A: The Endangered Species Act
A useful question came up on the Twitter last week about California’s Bay Delta Conservation Plan that’s nicely answered by a state legislative analysis I read this afternoon.
The BDCP is a key part of process underway now in California that seems to be headed toward creation of a Peripheral Canal/Tunnel to shuttle water around the Sacramento-San Joaquin Delta. At its bureaucratic process core, though, this in theory is not about building a Peripheral Thingie, but rather is about protecting endangered species like the delta smelt.
Here’s the description from a brief report last week from the California Legislative Analyst’s Office (pdf):
The BDCP is a planning process being conducted by the Department of Water Resources (DWR) to provide the basis for the issuance of endangered species permits necessary to allow the operations of both state and federal water projects in the Delta for the next 50 years. The BDCP planning process will develop a combined Habitat Conservation Plan and Natural Community Conservation Plan (NCCP), key components of which are ecosystem enhancement above and beyond required environmental mitigation and alternative conveyance to improve water supply reliability.
To translate to lay terms, in order to get the necessary permits to operate under state and federal endangered species laws, the state and federal water agencies that suck so much water out of the delta have to come up with a plan to convince state and federal environmental officials that their suckage won’t kill endangered fish. (I apologize for the clumsy “state and federal” construction over and over, but to those outside California, the strange parallel processes y’all have out there in the Golden State are a thing of great marvel and mystery. The parallelism gets even more intriguing with the separate state/federal Environmental Impact Report/Environmental Impact Statement process, but that’s a topic for another few posts.)
This may sound like a process-heavy way of thinking about the decision-making behind construction of a Peripheral Thingie, which is most often discussed in terms of raw California water politics. But the fact that this is an ESA process, rather than a broader water/environmental decision-making process, constrains the discussion in significant ways.
This is not, in fact, a process by which California decides in some broad way how to best manage its scarce water supplies. Instead, it’s a process driven by the folks currently removing water from the Delta. That is because, as the LAO’s report last week pointed out, the water agencies are voluntarily paying the bill for the BDCP studies. That is perhaps appropriate under the notion of “beneficiary pays”, the LAO report noted:
The BDCP planning process is appropriately paid for by the contractors because they would be the primary direct beneficiaries of the improved conveyance and the regulatory assurances that are anticipated to result from the completion of the planning.
But the fact that water contractors are paying the bills for the study also gives them leverage over the process, the LAO notes. The LAO’s report suggests this is probably perfectly legal, but has important policy implications:
In informal discussions with staff at Legislative Counsel, we were advised that the above contractual provisions do not appear to raise any legal concerns, such as an improper delegation of the authority of a state agency. However, these provisions raise policy concerns because they may potentially allow the contractors greater editorial influence over the content of BDCP than for other stakeholders.
One can imagine, for example, a Habitat Conservation Plan process that concluded Delta exports need to be reduced. Such a plan might have a hard time making it past this bottleneck. I’m not arguing that is what the HCP ought to conclude, merely that the deck seems stacked against such a possible outcome.
My discussion here shortcuts a key issue, which is that BDCP is not the only game in town. The Delta Stewardship Council also is tasked with looking at this question, in a way that seems intended to balance out this inequity. How these two processes fit together in practice remains to be seen.
All of this goes to a question that came up in a discussion at the Delta National Park blog, a point about which I hope to write more soon – that the Endangered Species Act has weaknesses as an environmental tool, as well as a water management tool. But it’s the tool we seem to using over and over to settle our western water policy arguments.
John, I agree fundamentally with what you have written, including your reply on the DNP blog.
With all due respect you are doing a good job explaining how we got here, but , you come up a little short on how we get out of this.
Whether one views the ESA as a tool or an impediment the fact remains that it is the most effective tool available at present.
John Bass (DeltaNationalPark) has explained to me that as a delta resident my answers are “understandable and predictable”.OK. Keeping that in mind, what would you have us do? The collective “they” fully intend to dewater this estuary (at least the fresh water). We watch the BDCP process progress, if you want to call it progress, and the only thing that seems to be standing between capitulation and extinction is the ESA.
What is the alternative ? The Delta Plan ?
Chris – Thanks for your comments. Your “how we get out of this” question is well taken. John Bass, in a different way, has been asking me the same question, and I confess I’ve got not good answer.
I remember the same conversations about the ESA and old-growth redwood forests when I was a kid in Humboldt County. Big legal and political fights allegedly over the spotted owl, which no one really cared much about, but the ESA was the only tool enviros had against timber, so they used it.
From my interested layman’s perspective the ESA seems an incredibly powerful tool — and I’m wondering why it hasn’t gotten more traction at stopping the peripheral canal, er, um, alternative conveyance.
To the question, “What’s behind the BDCP?”, I would answer:
1. California’s law of appropriation;
2. The existence of the SWP and CVP;
3. SWRCB Decision 1641 et al.;
4. The federal ESA;
5. The State ESA / NCCP;
6. NEPA; and
Your analysis is overly narrow; the need for ESA take permits arises only in the context of some underlying action that gives rise to the take. However, once the entities needing take permits actually apply for them, a host of other laws and procedures come into play.
The interplay between the power of the DSC and the application for the take permits should be interesting to see play out. As the outcome of the ESA process will certainly require those permitees to engage in additional conservation activities in areas subject to the jurisdiction of the DSC, the DSC could try, in theory, to leverage its CEQA powers to extract additional mitigation measures. Since permitees hate getting double-dipped, I assume that the SWP/CVP group has invited the DSC to the ESA negotiating table, so that the relevant lead agencies can prepare a single EIR/EIS to support the issuance of the ESA/CESA/NCCP take permits.
[Translations of the foregoing available on request.]
To clarify, are you suggesting a single EIR/EIS that would provide CEQA/NEPA coverage for *both* DSC and BDCP? (And did I just include six initialisms/acronyms in a single sentence?)
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Close but not quite.
In order for BuRec and the SWP Contractors to move water across the Delta, they need ESA permits. (The purpose of my comment was to point out that the need for the ESA permits doesn’t arise in a vacuum; it’s due to the ore-existing obligation of those agencies to serve Feather River water to central and southern California.). In order to get ESA permits, the agencies will need to mitigate. The location of that mitigation will be, I bet, within the jurisdiction of the DSC. As a public agency, DSC will need to comply with CEQA. So, in order to ensure that the mitigation demanded by the ESA agencies (USFWS / CDFG) is consistent with the mitigation that DSC will demand pursuant to CEQA, the water agencies of necessity must include DSC in their ESA negotiations.
To answer your question more directly, DSC should be the state lead agency under CEQA for the EIR analyzing the impacts of the BDCP NCCP. But that’s not exactly English.
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