The Bay Delta Conservation Plan
Following the demise of CalFed, the continuing collapse of Delta fisheries and the prospect of more restrictive Endangered Species Act (ESA) limitations on Delta diversions, the Department of Water Resources and the state and federal water contractors conspired in 2007 to revive the old peripheral canal scheme to route Sacramento River water around the Delta. The result was the Bay Delta Conservation Plan (BDCP), which would allow construction of a peripheral conveyance under the cover of the “Habitat Conservation Plan” provision of the ESA. As a Habitat Conservation Plan, this project would have “safe harbor” from state and federal ESA requirements for fifty years.
Under BDCP, the water contractors would pay to construct new diversion facilities on the Sacramento River and two 35-mile tunnels 15 stories beneath the Delta to convey water to the present export facilities in the South Delta. Approximately 49% of exported water would be delivered through the tunnels to the South Delta pumps and 51% would be delivered, as at present, by pumping water out of the South Delta. The public would pay for 100,000 acres of habitat to improve fisheries. One of the touted benefits is that the project would protect export deliveries in the event of a major seismic event in the Delta. On average, approximately 70% of export deliveries are made to agricultural water users in the San Joaquin Valley and about 30% delivered to urban water users (primarily in Southern California, though also to parts of Santa Clara).
If the BDCP and Draft Environmental Impact Report (EIR)/ Environmental Impact Statement (EIS) are adopted and certified by the proponents, it must then be approved as a Habitat Conservation Plan, pursuant to the federal ESA, and by the California Department of Fish and Wildlife (DFW) as a Natural Community Conservation Plan (NCCP) pursuant to the California ESA. It would then be incorporated into the Delta Plan, subject to appeal. It would subsequently need to secure changes to water rights permits for changes in points of diversion and obtain a Section 404 permit and a Section 401 certification, under the Clean Water Act, before construction could proceed. Any new or revised permits or certification would need to comply with new water quality and flow standards presently being developed by the State Water Resources Control Board in its water quality control plan update proceeding. Needless to say, each of these steps involves a lengthy public process and potential litigation. CSPA will be a full participant throughout each of these multiple proceedings.
By 2008, principles of agreement had been finalized, a steering committee had been established, notices of intent and preparation of environmental documents had been issued and informational workshops and public scoping meetings were being conducted. CSPA attended the workshops and submitted scoping comments.
During 2009, a draft BDCP conservation strategy was prepared and workshops held. The costs and funding strategy, impact assessment, implementation plan and a BDCP working draft were prepared during 2010. Numerous working group and public meeting were held throughout 2011, leading to an independent science review by the end of the year. An alternatives description, the effects analysis, a second independent science review and an administrative draft the BDCP Plan were developed during 2012. Another administrative draft of the BDCP Plan and the administrative draft of the EIR/EIS were released in early 2013. Public review drafts of both the BDCP Plan and EIR/EIS are scheduled for circulation and public review in October 2013 but will likely be delayed. The projected schedule calls for public review and hearings to be conducted in late 2013, leading to issuance of a final BDCP Plan and an EIR/EIS and Record of Decision issued in early 2014. Again, this schedule is likely to be delayed. CSPA has closely monitored BDCP activities, reviewed relevant documents and publically expressed its deep concerns throughout this process.
Scathing Reviews of BDCP
Comments on the BDCP Effects Analysis in early 2012 by environmental groups (including CSPA), the National Research Council, Independent Science Board and the “Red Flag” responses by the U.S. Fish and Wildlife Service, National Marine Fisheries Service, Department of Fish and Wildlife, and U.S. Bureau of Reclamation scathingly characterized the analysis as failing to meet minimal standards for credible scientific analysis, cherry picking data and misrepresenting current scientific research. Agency scientists and other experts concluded that the project would hasten extinction for several species.
In response to the withering criticism, Governor Brown and the Secretary of the Interior went back to the drawing boards and, on 25 July 2012, announced a new, revised BDCP that reduced the tunnel capacity to 9,000 cubic feet per second (cfs) from the previously planned 15,000 cfs (although if the tunnels are pressurized in the future they could likely deliver the original 15,000 cfs). Initially, water exports would approximate present deliveries but could potentially increase in the future. However, key decisions, operating criteria, biological assurances, details of the adaptive management program, restoration program funding and the total amount of water to be exported would be relegated to an uncertain future decision process. In other words, BDCP would commit to construction of the tunnels now and develop the science and assurances on how the project would be operated over the next 15 years.
The administrative draft of the revised BDCP Plan was released in increments between April and May 2013. Again, comments by the fishery agencies were highly critical. The administrative draft of EIR/EIS was released in June 2013. Comments by U.S. EPA, the State Water Resources Control Board, U.S. Fish and Wildlife Service, National Marine Fisheries Service, U.S. Corps of Engineers were even more critical. They characterized the EIR/EIS as “confusing,” “insufficient,” “difficult to read,” was “biased” and constituted “unjustified advocacy.” They said it contained “illogical conclusions” and “factual and analytical errors” and stated that the assumed benefits of restoration were “unproven.” They pointed out that there was broad scientific agreement that existing Delta flows are insufficient, questioned whether shifting the point of diversion would significantly reduce fish losses and observed that it was uncertain whether the tunnels would pose less seismic risk than retrofitted levees. CSPA has been reviewing both the BDCP Plan and EIR/EIS, referring them to our consultants for analysis and cataloging agency comments in preparation for our submittals when the public comment drafts are circulated.
