By Sam Bivins and Meredith Nikkel
On March 31, 2020, the California Department of Fish & Wildlife (CDFW) issued an Incidental Take Permit (ITP) to the California Department of Water Resources (DWR) under the California Endangered Species Act (CESA) for the long-term operations of the State Water Project (SWP). The permit, which is intended to minimize impacts to Delta smelt, longfin smelt, and winter and spring-run chinook salmon (Covered Species) from SWP operations, has attracted controversy from both the environmental community and water agencies with an interest in SWP operations.
Background
The CESA prohibits any person or public agency from taking species listed as threatened or endangered by the California Fish and Game Commission. Fish & Game Code § 2080. CDFW, however, can authorize take of listed species by issuing an ITP if the take is “incidental to an otherwise lawful activity,” the impacts of the take are minimized and fully mitigated, the necessary mitigation measures are fully funded by the applicant, and the taking will not jeopardize the continued existence of the species at issue. Id. at § 2081.
The SWP is operated by DWR conveys an average of 2.9 million acre-feet of water per year to communities and farms throughout California. TP at p. 2. Like the federal Central Valley Project (CVP), the SWP operates a large pumping plant in the Sacramento-San Joaquin River Delta. Id. at p. 3. The operations of both projects have caused take of the Covered Species in the past and likely will do so in the future.
Historically, the SWP and CVP have coordinated their operations, and DWR obtained incidental take coverage for SWP operations under CESA by securing a consistency determination from CDFW based on federal Biological Opinions. In 2019, however, DWR announced that it would seek an ITP for SWP operations that did not rely on the federal process for analyzing the effects of coordinated CVP and SWP operations under section 7 of the federal Endangered Species Act.
DWR Receives ITP from CDFW
DWR thus prepared a draft Environmental Impact Report (DEIR) analyzing the effects of its proposed operations under the California Environmental Quality Act (CEQA) and submitted its ITP application to CDFW. The operations described in the ITP application, however, differed from the proposed project analyzed in the DEIR. (DWR, Final Environmental Impact Report for Long-Term Operation of the California State Water Project (FEIR) at I-1 (Mar. 27, 2019).
After submitting the application, DWR worked with CDFW staff to refine Alternative 2b in the DEIR, which CDFW had indicated was more likely to be acceptable under the CESA than the proposed project analyzed in the DEIR. See id. On March 27, 2020, DWR certified the FEIR, selected refined Alternative 2b as the environmentally superior alternative, and issued a notice of determination stating that DWR would implement refined Alternative 2b. CDFW issued the ITP four days later.
Overview of the ITP
The ITP authorizes incidental take of Delta smelt, longfin smelt, and winter and spring-run chinook salmon from SWP operations subject to a host of conditions of approval. For example, the ITP requires DWR to “reduce the maximum seven-day average diversion rate” at the Barker Slough Pumping Plant to less than 60 cubic feet per second (cfs) between January and June of dry and critical water years when larval longfin and Delta smelt are present, with the possibility of further reductions based on recommendations provided by the Smelt Monitoring Team. ITP at 98. The ITP also requires DWR to spend more than $300 million on habitat mitigation projects to benefit the Covered Species. Id. at 127. All told, the ITP contains 86 pages of conditions DWR must meet to maintain incidental take coverage for the operations of the ITP. See id.at 50-136.
Among the conditions are requirements for additional outflow from the Delta. For example, Condition of Approval 8.17 requires DWR to curtail SWP exports to protect Delta outflows from April 1 to May 31. Id. at 102-104. Although DWR may increase exports by up to 150,000 acre-feet beyond what would otherwise be allowed under Condition of Approval 8.17 with written permission from CDFW, the excess exports must be accounted for and redeployed for CDFW’s use in the next year, unless the next year is critical. Id. at 105. Thus, DWR’s compliance with the ITP is expected to decrease the availability of SWP supplies while passing the increased costs associated with operating to the ITP to SWP Contractors. Id.at 134 (All costs of the Project, including the costs of mitigation and monitoring activities required by this ITP shall be. . .charged to SWP Contractors.)
Conclusion and Implications
The issuance of the ITP has been met with controversy from many corners of California’s water community. Many environmental interest groups have suggested that the ITP is insufficiently protective of the Covered Species, while agricultural and water agency stakeholders have expressed concerns about the interaction between the operations of the SWP under the ITP and CVP operations under new Biological Opinions issued by the U.S. Fish & Wildlife Service and the National Marine Fisheries Service, as well as the potential that the ITP will interfere with potential voluntary agreements to implement Bay-Delta Water Quality Control Plan Update. The Metropolitan Water District of Southern California’s board of directors has already voted to sue the state over the ITP, and other stakeholders are likely to challenge the ITP as well.
