s signature.”

Mr. Vink acknowledged that there have been changes made that have lessened some of the impacts described in the July 2014 comment letter submitted when the documents were first released; specifically moving the pumps to Clifton Court Forebay in the south Delta, and using earthen rather than concrete basins in the north Delta will lessen some of the community impacts. “Our letter will certainly acknowledge where those changes have been made, but this is still a project with significant impacts upon the Delta and upon Delta as a place values – that is the unique cultural, agricultural, natural resource, and recreational values of the Delta,” he said.

He also noted that in the letter submitted a year ago, they were careful to acknowledge that the comments in no way reflected the state agencies represented on the Commission. “That will certainly be a part of any letter that we develop or that we bring before the Commission,” he assured.

Mr. Vink said that staff was still going through the document. “Our intention would be to update and revise the matrix that was part of the Commission’s letter last year,” he said. “Some of the items on the matrix will drop out because of changes; it is possible that other items will be added because of changes in the plan. The primary piece would be the comment letter, which I would anticipate at this point looking very similar to what we presented and what the Commission approved in 2014.”

The Commission then heard from Osha Meserve representing Local Agencies of the North Delta, and Rogene Reynolds, president of Restore the Delta.

OSHA MESERVE, Local Agencies of the North Delta

Osha Meserve with Local Agencies of the North Delta then briefed the Commission on the project’s impacts to Delta agriculture, water quality, and habitat.

She began by noting that in the revised documents, the administration has been implying that they have listened to the Delta community and have made changes as a result. “Honestly, it’s a little bit insulting for me,” she said. “The changes we wanted to see were to have a process that led to a project that could be maybe hated a little by everybody but acceptable, but we’ve just have never really gotten close to that in this process.

She said that moving the pumps to the south is ‘interesting and somewhat helpful’, but it really doesn’t change the overall impact of the project very much at all.

Ms. Meserve said that it’s a huge difference between a Habitat Conservation Plan and a Section 7 permit. “Basically because they couldn’t meet the higher standard associated with conservation plans on the federal and state level, it was changed to be just a capital project to just build the tunnels and provide the mitigation for the direct and indirect likely impacts of those.”

Osha Meserve_Page_04She then presented a picture of the intake showing the massive scale along the river. “The Freeport intake is 285 cfs ,” she said. “The proposed intakes are 3000 cfs each; they will take up nearly 2 miles of river. It is probably the largest conversion of riparian habitat along the river of a project that I know of, probably statewide, maybe farther than that.”

Osha Meserve_Page_05She then presented a slide of a rendering of what it would look like out on the water, noting that it’s pretty flat so you don’t see a lot.

Overall what we are most concerned about is the taking of water from the north Delta – the diversion of the fresh water and creating the permanent drought conditions that we’ve been experiencing this year,” she said. “Our assessment is that this project would pretty much make that be the status quo for all the time because we’d be taking from the north Delta so much that it would be constantly starved of the fresh water flows.”

She also noted that the changes for the south Delta do not include fish screen improvements. “I think that’s one of the things we’ve really been asking for literally for years and was part of CalFed,” she said. “There are ways we can do changes to the south Delta to make it work a little better, and as soon as we started on the pathway toward the BDCP now Water Fix, all the work that was going on to try to improve the south Delta pumps was abandoned. That’s quite a shame.”

Even though they are moving the diversion points, they plan to use the south Delta nearly half of the time anyway, she pointed out. “So you continue the reverse flows and the take in the south Delta, and then you introduce the new impacts to the north Delta,” she said. “My favorite saying, having worked in environmental law a long time, is ‘no free lunch’. If you put a diversion somewhere, you’re going to have impacts and the water quality worsens in the area as a result. So you get reverse flows and the water quality worsening, just like we’re worried about in the south Delta, those same things start happening on the Sacramento River.”

Osha Meserve_Page_07There are questions about how effective the fish screens will be, she said, presenting a slide with a quote from the recent Delta Independent Science Board review. “There’s an assumption that they will work real well up there and they may, but they are very experimental; nothing has really ever been done like this.” She also noted that by putting the pumps at Clifton Court, they will lose a lot of operability, such as the ability to operate the baffles and other parts of the screens to manage it more adaptively and deftly.