A Financial Black Hole
BDCP released a highly criticized assessment of benefits and costs to water contractors prepared by its consultants, ICF International and the Brattle Group, in May 2013. The projected costs are: $14.5 billion for tunnel construction; $1.5 billion for operations; $26.3 billion for bond interest for the tunnels; $7 billion for habitat restoration; $3.2 billion for bond interest on habitat restoration and $1.6 billion for administration and research. Total project costs are approximately $54.1 billion. The assessment claimed net benefits of $4.68 billion to $5.54 billion, the difference depending upon the amount of Delta outflow.
CSPA reviewed the study and noted that the vast majority of benefits accrued from regulatory immunity (i.e., securing a 50-year safe harbor from any additional ESA requirements) and an unwarranted assumption that exports would decrease 1.4 million acre-feet (MAF) in the absence of BDCP. We stated that any benefits of the projected habitat restoration are highly speculative and will be paid for by the general public. CSPA also pointed out that the vast majority of costs from a potential earthquake were located in the Delta and that protection from seismic events could be achieved by retrofitting Delta levees for a fraction of tunnel costs. Dr. Jeffery Michael, Director of University of the Pacific’s Business Forecasting Center, criticized the BDCP report as highly flawed, notably because it used inflated growth and water demand forecasts and assumed an improper baseline and discount rate. Dr. Michael prepared his own benefit/cost assessment that demonstrated that BDCP costs were actually 2.5 times the benefits to contractors.
In August 2013, BDCP released a study that it purported to be its long-promised statewide benefit/cost analysis. The study claimed that BDCP would result in a net improvement in the economic welfare of California residents of $4.8 to $5.4 billion, generate $84 billion in business output and almost 1.1 million new jobs (defined as one job for one year).
Dr. Michael observed that the statewide study was not a valid benefit/cost analysis. It improperly tied restoration project with the tunnels, relied on a single ridiculous alternative that assumes exports without BDCP will be cut 25%, used a baseline that is vastly different than the baseline in the EIR/EIS and failed to place a value on environmental impacts.
CSPA testified before the BDCP Finance Committee that the study was not a full benefit/cost analysis as promised, failed to meet accepted professional standards for economic evaluation of water resource projects, ignored reasonable alternatives, understated or ignored adverse impacts, overstated benefits, discounted risk and uncertainty and was predicated on hypothetical and highly speculative assumptions. CSPA pointed out that if the study had analyzed an alternative like Scenario 8 recommended by the State Water Board in comments on the EIR/EIS (which included increased Delta outflow, North Delta bypass flow, coldwater pool management, OMR protection and enhanced EI ratio), exports would only yield 3.1 MAF of water per year and BDCP would become a financial hell for its proponents.
BDCP Cannot Ensure the “Co-Equal Goals:” Delta Restoration and Water Supply Reliability
California is in a water crisis because the state has over-promised, wasted and inequitably distributed scarce water resources. Legal rights to water exceed actual water five-fold (153.7 MAF of legal rights to 30 MAF of average impaired flow). That excludes any water set aside for aquatic ecosystems, including Delta outflow.
The Delta is in a biological meltdown because the estuary has been deprived of more than half its historical flow, its hydrograph has been turned upside down and its waterways used as sewers. The State Water Board in its 2010 report of flows necessary to protect public trust resources, DFW in its 2010 report of flows and biological objectives necessary to protect fisheries and the consistent testimony by independent scientists, academia, fishery agency biologists and consultants to environmental and fishing organizations, including CSPA, have all concluded that significant increases in Delta inflow and outflow are critically necessary to protect the estuary.
There are no magical engineering fixes that will resolve the problem; the state can’t pour rain like it pours concrete. In the near term, it’s a zero sum game – more water to protect public trust values translates to less water for export. Over the longer term, redefining the state and federal projects to reflect legally available water supplies, improved efficiencies, conservation, reclamation, reuse and improved storage and diversion methods can significantly mitigate water supply shortfalls.
CSPA’s Better Solution
CSPA has consistently recommended that a series of formal analyses are necessary to providing the information and framework that would allow solutions to materialize. These include:
- A statewide water availability analysis that is essential to separating real water from paper water and addressing the legal rights to it.
- A comprehensive socioeconomic benefit/cost analysis indispensible for maximizing the use of limited resources for the greatest good for all Californians.
- A public trust analysis crucial for ensuring the common property rights of all Californians are protected and balanced against those of special interests.
- A comprehensive water quality analysis to evaluate the impacts to pollutant concentration and residence time from diverting additional flows from waterways.
Unfortunately, BDCP has refused to undertake these critical analyses because the results from these studies would end the business as usual status quo.
Over recent years, CSPA has proposed a better, more cost-effective and more equitable solution to restoring the Delta and providing increased water supply reliability. Its basic elements include:
- First: Route fresh water through the Delta and increase outflow to restore and protect the estuary’s water quality and fisheries in accordance with the recommendations of the 2010 reports by the State Water Board and DFW.
- Second: Bring rights to water into balance with actual supplies and reduce water exported for the Delta by retiring drainage-impaired lands on the Westside of the San Joaquin Valley.
- Third: Raise and strengthen existing Delta levees to withstand potential earthquakes, floods and rising sea levels for a fraction of the cost of peripheral conveyance.
- Fourth: Increase reliance on local water supplies by investing equivalent dollars in reclamation, reuse and conservation. These cost-effective solutions create “real” water and are the surest and quickest path to increased water supply reliability.