Endangered Species Law & Policy

Today Governor Brown and Secretary of the Interior Salazar announced plans to construct two tunnels to transport water under the Sacramento-San Joaquin Delta in an effort to guarantee a stable water supply for Californians and contribute to the protection and recovery of the Delta ecosystem and at-risk species.  In a press release that accompanied the announcement, the federal and state officials stated "the parties expect to issue a draft Bay Delta Conservation Plan and corresponding Environmental Impact Report/Environmental Impact Statement for public review this fall."

The Bay Delta Conservation Plan (BDCP) is a long-term (50-year) conservation strategy, which is intended to set forth actions needed for a healthy Delta, and is being developed in compliance with the Federal Endangered Species Act (ESA) and the California Natural Communities Conservation Planning Act (NCCPA). When complete, the BDCP will provide the basis for the issuance of endangered species permits for the operation of the State Water Project and Central Valley Project.  In materials issued simultaneously with the announcement, federal and state officials stated "today’s proposal represents elements of a new preferred alternative for consideration as part of the National Environmental Policy Act (NEPA)/California Environmental Quality Act (CEQA) process and calls for the construction of fewer intakes, reduced diversion capacity for water supply, a new collaborative science process to evaluate key operating parameters over the next decade, and accelerated habitat restoration in the Delta."

From its inception, the BDCP has faced significant hurdles on a number of fronts. It has faced political hurdles as northern California interests have characterized the Plan as a water grab by southern California (despite the fact that the Water Projects serve many northern California communities including Yuba City and portions of the Counties of Alameda, Napa, and Santa Clara). It has faced scientific hurdles as planners have attempted to devise a long-term management plan in the face of significant uncertainty regarding the population dynamics of target species and relative effects of various stressors on those species. It has faced legal hurdles as opponents challenged the BDCP at the notice of preparation stage, signaling their intent to overturn the Plan at every turn. And it has faced practical hurdles as planners attempt to implement the co-equal goals of water supply reliability and ecosystem restoration.

As planning progressed and long before its authors were prepared to circulate a draft BDCP together with a draft Environmental Impact Statement/Report in accordance with the National Environmental Policy Act and California Environmental Quality Act, State government decision-makers sought independent reviews of the BDCP by the National Research Council and the Delta Science Program. Both appointed committees to review incomplete versions of the BDCP and, unsurprisingly, both committees opined that the BDCP came up short in a number of respects. The committee reports are available here (pdf) and here (pdf). In addition, the three agencies with permitting authority – the National Marine Fisheries Service, Fish and Wildlife Service, and Department of Fish and Game – released comments (pdf) critical of the draft BDCP earlier this year. All of this input could, ultimately, result in a more robust and defensible final product. But in the meantime, opponents of the BDCP have used the criticism to advance their claims that the BDCP must not be allowed to succeed, irrespective of the contents of the Plan.

While the State of California has demonstrated a strong commitment to completion of the BDCP across Administrations, the federal government has shown considerably less leadership. Absent such leadership at the federal level, there is little doubt that the BDCP cannot succeed. The public water agencies financing the BDCP effort to date remain hopeful that the BDCP will succeed as Lauren Sommer reports here, but whether those hopes are misplaced remains to be seen in the coming months and years.