DPC Letter: State Water Project

The Delta Protection Commission reviews hundreds of local and regional land use projects in the Primary and Secondary zones of the Delta for consistency with the Land Use and Resource Management Plan (PDF) and submits comment letters to ensure projects stay on track with the Plan. Under state law (Public Resources Code Sections 29770-29772), any action taken by a local government or agency in the Primary Zone that is inconsistent with the Plan can be appealed to the Commission. Appeals may be brought by any interested person, or by the Commission itself. Learn more here.

July 19, 2024

Chris Wilkinson
Environmental Program Manager,
Division of Integrated Science and Engineering,
Department of Water Resources
P.O. Box 942836
Sacramento, CA 94236-0001

Shelly Amrhein
Manager, Habitat Conservation Planning Section
Department of Water Resources
Operations and Maintenance, Environmental Assessment Branch
P.O. Box 942836
Sacramento, CA 94236-0001

Dear Mr. Wilkinson and Ms. Amrhein:

We are providing combined comments on the Draft Environmental Impact Report (DEIR) for the Long-Term Operation of the State Water Project and the Notice of Preparation (NOP) for the State Water Project Operations and Maintenance Habitat Conservation Plan (HCP).

The Delta Protection Commission (Commission) is a state agency charged with ensuring orderly and balanced conservation and development of Delta land resources and improved flood protection in the Primary Zone. The Commission performs planning work to further the State’s basic goals for the Delta which are to provide a more reliable water supply for California and protect, restore and enhance the Delta ecosystem “in a manner that protects and enhances the unique cultural, recreational, natural resource and agricultural values of the Delta as an evolving place” (Public Resources Code section 29702(a) and Water Code section 85054). It is also the policy of the State of California to reduce reliance on water exports from the Delta, as further discussed below (California Water Code Section 85021). The Commission is thus providing comments as a Delta stakeholder, with an interest in the best environmental outcomes for the Delta.

The Separation of the Analysis of the Operational Impacts of the State Water Project and the Habitat Conservation Plan Is Piecemealing

The DEIR for operations states that it will support the amendment or re-issuance of an incidental take permit (ITP) required under the California Endangered Species Act (CESA) (DWR 2024:2-1). The NOP for the HCP indicates it is intended to provide mitigation to support CESA mitigation requirements for the ITP (DWR 2024a:1).

Piecemealing occurs in CEQA practice when a lead agency impermissibly separates environmental analysis of two projects that depend upon one another for completion and thus fails to analyze the “whole of an action” consistent with the definition of a CEQA project (14. Cal. Code of Regulations, Section 15378(a)).

The Courts have provided the additional test that agencies must analyze the “reasonably foreseeable consequences” of a project (Laurel Heights Improvement Ass’n v. Univ. of California (47 C3d. 376, 396 [1988]). Typically piecemealing questions involve projects that have some degree of separation, but factually may be intertwined. Here the mitigation needed to support maintenance of the SWP is part and parcel of the operations of the SWP because a complex conveyance system cannot be operated without maintaining it. The HCP or equivalent mitigation thus meets the “reasonably foreseeable” test of Laurel Heights as a component of operations.

In addition, the mitigation the HCP will provide is necessary to meet the legal requirements of CESA permits needed for operations. CESA requires that all the impacts of take are “fully mitigated” (Cal. Fish & Game Code Section 2081(b)(2)). This requirement is separate from the duty to mitigate environmental impacts under CEQA. Because operations depend on maintenance and mitigation needed to meet the fully mitigated standard for CESA, conveyance and the HCP are components of a single project.

The error created by separation of these two documents exceeds a mere technicality. The scope of covered species for the HCP includes all the aquatic species analyzed in the operational EIR and a host of terrestrial species (DWR 2024a: Table 1). The operations DEIR specifically screens out terrestrial biological species from review (DWR 2024:3-1). By failing to analyze the environmental consequences of operations in combination with a vast HCP that is required to support operations DWR may be missing effects that will emerge when both elements of the project are analyzed together. In addition, DWR may be separating effects for terrestrial species from operations, by associating those effects only with the HCP and maintenance. The cumulative context also notably omits the HCP, while acknowledging other mitigation projects such as the Suisun Marsh Habitat Management, Preservation, and Restoration Plan (DWR 2024, Chapter 10).

