DELTA STEWARDSHIP COUNCIL: Delta Watermaster’s quarterly report, California Water Fix biological opinions

Agenda items at the Delta Stewardship Council’s July meeting included a quarterly report from Micheal George, the Delta Watermaster, and an update from Council staff on the biological opinions for the California Water Fix.

AGENDA ITEM 12: QUARTERLY REPORT FROM THE DELTA WATERMASTER

Delta Watermaster Michael George provided the following update to the Council.

1. STATE WATER BOARD ACTIVITIES AFFECTING THE DELTA

There are two major ongoing activities affecting the Delta that are underway at the State Water Board: The update of the Bay-Delta Water Quality Control Plan and the hearings for the change in point of diversion for the California Water Fix Project.

Update on Bay Delta Water Quality Control Plan

The State Water Resources Control Board is updating the Bay Delta Water Quality Control Plan in a four phase process.  Phase 1 addresses the San Joaquin River tributaries and southern Delta salinity objectives; Phase 2 addresses the Sacramento River and the remainder of the Delta.

The phase 1 document was presented in September of 2016; it then underwent about six months of public comment and five hearings in three different cities up and down the valley.  Comments were due in the middle of March and are currently being reviewed by staff.  The process for phase 2 is also in process, and is starting to catch with up with phase 1, he said.

Both of them include fairly substantial recommendations by staff to change and increase flows through the tributaries, through the Sacramento and San Joaquin Rivers and through the Delta for a variety of essentially public trust resource issues, such as ecosystem restoration and fish passage,” said Michael George.  “We should have both the Phase 1 and Phase 2 staff proposals, essentially the CEQA analysis of both proposals before the Board sometime late in 2017 for action sometime in 2018.”

California Water Fix hearings

There is an ongoing process for holding hearings at the State Water Board on the proposal to change the water rights of the state and federal water projects to accommodate the proposed Water Fix, specifically to change points of diversion from the current points of diversion and rediversion in the southern Delta to add three new points of diversion/rediversion in the Sacramento River between Hood and Courtland.

Part 1 is almost complete; part 1 dealt with the potential of the change in point of diversion to injure other water rights will be completed.  Now that the EIR-EIS has been accepted and the biological opinions have been finalized, part 2 can now proceed.  Part 2 will examine whether the proposed change in point of diversion would have unacceptable or unreasonable impacts on the ecosystem.  Part 2 is expected to begin towards the end of the current year.

In all of that, we’re trying to be mindful of the need to coordinate with activities that are going on within the regional water quality control boards and as that affects the Delta, primarily region 5, the Central Valley Regional Water Quality Control Board, and Region 2, which is the Bay Area Water Quality Control Board,” said Mr. George.  “Both of those boards have important implementation activities going on that will both be affected by and will impact whatever happens in the Delta, by way of updating the Bay Delta Water Quality Control Plan, or whatever comes out of the change petition for water rights.”

2. CONSUMPTIVE USE STUDY

The consumptive use study is designed to compare seven different methods for estimating consumptive use of crops in the Delta.

We recognized in early 2015 that there was a lot of dissonance about the science of understanding and measuring of how much water is consumptively used for growing crops in the Delta, partly because the Delta is such a complex place, and there are different regional systems within the Delta,” Mr. George said.

The two year study is nearing its end.  A preliminary report for 2015, the first year, was released by the research team in September of 2016.  The data has been gathered for 2016, and the land use surveys have been updated.

It was anticipated there would be a relatively modest change from one year to the next,” he said.  “Turns out that the land use is much more dynamic in the Delta, at least was between 2015 and 2016 than we anticipated.  A lot of that has to do with migration from row crops to permanent crops and other big issues about how the Delta is evolving in response to agricultural practices, water availability, invasive species and other factors that are really making significant changes in what’s happening in land use and what impact that has on water use in the Delta.”

The study integrates satellite images that are evaluated by complex computer algorithms to come to conclusions about what’s going on at a field level, he said.  “We have for the first time as a result of this study, the ability to know and understand what crop was grown on what field and what its consumptive use over a growing season has been,” he said.  “That’s something obviously we couldn’t do before.  We had to put together a mosaic of data and information from lots of different sources, but it was very difficult to understand in close to real time what was happening in terms of water consumption in the Delta.  And of course, when the water was short, the inability to understand that in real time significantly hampered the ability to manage water in that shortage condition.”

The data was assembled, and all seven methods were tested against a standard data set.  The land use surveys, the landsat data, and that data set was provided to seven research groups and they ran their algorithm or method against that data set.  When those were compared, there were anomalies, so the research teams are figuring out the explanation for those anomalies.

