Summary

The San Francisco Bay Delta Estuary (Delta, for short) is a large, complex estuarine ecosystem in California (Figure 1). It has been substantially altered by dikes, levees, channelization, pumps, human development, introduced species, dams on its tributary streams, and contaminants. The Delta supplies water from the state’s wetter northern regions to the drier southern regions and also serves as habitat for many species, some of which are threatened and endangered. The restriction of water exports in an attempt to protect those species together with the effects of several dry years have exacerbated tensions over water allocation in recent years, and have led to various attempts to develop comprehensive plans to provide reliable water supplies and to protect the ecosystem.

One of those plans is the Bay Delta Conservation Plan (BDCP), the focus of this report. The BDCP is technically a habitat conservation plan (HCP), an activity provided for in the federal Endangered Species Act that protects the habitat of listed species in order to mitigate the adverse effects of a federal project or activity that incidentally“takes”1 (includes actions that “harm” wildlife by impairing breeding, feeding, or sheltering behaviors) the listed species. It similarly is a natural community conservation plan (NCCP) under California’s Natural Community Conservation Planning Act (NCCPA). It is intended to obtain long-term authorizations under both the state and federal endangered species statutes for proposed new water operations―primarily an “isolated conveyance structure,” probably a tunnel, to take water from the northern part of the Delta for export to the south, thus reducing the need to convey water through the Delta and out of its southern end.

The U.S. Secretaries of the Interior and Commerce requested that the National Research Council (NRC) review the draft BDCP in terms of its use of science and adaptive-management (see Appendix A for the full statement of task). In response, the NRC established the Panel to Review California’s Draft Bay Delta Conservation Plan, which prepared this report. The panel reviewed

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1Take means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” ESA, Section 3, 16 U.S.C.1532. Harm, within the statutory definition of “take” has been further defined by regulation: “Harm in the definition of take in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” 50 C.F.R.17.3.



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Summary  The San Francisco Bay Delta Estuary (Delta, for short) is a large, complex estuarine ecosystem in California (Figure 1). It has been substantially altered by dikes, levees, channelization, pumps, human development, introduced species, dams on its tributary streams, and contaminants. The Delta supplies water from the state’s wetter northern regions to the drier southern regions and also serves as habitat for many species, some of which are threatened and endangered. The restriction of water exports in an attempt to protect those species together with the effects of several dry years have exacerbated tensions over water allocation in recent years, and have led to various attempts to develop comprehensive plans to provide reliable water supplies and to protect the ecosystem. One of those plans is the Bay Delta Conservation Plan (BDCP), the focus of this report. The BDCP is technically a habitat conservation plan (HCP), an activity provided for in the federal Endangered Species Act that protects the habitat of listed species in order to mitigate the adverse effects of a federal project or activity that incidentally “takes”1 (includes actions that “harm” wild- life by impairing breeding, feeding, or sheltering behaviors) the listed species. It similarly is a natural community conservation plan (NCCP) under California’s Natural Community Conservation Planning Act (NCCPA). It is intended to obtain long-term authorizations under both the state and federal endangered spe- cies statutes for proposed new water operations―primarily an “isolated con- veyance structure,” probably a tunnel, to take water from the northern part of the Delta for export to the south, thus reducing the need to convey water through the Delta and out of its southern end. The U.S. Secretaries of the Interior and Commerce requested that the Na- tional Research Council (NRC) review the draft BDCP in terms of its use of science and adaptive-management (see Appendix A for the full statement of task). In response, the NRC established the Panel to Review California’s Draft Bay Delta Conservation Plan, which prepared this report. The panel reviewed 1   Take  means  “to  harass,  harm,  pursue,  hunt,  shoot,  wound,  kill,  trap,  capture,  or  collect,  or  to  attempt to engage in any such conduct.” ESA, Section 3, 16 U.S.C. 1532.  Harm,  within  the  statutory  definition  of  “take”  has  been  further  defined  by  regulation:  “Harm  in  the  definition  of  take  in  the  Act  means  an  act  which  actually  kills  or  injures  wildlife.   Such  act  may  include  significant  habitat  modification  or  degradation  where  it  actually  kills  or  injures  wildlife  by  significantly  impairing  essential  behavioral  patterns,  including  breeding,  feeding,  or  sheltering.”  50  C.F.R. 17.3.  1 

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2    A Review of California’s Draft Bay Delta Conservation Plan      FIGURE 1. The Sacramento‐San Joaquin Delta in California. San Francisco Bay, an integral  part  of  the system,  is  just  to  the west.   SOURCE:  Reprinted,  with  permission,  from  Lund  et al. (2010). Copyright by Public Policy Institute of California. 

