Delta Stewardship Council prepares to comment on the California Water Fix/BDCP partially recirculated environmental documents

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List of concerns include adaptive management, water quality, and impacts to the Delta

In July of this year, the Partially Recirculated Draft Environmental Impact Report (REIR)/Supplemental Draft Environmental Impact Statement (SEIS) for the Bay Delta Conservation Plan/California Water Fix was released for public review period, which concludes this Friday, October 30th.

One of the many agencies that will be submitting comments is the Delta Stewardship Council.  As a responsible agency, a role defined for the Council in the Delta Reform Act, the Council is provided a formal opportunity to comment on the Plan’s impacts, alternatives, and mitigation measures.  At the October meeting of the Delta Stewardship Council, council members reviewed the key points that would be included and then voted to authorize the letter.

The Delta Independent Science Board comments on BDCP/California Water Fix

The Delta Reform Act established the 10-member Delta Independent Science Board (ISB) to provide oversight of the Delta’s scientific research and to advise the Delta Stewardship Council.  The Delta Reform Act also directed the ISB to review the draft environmental impact report for the BDCP and to submit that report to the Council and the Department of Fish and Wildlife;  the ISB finalized its comments and submitted them on September 30, fulfilling their statutory mandate.

Dr. Vince Resh, a member of the ISB, presented a summary of the ISB’s comments to the Council.  He began by noting that Appendix A included many revisions that were requested in the first review. “In many cases, the ISB was quite pleased that a number of the issues that we had raised in the initial BDCP EIR/EIS were addressed in the new document,” he said. “In particular, detailed information was added on to the analysis of contaminants, on the problems posed by microcystis, on public health issues, and a variety of other improvements that we note in the document.”

Dr. Vince Resh, Delta Independent Science Board
Dr. Vince Resh, Delta Independent Science Board

However, the new document raised concerns in several areas that we felt we should draw attention to, given that we are an independent science board and given the significance of the project that is being reviewed,” he said.  “Our overarching concerns relate to the incompleteness of the documents in some areas, and the inadequate communication of information that it conveys. Together these deficiencies made it difficult for us, as an independent science board, to conduct a comprehensive evaluation of the scientific underpinnings of the proposed project and its potential effects.”

Our concerns about the incompleteness of the document is the result of several issues,” Dr. Resh said. “First of all, discussion of some topics, such as the effects of levee failure, comparison among alternatives, the processes of adaptive management, and the effects of climate change and sea level rise are deferred to the final draft. Other topics, such as the effects of the project on levee maintenance or the relationship to San Joaquin Valley agriculture are not addressed adequately and that doing so would be presumed to be too speculative. Finally, a robust and detailed assessment of how the project might be affected by climate change and sea level rise is lacking because these changes are now incorporated in the No Action baseline alternative.

In general, we felt that the revised EIR-EIS provides only the information and analysis that are legally required for such documentation,” he said. “To the Delta Independent Science Board, this falls far short of what is needed to assess the project’s effectiveness, to determine how uncertainties will be addressed, to determine how unanticipated events will be dealt with, or to determine how the project outcomes will be affected by climate change and sea level rise.

Our opinion is that the documentation for a project of this scope and importance must exceed the minimal requirements in terms of legal aspects,” he said. “It should provide comprehensive information that is clearly and understandably presented. We believe that this is needed to enable decision makers and the public to evaluate the project as a whole, not just as a collection of separate, incomplete pieces.”

Dr. Resh noted that not only is adaptive management critical in the uncertain environment of the Delta, but it is also required by the Delta Reform Act and the Delta Plan. “From our perspective, the discussion of adaptive management is inadequate and deals only superficially with how it might be organized and not at all about how it’d be conducted or how the impediments that have limited its use in the past will be surmounted,” he said. “Moreover, many of the concerns we raised about adaptive management and some other topics in the previous review of the draft BDCP EIR-EIS persist in this current draft.”

We are also concerned about the inadequate communication of information conveyed,” he said. “Chief of these is our growing dismay over the failure of the documents to provide clear summaries and graphics that would enable readers to reach firm conclusions about the scientific foundations of this project. In particular, the continuing absence of clear and concise descriptions of assumptions and uncertainties leave much hidden from view.”

So in summary, the Delta Independent Science Board found ourselves continually stymied by the lack of critical information, the lack of assurances that the information would adequately appear in the final draft, and the repeated claim that what was critical information to us should be included was not legally required,” said Dr. Resh.