Some of them have to do with a way of interpolating between days when the satellite passed over,” he said.  “By studying those anomalies, we’re coming up with best practices among the seven different methods of how to best do that interpolation, so that that group learning can be applied across all methods and make them better.  The study of those anomalies has had the effect of deferring the publication of the report by about six weeks, so we now expect it to go to the peer reviewers next month and to be ready for publication 30 to 60 days after that in a peer reviewed publication.”

3. NEW STUDY INITIATIVES

The State Water Board is looking at a number of new study initiatives:

Data continuity initiative: The State Water Board has collected consistent and excellent land use data for 2014, 2015, and 2016.  A study was planned for 2017, but had to be deferred until 2018.  There was going to be a gap in the data for 2017, so the Delta Continuity Initiative will collect the data for 2017.  “With the science program’s assistance and with good work from the Department of Water Resources and major help in funding from the Metropolitan Water District, we are gathering that data in 2017, so we’ll have a continuous set of that land use data which is important for setting a baseline as we plan for a future shortage.”

Pilot study from consumptive use savings from fallowed land set for 2018:  The study will look at two fields side by side, one planted and one fallowed.

Follow up study of open water, riparian, and floating vegetation: “We’re going to need to follow that up with understanding of the consumptive use, that is evaporation from open water and evaporation from floating vegetation and riparian vegetation.”

Pilot project to study channel bathymetry:  “We have also recognized that we’re getting an enormous amount of data about the land uses in the Delta, but we are short in understanding the bathymetry, what’s going on below the water throughout the Delta,” he said.  “There is a pilot project that the Delta Stewardship Council is taking the lead on and the State Water Board is a participating entity, to develop some tools for better understanding channel bathymetry and figuring out what that means to flows and fishes and tidal inundation for restoration and so forth.”

Delta measurement experimentation consortium:  “Among the things the legislature empowered us to do during the drought was to require measurement of diversions in the Delta, something that hadn’t been done before, so in January of 2016, the State Water Board adopted regulations implementing that.  When we started to deploy equipment in the Delta, we found there were serial failures of equipment because of the challenges in the Delta.  So we stepped back, convened something that we call the Delta Measurement Experimentation Consortium, we said don’t know as much about how this equipment can work to measure diversions as we thought; let’s do some experiments before we put a lot of expensive equipment out there that could fail in use.”

4. SYSTEMATIC IMPROVEMENTS IN DATA COLLECTION AND USE

We’ve done a good deal in terms of trying to improve systematically our collection of data and the use of that data and how the insights from these various studies knit together,” Mr. George said.  “I want to give a shout out particularly to Jessica Law and the Delta Plan Interagency Implementation Committee because that’s where synthesis of a lot of this work is really happening and we are very excited to have the assistance and the forum for doing that DPIIC provides.”

5. LESSONS LEARNED FROM THE DROUGHT

Mr. George said they are coordinating with the Division of Water Rights to publish a pretty thorough retrospective on the drought.  Not just the recent drought, but they’ve also gone back to 1977.  “Anywhere we’ve got good records of what happened when water was short, what did we do, what did the water management community do, how did the system react, etc,” he said.  “We’re trying to do that so that number one, we can share what we’ve learned, but get the perspective of others by publishing it, getting them to react to it, because we know there was a lot of criticism of how we managed in the last drought crisis, so we want to get that in part so that we can better integrate other points of view so we can be more transparent and so our actions going forward can be more predictable which should assist water managers in managing under shortage conditions.  And finally, we’ve got to learn from our mistakes because we made a number of them, including as I say here, what I call the malfunction of our enforcement model, which we’re trying to work on to improve going forward.”

6. EMERGING ISSUES IN DELTA WATER RIGHTS

Mr. George said there are clear areas where they need to ‘tone up’ how the system is managed, and how they might update the system so it works better for managing in shortage conditions.

We acknowledge the fact that there are different ways that water rights and used and managed in various parts of the Delta and in various parts of the Delta watershed, and we’re trying to daylight those differences,” he said.  “For instance, at one point, we had one of the very well regarded water attorney firms come in and say, ‘it takes us six months to develop our report on behalf of one of our clients for their water use in the prior year.  Don’t shorten that, because what happens is we’ve told our client take all the water you want, then give us the data and we’ll figure out which water right you used to acquire that water at the time.’  In other words, ‘we’ll take a look at your portfolio and we’ll figure out what right you were actually exercising.’  From our perspective, we think it would be a little bit better if you were able to name or knew what water right you were exercising, what your priority was, and how you were interacting with the system in times of shortage.”

