The developing Delta Plan amendment to be subject of CEQA scoping meeting on Friday, March 24
Conveyance was the issue of the afternoon at the February 23rd meeting of the Delta Stewardship Council as the Council first received an update on the California Water Fix project and then discussed the proposed Delta Plan amendment for conveyance, system storage, and the operation of both at their February meeting.
AGENDA ITEM 11: Update on California Water Fix (and the nexus with the Delta Plan)
Don Constable, Environmental Scientist for the Delta Stewardship Council began with a brief history of the California Water Fix project, noting that it was formerly known as the Bay Delta Conservation Plan or BDCP. The BDCP was originally envisioned as a 50 year habitat conservation plan, but due to uncertainties, the approach was changed to a more traditional approach under state and federal endangered species act regulations. It is now known as Alternative 4A, or California Water Fix.
A significant change between the BDCP and the Water Fix is that habitat restoration and the other conservation measures designed to improve the ecosystem are no longer included in Water Fix; instead, those are now under a separate proves called Eco Restore. Mr. Constable noted that the Water Fix now is primarily a conveyance project and while it includes environmental commitments that incorporate select parts of those conservation measures, it is certainly not the majority.
Mr. Constable said this is relevant to the Council because the Department of Water Resources has indicated that this could be a ‘covered action’, in which case it could come before the Council. A ‘covered action’ is defined in statute by the Delta Reform Act; state and local agencies proposing to undertake a project or action in the Delta must certify to the Council in writing that their project or action is consistent with the Delta Plan. That self-certification can be appealed to the Council, and due to the controversial nature of the California Water Fix project, an appeal is virtually certain.
He noted that another significant change between the BDCP’s Alternative 4 and the California Water Fix Alternative 4A are the operational scenarios that have been proposed. The operations under the BDCP utilized the decision tree, which had some hypotheses of how the project operations would affect fisheries and the flows would then be adjusted as needed, depending on the outcomes. The operations being proposed under the California Water Fix is similar to the BDCP’s operational scenario H3 but with an additional spring outflow component.
“One thing to note here is that these are the operations scenarios that were used for modeling; this doesn’t mean this is what actually exactly be done,” Mr. Constable explained. “That would be determined somewhat by the process that’s coming out of the biological opinions that are undergoing consultation right now. The actual day to day, real-time operations would be informed by this, but they could differ. If you have an extreme event such as salinity intrusion or another event like that, that would be informed by real time operations, but these are the scenarios are used for modeling purposes. This is what’s in the environmental impact report, so that’s what we look at.”
In terms of potential changes in water exports compared to the No Action Alternative, the California Water Fix would generate 189,000 acre-feet more per year on average, according to the modeling, Mr. Constable said. He pointed out that the No Action Alternative is not the same as doing nothing; it is an assumption about the future that incorporates climate change and other actions that are expected to occur. Under BDCP Alternative 4, the range was from 27,000 to 814,000 acre-feet more per year over the No Action Alternative; under Alternative 4A, the number is more certain because they have chosen a single operational scenario for modeling purposes. “For reference, that’s less than is currently exported, which is about 5.1, but it’s more than would be expected if we didn’t put the project in, if nothing went ahead, but climate change and everything else went forward. It’s kind of in the middle there.”
Councilmember Weinberg asked about the 189,000 acre-feet increase in yield. “I’ve always thought that looking at this from sort of an average annual number was kind of misleading because it doesn’t show where you’re capturing the wet year flows and even in normal years, the ability to pull more in normal years. Can you talk about the assumption that says it’s only 189,000 acre-feet a year more?”
Mr. Constable said that it’s looking towards the future, looking at the early long-term future condition. He agreed that a single number glosses over a bit of the details. “You really do need to look at both the dry years and the wet years and everything in between,” he said. “There are some nice figures that were not included in this in the interest of brevity that show that a bit better … it shows that in a dry year, there would be less than is currently exported in a dry year, and that would be made up for with greater exports during the wet years. That is true, that is a key point, and it’s relative to the CSO amendment as well.”