Osha Meserve_Page_08The farmland impacts are very significant and definitely important within the Commission’s charge, Ms. Meserve said. “This is the largest contiguous area of prime farmland in the state, and the economic impact is quite large. The conversion is 3900 acres or so important farmland and 2000 and little more of Williamson Act.”

Salinity is also of concern. “One way we look at salinity is with the Electrical Conductivity (EC) exceedances at Emmaton, one of the compliance stations,” she said. “We go from 11% of the days to out of compliance maybe 26 or 28% of the days out of compliance. … That’s even with a model that we feel is somewhat flawed.”

This increase in salinity reduces the yields and cropping choices in the Delta, and the EIR recognizes this, she said. “It is a little bit ironic because there’s been a lot of press this year about what’s going on in the San Joaquin Valley with permanent crops, and the unfortunate thing is that as those areas plant permanent crops with reliance partially on Delta exports, while we in the Delta are looking at a future where we are going to have to limit our cropping choices and change what we can do, even though we are in an area of origin. As a Delta advocate, that is quite concerning.”

Chloride impacts are listed as one of the significant unavoidable water quality impacts. “They were able to get rid of some of those by just tweaking their modeling but there’s quite a bit of water quality concerns,” she said.

Osha Meserve_Page_11She presented a list of other direct agricultural impacts, noting that fragmentation is a big issue. “I work with Reclamation Districts and drainage is obviously massively important in the Delta, and it hasn’t really been worked out how this scale of construction project would occur and allow the reclamation districts that are under the footprint of the project to continue to do what they need to do,” she said. “There’s quite a bit of deferred mitigation and figure it out later. And maybe it will work out, but it’s hard to tell from the documents and from the mitigation measures how those issues will be dealt with.”

Osha Meserve_Page_12She then presented a slide of the indirect impacts, noting that these dovetail into impacts to recreation, tourism, and markets for Delta crops.

The environmental documents contains statements like ‘flexible measures’ and ‘significant and unavoidable’, she said. “We feel it’s going to be a lot worse than they are saying, and even the EIR is disclosing that these impacts are quite significant for our area, and it’s really trading off one area for another in terms of water supply benefits.”

Ms. Meserve said that another concern was the way in which the document addresses water supplies for local communities. “There’s a water supply chapter that talks about water supply for others, but the water supplies for local people is actually dealt with as a public service in a completely different section as if it’s not a legitimate issue, which I think everybody who lives and works here would disagree.

Ms. Meserve said that the farmland mitigation is the agricultural land stewardship plan, and without the habitat conservation plan, there is potentially less farmland conversion. “We’re basically looking at the amount of farmland conversion that is required by the biological opinions, but the problem that I see from the CEQA perspective … A recent case called Masonite really emphasizes that agencies need to look at agricultural easements as mitigation, and that’s one of the things on the list of this ag stewardship plan, but it’s really deferring out what they are going to do about the impacts on ag, which are many, until later.

She noted that the Delta’s growth potential is restricted through the zoning, the Commission’s Resource Management Plan, and the Delta Stewardship Council’s Delta Plan. “From a farmland protection standpoint, our farmland is pretty protected now, so the value of laying a bunch of easements on top of that land, especially if those easements limit cropping choices even more, and then if you’re already limited due to water quality issues and other things that we’re seeing as impacts – if they are trying to mitigate for some of the terrestrial species impacts by these wildlife friendly easements, and trying to count that as ag mitigation, it really doesn’t make sense. It’s a bit of nerdy ag easement area, but I think worthy of this Commission’s attention since you’re focused on sustainable agriculture in the Delta.”

Osha Meserve_Page_15Because it is a NEPA document, the EIR does look at economic impacts, which are quite large, she pointed out. “I haven’t double-checked them, but even the documents are admitting this is quite an economic hit for our area,” she said.

Osha Meserve_Page_17Another concern is that a lot of electric transmission lines will be needed to service the project. “There’s a very large arm that needs to come in from the north over from 99 across near Twin Cities Road and then to serve the construction of the tunnel boring machines which will begin up right around near Clarksburg,” she said. “Those transmission lines are very concerning from a local perspective and also from a bird perspective … there’s quite a bit of take associated with having more lines. We have quite a few lines in the Delta already; more is just bad for the birds.”

