Presentation includes the many state and federal permits that are required
With the public comment period for the California Water Fix (Delta tunnels) project closing for presumably the final time, Metropolitan’s Special Committee on the Bay Delta met on October 27th to hear the next steps for the project, such as timelines and permits. The meeting also included a brief presentation on the emergency drought barrier.
First, Steve Arakawa, Manager for Bay-Delta Initiatives, began by recapping the long journey over many years that the project has taken in getting to this point of preparation of the final documents. There were a significant amount of comments received on the first official public draft released in December of 2013, in addition to the comments that were received in the comment period for the partially recirculated draft documents. “When they produce a final draft EIR-EIS, they address all of the comments that came in on both the first public draft as well as the recirculated draft,” Mr. Arakawa said. “They may hold public meetings to accept comments on that final EIR, but it’s not required.”
Next steps for the environmental documents
Mr. Arakawa explained that there are two parallel separate tracks for the state CEQA process and the federal NEPA process. “For the state process, once all of the comments are responded to and the final document is complete, then DWR would have the decision to certify the final EIR under CEQA and adopt the related documents that go along with that, which include all of the findings, all of the monitoring and mitigation plan to the extent that there are any significant impacts, and a statement of overriding concerns or considerations that based on the impacts, the greater public benefit of pursuing the project outweighs the impacts that were identified through the evaluation process,” he said. “The Department of Water Resources would then consider improving the project and then issue a notice of determination.”
“Under the NEPA process, procedurally the US EPA has the role of making the document available through the federal register,” he said. “There would be a period of 30 days following that, and then Reclamation would then prepare a Record of Decision and consider approving the project.”
In addition to environmental review process under CEQA and NEPA, there are also other important permitting processes under both state and federal law, Mr. Arakawa said. Rather than pursuing a Section 10 permit, the proposed California Water Fix project would require an endangered species permit under Section 7. “In simple terms, Section 7 is similar to the process and the permit that’s retained by the State Water Project and the Central Valley Project for the existing operations of the project, and they would use the same process for permitting the proposed water conveyance project,” he said.
“There would be a biological opinion, and there would be an incidental take statement, and those would be decisions made by the US FWS and the NMFS,” he said. “The work that is in preparation for those decisions has been ongoing and the expectation is that the decisions on the environmental documents and the decisions on the permits under the endangered species act on the federal side would converge around the same time, which would be around mid-2016.”
State and federal permits
There are three permits required under federal law necessary to move forward with the project, Mr. Arakawa said. “One of them is the Clean Water Act Section 404 permit,” he said. “That has to do with any project that has dredge and fill within streambed or waters of the US, which could include wetland areas and vernal pools, and so anything designated as eligible or covered under Section 404 is potentially a permitted target and that decision would be made through the process that the Corps of Engineers administers. So the Department of Water Resources, and the Bureau of Reclamation would be seeking a Clean Water Act Section 404 permit that would allow for any kind of dredge and fill that’s part of the project.”
The second key permit is administered by the Corps of Engineers under a different law under the Rivers and Harbors Act. “That has to do with any impacts that could occur to the water channels that affect navigation, and normally that’s referred to as Section 10 of the Rivers and Harbors Act,” he said. “Given that the project has intakes, the project has Clifton Court operations, anything that affects the water levels or the navigation of the channels could be under this purview under the permitting process that the Corps of Engineers administers.”
The third permit is also administered by the Corps under the Rivers and Harbors Act. “There’s section 408 which has to do with flood control, public safety, and protecting the public under flood control project for any kind of facilities that the federal government operates in that regard, so to the degree that the project touches on any of those aspects that could affect that public safety and the protection of people and property for flood control would be under that Section 408 permit,” he said.
There are a number of state permits required as well. “Just as with the federal endangered species act, there is a state endangered species act, and there would need to be a 2081 incidental take permit, “he said. “That’s a parallel process; given that the state and federal projects require both of these permits, there would also be a state endangered species act 2081 incidental take permit issued by the California Department of Fish and Wildlife, and so with that permit, you would have coverage for the project under both the state and federal Endangered Species Act.”
