Introduction: Facts and Claims of the
Bay Delta Conservation Plan
The Bay Delta Conservation Plan (BDCP) is a project to
construct three intakes sites capable of diverting 9,000 cubic feet per second
(cfs) of water through fish screens aimed to protect passing fish and two forty
foot diameter tunnels over 35 miles south under the Delta to existing pumping
plants. From here water would be moved to existing aqueducts that currently
supply much of that state (primarily Southern California). The BDCP proposed
project is one of fifteen alternatives that have been created to determine a
preferred alternative under the California Environmental Quality Act (CEQA) by
the California Department of Water Resources (DWR). The DWR is the lead agency
filing the Environmental Impact Report (EIR) and Environmental Impact Statement
(EIS) for the project (Department of Water Resources).
The project is estimated to take 10
years to complete and the plan is determined to be implemented over a 50 year
period. The BDCP is a Habitat Conservation Plan (HCP) and Natural Community
Conservation Plan (NCCP) developed in light of the federal Endangered Species
Act (ESA) and the California Natural Community Conservation Planning Act
(NCCPA). The plan will seek long-term take permits for the operation of the
State Water Project. The project is estimated to cost $23 billion for the
initial construction and habitat restoration of the plan, and an estimated $1.1
billion annual cost for 35 years following construction of the project. The
project is thus expected to cost a total of $61.5 billion for the first 50
years (Department of Water Resources).
The BDCP is a controversial issue that was proposed by
Governor Edmund Gerald Brown’s Administration. The plan is an attempt to combat
water deficiency issues which California is currently facing as well as the
declining environmental health of the Delta which is especially at risk of
ecological collapse. Currently the Delta provides more than 25 million
California residents with water (Department of Water Resources). With Southern
California climate having heavily reduced precipitation than its Northern
California counterpart, the Southern California Mediterranean and Desert
environments cannot support the growing demands of the region. With population
growth and urban expansion, Southern California will need much more water to
support municipal needs as well as agricultural requirements (Southern
California Water Committee). The BDCP plans to pump
9,000 cfs of water from under the Delta and essentially divert water to
Southern California pipes. With many of the current Delta problems revolving
around the inadequate amounts of water that currently cycle through the Delta,
many agencies and organizations in Northern California do not believe the BDCP
can help alleviate Delta ecological issues but rather believe the plan will amplify
them by removing essential water (Restore the Delta).
Currently the Delta is at risk of many different
concerns. The abiotic conditions of the river system due to climate change and
increased water extraction has led to altering states of salinity and
temperature differences in various regions of the Delta. Many fish species that
are sensitive to these environmental conditions such as the Central Valley steelhead
or Chinook salmon have been declining in population numbers due to such factors (btokars). On the other end,
many areas of the Delta are concerned with the weakening of the levees. These
areas of failing levee systems have the potential to rupture causing
contamination of water sources, and a possible mixing of unusable saline waters
with freshwater supply sources (Delta Counties Coalition). This possible
outcome has the potential to decimate not only the waters of many freshwater
dependent organisms, but also the usability of these large bodies of water for
municipal purposes. Another great concern are the natural flows of the Delta in
which many fry rely on for transport to areas where they will complete their
next life cycles. Many small organisms rely on the regular flows of the Delta
to complete life stages. Native fishes in particular have a hard time
navigating the Delta waters when flows are irregular due to changing routes and
pumping systems (Swanson). The current pumps
that extract water from the Delta often move against natural currents creating
an alternating effect on river flow (Restore the Delta).
A Trend in Supporters and Opponents:
There are a few noticeable and important patterns in
parties that are typically in support or against the BDCP. As Southern
California is one of the primary beneficiaries of the project, it is to no
surprise that a majority of the list of supporters for the project are cities,
agencies, and corporations that are located or based in Southern California. On
the Southern California Water Committee website, an extensive list of nearly
all supporters of the BDCP is shown (Southern California Water
Committee).
