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Today the California Department of Fish and Wildlife (CDFW) issued a much-anticipated new incidental take permit (ITP) allowing the California Department of Water Resources (DWR) to continue operating the State Water Project (SWP) for the next ten years.  The ITP authorizes changed SWP operations from existing conditions and provides take coverage for four fish species listed under the California Endangered Species Act (CESA).

CDFW is authorized to issue ITPs for the taking of a listed species under the CESA if the taking is incidental to carrying out an otherwise lawful activity.  When species are listed under both the federal Endangered Species Act (ESA) and CESA, applicants who obtain federal ITPs may request that CDFW find the federal documents consistent with CESA, and that no further authorization or approval is necessary under CESA.  In the past, DWR received ITP coverage to operate the SWP through CDFW consistency determinations issued for the incidental take of Delta Smelt, spring-run Chinook salmon and fall-run Chinook salmon based on 2008 and 2009 federal biological opinions for the coordinated operation of the Central Valley Project (CVP) and SWP (BiOps), and a 2009 CDFW ITP for longfin smelt (which is listed only under CESA).

Facing prospective changes to the federal BiOps, in February 2019 DWR announced its intent to pursue a new approach to CESA coverage based on a separate ITP for all four species, providing for CESA authorization for the SWP regardless of any potential changes in the federal BiOps.  The new federal BiOps were issued on October 22, 2019, and a corresponding federal record of decision was issued in February 2020.  The State is presently challenging those actions in federal court.

In December of 2019, DWR for the first time applied to the CDFW for a separate state ITP covering all four species that would effectively avoid the need for CDFW to rely upon federal permits.  Today’s issuance of the requested ITP, which follows DWR’s certification of an EIR for the Long Term Operation of the SWP, secures SWP operations under CESA through 2030.  The ITP gives CDFW, among others, final decision-making authority to restrict operations harming endangered species, sets limits on pumping in the Delta, improves habitat conditions in the Suisun Marsh during the summer, and provides over $10 million per year in new funding for mitigation projects and scientific research.

DWR’s decision to seek a separate ITP, and CDFW’s issuance of the ITP are controversial for many water users in the State that rely on the SWP and CVP for their water supplies, and having different regulatory regimes in place under the new federal BiOps and the ITP will likely present challenges to the continued coordinated operations of the CVP and SWP.  These actions will also likely impact the ability of parties to continue to engage in the Voluntary Agreement process related to the update of the Bay-Delta Water Quality Control Plan.

For further information on this topic, please contact Kyler C. Rayden at krayden@somachlaw.com or Kelley M. Taber at ktaber@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.