There are two permits required from the State Water Resources Control Board. The State Water Board is responsible for water quality and water rights, and under its water rights authorities, one of permits it administers is called a Change of Point of Diversion. “A Change of Point of Diversion is related to the water rights terms and conditions under which a project could operate with certain water rights that are administered by the State Water Resources Control Board,” he said. “With this project, the water conveyance and the diversion point for the new intakes would be the reason for needing the permit from the State Water Board that provides the terms and conditions on which that project can operate.”
Under the State Water Board’s water quality authorities, the State Water Board is designated as the entity to administer and implement the Clean Water Act within California. “There would need to be a Clean Water Act Section 401 Certification to assure that the water quality is not impacted by the proposed project and the State Water Board would be responsible for that,” he said.
Consistency with the Delta Plan
The 2009 Delta Reform Act included a number of key policy decisions and provided a means of moving forward with the Delta planning process, he said. “It also set up and established the Delta Stewardship Council, and charged the Delta Stewardship Council with developing a Delta Plan that was broader than just the water related issues; it dealt with land use and other types of things that involve planning in the Delta,” he said. “The Delta Stewardship Council adopted its Delta Plan a few years ago and it adopted regulations with regard to that Delta Plan, and so DWR under the proposed alternative would need to prepare a certification of consistency that this proposed project is consistent with the Delta Plan and as such, should be able to proceed because it is consistent with the Delta Plan.”
“There’s an appeal process that the Stewardship Council has adopted,” he said. “Any party could appeal that and then depending upon how those appeals go, the Department of Water Resources would then make a judgment as to whether those appeals had been cleared and whether they feel that they are in a position to move forward with the project.”
Timeline
Mr. Arakawa said that a number of the permitting decisions will be made around the same time or shortly after the record of decision and notice of determination on the environmental document. “The projection for that approval of the environmental document is sometime around mid 2016, probably around June of 2016, and the expectation is that the approvals under both the state and federal endangered species act would be around that time,” he said. “Some of the other permits, including Section 404 and 408 would be around that same time as well, but I think there is one other permits that may take more time, and that is the State Water Board permit for the new intake; that would be a subsequent decision that would occur, maybe a number of months after the Record of Decision in mid-2016.”
Key comments on the documents by public water agencies
Mr. Arakawa then discussed the key comments that the public water agencies would be making. “Both state and federal water contractors have been jointly working together to review the recirculated environmental impact report and impact statement, and they have identified what they believe are the key comments that need to be provided by the October 30 deadline,” he said. Those comments include:
- California Water Fix would provide more flexible operations that may have water supply benefits not captured in impact modeling. “The California Water Fix would provide more flexibility, both for water supply and for fisheries, to managing the system over the years with increased regulation with declining fisheries,” he said. “A lot of that flexibility that allows for management during the year from wet year to dry year has disappeared. With this new proposed project, a good amount of flexibility is added back into the system and that’s good for both water supply and for fisheries.”
- Final EIR/EIS should explicitly document scientific uncertainty underlying operational criteria. “The final EIR and EIS needs to document that this science is not perfect on any of this, particularly as it relates to the operations that have been identified for the proposed project for the water operations in the Delta, and therefore that uncertainty and the need for further science should be documented,” he said.
- Projects and associated permits must include collaborative science and adaptive management to alter operational criteria in the light of best available science. “We have emphasized the need for a collaborative science and adaptive management process in which key scientific questions or hypotheses are outlined, key studies are identified, and work that’s necessary to answer those key questions are followed through and developed such that the operations of the project, particularly if it goes forward and once its constructed and in place, that the operations are aligned with the scientific understanding as we evolve and learn more about the system.”
- Supportive comments seeking clarification of the record. “There are some other comments being provided, basically that the proposed project is a viable framework for moving forward and solving a number of these problems,” he said. “There are detailed comments involving the uncertainty getting into some issues on different fisheries and various other comments that are intended to support the document, make it defensible, and provide the additional input that’s necessary in order to do that.”
Mr. Arakawa said that in the near future, he would be back before the Committee to review how the project’s costs would fit in with Metropolitan and how that would compare California Water Fix versus other options for meeting supply objectives, as well as updating them on the ongoing cost allocation discussions.
