the Bay-Delta Water Quality Control Plan, last updated in 2006, currently under review by the State Water Board; and
Water Rights Decision D-1641, issued by the State Water Board.
These regulations deal with different operating aspects of the water projects, such as upstream Shasta Reservoir temperature management and other operational aspects in the Delta, including export constraints.
There are some overlaps between the regulations; in particular, there are some differences between the federal biological opinion in 2019 and the state incidental take permit under the state Endangered Species Act, so part of the task is how to align those so the projects can operate more effectively and more efficiently, he said.
Additionally, water agency partners have been working with the state of California for several years to develop an alternative that the State Water Board might consider as it takes up the decision on updating the Bay-Delta Water Quality Control Plan in a process known as the voluntary agreements.
The Bureau of Reclamation has reinitiated consultation on the biological opinions, but in the meantime, project operations must still have ‘take’ authorization. The 2019 biological opinion is in place right now but is being litigated in court. Unless the court modifies it, those are the governing rules for operating the two water projects in terms of the federal Endangered Species Act,
“The federal government and the state have developed an interim set of operating criteria that they would look to implement in the year 2022 as they move forward on consultation, but particularly as they deal with drought conditions,” said Mr. Arakawa. “Operations would, in some way, have to be implemented either through permits or some other means, such as through court order. The nature of the interim ops is how do the agencies go forward and implement these actions because they have not gone through any environmental process or permitting.”
The interim plan includes near-term criteria for Shasta Reservoir operations to provide temperature control and temperature protection downstream of Shasta Reservoir and the Sacramento River, new spring outflow compared to the 2019 biological opinion, and other changes to aspects of export constraints. Long-term criteria include establishing a goal statement for species viability and distribution and a timeline for the consultation.
“For Old and Middle River, keep in mind that the State Water Project is currently governed by the incidental take permit, and for the most part, the State Water Project regulations will still be controlling for the operation of the State Water Project and the water supply that we get,” said Mr. Arakawa.
“The key thing that Metropolitan and the state water contractors are looking at is any implications for Shasta reservoir operations and whether any of that operation actually has an impact on Oroville reservoir.”
Mr. Arakawa said it’s complex in that the state and federal regulations are different. “The 2019 biological opinions that are in place now do contain drought planning and operational response provisions, so it could be that anything that gets implemented is under the current 2019 Biological Opinion,” said Mr. Arakawa. “But we don’t know for sure. We don’t know yet whether that is what is intended by the state and the federal government; that will play out as things go forward and possibly through the litigation process.”
Depending on the degree of the changes, an environmental analysis is required to review the effects on the species for any change in operations compared to the 2019 biological opinions and any permitting necessary to allow for those changed criteria. Also, whenever changing any kind of operations in the Delta, the effects on other environmental resources must be considered. So having that analysis is really key, he said.
Letters were sent by both Democrats and Republicans. “The message in those letters was making sure that those effects are fully analyzed and disclosed,” said Mr. Arakawa. “The federal WIIN Act approved back a few years ago and sponsored by Senator Feinstein requires that federal agencies include water contractors in the consultation. So another thing in the letters is making sure that the water agencies that are part of the CVP and SWP system are able to participate in these consultations based on the WIIN Act authority that was passed by Congress.”
In January of 2021, President Biden issued an executive order to review regulations that had been approved during the previous administration. In May of 2021, the federal agencies responded, acknowledging the need to reconcile the 2019 biological opinions and the state’s Incidental Take Permit under the California Endangered Species Act.
On October 1, Bureau of Reclamation Regional Director Ernest Conant sent a letter to the US Fish and Wildlife Service and the National Marine Fisheries Service reinitiating consultation on the long-term operations of the state and federal water projects.
Metropolitan and other water contracting agencies also submitted letters to the federal government agencies requesting participation under the WIIN Act provisions.
In that consultation, the Bureau of Reclamation and the Department of Water Resources would develop a biological assessment describing the proposed operating criteria that would be analyzed under the biological permitting process and do an effects analysis. Then the National Marine Fisheries Service and the US Fish and Wildlife Service would then review that assessment and determine what the operating requirements might be under a biological opinion if the 2019 Biological Opinion is modified in any way.
Typically, it’s a two to three-year process and includes the environmental review process necessary under federal guidelines.
Water agencies and other major water users in the Delta watershed have been working to develop voluntary agreements for several years. The objective is to develop an alternative plan that could be analyzed as the board goes through the Bay-Delta Water Quality Control Plan update process.
During the summer and into the fall, there was a determination that the actions proposed by the San Joaquin parties fell short of what the state felt was needed to be considered an alternative under a voluntary approach.