This list includes columns of business and agriculture organizations, water
districts and associations, local governments, assembly members, senators, and
federal representatives. With the first column being the largest, it is
interesting that no environmental or scientific organizations were added to
this extensive list. It would appear that most if not all of supporters and
beneficiaries of the plan are Southern California businesses or agricultural
industries or individuals with relations to these organizations.
On the opposing side, a common trend
in environmental groups and Northern California districts and local governments
are represented. While there was no extensive list made of parties in
opposition to the plan, some of the noticeable groups and agencies are: Restore
the Delta, tribal leaders, fishermen, family farmers, members of Sacramento,
San Mateo, Stockton, Martinez, and Fairfield in the House of Representatives, the
Delta Science Program, the National Science Academy, the Delta Counties
Coalition, and a majority of cities in Northern California. Many of the
opposition voice their opinion that the BDCP will deplete the Delta of critical
water levels that support the surrounding habitats and decimate the Delta as a
critical resource (BDCP Public Meeting Video
Archive).
Controversial Costs:
Along with many of the statements made against the
plans lack of reinforcement for the Delta’s ecology are controversies
associated with the fiscal elements of the project. Many of the previously
named opponents believe that the parties who are funding the project and the
parties who are benefiting from the project do not match. Farm and urban water
ratepayers who rely on Delta water via rate increases will repay the bonds
issued by DWR for the water used (Swanson). While this
component of the projects costs seems fair, other costs of the project like the
damage and restoration efforts to rehabilitate areas of the Delta, will be paid
for by California taxpayers (Murphy). Restoration and
habitat rehabilitation of the plan is estimated to cost around $9 billion (Department of
Water Resources).
Opponents claim that the project isn’t fully publicizing these costs and that
this large amount of money will crowd out investments in local schools, health
and welfare programs, transportation, and eventually lead to a general tax
increase (Restore the Delta). Along with this,
water contractors will be paying an estimated 45% more than current rates for
water use (Murphy). Restore the Delta
believes that the agricultural industry will not be able to afford the costs
associated with the high water rates that are to come following the project.
They state that while supporters claim that the beneficiaries of the project
will be the ones paying for its costs, they are also planning on substantial
subsidies from the state and federal government which will ultimately also be
paid for by tax payers (Restore the Delta). As of now, a
cost-benefit analysis has not been conducted.
Agencies, Laws, and Future Lawsuits
The Bureau of National Affairs has stated that the
number of legal battles over water is likely to escalate in 2013 once the BDCP
and water quality plan for the Sacramento-San Joaquin Delta are finalized later
this year. This would add to the list a number of lawsuits that are already currently
circulating federal and state courts, many of which could have critical
implications for government agencies that manage water resources and water
users (The Buereau of National Affairs). The ultimate
controversy between how much of the Delta’s and other wildlife area habitat
should be prioritized over California water needs is what will spark many new
lawsuits (Weiser). If the BDCP does
not effectively restore the Delta’s conditions but rather amplifies ecological
damage already done by pipes that are currently in place, many lawsuits will be
filed. In another light, if California water needs are not met to provide for
all of its growing counties and agriculture industries, other lawsuits will be
filed. The projects burden will be to equally fulfill the needs of both aspects
of the plan.
Under many Federal and State regulations, any action
executed by the BDCP that is likely to reduce water quality in general or
reduce habitat for species that are currently listed, is against the law. The
BDCP has the capacity to affect both. Water salinity and sediment level
increases due to reduced freshwater flow and construction are possible outcomes
of the project (Restore the Delta). Due to these facts,
a number of permits and regulatory procedures will have to be pursued in order
for the project to progress. These permits and regulations include legislation
from the Clean Water Act (CWA), the Natural Community Conservation Planning Act
(NCCPA), the California and Federal Endangered Species Act (C/F ESA), the
National Environmental Policy Act (NEPA), the Rivers and Harbors Act, the
Migratory Bird Treaty Act, the Porter-Cologne Water Quality Control Act, and
CEQA (Department of Water Resources).
