Earlier this month, the federal lead agencies for the BDCP EIR/EIS sent their comments on the EIR/EIS Administrative Draft (ADEIS) to the Department of Water Resources. Here are some of the comments.
From the Bureau of Reclamation
- The language and content of the draft are advocating for the project, which fails to meet the NEPA requirement for a “full and fair discussion of significant environmental impacts.”
- The analysis assumes no operation impacts to upstream reservoir operations, but the Bureau, which is responsible for Central Valley Project facilities upstream as well as in the Delta, will need to consider possible upstream impacts under NEPA.
- The Bureau has to coordinate operations of the CVP for a variety of users and is not sure how operating the Peripheral Tunnels will affect those other operations. Also, the Bureau wants clarification on changes in operation of the CVP in the near-term, before the tunnels start to operate. (In a decade or so.)
From the U.S. Environmental Protection Agency
EPA seems to be a somewhat reluctant contributor to these comments. They note that they do not typically review NEPA documents concurrent with the lead agency review and emphasize that the comments they are submitting should not be considered comprehensive. Nevertheless, EPA makes these points, among many others:
- There is no comprehensive comparison of alternatives. Some comparisons that are made are “of limited value” because they compare each alternative to the Preferred Alternative (the 9,000 CFS three-intakes Pipeline/tunnel alternative) rather than to the No Action alternative.
- Changes in water management would make things worse for farming and fish in the South Delta and Suisun Marsh. “The proposed changes in water management would measurably exacerbate impairment of agricultural and aquatic life beneficial uses in the South Delta and Suisun Marsh . . . . Mercury, pesticide, and selenium exposure levels may increase and be cumulatively significant . . . . Water quality degradation resulting from the increased pumping of freshwater from the North Delta could cause increases in water treatment costs.”
- Scientists say we need more outflow, but the tunnel project would decrease outflow. “Compared to the No Action alternative and existing conditions, many of the scenarios of the Preferred Alternative ‘range’ appear to decrease Delta outflow . . . despite the fact that several key scientific evaluations by the federal and State agencies indicate that more outflow is necessary to protect aquatic resources and fish populations.”
- The ADEIS estimates benefits to water contractors but not impacts on fish. Referring to the goal to “at least double the natural production of anadromous fish” in Central Valley streams, the EPA says, “The ADEIS estimates, for all alternatives, the water supply benefits to those who receive [CVP and SWP contract] water . . . but provides no estimates of impacts on the sizes of imperiled fish populations that would result from the construction and operation of any alternative, nor under existing and no action conditions.”
- There isn’t enough engineering detail. “The level of engineering detail provided for the tunnels . . . is not commensurate with the level of site-specific information typically provided in an EIS for a project that will require federal permits.” (The design for the project is, as we noted in our last newsletter, only 10% complete.)
- The ADEIS blames climate change for adverse effects on fish. “ . . . [The] ADEIS attributes adverse effect on aquatic resources solely to climate change without adequate consideration of the extent to which the BDCP, as proposed, would exacerbate – or mitigate – those impacts.”
There are also unresolved issues about construction impacts like dredging up tunnel muck.
The EPA comments suggest impatience with the inadequacy of data and detail, with the degree of bias, and with the reliance on poorly-supported assumptions. One can image the EPA reviewer(s) wondering “What in the world are those BDCP consultants thinking?” For example, EPA notes, with remarkable understatement, that “making beneficial use impairments [to water quality] measurably worse” presents “a significant permitting challenge.”
And “It seems that increasing flows is a mitigation measure that is available to the project applicant. . . . [The text] suggests that the action is not something that could be done. It can be done, which makes the negative impact something that can be mitigated.”
And “The comparison of the [water quality] tables underscores how little information we have about water quality in the Delta. . . . assumptions are being made with no more than a snapshot of one day’s measurements in some cases. These point strongly to the need to act conservatively until current conditions are better understood through more robust monitoring . . . .”
National Marine Fisheries Service
To begin with, “NOAA’s National Marine Fisheries Service (NMFS) has reviewed the Administrative Draft Environmental Impact Statement (ADEIS) and concludes that it is currently insufficient and will need to be revised prior to formally publishing it as a DEIS with NMFS as a co-lead agency” (emphasis added).
NMFS wants to see alternatives, such as other options besides the BDCP tunnels project, or issuance of take permits for a shorter period or a smaller number of covered species. NMFS says, “The language, structure and analysis of alternatives must be more neutral and not favor a specific alternative” (emphasis added).