In addition, we found out that we were playing a Whack-a-mole game where we’d say there’s not enough natural flow in the water course flowing by your property, and therefore as a riparian water right holder, you should correlatively cutback with your brethren by whatever the percentage of shortage is,” he continued. “They’d say, ‘Fine we’ll do that, by the way, we’re now then going to take exactly the same amount of water under our pre-1914 right.’ So the effect of the analysis of water availability and use became a bit of a Whack-a-mole game, so one of the things we’ve done there is to really get into this issue of overlapping and intertwining of these rights, which have in common that they are not subject to jurisdiction and administration of the State Water Resources Control Board.  They are essentially grandfathered early rights that are in the priority system kind of, but not subject to direct administration.  So we’re trying to get a handle on that.”

There is a memorandum of law on that issue that’s been reviewed by the State Water Board’s Office of Chief Counsel, by our enforcement division, and is now being reviewed by the Attorney General’s office.  “Applying the principles of this memorandum of law is going to be controversial,” he said.  “There’s a lot at stake, so we fully anticipate that as we attempt to apply these principles, there will be a request to have those principles reconsidered by the board and regardless of the outcome, there will be likely resort to the courts to settle this through the court system, so we want the Attorney General involved, so he knows where we’re going and is prepared to defend it as we get there.”

Chair Randy Fiorini points out that when the 2009 Delta Reform Act was written and the watermaster office was created, this was the primary reason for creating the watermaster.

One of the things that I would put on the horizon that we all ought to be thinking about as we work to implement the vision that’s embedded in the SF Estuary Institute’s publication, A Delta Renewed, and as we think about how to reconcile the Delta we’ve got with the ecosystem that we would like, we need to think about the water requirements for implementing that,” he said.  “Because in an over-allocated system, you can appreciate that making more demands for water for restoration, renewal, or  reconciliation, whatever it’s going to be called, needs to be taken into account because it is appears to be an incremental water demand.”

Certainly what we hear from the estuary, there’s more and more discussion about how to increase freshwater flows that go out of the upper estuary and to and through the lower estuary, so we are looking in the future, not only about issues of managing water rights under shortage conditions caused by drought, but we’re talking about managing shortages created in the course of reallocating the scarcest and potentially the most valuable resource in our system,” he continued.  “So we can expect that there will be a good deal of pressure that we’ll all face as we think about the future of the upper and the lower estuary and the greater understanding of the connectedness between them.”

7. COORDINATION OF CLIMATE CHANGE RESPONSE

The State Water Board adopted a resolution in March requiring staff to consider the impacts of climate change to be taken into account as they continue to emerge over time.  “In that fairly extensive laundry list of things we are supposed to do, the Delta Watermaster is charged with liaison and coordination and cooperation with the Stewardship Council and with the Delta Plan Interagency Implementation Committee,” Mr. George said.  “I’m really excited about that, because I do think that over and over, I run into issues where we have met the enemy and it is us.  It is good-intentioned programs all over state and federal government that are inadequately coordinated and inadequately cross-informing each other.”

I think this is one of the great things that the One Delta, One Science program, the Independent Science Board and the Delta Science Program have really fostered,” he said.  “For instance, when the State Board adopts a water quality control plan, that has a direct feedback loop to the Delta Plan because one of the things you need is to know what the flows need to be, and it goes directly into the plan.  By the same token, the water quality control plan update should be informed by the Delta Plan, by the work that you all do and that is subject to the Delta Plan Interagency Implementation Committee.”

Every agency has jealously over its budget, its personnel, its objectives, and its priorities, and getting them to mesh with an overall vision and plan is a real challenge and it is the challenge of the Stewardship Council,” he said.  “But every one of those agencies has essentially an exemption from a consistency determination, because if they are exercising their regulatory authority, they do not have demonstrate consistency with the Delta Plan.  And one of the things that I hope we’ll do through the example of the State Water Quality Control Board, but more so through the implementation committee, is to get all these agencies to say, notwithstanding the exemption from consistency determination, what we do should be consistent with that plan, and if it’s not, and we’re exercising our authority to do regulatory impacts that are not consistent with the plan, I’d like to see us be responsible among ourselves to explain why that’s the case and to provide a feedback loop to the Delta Plan to take into account the way in which one regulatory program or another exercises it’s statutory right not to be consistent and has exercised that responsibility, so that’s kind of what I’m hoping we’re going to end up with.”