Under section 404 of the CWA, any discharge of dredged
or fill materials into waters of the U.S. will need to be authorized by the US
Army Corps of Engineers (USACE). These permits are issued on the condition that
there are minimal adverse effects on the aquatic environment as potentially
possible. Similarly under section 401, a “water quality certification” will
need to be obtained from the Regional Quality Control Boards pursuant to each
areas jurisdiction. This certification is granted given components of the
project will comply with all applicable water quality standards (Delta
Counties Coalition). The project will need to obtain both
of these. Lawsuits in the future will arise as environmental groups see to
their interpretation that these environmental standards are not met by the
project in compliance with their allowed action which is determined by their
permit and CWA guidelines.
Additionally as the project will indefinitely have
adverse environmental impacts, state and federal law requires an agency to file
an Environmental Impact Report and Environmental Impact Statement respectively.
Since the project is being filed by many Federal agencies, including the Bureau
of Reclamation, the USFWS, and the National Oceanic and Atmospheric Administration’s
National Marine Fisheries Service, an EIS is required. The BDCP, as one of
fifteen other project alternatives, will be measured against how well it can
efficiently complete the projects goals with appropriate mitigation (Department of
Water Resources).
Currently the preliminary draft of the BDCP was recently created with the
public draft of the EIR/EIS and BDCP expected for release later this year. When
this occurs, the public will have the ability to determine if mitigation and
environmental assessment of the project is adequate enough for approval. If a
Notice of Determination is filed and the project is approved, the public has a
30 day period in which lawsuits can be filed to determine the project’s
adequacy under law. It is expected that the BDCP will result in many cases that
reflect how well the project is protecting the ecology of the Delta and
especially endangered species (Bacher).
Under Section 10(a)(1)(B) of the FESA, USFWS and NMFS
may permit the incidental take of a listed species under the condition that an
HCP is prepared with the obligation that the taking will not significantly
reduce the likelihood of the survival of the species in the wild (Department of
Water Resources).
Whether or not the BDCP is undergoing adequate measures to ensure the
protection of listed species in the Delta is the issue of major controversy
currently and will inevitably result in litigation regarding the matter. The
likelihood that water can be extracted at such high intensities from the Delta
yet still conserve the integrity of the waters of the river system is small
according to many of the opposition to the project (BDCP Public
Meeting Video Archive).
Personal Evaluation and Conclusion
Ultimately, the BDCP is a project that will have to go
through many regulatory agencies, permitting processes, and public evaluation.
With the BDCP still very early in its process, there is no telling how the
project’s plan will change or if another alternative to the plan will be
chosen. While the amount of time and money spent on the BDCP shows how
determined the Brown Administration and DWR is on choosing the BDCP as the
preferred alternative, it is up to all of the involved state regulatory
agencies to decide if this plan is adequate. With so many agencies and laws
that are going to be involved with the process, I feel that regardless if the
BDCP project is implemented, environmental laws such as the ESA or CWA will not
allow for any drastic changes to the ecosystem or water quality. David Okita,
general manager of the Solano County Water Agency, stated “These regulatory agencies
will be sued after they make their determination on BDCP so they know that they
have to make decisions based on science and the law. Ultimately it will be a
judge who decides if they are protective enough of the Delta.” [i] David
Okita also feels that the regulatory agencies may determine that the Delta
needs reduced exports but until then, BDCP is a viable option (Okita). Environmental groups
and those interested in the Delta will be watching over the project’s progress
heavily for any discrepancies of how it is affecting the health of the Delta.
If the project begins to create some kind of environmental problem, the DWR
will be taken to trial and the project will either be forced to reconsider its
plan, or the plan will be abolished altogether. However, with the current
challenges in California on adequately providing for demanded water needs, all
environmental laws will be stretched to their limits. Loopholes in policy will
be looked for in order to extract more resources without having to account for
the environment. When this occurs, these agencies will most likely be taken to
court to challenge their interpretation of legislation. Depending on how the
court rules in these upcoming trials, California water and environmental laws
could change in drastic directions in order to meet the people’s resource needs.
Bibliography
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