On January 15, 2016, the California Department of Water Resources (DWR) and the United States Bureau of Reclamation (Reclamation) released a working draft of the Biological Assessment (BA) for the “California WaterFix.”  As described in the BA, the California WaterFix entails construction and operation of new water diversion and conveyance facilities in the Sacramento-San Joaquin River Delta, including three intakes, two tunnels, and associated facilities.  The BA also specifies that the California WaterFix entails operation of existing State Water Project (SWP) Delta facilities in coordination with the new facilities, and coordination of Central Valley Project (CVP) operations with DWR using new and existing CVP facilities.

DWR and Reclamation prepared the BA pursuant to the Endangered Species Act (ESA) as the basis for consultation with the United States Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS).  USFWS and NMFS are tasked with determining whether the California WaterFix is likely to:  (1) adversely affect listed species or designated critical habitat; (2) jeopardize the continued existence of species that are proposed for listing under the ESA; or (3) adversely modify designated critical habitat.  USFWS and NMFS will analyze these issues in a Biological Opinion (BO) that will apply to, among other things, construction and operation of the new facilities described in the BA.  Once DWR begins operating the new facilities, the BO will serve as the operative regulatory document that the state and federal projects must comply with in order to protect fish and wildlife and otherwise receive protection from liability for the incidental take of any protected species.

The BA outlines modified or new operational criteria for the new intakes in the North Delta and export facilities in the South Delta.  The proposed new criteria were developed in coordination with NMFS, USFWS, and DFW to minimize project effects on listed species.  Notably, the California WaterFix, as described in the BA, does not include any upstream operational changes.  According to the BA, while the increased flexibility provided by the dual conveyance system and operational criteria for Delta facilities could allow for a change in upstream operations, any such change would be consistent with existing criteria for operations of the tributary systems.

The BA identifies a host of species that the Cal WaterFix will adversely affect.  These species include anadromous fish such as Chinook salmon and steelhead, as well as the resident Delta smelt.  The BA also indicates that various terrestrial species will be adversely affected.

Once DWR and Reclamation complete a final BA, Reclamation will submit it to USFWS and NMFS with a request for “formal” consultation.  Formal consultation will likely include a peer review process through the Delta Science Program.  Ultimately, this process will conclude with issuance of the BO.  Reclamation has indicated that it will not complete the California WaterFix National Environmental Policy Act (NEPA) process – i.e., issuance of a Final Environmental Impact Report/Environmental Impact Statement, and Record of Decision – until after the receipt of the BO.

The BO will be relevant to the pending DWR/Reclamation Petition for Change proceeding before the State Water Resources Control Board (SWRCB).  The Petition for Change proceeding entails consideration of whether the construction and operation of the new North Delta intakes are likely to injure legal users of water or unreasonably affect fish and wildlife.  Specifically, Part 2 of the hearing will focus on the potential effects of the Cal WaterFix on fish and wildlife, and the conditions, if any, that should be included in DWR and Reclamation’s water rights permits and licenses through the Petition for Change proceeding.  The SWRCB has indicated that it will commence Part 2 of the Petition for Change hearing no sooner than 30 days after the EIR/EIS and ESA processes are complete.  Thus, the BO will be relevant to the nature and scope of any conditions that the SWRCB places on Petition for Change approvals.

The working draft of the BA may be viewed at: https://s3.amazonaws.com/californiawater/pdfs/g8o6c_FIX_BA_TOC.pdf.

For more information on the California WaterFix Biological Assessment, please contact Aaron Ferguson at (916) 446-7979 or aferguson@somachlaw.com.

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