Bay Delta Conservation Plan and Draft EIR Released for Public Comment: Greatest Habitat Restoration Plan Ever or Pork Barrel Fantasy?

by Holland & Knight LLP

  • The Bay Delta Conservation Plan (BDCP), an ecosystem plan designed to restore habitat and help endangered fish species recover while also keeping water flowing to customers through construction of the proposed water tunnel infrastructure project, has been released for public comment.
  • The state of California will make its decision on whether or not to proceed with the controversial water tunnel project and how to pay for it by the end of 2014.

After more than seven years of planning, researching, arguing, meeting and drafting, the draft documents for the Bay Delta Conservation Plan (BDCP) and associated Environmental Impact Report/Environmental Impact Statement (EIR/EIS) were released on Dec. 9, 2013. The 120-day public comment period auspiciously begins on Friday the thirteenth of December in 2013, with all comments due by April 14, 2014.

Through the BDCP, the California Department of Water Resources (DWR) and U.S. Bureau of Reclamation (BOR) propose to build two 30-mile underground tunnels to carry water from the Sacramento-San Joaquin Delta (Delta) to Central and Southern California and also restore the ecology of the Delta in the process. Supporters call the plan the most ambitious habitat restoration plan in history, while those adverse to the plan call it a political debacle that caters to big Southern California agribusiness. All interested parties have the opportunity to comment officially.

If the project stays on track, it will generate billions of dollars in jobs in California. The state will decide by the end of 2014 whether to proceed with building the water tunnels project and how to pay for it.

Why Is the BDCP Being Proposed?

Currently, DWR through the State Water Project and the BOR through the Central Valley Project, pump water from the Delta to more than 25 million people and three million acres of farmland. However, the water supply through the pumps has been severely limited over recent years due to the decline of the population numbers of endangered fish species (salmon and delta smelt). In addition, court cases and ad hoc endangered species permits have limited the amount of water that could be pumped from the Delta. With the state entering its third dry year in a row and the fragile Delta ecosystem hanging in the balance, most agree that something must be done.

The state and federal agencies have proposed that replacing the State Water Project pumps with an intake on the Sacramento River and diverting this water into underground tunnels before it reaches the Delta, along with restoring more than 145,000 acres of new habitat above ground, will help the fish recover and keep the water flowing to customers. To institute this plan, DWR and BOR need permits from the U.S. Fish and Wildlife Service (USFWS), the National Marine Fisheries Service (NMFS), and the California Department of Fish and Wildlife (CDFW). The plan, therefore, is structured as a Habitat Conservation Plan under the Federal Endangered Species Act (FESA), 16 USC 1531 et seq., and a Natural Community Conservation Plan (NCCP) under the California Natural Community Conservation Planning Act, CA Fish & Game Code §2800 et seq. DWR is the lead state agency, and BOR, USFWS and NMFS are together are the lead federal agencies.

What Does the BDCP Cover?

The BDCP seeks incidental take coverage for 56 species — 11 fish species, 27 wildlife species and 18 plant species — over a period of 50 years. Covered activities consist primarily of activities related to the development and operation of water conveyance infrastructure associated with the State Water Project and operation and maintenance of the Central Valley Project, as well as assembly and management of the habitat reserve system. The plan also outlines how research would be conducted and monitoring implemented duringand after construction of the tunnels to study the project's effect on the covered species.

How Much Does the BDCP Cost?

Both the FESA and the NCCPA require that the applicants ensure that adequate funding is provided to carry out the conservation actions. To that end, the BDCP includes a detailed cost estimate in chapter 8 of the plan. In summary, the plan estimates annual costs at an average of approximately:

  • $1.62 billion for capital costs and $57.5 million for operating costs in years 1-10
  • $124.8 million for capital costs and $97.9 million for operating costs in years 11-15
  • $86.5 million for capital costs and $109.6 million for operating costs in years 16-50

How Is This Draft BDCP Different from the Prior Drafts Released Earlier in 2013?

The BDCP has been revised since the administrative review drafts were first released in the spring and summer of 2013. According to the California Natural Resources Agency, the current draft reflects changes such as:

  • revisions to the alignment of the proposed water conveyance tunnels that would significantly reduce the project's permanent footprint
  • more detail about the plan's adaptive management process
  • a description of the potentially available funding sources to support the adaptive management process if additional Delta flows and water supply are needed
  • additional design criteria and operational constraints for the proposed north Delta intakes, including fish studies that would influence facility design
  • additional mitigation measures to protect specific species such as the greater sandhill crane, giant garter snake and saltmarsh harvest mouse

How Do I Review and Comment on the BDCP?

The BDCP and related EIR/EIS is over 30,000 pages. From mid-January through mid-February 2014, there will be a series of public meetings to facilitate review of the plan and to hear public comments.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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