She noted that bird diverters placed on the power lines are problematic because they can become damaged in high winds, and they are ineffective at night or when it’s foggy.

The document notes that the power lines will be temporary but Ms. Meserve isn’t so sure. “It’s unlikely to put in a huge 230 KV line and then remove it later – there’s just too much cost to do that, so we’re very concerned about new additional lines,” she said.

She said that in order to minimize agricultural impacts, they continue to suggest reduced-scale or relocation of water diversions, a conservative operations plan that protects water quality/availability for local farms, and to include existing agricultural operations as covered activities under ESA/CESA Good Neighbor Policy. “DWR has been somewhat receptive to but it’s just unclear, because the ag stewardship plan is the mitigation measure, but it’s just the idea of a plan – but the plan hasn’t been written yet so we don’t know what will be in there,” she said.

As for mitigation, she said that in their comments, they are suggesting that where easements are used, do not count conservation of land as mitigation for conversion of farmland; a simplified and adequately funded claims process for damages to farms during construction, as well as funding for roads, bridges, and levees. “We really need a lot of work on these mitigation measures,” she said.

Ms. Meserve concluded that there are alternatives to the tunnels. “There’s been quite a few proposed by different folks,” she said. “I think it’s important for the Commission to comment on these thingsas this project certainly does affect the unique cultural, recreational, and agricultural values of the Delta. I think your comments are important and I hope that they are considered.”

ROGENE REYNOLDS, Restore the Delta

Next, Rogene Reynolds, lifelong south Delta resident and current president of Restore the Delta, then gave her organization’s perspective. She noted that Restore the Delta is a non-profit grassroots group covering not only the five counties but other areas of California that are interested in stopping the tunnel project.

She began by saying that the bifurcation of the project from the Habitat Conservation Plan into Cal Water Fix and Cal Eco Restore is still beginning from the wrong place. “They are still beginning from the point of considering how much water can they take out of the Delta and how can they meet the contract obligations that DWR and the CVP have to people south of the Delta,” she said. “We have always advocated that they should start with flows, but in the changes to the document, it’s obvious there has been no change in their orientation that way. They’ve changed the configuration and changed the place of the pumps, but they haven’t changed their ideas about how much water they can take out of the Delta.”

Ms. Reynolds said they have concerns about the stakeholders place in the process. “There is still some sort of a stakeholder advisory group, which will be advised maybe quarterly by the implementation committee, but your Commission and we Delta residents still don’t have a place at the table in terms of how this is going to be operated,” she said. “I think that’s an enormous deficiency from our point of view. It’s entirely top down.”

There are still significant unmitigated impacts, particularly in the north Delta, she added.

Ms. Reynolds said there is a category in the document for local economic impacts. “Do you realize they say, ‘no impact’?” she said. “I haven’t read that portion of their review yet to see how they came to that conclusion, but it’s absurd. How could they come to the conclusion that there would be no economic impact on the north Delta communities from this project’s implementation and operation?

Ms. Reynolds warned of the impacts of reverse flows. “Down on Middle River where I live in the south Delta, reverse flows over the years have just created a stagnant situation such that the Middle River that I knew is no longer a river,” she said. “This Commission needs to comment very strongly on the impacts to your waterways and the fact that the amount of water they are considering taking out is simply not there most of the time.”

I don’t think that institutionally, the Department of Water Resources is planning on changing anything based on comments,” she said, quoting from the recent comments released by the Delta Independent Science Board. “Their bottom line is this: ‘The current draft falls short, however, as a basis for weighty decisions about natural resources.’ And that’s their overall comment. Then they specifically said that there are gaps in the details on the adaptive management process, collaborative science, monitoring, and the resources that these efforts will require. There’s no analysis of how levee failures would affect operations, and how the implemented project would affect the economics of levee maintenance. And there are gaps and deficiencies concerning the uncertainties and their consequences, linkages among species, landscape management actions, effects of climate change on the project, and the effects of changed water availability on ag practices in the San Joaquin Valley.”