“The final EIR-EIS is targeted for mid 2016, and then the real decisions that this board would be considering would be following the Record of Decision and Notice of Determination,” he said. “Then based on that, any kind of approvals or agreements that are necessary to start implementing the project would come forward to your board for decision making following that record of decision.”
“That’s my report for today, and I’d be happy to answer questions …”
Discussion highlights
Director Fern Steiner asks what the definition of flexibility is. “We’re still doing a Section 7, we still have the potential for additional restrictions being put on, which is a source of concern and so could you elaborate on that?”
“On the flexibility, you do modeling and models have the ability to look at monthly deliveries, monthly flows and things like that,” Mr. Arakawa replied. “What we are saying in this comment is having the second point of diversion in the north end of the Delta provides added flexibility, so you can manage around the fishery conditions. So if the fish are in the north, you go the south and divert there, and if the fish are in the south, you are able to divert from the north, that’s just one example. The other is it has the ability to manage those reverse flows in the south end of the Delta.”
“We showed you in the previous reports a month or two ago how these storms occur through the year,” he continued. “It could be in an average or below normal year – it doesn’t have to be a wet year, these storms occur and the ability to take advantage and capture those storms flows when they occur without an impact to the fisheries, that’s added flexibility as well.”
“The point that I think maybe you’re going to is what kind of capability do we have under a Section 7 permit?” he said. “One of the comments that will be provided in the letter is that the water contractor agencies are looking for the maximum assurances that we can get. Obviously it’s the process that goes back and forth between the Bureau and the Department and the fish agencies, and we’re a party that has a stake in this, but being able to have a process like the adaptive management decision process and like the science collaborative process, and having more predictability in how those decisions would be made would enhance maybe what we have under Section 7 today under the existing projects, so that definitely is an important comment that will be made in the letter.”
Director Steiner asks when there will be information on project costs.
“Everything is going to coalesce here in the first half of next year, including costs,” said Jeffrey Kightlinger, General Manager. “I will say on costs, our assumption and we have no reason to think differently is that the state project is going to be between 50 and 60 percent. We’re still using the metric of costs follow the water, so the state contractors are continuing to put more detail on the proposal about how we would allocate amongst our part. The outstanding issue is on the CVP side, and they are working on that amongst themselves, so I guess I can say that’s where the ball is.”
Director Larry McKenney: We’re making comments about the need for our process going forward to incorporate operational flexibility and maybe criteria for how changes should be evaluated in the future – we’ve been talking about that for a long time, and yet we’re still making these comments … how do you expect our comments on that point to be received?”
Arakawa said that a lot of progress was made on these issues with the fish agencies on how such a process would work during the time when the implementing agreement for the Bay Delta Conservation Plan was being drafted. “It’s our intent to retain as much of that, as far as this decision making that we’re referring to in this proposed approach, so we don’t have it in hand. Yes we have commented in the past, but I think that the public draft implementing agreement had many of the elements that we were looking for, and we’re looking to retain many of those elements in this proposed approach.”
“So do we ‘hope’ that our comments are going to result in changes in the document or something specific in the ROD … ?” asked Director McKenney.
“The environmental document refers to how adaptive management would be done in a very general way,” said Mr. Arakawa. “It referred to a MOA that would be developed as part of the final document, and so our input is helping to support driving to that outcome.”
“We want these comments on the record,” said Mr. Kightlinger. “This is a record a legal record, and that’s what these comments are doing. Are they going to change the documents significantly? Probably not, but we want our comments duly noted and put on the record. Permits will be revisited for decades to come, and we want our positions known.”
Director Keith Lewinger directs back to slide 9, bullet #3, which reads: Projects and associated permits must include collaborative science and adaptive management to alter operational criteria in the light of best available science. “The word “must” is a pretty strong word,” he said. “It means to me that we would not be supportive unless the permits and the project includes those things. Is that a correct assumption?”
“I think it’s a good point to call out the word ‘must’; it is one of the most important things that we have highlighted as part of our comments,” replies Mr. Arakawa. “We put a significant amount of emphasis on collaborative science and adaptive management decision process for the very fact that Jeff mentioned, it’s going to be a number of years before this project would be in the ground and operating, and a lot of science would be evolving during that time frame. So we would be putting a lot of emphasis on that. I guess it’s a judgment call whether must is the correct word or whether there should be a different word, but presently it really does characterize this as something that we really need to see in the document.”