And with that …

Thank you for the respect that you just awarded this agency and its responsibility, and I will pledge everything I’ve got to work with you to further that effort in DPIIC,” said Chair Randy Fiorini. “We’re teeing up a different agenda for the next meeting that fits nicely with your comments.”

AGENDA ITEM 13: CALIFORNIA WATER FIX BIOLOGICAL OPINIONS

Dan Constable, Environmental Scientist, then gave the Council a brief overview of the California Water Fix, noting that it would be a high-level overview and he wouldn’t be diving into the details of what’s in it.

The biological opinion is the relevant federal fisheries agency’s opinion as to whether a project is likely to cause jeopardy to a listed species.  “Leading up to this, if a federal agency is going to undertake a major construction project or a project that would have similar effects, they have to ask the fisheries agencies, the National Marine Fisheries Service or the US Fish and Wildlife Service, depending on the species present, to prepare a biological assessment.  If that biological assessment finds that there is likely to be a significant adverse effect, then you go ahead and prepare a biological opinion, and so that’s what’s been done in this case.”

The Council was involved in some of the preparatory work that went into the biological assessment.  The Delta Science Program was asked to convene an independent panel to look at the biological assessment; they did that in two different phases, looking at the aquatic science and came back with various recommendations, issuing a final report in March of this year.

They found that it could have significant adverse effects; that the report did generally use best available science, and they came back with recommendations looking at a few critical uncertainties, and recommended prioritizing these to see how they would be possibly addressed under a future adaptive management plan; they also recommended a clear approach to mitigation,” he said.  “The fisheries agencies, I would assume, took that into account and developed a final biological opinion, which they released on June 26.”

This biological opinion has both a mixed programmatic and standard activities, so there are two parts to it, Mr. Constable said.   “There’s the standard activities which are actions that are reasonably understood to go ahead and the details of those are well understood, so on this one, those are things like the tunnel construction, expansion, and other modifications to Clifton Court Forebay and associated infrastructure, so for example, some of the transmission lines, things like that.  Geotechnical explorations, so drilling that would be done to better understand what types of sediment materials there are in the Delta, compensatory mitigation, except for a few examples, and some of the specific construction related conservation measures.”

The other part is the programmatic analysis which are actions that need further consultation, so they are not well enough understood or something’s going to change on them in the future, and so they can only be analyzed at a programmatic level, he said.  Included in the programmatic analysis is the construction of the North Delta diversion intakes and the associated structures, because some aspects of those may change during the design process, and also, the process must go through consultation with the Army Corps and other agencies before construction, so those were not included under the standard level of analysis, he said.

Also included in the programmatic analysis is the construction of the Head of Old River Gate, the construction of the Contra Costa Water District settlement agreement facilities, operations of new and existing Central Valley Project and State Water Project facilities under dual conveyance, future maintenance activities, future monitoring activities, compensatory mitigation associated with construction of the north Delta diversion, Head of Old River Gate, Contra Costa Water District settlement agreements, and a final adaptive management program.

Mr. Constable emphasized that just because it is programmatic, that doesn’t mean it’s a narrative analysis.  “It can actually be very detailed, even in the case of operations, but it’s an acknowledgement that some of these processes may change in the future,” he explained.  “For example, on the biological opinions, you can do a highly detailed flow analysis and try and understand how that will affect fisheries, but there’s a recognition that the final flow criteria for this project may change in the future, that’s why it’s under programmatic.”

As soon as this biological opinion was released, lawsuits were immediately filed.  The Bay Institute, the Natural Resources Defense Council, and the Defenders of Wildlife filed a complaint with the US Fish and Wildlife Service; with broadly similar arguments, the Golden Gate Salmon Association, Defenders of Wildlife, and Bay Institute filed a complaint with the National Marine Fisheries Service.  “Some of the main issues were that it relied on uncertain future mitigation measures, they thought it fails to consider the effects of the action beyond the year 2030, and that they thought it may fail to consider best available science.  There are no dates for that so we’ll have to see how that plays out.”

As for next steps, the biological opinions is one of the regulatory requirements, so they have been working on it for a while.  “We originally thought this may affect timing for various other projects, but since the Notice of Determination was just released for the final EIR, which was released last Friday, it may not have so much effect on timing by itself,” he said.  “Part 2 of the Water Board couldn’t really go ahead until they had various documents, including this final biological opinion.  There’s no date set for that, although I would tend to agree with the estimate that it may start sometime later this year, but again we don’t know that yet.  But now that the biological opinion is out, it could at some point, and we’ll continue to track this as it goes forward, but as of right now, I don’t have clear dates on when specific activities are going to go forward.”

For the biological opinions …

FOR MORE INFORMATION …

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