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Summary    3  the draft BDCP, which was posted on the BDCP website: (http://www.re- sources.ca.gov/bdcp/) on November 18, 2010. 2 The panel determined that the draft BDCP is incomplete in a number of important areas and takes this oppor- tunity to identify key scientific and structural gaps that, if addressed, could lead to a more successful and comprehensive final BDCP. Yet science alone cannot solve the Delta’s problems. Water scarcity in California is very real, the situa- tion is legally and politically complex, and many stakeholders have differing interests. The effective management of scarcity requires not only the best science and technology, but also consideration of public and private values, usually through political processes, to arrive at plans of action that are scientifi- cally based but also incorporate and reflect the mix of differing personal and group values. CRITICAL GAPS IN THE SCOPE OF THE DRAFT BDCP At the outset of its review, the panel identified a problem with the geo- graphical and hydrologic scope of the draft BDCP. The BDCP aims to address management and restoration of the San Francisco Bay Delta Estuary, an estuary that extends from the Central Valley to the mouth of San Francisco Bay. Thus, given that the BDCP describes a bay delta conservation plan, the omission of analyses of the effects of the BDCP efforts on San Francisco Bay (aside from Suisun Bay) is notable. The Lack of an Effects Analysis The draft BDCP describes an effects analysis as: “the  principal  component  of  a  habitat  conservation  plan.  .  .  .  The  analysis  includes  the  effects  of  the  proposed  project  on  covered  species,  including  federally and state listed species, and other sensitive species potentially af‐ fected  by  the  proposed  project.   The  effects  analysis  is  a  systematic,  scien‐ tific  look  at  the  potential  impacts  of  a  proposed  project  on  those  species  and  how  those  species  would  benefit  from  conservation  actions.”  (draft  BDCP, p. 5‐2)     Clearly, such an effects analysis, which is in preparation, is intended to be the basis for the choice and details of those conservation actions. Its absence in the draft BDCP, therefore, is a critical gap in the science in the BDCP and the cor- responding conservation actions. Nevertheless, the panel takes this opportunity 2   BDCP  (Bay  Delta  Conservation  Plan  Steering  Committee).  2010.   Bay  Delta  Conservation  Plan  Working  Draft.  November  18.   Available  online  at:  http://www.resources.ca.gov/bdcp/.   Last  ac‐ cessed April 26, 2011.   

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4    A Review of California’s Draft Bay Delta Conservation Plan  to present its vision of a successful effects analysis, which includes an integrated description of the components of the system and how they relate to each other; a synthesis of the best available science; and a representation of the dynamic re- sponse of the system. The term “effects analysis” also applies to an analysis of what is causing the listed (and other ecologically important) species to decline. In such a case, the logical sequence would be to perform the effects analysis on the causes of the species’ declines, then design a proposed alternative to current operations to help reverse those declines, and then perform a second effects analysis on the probable effects of the proposed alternative. This aspect of an effects analysis is not mentioned in the current draft of the BDCP, and its absence brings the panel to a second critical gap in the scope of the draft BDCP, namely, a lack of clarity of the BDCP’s purpose. The Lack of Clarity as to the BDCP’s Purpose The legal framework underlying the BDCP is complex, as are the chal- lenges of assembling such a large habitat conservation plan. Nonetheless, the BDCP’s purpose or purposes need to be clearly stated, because their nature and interpretation are closely tied to the BDCP’s scientific elements. The lack of clarity makes it difficult for this panel and the public to properly understand, interpret, and review the science that underlies the BDCP. The central issue is to what extent the BDCP is only an application for a permit to incidentally take listed species, and to what extent it also is designed to achieve the two co-equal goals of providing for a more reliable water supply for the state of California and protecting, restoring, and enhancing the Delta ecosys- tem specified in recent California water legislation. To obtain an incidental take permit, it is logical to identify a proposed project or operation and design con- servation methods to minimize and mitigate its adverse effects. But if the BDCP were largely a broader conservation program, designed to protect the ecosystem and provide a reliable water supply, then a more logical sequence would be to choose alternative projects or operating regimes only after the effects analysis was complete. Under that scenario, choosing the alternative first would be like putting the cart before the horse, or post hoc rationalization; in other words, choosing a solution before evaluating alternatives to reach a preferred outcome. A related issue is the lack of consideration of alternatives to the preferred proposal (i.e., the isolated conveyance system). To the degree that the reasons for not considering alternatives have a scientific (as opposed to, for example, a financial) basis, their absence makes the BDCP’s purpose less clear, and the panel’s task more difficult.