As stated, the geographic scope of the HCP is vast (DWR 2024: Figure 1). The area within which conservation actions may occur encompasses the equivalent of several California counties. Because the HCP area is so vast, and there are species for which conservation actions may occur that are not analyzed in the operational EIR, the effects of both mitigation and conveyance should be analyzed in one document to meet the intent of CEQA and provide a meaningful and full consideration of impacts.

The Less Than Significant Conclusion for All Aquatic Species and White Sturgeon in Particular May Require Better Substantiation

DWR concludes that impacts on all aquatic species affected by operations are less than significant (DWR 2024: Chapter 6). The California Fish & Game Commission recently designated white sturgeon (Acipenser transmontanus) as a candidate for listing (CDFW 2024). The petition for listing specifically identifies reduced Delta outflow as a contributing factor to the decline of the species (Baykeeper 2023:18-19). The DWR conclusion that impacts on white sturgeon are less than significant stands in contrast to the independent findings of the Fish & Game Commission (DWR 2024:6-212). Because reduced Delta outflow caused by conveyance is a major contributing factor to the decline of the species, we urge DWR to revisit the analysis of impacts and mitigation that may be required by the project.

Independent agency studies also show that key indicator species for Delta are in decline (SWRCB 2017: 3-96). These studies demonstrate that most Delta fish species respond positively specifically to increased Delta outflow with population rebounds occurring during wet years (SWRCB 2017, Figure 3.13-2, 3-99). The focus on avoiding entrainment neglects the significance of Delta outflow as a key component of a successful strategy to avoid take and to reverse the decline of Delta aquatic species (SWRCB 2017, Rosenfield pers. comm. 2024).

This mitigation approach is also consistent with the state policy of reducing reliance on Delta water supplies for export. The California Water Code Section specifically states, “The policy of the State of California is to reduce reliance on the Delta in meeting California’s future water supply needs through a statewide strategy of investing in improved regional supplies, conservation, and water use efficiency” (California Water Code Section 85021).

The Operations DEIR May Omit Actions Needed to Support CESA Authorization

The “take” prohibitions of CESA apply to Candidate Species (Cal. Fish & Game Code Section 2085). Because white sturgeon is thus subject to take authorization and the fully mitigated standard of CESA, actions needed to meet the fully mitigated standard for take authorization, are independent of the CEQA duty to mitigate significant impacts. Put another way, even if the impact conclusion of less than significant is valid, mitigation needed to meet the fully mitigated standard is required, because CESA is a separate law from CEQA (Cal. Fish & Game Code Section 2081(b)(2)). Mitigation required by a project must be analyzed under CEQA (14 Cal. Code of Regulations Section 15126.4(a)(1)(D)). DWR provides three alternatives to the project, none of which consider increasing Delta outflow, which would directly ameliorate the conditions leading to the decline of white sturgeon (DWR 2024: Chapter 10).

The Separation of the HCP and the Operational Impact Analysis May be Inconsistent with Banning Ranch Conservancy v. City of Newport Beach

In Banning Ranch Conservancy v. City of Newport Beach (2 Cal.5th 918 [2017]) the City of Newport Beach failed to integrate consideration of mitigation and alternatives to avoid resources regulated by the Coastal Commission with environmental analysis of a development project in the Coastal Zone). The city thus failed to satisfy the general requirement that local agencies integrate CEQA review with other planning and permitting requirements (Cal. Public Resources Code Section 21003(a)). The court observed that “Information highly relevant to the Coastal Commission’s permitting function was suppressed. The public was deprived of a full understanding of the environmental issues raised by the Banning Ranch project proposal” (Banning Ranch, 942). California Public Resources Code Section 21003(a) applies to “local agencies” rather than state agencies; however, the Banning Ranch decision provides an example of how failure to integrate environmental review with permitting may materially impair the informational purpose of CEQA generally. CEQA also requires that agencies conduct environmental review efficiently, to further the goals of mitigating environmental impacts (Cal. Public Resources Code Section 21003(f)).

By failing to integrate analysis of operations and the mitigation needed to support permitting of those operations (i.e. the HCP and any omitted actions needed to fully mitigate take) DWR may be missing environmental effects that will only be identified when both the conveyance and mitigation components of the project are considered together. These considerations are not speculative or technical. The scope of both the HCP and conveyance operations is vast. The failure to consider all components of the same action together thus avoids a robust analysis of a geographically large project of great significance to the Delta and the State of California.

