Ann Hayden is a Senior Water Resource Analyst at EDF.
As our recent blog highlights , there are many reasons to be pleased about the recent passage of the water policy reform package. As a member of the Bay-Delta Conservation Plan Steering Committee, I think it’s also worth enumerating how the legislation provides significant environmental safeguards for this process. After all, the BDCP is where new conveyance around the Delta, (otherwise known as the peripheral canal) is being analyzed as part of a habitat conservation plan with the aim of ensuring both water supply reliability and ecosystem recovery.
What does the legislation mean for the BDCP?
It doesn't authorize a canal.
Many are concerned that the legislation authorizes a peripheral canal. This is simply not true. In fact, the legislation includes an important new layer of oversight of the BDCP—the Delta Stewardship Council. Before it can be implemented, the BDCP will need to demonstrate to the Council that it meets both the water supply reliability and ecosystem recovery goals it set out to achieve, and will have to consider Council recommendations on both the design and implementation of the Plan (Sec 85320 (g)). In addition, the BDCP will have to show that it is consistent with the overall Delta plan and other existing environmental mandates. The legislation also requires the Department of Fish and Game to report regularly to the Council on results from monitoring and adaptive management to make sure BDCP implementation is moving in a positive direction (Sec 85320 (f)).
It outlines a process to resolve the instream flow debate.
Another key provision related to the BDCP is the requirement for the State Water Resources Control Board to conduct a public trust needs assessment to determine instream flows for the Bay-Delta (Sec 85085 (c) 1) within nine months of the effective date of the bill. The BDCP has grappled with this tough question for a few years and still has yet to provide an adequate answer. These newly developed flow criteria will be informed by biological objectives developed by state and federal fish agencies and will specify the volume, quality and timing of water necessary for a healthy Delta ecosystem under different conditions. Existing bond moneys will be allocated to strengthen the Board’s ability to make these flow determinations in a timely manner so that they can be incorporated into the development of the BDCP.
It establishes the highest environmental standards for the BDCP.
The legislation requires that the BDCP meet the high recovery standards of the Natural Communities Conservation Planning Act. If the plan doesn’t meet the NCCP standard, no public funding will be allocated to its implementation (Sec 85320 (e)).
It improves the decision-making ability of the fishery agencies related to water operations
Historically, there has not been an understandable and transparent process that allows the fishery agencies to make necessary decisions to provide flows for fish without, at times, being overruled by the Department of Water Resources (DWR) and the Bureau of Reclamation (BOR). The legislation improves this by requiring that the BDCP include transparent real-time decision-making of water operations that allows the fishery agencies to take protective actions in the Delta so that biological performance objectives are achieved (Sec 85321). More simply put, if it is determined that salmon need more water at a specific time within the prescribed range of flows, the fish agencies, after consultation with DWR and BOR, get to make the ultimate call on the action. I think his is a clear improvement on the way some decisions have been made in the past.
For all these reasons, it’s clear to me that the legislation sets out specific guidelines that hardly make the BDCP or the approval of a canal a slam dunk. Indeed, the BDCP must complete many critical steps in order for the plan to be approved. I, for one, think this is a huge step forward and provides necessary direction and oversight that is critically needed.
 All statutes cited in this document reference sections as created or amended by the November, 2009 legislation.