“I believe as one director, must is the right word,” said Director Lewinger. “We have to have those assurances. Going the next step, I’m not sure whether the board is ready to take that next step or not, which is if it doesn’t include that, we’re not going to support it. That’s a discussion I think we ought to be having as a board.”
“We are making that comment very forcefully by design … we’ve had good success, we’ve reported on a lot of the good work that we’ve done, we have been conversations this week about enhancing our monitoring even going into this year with all the El Nino talk and other things, so we’ve made progress there,” added Assistant General Manager Roger Patterson. “The draft documents say there will be collaborative science and adaptive management program, and it will be documented in an MOA, so we’re just doubling down on that in our comments that the agencies have said they are going to do that, and we want to see it happen. The reason this is hard is there’s a lot of uncertainties out there, and anyone that thinks they know exactly how things are going to be in 15, 20, 25 years – there’s no way to know, but if you can get a commitment amongst the scientists and the agencies to work together on those tougher issues, which is finally starting to come into focus, then you’re a lot more comfortable that you’re going to be in the right spot, so it is by design that we said ‘must’. And if they don’t do it, it’d be a major concern. Don’t do the project, that’s not my decision, but we’re doing that by design.”
Director Linda Ackerman asks about consistency with the Delta Plan. “Does there appear to be any issues with that? Are we confident there is consistency with their plan?”
“The Delta Stewardship Council has been following this process pretty closely and they’ve been commenting on it and they’ve had the ISB look at documents and provide comments,” said Mr. Arakawa. “They’ve identified comments regarding the sufficiency of adaptive management, and other things that are involved in the proposed project. In the end, the Department of Water Resources would put forward the case, based on the law that was adopted in 2009 and the Delta Plan that was adopted by the Stewardship Council. It would be the Department of Water Resources that would certify that it is consistent with the Delta Plan. Then it would be up to any party, including the Stewardship Council to determine whether they disagree and would they appeal that, and then there would be a process to identify those issues and determine how DWR might address those issues, but in the end, DWR is the one that has the responsibility to certify and then they will make a decision on whether they proceed or not.”
A Delta drought barrier retrospective
Demetri Polyzos, Senior Engineer in Metropolitan’s Water Resource Management Group, then gave a presentation on the reasoning behind the decision to install the drought barrier, and how it performed during the summer months. He began by noting that the last time drought barriers were installed in the Delta was during the 1976-77 drought. “That was a severe drought, but it was a short-lived one, but that was really the last time the emergency drought barriers were put in place and they were effective back then,” he said.
Installing the drought barriers is no easy task, with extensive permitting and coordination required on all levels: approvals are needed from the US FWS and NMFS as well as the State Water Resources Control Board; extensive public outreach is necessary, especially to boaters; and easements are needed from local reclamation districts, he said. “The decision is not taken lightly to install these barriers,” he said. “There could be potential impacts and that’s why they need to go through all these measures to mitigate those.”
Last year, the Department came close to installing the barriers; however, February and March brought slight improvements in the hydrology, and between that and the Department successfully petitioning the SWRCB to modify some of the Delta salinity standards, they were able to avert putting in the barriers in 2014. “However, with continued dry hydrology going into 2015, not seeing any improved hydrology in the winter months, the Department needed some help to mitigate the water intrusion into the Delta, and that’s essentially what the barrier’s objective is – it’s to help mitigate the salt water from intruding into the central and southern parts of the Delta,” said Mr. Polyzos.
To explain how it works, he presented a map of the Delta, noting that Sacramento is to the north at the top of the map and Clifton Court located in the southern part of the Delta, and the Sacramento River and the San Joaquin River feeding in.
“The Delta is this constant battleground that I call the good and the evil, the good being the freshwater flows which is represented by the white arrows here, and the evil, which is the salt water coming in from the bay in the brown arrows,” he said. “And where this battleground occurs shifts, and it shifts for various reasons – one could be the tides, that’s a big influencer, so we can see that shift from east to west in the Delta.”