Councilmember Skip Thomson notes that this year has been so wet, they have had to scale back on exporting water out of the Delta because there is now no place to put the water. “Where are we going to put this extra water if we have it available? If we’re going to export more water out of the Delta, shouldn’t we know where we’re going to put it?”
Mr. Constable noted that the question is highly relevant to the CSO amendment and to the coequal goals overall. “From the point of view of the project and how it’s written, it’s focused on conveyance as a limiting factor,” he said. “If you didn’t’ have anywhere to put the water – say all south of Delta storage was full or if the conveyance infrastructure is already at full capacity, you’re not going to be able to go beyond that, if the water is there and there’s no storage. It does not look at storage.”
“The modeling does consider how storage would operate to some degree, but during the water board hearings, this question was brought up and DWR mentioned they did look at some south of Delta storage locations, and that there didn’t seem to be a significant difference,” he continued. “They didn’t model in detail for all the locations, but theoretically in certain year types, you could have combinations I suppose where this coming spring, where you’re storage is quite full and maybe the project wouldn’t be operating to its full capacity.”
Mr. Constable then reviewed the project timelines. Right now, the US Bureau of Reclamation and US Fish and Wildlife Service and the National Marine Fisheries Service are in consultation to issue the final biological opinions. “These are important for a number of reasons,” he said. “For one, they would help determine how future operating criteria would be developed and implemented. They are also important because a Record of Determination and Notice of Determination to finalize the environmental impact documents depends on this being available. My understanding is that they expect this to be concluded by April of this year. This is also important because the State Water Board has said that part 2 of the current hearing can’t start until there is a final biological opinion.”
Also, if the project meets all the conditions for the Department of Fish and Wildlife for an incidental take permit, they could issue a 2081b. “I’ve heard various estimates for that, but it should be along the same timeline, so probably by April of this year,” he said. “Again, that’s a different agency, they are going through their own processes, we can’t guarantee that, and we don’t know.”
An ongoing process is the change in point of diversion petition that is currently underway at the State Water Resources Control Board. In order to construct three new points of diversion in the north Delta, they need to obtain approval from the State Water Board. The process began on July 26, 2016. The hearing has been split into two parts; part 1 is further divided into part 1A and part 1B.
“Part 1A was DWR and Reclamation presenting their case in chief or presenting their project,” he said. “Part 1B has been everyone else. That’s primarily NGOs and other groups who might be characterized as not supportive of the project, but it also includes groups like Westlands and others who have expressed support, so it’s really just everyone else besides the actual petitioners.”
Part 1B was originally supposed to be finished in January, but has been put on hold and will restart on April 25th of this year. Hearing dates have been scheduled up to August 10th of 2017 for the continuation of part 1. “My guess is that they would not use that entire time, because they are originally assuming they would finish all of part 1 in a few days and the end of January in about two weeks of hearing dates. We don’t know what will happen with that, but it could go well into 2017.”
This is important for the Council because the assumption is that DWR would not submit a certification of consistency to the Council before having a determination from the Water Board in getting a section 401 permit under the Clean Water Act. “If part 1 is delayed well into 2017, we could expect a further delay of part 2, and then after part 2, the Water Board could issue that determination, so we don’t know the exact timing on that, but I would expect at least late 2017,” he said.
The Council staff have offered early consultation to the Department of Water Resources, same as they offer to any party planning a project in the Delta. Early consultation is where the staff explains the Delta Plan and its policies and how they might be relevant. “We offer this in an effort to make what the Council does more transparent and to help people understand what they might expect if they do determine that their action is a covered action,” he said. “Since DWR has implied that they may consider that and they may certify, we think that’s very important. That process is still ongoing. Obviously with some of the recent events in Oroville and other things this winter, I’m sure they are swamped, but we hope to continue that this year.”
There are some additional permits that would also be required. There is the Section 401 permit under the Clean Water Act that would be issued by the Water Board. “This, I understand, would be issued separately by an executive officer there but it would not be issued, if it is issued, until after the record for the current change in point of diversion petition closes. So not that they would have their determination, but all their evidence is in at least and that, I anticipate, would be at least be late 2017.”