Recently, four lead scientists including Dr. Cliff Dahm, prepared a review of the challenges facing the Sacramento-San Joaquin Delta, and their conclusion reflects the intentions of the Delta Independent Science Board’s comments on the partially recirculated revised EIR-EIS,” he said. “California has the tools and the intellectual resources to manage the multiple dimensions of this problem. Through these strengths, they can achieve the state’s twin goals of reliable water supply and an ecologically diverse Delta ecosystem.”

Thank you for this opportunity to present and discuss our conclusions about the new documents.”

The Delta Stewardship Council comment letter

Dan Ray
Dan Ray, Chief Deputy Executive Officer

Dan Ray then reviewed the comments that the staff has prepared with the assistance of Arcadis, the Council’s independent consultant, that assess how the documents address CEQA requirements, the Delta Plan, and applicable provisions of the Delta Reform Act.

He summarized the key points:

Consistency with the Delta Reform Act and the Delta Plan  “Because the BDCP and the Water Fix will no longer meet the standards of the preferred alternative approved as an NCCP, they will be required to certify its consistency with the Delta Plan, and that will require that they have an adequate adaptive management plan and adequate provisions for funding it, as well as that the project that’s proposed is based on the best available science,” he said. “That’s one of the reasons why it’s important that the BDCP agencies consider and respond to the ISB’s comments which we’ll attach to the staff comments as well, and we’ve asked in the cover letter for them to respond to them as if they had been submitted by the Council; and that’s how we handled it the last time as well.”

Comprehensive project description:While much of the Water Fix project is described pretty completely in the EIR, other key elements are going to depend on regulatory decisions, particularly how the project is operated,” he said. “It would be important that as they complete those regulatory filings, and perhaps if some of the regulatory actions take place before the EIR-EIS is finalized, that the final project description reflect and be fully informed by the regulatory actions that they anticipate.”

Water quality:We raised this in comments on the draft EIR last year,” Mr. Ray said. “There is an improved analysis of water quality impacts and that’s a good to see. That’s helped them understand that perhaps the impacts won’t be as significant as they had originally forecast, so that now for example, they are no longer proposing to shift the compliance point for salinity on the Sacramento River further inland.” The EIR noted that the evaluation tools are more comparative rather than predictive, so they can understand the water quality impacts and benefits relative to the others might be. “To us, it emphasized the importance of having a good monitoring program for water quality outcomes as they finalize the EIR and its mitigation and reporting plan as well as the importance of mitigation measures. One of the things that Arcadis point out to us now is that the mitigation process puts quite a bit of the burden on identifying and implementing mitigation measures for water quality impacts on in-Delta users, and maybe there are ways to rebalance that.”

New effects as a result of the project redesign:In January, we heard from DWR how they were proposing to realign the tunnels to the east so that they are no longer so close to Locke and Walnut Grove and don’t require so many facilities on Staten Island, and that’s good because we’ve reduced impacts on those two communities and also on the cranes that use Staten Island,” he said. “The result of that however, is that they’ve moved the facilities under the McCormick-Williamson tract and other areas that we’ve identified in the Delta Plan as being a high priority for future habitat restoration, and the regulatory policies of the Plan require that the opportunities to restore those areas in the future be protected or mitigated. There’s very little analysis in the EIR about how the facilities they propose in that high priority restoration area would be affected by the facilities they propose, that includes a barge unloading facility and a temporary tunnel material storage site that would be Snodgrass Slough, just north of McCormick-Williamson tract, as well as the potential need to drill a tunnel shaft through the middle of McCormick-Williamson tract; those are not very well described in the EIR, and the impacts they would have, both on the opportunity to restore habitats there as well as other impacts are not very clearly analyzed.” He also noted that operable gate at the Head of Old River could be analyzed further for its effects on the priority restoration area on the San Joaquin. “Those are important issues that are new to this project.”

Mitigation of other effects on wetlands and aquatic habitats:Some of the ISB comments address those and we’ve called a few other points to their attention; that’s one of the ways we echoed the ISB’s concerns.”

Evaluation and mitigation of the impacts to the unique values of the Delta:We think they can do a better job of both identifying and evaluating effects, particularly in mitigating effects across a wide variety of impact categories that will affect particularly the areas at Hood and near Clarksburg that are nearest the construction sites, but also other communities on Highway 160 and people who are living in the San Joaquin and south Delta areas that are affected by the construction.”