The letter stated that the state would focus efforts on a voluntary agreement with the other parties on the Sacramento River and other agencies that are not on the San Joaquin. There was also a provision that if the San Joaquin agencies were to come back with some proposals for voluntary agreement, that would be possible as well.
As for what happens next, the State Water Contractors have provided feedback on the interim operations plan. They are waiting to hear see how the state and federal government responds to that feedback and what they actually decide to move forward with.
On long-term operations, Metropolitan and other contractors are looking to participate as is provided for under the WIIN Act.
“Under voluntary agreements, Metropolitan and the State Water Contractors are looking to continue participating in discussions with the state of California regarding the prospects for a voluntary agreement, even with the San Joaquin parties not being directly involved right now, with the interest that any kind of voluntary agreement must be equitable for the parties,” said Mr. Arakawa. “So we’re looking to make sure that we’re responsible for our share of protecting the system if we were able to come to an agreement.”
During the discussion period, Director Glen Peterson asked if Senator Feinstein was working on extending the WIIN Act because it is about to expire.
“There are provisions that are potentially expiring; there are also operating criteria that are included in the existing biological opinion that was approved in 2019 that has similar operating flexibility to the WIIN Act operating guidelines that were adopted by Congress, but any changes or any extension to the WIIN Act would require an action by Congress,” said Mr. Arakawa. “I think a number of interests have been looking at how that might move forward. But the main thing I want to communicate is in terms of the existing Biological Opinion, it has some of the similar operating flexibility for stormwater diversion. So we’re looking to see how the federal government moves forward with the 2019 BiOp in this interim period.”
Director Nancy Sutley asked if there has been any assessment of the impact of this latest drought on species in the Delta and what effect that might have on both the interim operations and development of the biological opinion.
“With regard to the drought and the effects of the drought, there have been some efforts by the Delta Stewardship Council to evaluate the effects [of the drought] scientifically,” said Mr. Arakawa. “Some of that has been in reports; they are continuing to look at how the drought during this current period is affecting things. Certainly with low flows, there’s a concern about upstream migrating salmon and the survival of salmon moving downstream, but also temperature and how that temperature affects native species in the Delta. So there are scientific studies that have been ongoing to address the effects of the drought. And I would expect that all of that scientific evaluation would go into any decision made going forward. The main thing is, in developing the interim ops, making sure that there’s an evaluation of those interim ops and the permitting that would go behind that as well. So that was a key thing that was in the letters.”
Director Sutley asked if any action is anticipated from the State Water Board due to the lack of progress on the San Joaquin.
“The State Water Board has scheduled an agenda item at their meeting on December 8 to take up the process for moving forward, particularly on the San Joaquin side,” said Mr. Arakawa. “The San Joaquin is what they call phase one of the Water Quality Control Plan update. There was a decision back in late 2018 to move forward with that phase and to implement regulations. It was litigated, but then the voluntary agreement discussions were ongoing, and that included the San Joaquin parties.”
“The state has indicated an interest in this meeting to describe the steps they will take to now move on with phase one and the regulatory setting process. So we will be at that December 8 meeting and will report back on how they move forward on phase one. For the State Water Project, that’s phase two, Sacramento and other portions of the Delta, and we will be looking to hear what they say about that.”
“In the end, the State Water Board, if there is a prospect for the voluntary agreement in any way, there would be an alternative for a voluntary agreement. And the State Water Board would go through a full public process to take comments on that. And so the evaluation of that alternative versus a state water board proposed alternative, and then the state board would make a decision based on what they think is the right way to go.”
Director Russell Lefevre asked if there was a timeframe for the interim operations and a process for modifying the interim operations.
Mr. Arakawa said that this is the set of operating criteria for 2022; then, at that point, they would have to determine what they would do in 2023 or even 2024. “As they go through the consultation for considering if they change the 2019 Biological Opinion, they would either operate to the 2019 biological opinion or consider these interim operations. So our understanding is that they would look at what they would do in 2022. And then they would make a subsequent decision on what they would do in 2023, and so on. … the federal government is responsible for the biological opinion. … the state of California certainly has an interest because they operate the State Water Project. So it’s the combination of the state and the federal agencies.”
“The state had submitted an application for 404 permit, which is a Corps responsibility, back in early 2020. But as they’ve gone through and done some additional environmental process and review, they’ve identified some refinements to a proposed project that they had included in their proposed permit application,” said Mr. Arakawa. “The essence of it is, they’re asking the Corps to consider a proposed project that has an alignment on the eastern end of the Delta and the option where that tunnel conceivably hooks in with a system called Bethany reservoir, which is south of the Clifton Court Forebay. So they put that one forward; it’s just part of the planning process. The state has not made a decision on that alternative being the final decision. They have to go through this Corps permitting process. And they have to do the public environmental review process. So I wanted to make sure it was understood that they have not made a final decision on that.”