Ms. Reynolds then quoted from the response to the science board’s comments by Cassandra Enos Nobriga, the program manager for the California Department of Water Resources. “’Some comments of the Delta ISB relate to issues beyond the requirements of the California Environmental Quality Act, and NEPA, and beyond the scope of the EIR/EIS. CEQA and NEPA do not direct an agency beyond a cumulative impact analysis to specifically analyze how other future actions unrelated to the proposed project also could affect the environment,’” said Ms. Reynolds. “In other words, DWR is saying, ‘we don’t have to consider how this project will affect water use south of the Delta.’ DWR says that an EIR/EIS should not speculate. In other words, that this document, this 8000 pages, shouldn’t give any indication of how the project is going to affect things in the future, only how it’s going to affect things now.”

In response to the science board’s interest in greater details, Ms. Reynolds said, again quoting from the DWR response, “’An EIR/EIS should not be judged as a comprehensive treatise on Delta challenges or even a primer for policy makers. It is one piece of the overall panoply of information to be utilized in decision making and its boundaries are narrowly prescribed by law.’

So ladies and gentlemen, what I’m telling you is that DWR and Reclamation are hiding behind this CEQA process,” she said. “They are not giving due consideration to your concerns or to the concerns of stakeholders, and I think your comments need to reflect this. There has to be some way through this Commission or through some other point of authority where these agencies are called and held to task about the damage that they may and probably will do to this Delta with this project.”

Osha Meserve clarifies that the stakeholder council was part of the habitat conservation plan process. “I don’t believe that there’s a stakeholder council associated with the Alternative 4A,” she said.

MELINDA TERRY, Central Valley Flood Control Association

Then Melinda Terry with the Central Valley Flood Control Association gave some input to the Council. She began by noting that one of the benefits of the HCP/NCCP process was that besides contributing to the recovery of species, there is a requirement under both statutes for public process, particularly the NCCP. “You do lose that under the Section 7, so this will not be done with us knowing, necessarily, and participating,” she said.

Ms. Terry said that DWR and the Bureau of Reclamation have submitted their water rights change petition to the State Water Resources Control Board for authorization to build the three new intake diversion points, as well as their application for a 404 permit from the Army Corps of Engineers, and there were some interesting things that she learned from the permit applications.

Most importantly, they are actually going to phase the construction of this project,” she said. “I did not recall seeing that in the documents, but I’ve not had a chance to read all the 8000 new pages yet … It has to do with their permitting issues that they have. They also need a 408 permit from the Army Corps of Engineers, they also need a 401 from the State Water Board or US EPA. The 408 permit requires you to be at 60% design before you can even submit that application, and that’s if you’re going to do any alteration to the federal levee system, such as the State Plan of Flood Control, and they are only at about 12% design, so they are going to phase the project.”

Phase 1 will be the construction at the Clifton Court Forebay; phase 2 will be construction of the twin tunnels, the three tunnels that will lead from the intakes to the forebay, and the intermediate forebay; and phase 3 will be building the intakes on the project levees. “That’s when you need your 408 permit and have to be at 60% level design, which is why they need to wait until phase 3,” she said. “This was all new news to me.”

Ms. Terry said that it’s frustrating because as a representative of flood control agencies and of the North Delta Water Agency, they have not been informed of the phasing of construction or of the permitting process. “If they are doing the 401 now, and they admit in it that they cannot have it approved until they get the 408 approved, which is again years from now in phase 3, what happens if the Army Corps in your 408 requires you to make some physical changes to your project – Is the 404 going to come out for public comment again?” she said. “I would encourage the Commission to consider asking the engineering team designing this to come make a presentation regarding how they plan to phase the construction and the phasing of these permits and these public comments that we’ll be able to do.”

Ms. Terry concluded by encouraging the Commission to also consider submitting comments on the Army Corps 404 permit before the October 8th deadline. “You or any member of the public can request they hold a public hearing on this 404 permit, so I would encourage that,” she said.

The Commission then decided to continue as approved previously with the Executive Director submitting comments on Commission’s behalf.

Coming up tomorrow …

Drought and the Delta: The view from inside – Melinda Terry and Dante Nomellini discuss how Delta farmers are faring in the drought

For more information …

Click here for meeting agenda and materials.

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