We Urge Department of Water Resources to Commit to Meeting the Requirements of California Constitution Article XIII D Section 4

The Delta is a fragile and complex mosaic of agricultural and natural uplands and waterways. The upland areas in the Delta frequently depend on levees and other complex flood control infrastructure for protection. These levees and other critical infrastructure are funded by county-level property taxes and special benefits assessed by reclamation districts and other special districts. Because agencies of the state and the United States exist at a level of authority that supersedes the Delta counties, there is always a risk with large public projects that special benefits assessments will not be paid. This issue is of such a magnitude that the California Constitution was amended to require that “Parcels within a district that are owned or used by any agency, the State of California or the United States shall not be exempt from assessment unless the agency can demonstrate by clear and convincing evidence that those publicly owned parcels in fact receive no special benefit” (California Constitution Article XIII D, Section 4). We urge DWR to make a commitment to meeting this standard in the environmental documentation for long-term operations and mitigation such as the HCP in particular.

Please Consider the Impact of Habitat Conservation Plan Conservation Actions on Delta Agriculture and Ecosystems

The Delta Protection Act (Cal. Public Resources Code Section 29700 et seq.) codifies the policies of the State of California to protect the sustainability of Delta agriculture and ecosystems. While DWR is not a “local government” within the meaning of the Delta Protection Act (i.e. subject to the land use authority of the Delta Protection Commission) the Delta Protection Act is a statement of policy regarding the goals of the State of California for the Delta. We thus encourage DWR to consider the impact of conservation actions on Delta agriculture and ecosystems relative to the current baseline.

We Encourage Department of Water Resources to Clarify the Project Description for the Habitat Conservation Plan

In the NOP DWR states that “A new type of activity not specifically identified in the HCP might be covered under the HCP ITPs if DWR determines adequate take coverage remains available and if the activity has not already been considered but rejected for coverage” (DWR 2024a:8). The wording of this language suggests that currently undefined covered actions may subscribe to the HCP in the future only if take coverage remains. While this language is apparently innocuous, the geographic scale of the HCP suggests that the exact location and magnitude of all conservation actions is already potentially unclear for a project level of analysis. Because the geographic scope of the HCP is so large, future covered actions that are not currently defined may, if approved, drive the implementation of a significantly different scale or scope of conservation actions than are contemplated in the NOP or will be analyzed in the EIR for the HCP. The open-ended project scope and undefined covered actions create an unstable project description for purposes of CEQA that deprives the public of the opportunity to review the full effect of the project. Please see Save our Capitol v. Department of General Services which illustrates the duty of lead agencies to fully disclose a stable project description (Save our Capitol v. Department of General Services, 87 Cal. App. 5th 655, 2023).

We look forward to following the development of these two important documents that encompass analysis relevant to the Delta and its unique resources. If you have any questions feel free to contact me directly at Bruce.Blodgett@delta.ca.gov or at (530) 650-6811.

Sincerely,

Bruce Blodgett, Executive Director
Delta Protection Commission

References Cited

California Department of Fish & Game. Fish and Game Commission Approves White Sturgeon as a Candidate Species for Listing as Threatened. 2024. Sacramento, California. Available: Link to press release

California Department of Water Resources (DWR). Long-Term Operations of the State Water Project, Draft Environmental Impact Report. 2024. Sacramento, California.

California Department of Water Resources (DWR). Notice of Preparation: Environmental Impact Report for the State Water Project Delta Field Division Operations and Maintenance Habitat Conservation Plan. 2024a. Sacramento, California.

Rosenfield, Jon. Senior Scientist, San Francisco Baykeeper. Conversation Regarding Delta Outflow and Ecosystem Health. 2024.

San Francisco Baykeeper. A Petition to The State of California Fish and Game Commission to List the California White Sturgeon (Acipenser transmontanus) as Threatened Under the California Endangered Species Act. 2023. Oakland, California.

State Water Resources Control Board (SWRCB). Scientific Basis Report in Support of New and Modified Requirements for Inflows from the Sacramento River and its Tributaries and Eastside Tributaries to the Delta, Delta Outflows, Cold Water Habitat, and Interior Delta Flows. 2017. Sacramento, California.