Council discussion highlights
Mary Piepho
Councilmember Mary Piepho

I think we need to be careful about the balancing of coequal goals towards achieving the coequal goals,” said Councilmember Mary Piepho. “There is a distinction between the language; that achievement of the coequal goals should be the Council’s primary goal and objective, and if the Water Fix doesn’t contribute to the achievement of both coequal goals, it’s not consistent then with the Delta Reform Act. I would seek guidance from Mr. Stevens – are we identifying enough where inadequacies may exist in the draft EIR in relationship to CEQA or NEPA, if there are any, and if there are, are we seeking corrective action with our comments sufficiently as they relate to the 2009 Delta Reform Act? As the basis of the foundation for our existence, the Delta Reform Act as amended in 2009, we have those responsibilities.”

I think that staff has done a fine job on the letter and it strikes a reasonable fair tone in terms of expectations consistent with the Reform Act as well as the evolving nature of the principles,” replied Chris Stevens, Chief Counsel for the Delta Stewardship Council. “I think as the project moves forward, what the Council should strive to do is … especially with regard to potential covered actions which may result from this project here if Fix is the chosen alternative, is that we strive for early consultation and no surprises with regard to the project proponents. … I think that the Council and the staff recognize that there are going to be disagreements over whether or not the project is the right project, but what we should strive to do in my opinion is to make sure that the project proponents are clear as to what the expectations are to be consistent with the Delta Plan ultimately. I think this comment letter will help to pave the way, but I think that if the fix is the preferred alternative, we have some more work ahead of us and it behooves us all to make sure the expectations are clear.”

The Stewardship Council was created to achieve the coequal goals under the 2009 Delta Reform Act, and then we were also required to create the Delta Plan and the covered actions that are moving forward, so we’re wearing two hats, so to speak,” said Ms. Piepho. “I’m seeking guidance from you – are we confident that we’ve protected CEQA and NEPA in our comment letter here under the Delta Reform Act requirements, which is our initial responsibility, if not co-responsibility?

Chris Stevens
Chris Stevens, chief counsel

I think that we have,” replied Mr. Stevens. “I think that our ultimate goal is successful implementation of the Delta Plan, and the Delta Plan as a whole, in the aggregate, will, if implemented appropriately, achieve the coequal goals. We already have in our own implementing regulations a definition of what achieving each of the coequal goals is … The big concern from our perspective is successful implementation of the Delta Plan, and so I think that this letter and this potential project can be a piece of that, but let’s keep in mind what the ultimate goal is, which is successfully implementing our plan.

Vice Chair Phil Isenberg recalled his comments two months ago DWR responded to the science board’s report. “I thought it was a cavalier dismissal of the science board comments, kind of a ‘pat on the head’ and neither politically wise nor governmentally sound, since it is consistency with the Delta Plan that a covered action will be based upon in front of this Council,” he said.

With respect to the science board’s comments regarding adaptive management and best available science, Mr. Isenberg said, “The tendency is to try to punt on issues that are complicated and difficult to resolve, but the reality is that everybody has promised to do adaptive management and it’s legally required for us, but it’s also part of the law in many other cases. They’ve already said they want to do it, the question is, what, when, where, and how much is spent, and who pays? That’s the deal, and that of course raises the hackles of the water contractors and the interested parties, all of whom want to reduce their spending and not have the Dr. Reshes of the world interfere with whatever they want to do with the project, but for the state of California and the Council, we’ve got to have as complete a set of documents as possible, and that’s why couching this in terms of expectations, which I think is a smart way to do it, is sensible.”

Phil Isenberg
Council Vice-Chair Phil Isenberg

I do want to make a comment on the availability and our ability to exercise an opinion on the sufficiency of the record,” continued Mr. Isenberg. “If the final proposal that comes to us lacks sufficient clarity on these points raised by the science board and articulated on the staff, or if it defers their construction, their financing, their implementation to an uncertain date in the future, believing that good intentions once stated, should be enough, well, the record is incomplete in my judgment, to make a determination. And I do not believe that the advocates of the project would like to have that result, so therefore clarity as the staff report suggests, is in the ultimate best interest of the project.”

Councilmembers further discuss science board comments and how they are referenced in the Council’s comment letter, and other minor clarifications.  Afterwards, the Council unanimously voted to authorize the chairman to submit them with certain revision requests noted.

For more information …

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