The other permits, the Clean Water Act 404 and 408 are unknown at this point in time. For the 408 permit, it’s common practice that to have at least 80-90% or 100% design in order to have that issued, he said. He acknowledged that the timelines on these permits aren’t quite clear. The project, as of earlier this year when they issued preliminary design, that was a 10% level design, so quite a bit would have to change.
“This could be anywhere from in the next year to say, 2020 depending on how they move forward and the speed of all the other activities,” he said. “That’s not something we’d necessarily need to see at the Council, but those are things that would need to get in place before the project were built.”
Mr. Constable reminded that the Council has previously submitted comments on the environmental documents; the comments addressed questions about the roles, rights, and responsibilities of specific agencies, the approach to adaptive management, funding commitments, and how to avoid or mitigate for impacts to recreation, agricultural users in the Delta, and the local communities.
The Delta Independent Science Board also submitted comments, many which were the same as the Council’s. The science board also expressed concerns related to adaptive management. Mr. Constable noted that the final EIR does not really address adaptive management. He said it was his understanding that a plan was being developed and will be forthcoming. As of now, there isn’t a formal adaptive management plan to review.
Staff has been looking through the 100,000 page EIR with assistance from Arcadis (consultant) to see how previous comments may have been addressed and to relate parts of it to Delta Plan policies. There will probably be an update at the May council meeting.
Lastly, Mr. Constable noted that the California Water Fix is extremely relevant to the proposed conveyance, storage, and operations amendment. “Obviously many of the aspects of Water Fix and CSO are closely inter-related,” he said. “Depending on the timing for these two projects, it’s possible that a CSO Amendment could be in and completed before a certification of consistency was submitted, or it could be afterwards. We’re not sure at this point in time, and the exact contents of the CSO amendment are still to be determined as well. If this does go ahead and DWR does submit a certification of consistency to the Council, based on comments that have been made over at the Water Board by several parties there, it seems likely it could be appealed, and you would see it as a covered action before you in that case. There would be a substantial record that we would have to review, and ultimately would have to determine the consistency with the Delta Plan. So there’s a lot of exciting things happening in the next year or two. We’re not sure on the timeline.”
AGENDA ITEM 12: Delta Plan Amendment Conveyance, Storage, and Operations Amendment
“We have a big job,” began Executive Officer Jessica Pearson. “Not only were we given this potential appellate role through virtue of our covered action authority, but the legislature also directed us to promote options for Delta conveyance, storage, and the operations of both. That’s what brings us to our discussion today. I want to remind everyone that while this amendment takes on an important and complex topic, it must be considered in the overall context of the Delta Plan. It is an amendment to the Delta Plan and especially must be considered within the regulatory context of the Delta Plan.”
“By design, the Delta Plan covers a lot of ground,” she said. “It addresses many policy considerations related to but also beyond conveyance and storage, including identifying high priority restoration areas in the Delta, advancing restoration strategies, protecting Delta as a place values, and a raft of Delta specific water quality recommendations and more. So considering this amendment without considering the context of the overall plan will be tempting, but it could lead to faulty analysis. Whatever you ultimately endorse becomes part of our overall balancing strategy of furthering the coequal goals.”
Any new conveyance or storage project that meets the definition of being a covered action such as the California Water Fix will be held to the consistency criteria included in the Delta Plan, whose 14 regulatory provisions include requirements relating to siting of projects, local government consultation, a real and funded adaptive management plan to deal with changing future conditions, demonstration of reliance on the best available science, mitigation and where possible, and avoidance of local impacts.
Ms. Pearson said the discussion draft is intended to be responsive to the legislative direction of 85304 in the water code; it is specific in promoting options and recommending the preferred characteristics of new and improved Delta conveyance, storage, and operations in order to address shortcomings of the current systems and to achieve state goals. She noted that the draft has been informed by hours of public comments at meetings, along with expert input which crystallized into the 19 principles adopted in December of 2015; it also reflects extensive staff and consultant review and policy level analysis of various conveyance, storage, and operational alternatives, plans, and environmental documents.