“Please change all references of ‘BDCP alternatives’ to ‘action alternatives.’”
NMFS notes that this is “a consultant drafted document guided by the permit applicants with several unresolved issues related to the analytical methods and resultant conclusions regarding project effects on covered species.” (So it might be just a teensy bit biased?) Consultants need to get the effects analysis in the other BDCP document – the HCP, or Habitat Conservation Plan – right, then incorporate those changes into the environmental analysis.
NMFS calls for the EIS to “Analyze the cumulative impacts of the no action alternative.”
Conservation Measures 2-22 (all the CMs that are NOT the tunnels) are not analyzed in enough detail, so NMFS foresees not having enough information to make the necessary findings regarding permits. “ICF [the consultants] should prepare more detail on habitat components as soon as possible.”
NMFS mentions unresolved “factual, consistency, and methodological and analytical issues.” The ADEIS does not “reflect current analyses and the best available science.”
And NMFS is not going to let BDCP ignore what goes on upstream to make the Peripheral Tunnels project work. “The lack of analysis of upstream operations and related effects may render this document insufficient to provide NEPA compliance for the full suite of actions necessary to integrate the BDCP into CVP operations.”
NMFS is critical of the confusing grammar and terminology, the lack of consistency in analytical results underlying conclusions, and the dated references. (“Some references used are 50 or more years old.”) They find that “There is repeated use of modifying language that softens the negative conclusion of impacts to fish, while this same language is not applied to other impacts.”
They want to see climate change and catastrophic seismic risk analyzed for all alternatives, not just for some of the resources for the no action alternative. (Presumably, this would point to the importance of reinforcing Delta levees even for the tunnel alternative.)
NMFS questions the accuracy and applicability of the Water Quality analysis because “none of the models used are true water quality models.” They find the level of analysis inadequate for “major new diversion intakes in the main migratory route of several listed species.” They find “too much benefit to steelhead smolts assumed for habitat restoration in the Delta.” They find that “The current grouping of effects [on fish] for all rivers together causes the current conclusions to be incorrect and/or misleading.”
U.S. Fish and Wildlife Service
“The FWS believes that the draft BDCP ADEIS is insufficient at this time as a disclosure document and is not yet adequate in providing all information and analyses necessary for a decision-maker to make an informed choice between alternatives” (emphases added).
Like the other agencies, FWS finds the ADEIS analysis and language to be biased in favor of the preferred project (the tunnels), referring to “advocacy language” and providing multiple examples. They caution ICF against using “subjective comparison terms (e.g. “similar”) rather than reporting data “using neutral, simple statements.”
FWS finds that “The ADEIS is missing a clear, full and complete project description . . . needed to do a complete project specific level impact analysis for CM1 [the Peripheral Tunnels].” And the ADEIS “does not provide an equal analysis of all alternatives.” FWS provides detailed information about the kinds of data and analysis they want to see.
FWS asks for justification for a variety of assumptions used for hydrological analysis in the ADEIS. For example, they want to know:
Why given the significant effects of sea level rise and climate change, there will be no change in cropping patterns, water use efficiency, reservoir flood control diagrams, relaxations in regulatory standards during critically dry periods. Why, in essence, there will be no adaptation to sea level rise and climate change.
FWS wants the ADEIS to “Provide details of how CM12 [Mercury Management] will manage methylmercury among the conflicting needs of covered species, ecosystem restoration and human healthy within the context of high uncertainty.” And “If restoration sites produce untenable concentrations of mercury or selenium, how will the Conservation Measures adapt?”
FWS finds a variety of inconsistencies between the environmental documents and the habitat conservation plan (HCP) itself. In other words, the tunnel plan and its accompanying conservation measures don’t match up well with the environmental analysis that is supposed to lead to permitting.
And finally, “The ADEIS does not meet the readability test under NEPA.” Basically, decision-makers and the public need to be able to read the EIS and see alternatives presented in a way that allows objective comparison.
Clearly, we aren’t there yet.
The U.S. Army Corps of Engineers didn’t submit comments at the same time as the other federal agencies. We’ll summarize those comments later.
A check of the BDCP website to see if there is an update on when different documents are supposed to be ready shows a lot of circles that seem to be floating on a sea of blue, free to drift about. Click on one, and see little bubbles pop up behind. No, wait. Maybe those bubbles are related to the fish swimming hazily in the background.