Friends of the River (FOR) has sent a comment letter to officers and staff of federal agencies – the Bureau of Reclamation, the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS) – alerting them to “foundational violations of law and fundamental analytical deficiencies in the Bay Delta Conservation Plan (BDCP) process being carried out by the federal Bureau of Reclamation and California Department of Water Resources (DWR).”
NMFS and USFWS have already “red flagged” ways the Peripheral Tunnels would threaten endangered fish species. FOR’s letter details the reasons why BDCP is an illegitimate basis for fisheries agencies to issues incidental take permits under the Endangered Species Act.
“The BDCP is not a legitimate Habitat Conservation Plan (HCP) because it does not actually ensure the continued existence of the relevant endangered species.” In fact, BDCP has been designed to free contractors from any obligation to provide adequate water for fish even if the plan fails to achieve recovery goals.
FOR’s letter reminds the fisheries agencies that “Removing freshwater deliveries from critical habitat areas and replacing it with dubious mitigation measures elsewhere will surely not satisfy ESA’s mandates to refrain from adversely modifying critical habitat and avoiding jeopardy to the continued existence of endangered species.”
Asserting that “the cart has unlawfully been placed before the horse,” FOR’s letter points out that the agencies cannot rely on BDCP documents to fulfill their obligations to conduct a biological assessment, an ESA consultation, and a biological opinion that includes analyzing a Reasonable Prudent Alternative. (That would include no conveyance at all, as proposed by the Environmental Water Caucus “Responsible Exports Plan.”)
FOR’s letter also refers to the Delta Reform Act requirement that flow criteria developed by the State Water Resources Control Board (SWRCB) inform planning decisions for the Delta Plan and BDCP. “The BDCP process is simply a DWR effort to make a premature and unlawful decision to develop the massive Delta Water Tunnels before rather than after determining whether updated flow objectives would even allow such quantities of water to be diverted upstream away from the Delta.”
And in the absence of a public trust doctrine analysis and setting of new, stricter flow objectives, with EPA review, there is no water supply availability analysis, quantification, and analysis of environmental impacts required under the California Environmental Quality Act (CEQA).