In dry years, such as this year, the Department of Water Resources was concerned that the salt water would start intruding into the Central Delta and in worst cases, come deep into the Delta and south towards the export facilities. “Now this is a situation we want to avoid at all costs, because once you get this type of intrusion in the Delta, it’s difficult to reverse,” said Mr. Polyzos. “This makes it very difficult, in fact impossible for ag agencies to produce their crops if you get these high levels of salt into the interior Delta, and many of the municipal water districts in the area simply can’t treat the water with higher levels of salinity, so this is something we want to avoid.”
There are a number of ways the Department of Water Resources can avoid salinity intrusion from year to year. “One is to depend on the natural system flows,” he said. “It is not just the Sacramento and the San Joaquin River systems, but all the side and tributary systems that come into the Delta. The critical time of year for this is the summer months, and what helps with this is the snowpack.”
He then presented a slide of the Northern Sierra snowpack, noting that April 1st is typically considered the peak of the snowpack season with average of 29” or so of water content in the snow. “Compared to 1976-77, the last time the Department installed the barriers, the snowpack peaked again near that April 1st timeframe, but only at 7.3”, so that didn’t leave much snowpack or snowmelt for the summer months to help with those natural flows,” he said. “In 2014-15, the conditions were even worse. By the time we got to April 1st, what little snow accumulated in the year had all melted away, so there was really nothing left to help with the natural system flows, so that unfortunately was not an option.”
The second option the Department has to is to release water from upstream reservoirs. “For example, the Department could have released water from Lake Oroville as this would help bolster the flows in the Sacramento River,” Mr. Polyzos said. “However, when your reservoir looks like this, it’s a little difficult to imagine there’s enough supplies to release, and in fact, just to compare with 76-77, very similar conditions. The stats on this slide show the average end of month storage for the water year, so in 1976-77, it was about 39%; this past water year, 38%, so again similar conditions. Not an option this year.”
The third option the Department has is to reduce Delta exports. “When the pumps are working pretty hard, you can actually see a reverse in Old and Middle Rivers,” he said. “Now if a lot of salt was in the area, that would be drawn into the export pumps, so reducing the Delta exports can help reverse that flow to the natural direction, back towards the north, and help keep that salt water from entering into the pumping facilities.”
He presented a slide showing Delta exports for the months of June through October when the drought barriers were installed, and pointed out that in order to use this option, the Department would need to be exporting water from the Delta. He noted that for a ‘normal’ year on the slide, they used an average allocation of 65%; the last time they had a 65% allocation was in 2012. “During the period when the drought barriers were installed, you can see that export ranges anywhere from 100,000 all the way up to 350,000 acre-feet, so there’s room here to reduce exports,” he said. “Exports back in 1977 were at a bare minimum. This year, pretty much bare minimum. There isn’t much room to reduce, so that wasn’t an option for the Department.”
Without their typical options available to combat salinity intrusion, the Department was forced into the situation to actually implement and install the drought barriers, Mr. Polyzos said. After consulting with the public and the fishery agencies, they installed the barrier on West False River.
The barrier 150,000 tons of rock placed across West False River; it is trapezoidal with a 12 foot top. Installation was completed in June of this year.
“It worked; they did see a reduction in the water quality degradation,” he said, presenting a slide of electrical conductivity (EC) in the south Delta, noting that EC is one way to measure salt content in the water. The higher the number, the worse the water quality is, he explained. He noted the point at which the drought barriers were installed (June) and how the reversed the direction of where the water quality was trending. “It was degrading rapidly, but when the barriers were put in place, you saw that degradation plateau and in fact water quality did improve. As a secondary benefit, we saw that because of the barrier being in place, they were able to preserve water in the upstream reservoirs. In other words, they did not need to release additional water, what little water was left in Oroville to help thwart that salt water from intruding into the Delta.”
The Department began removing the barrier in early September. Complete removal is required by mid-November in order to mitigate against any impacts to the fisheries, he said.
The Department has estimated 45 to 60 days to complete this, and is confident they will complete the process by November 15 as required by the permitting agencies, he said. The rock used to build the barrier is being stockpiled in Rio Vista and in other locations around the Delta, he noted.
“And so with that … “
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