Anthony Navasero, Senior Engineer, began by reminding that the Delta Reform Act of 2009 established the Delta Stewardship Council and charged the Council with developing, adopting, and implementing the Delta Plan, a comprehensive, legally enforceable long-term management plan for the Delta to meet the coequal goals.
“As stated per water code 85304, the Delta Plan shall promote options for new and improved infrastructure relating to water conveyance in the Delta, storage systems, and for the operation of both to achieve the coequal goals,” he said. “Additionally per water code 85320, the Bay Delta Conservation Plan (BDCP), was considered for inclusion in the Delta Plan with caveats. The Delta Plan set a commitment to revisit the inclusion of the BDCP if the process was not completed by January 1st, 2016.”
In April of 2015, the administration pivoted from the BDCP and split the effort into two alternative initiatives, the California Water Fix and California Eco Restore. Immediately afterwards, the Council began to take action and arranged a series of panels during the spring and summer of 2015, which consisted of subject matter experts and stakeholders to advise the Council on potential actions. The Council proceeded to take a two-step approach to adopt a guiding document and to develop a Delta Plan amendment regarding Delta conveyance systems storage and operations of both.
In the winter of 2015, the Council adopted a problem statement and the 19 principles. The Council also sought and secured funds through a change proposal to hire consultants to assist Council staff, selecting a team from formerly MWH, now part of Stantec, to assist Council staff in the process to develop a draft amendment. Council staff not only presented the process and progress to developing a proposed amendment over 2016, but analyzed and evaluated authorities and options to understand the Council’s role in promoting options.
Kari Shively (consultant with MWH/now part of Stantec) said they took the 19 principles that were adopted by the Council in late 2016, and used those to identify the key areas of focus for the conveyance, storage, and operations amendment.
“Using those 19 principles as our guide, a team of planners and scientists got together and we worked to identify some of the fundamental problems that should be addressed and the outcomes we would like to achieve from an amendment,” she said. “We looked at a broad array of options, different types of infrastructure in different parts of the state, and different mechanisms for water management that could be influenced by different infrastructure options, such as transfers. We also looked at how different facilities could be integrated and operate together, to get the most out of those facilities.”
Ms. Shively pointed out that it’s recognized that no single solution is going to solve all of our problems in the Delta. “Conveyance alone is not going to solve our problems. It really needs to be a combination of conveyance and storage and how we operate them both to get the most effects.”
They also reviewed the 19 principles through the lens of existing state responsibilities and state authorities to identify the Council’s role as well as the role of different state agencies and local implementing agencies in implementing and moving forward with conveyance, storage, and operational changes.
Using the problem statement that was adopted with the 19 principles are our starting point, they drafted a refined problem statement, which sought to really articulate to the key problems that are trying to be solved with the amendment. This format is consistent with how the Delta Plan is organized and drafted, where the different chapters start with a description of a problem followed by the identification of different recommendations or policies to solve those problems. And last, relevant performance measures were identified that could be used to track progress in conveyance, storage, and operations.
Ms. Shively then went through the organization of the draft amendment, which has three parts:
PART 1: Introduction and problem statement provides the background on why the Council is amending the Delta Plan for conveyance, storage, and operations and the context for the amendment relative to achieving the coequal goals, as well as relative to other important state efforts, such as the governor’s California Water Action Plan. The introduction is followed by problem statements that articulate the challenges that are trying to be addressed with improved Delta conveyance storage and operations.
PART 2: The draft recommendations are divided into three sections:
Section 1 contains the recommendations related to conveyance. Item A describes the specific conveyance options that are being promoted; item B describes the characteristics or the analytical criteria that different project proponents really should be considering when they are evaluating different options for conveyance, and Item C describes the characteristics that should be considered for through-Delta conveyance.
Section 2 contains recommendations related to new and improved water storage. Item A describes these specific water storage options that are being promoted. These options could be located in the Delta watershed, in the water export area for the Delta, or it could include on-stream and off-stream storage, groundwater storage. Item B describes the characteristics and the analytical criteria that project proponents should be considering when they are evaluating new storage projects. Item C describes some specific recommendations related to groundwater.
Section 3 has the recommendations for improved operations. Item A describes the options that are being promoted for operations which focus on the coordinated operations of the State Water Project and the Central Valley Project under a range of different hydrologic conditions and how the system can be more flexible and resilient in the face of our ever-changing hydrology; it also identifies the promotion of certain storage and conveyance operations outside the Delta to encourage greater regional self-reliance. Item B describes important considerations for development of operations plans for any new storage and conveyance facilities. Item C makes recommendations to the Water Board for their consideration in updating the upcoming Bay Delta Plan. Item D contains recommendations related to the facilities outside the Delta that could also help achieve the coequal goals. Item E contains recommendations related to data management and transparency specific to the Dodd Act.
PART 3: The third section identifies some refined performance measures that would be used to track progress related to conveyance, storage, and operations which are part of a larger body of refined performance measures.
Ms. Enos-Nobriga concluded by noting that this is an initial discussion draft developed by staff and probably the first of three or more drafts of the amendment. There will be public workshops to gather feedback, which they will use to develop a second draft of the amendment that they will bring to the Council at the next Council meeting. They will also be having a CEQA scoping meeting. The intent is to come back in April for a third draft and request the Council to approve that to begin the CEQA process.
Council Chair Randy Fiorini asked how they have coordinated with the Water Commission related to their Prop 1 storage funding, their guidelines, and their ecosystem requirements as per the Prop 1 water storage regulations.
“As council staff, we have been coordinating with the staff of the Water Commission on the development of their regulations from late 2015 when they started, all the way to their adoption last year, so we’ve been on several coordination meetings with state agency stakeholders, as well as providing input and recommendations on their draft regulations as they’ve been moving forward,” said Anthony Navasero. “We’ve also taken some of the information they’ve received … Prop 1 regulations that require parties from Fish and Wildlife and the State Water Board as far as different items such as water quality issues or endangered species act preservation, and we’ve included those as items we should reflect in our recommendations here.”
Councilmember Ken Weinberg suggests that there be more discussion in the problem statement about the status quo and the sense that we’re talking about conveyance, storage, and operations because if we don’t do something to enhance those three things, conditions are going to deteriorate for both of the coequal goals. “Even though this is part of the Delta Plan as a whole, people are going to be reviewing this kind of on its own like a standalone document, so it’s better for the public to understand why we have to take some action,” he said.
Some of the recommendations could use more detail. He used the example about the recommendation for a below ground conveyance facility. “I was thinking, what are the reasons that we wind up there as a recommendation, so thinking about some of your recommendations, tying back to other parts of the plan.”
He also expressed some concerns about reduced reliance on the Delta. Maybe there are some definitional issues, and the performance measures are good, but some might be conflicting with each other. “We’re promoting this facility approach, conveyance, storage, optimizing the operations, and we’re not necessarily talking about taking less water. We’re just talking about taking it at different times, so if we start comparing averages or years, I think we may be contradiction with what we’re trying to promote.”
Councilmembers Susan Tatayon and Mike Gatto also have questions about certain provisions of the document.
Councilmember Pat Johnston notes that the amendment is mostly about one of the coequal goals and thinks it should address how improved conveyance will help the ecosystem. “We should be prepared to write what the case is for an environmental improvement, not just a mitigation necessity,” he said.
Councilmember Skip Thomson asked why the amendment is making recommendations on specific projects. “Shouldn’t we want to know what the projects look like, once they are more formed and rolled out?”
Council Chair Randy Fiorini reminds that per water code 85304, the Council is to promote options for conveyance, storage, and the operations of both. “I think we’ve taken an outcome oriented approach to this, so we’re describing how to achieve the outcomes that we established in our principles a year or more ago, so there seems to be a lack of describing how the conclusions were drawn to these particular options.”
“The perception is that we’re trying to force this conveyance project,” said Councilmember Thomson. “Until we’ve really looked at all the alternatives, when we start supporting a project or projects early on – do these projects meet the coequal goals is the obvious question, and I’m struggling to figure out how they meet them and how we can support them until we’ve done our research. That’s the basic question, one that I’m not comfortable with. I don’t know that we’ve been given an answer yet.”