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Summary    5  THE USE OF SCIENCE AND SYNTHESIS IN THE BDCP Many scientific efforts are and have been under way to understand and monitor hydrologic, geologic, and ecological interactions in the Delta, efforts that constitute the BDCP’s scientific foundation. But overall it is not clear how the BDCP’s authors synthesized the foundation material and systematically in- corporated it into the decision-making process that led to the plan’s conservation actions. For example, it is not clear how the Delta Regional Ecosystem Restora- tion Implementation Plan has been incorporated into the draft BDCP (see Ap- pendix F of the draft BDCP). It also is not clear whether and how the draft BDCP incorporated the analyses for the Delta Risk Management Strategy and the framework developed by the Interagency Ecological Program related to fac- tors affecting pelagic organism decline. Furthermore, some of the scientific efforts related to the BDCP were in- complete at the time of this review. For example, warming, sea level rise, and changes in precipitation patterns and amounts will play a central role in Delta water allocation and its effects. Although the draft BDCP does mention incorpo- ration of climate variability and change and model uncertainty, such information was not included in the draft BDCP that was provided. Several other conservation efforts have been undertaken in the Delta in re- sponse to consultations with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service concerning the potential for project operations (e.g., pumping) to jeopardize the listed species. The link between the BDCP and these other efforts is unclear. For example, the Delta Plan is a comprehensive conser- vation, restoration, and water-supply plan mandated in recent California legisla- tion. That legislation also provided for potential linkage between the BDCP and the Delta Plan, but the draft BDCP does not make clear how this new relation- ship will be operationalized. Much of the analysis of the factors affecting the decline of smelt and sal- monids in the Delta has focused on water operations there, in particular, the pumping of water at the south end of the Delta for export to other re- gions. However, a variety of other significant environmental factors (“other stressors”) have potentially large effects on the listed fishes. In addition, there remain considerable uncertainties surrounding the degree to which different as- pects of flow management in the Delta, especially management of the salinity gradient, affect the survival of the listed fishes. Indeed, the significance and appropriate criteria for future environmental flow optimization have yet to be established, and are uncertain at best. The panel supports the concept of a quan- titative evaluation of stressors, ideally using life-cycle models, as part of the BDCP. The lack of clarity concerning the volume of water to be diverted is a major shortcoming of the BDCP. In addition, the BDCP provides little or no informa- tion about the reliability of supply for such a diversion or the different reliabili- ties associated with diversions of different volumes. It is nearly impossible to evaluate the BDCP without a clear specification of the volume(s) of water to be

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6    A Review of California’s Draft Bay Delta Conservation Plan  diverted, whose negative impacts the BDCP is intended to mitigate. The draft BDCP is little more than a list of ecosystem restoration tactics and scientific efforts, with no clear over-arching strategy to tie them together or to implement them coherently to address mitigation of incidental take and achievement of the co-equal goals and ecosystem restoration. The relationships between scientific programs and efforts external to the BDCP and the BDCP itself are not clear. Furthermore scientific elements within the BDCP itself are not clearly related to each other. A systematic and comprehensive restoration plan needs a clearly stated strategic view of what each major scientific compo- nent of the plan is intended to accomplish and how this will be done. The sepa- rate scientific components should be linked, when relevant, and systematically incorporated into the BDCP. Also, a systematic and comprehensive plan should show how its (in this case, co-equal) goals are coordinated and integrated into a single resource plan and how this fits into and is coordinated with other conser- vation efforts in the Delta, for example, the broader Delta Plan. ADAPTIVE MANAGEMENT Numerous attempts have been made to develop and implement adaptive management strategies in environmental management, but many of them have not been successful, for a variety of reasons, including lack of resources; unwil- lingness of decision makers to admit to and embrace uncertainty; institutional, legal, and political preferences for known and predictable outcomes; the inhe- rent uncertainty and variability of natural systems; the high cost of implementa- tion; and the lack of clear mechanisms for incorporating scientific findings into decision making. Despite all of the above challenges, often there is no better option for implementing management regimes, and thus the panel concludes that the use of adaptive management is appropriate in the BDCP. However, the ap- plication of adaptive management to a large-scale problem like the one that ex- ists in California’s Bay-Delta will not be easy, quick, or inexpensive. The panel concludes that the BDCP needs to address these difficult problems and integrate conservation measures into the adaptive management strategy before there can be confidence in the adaptive management program. In addition, the above con- siderations emphasize the need for clear goals and integrated goals, which have not been provided by the draft BDCP. Although no adaptive management pro- gram can be fully described before it has begun, because such programs evolve as they are implemented, some aspects of the program could have been laid out more clearly than they have been. Adaptive management requires a monitoring program to be in place. The draft BDCP does describe its plan for a monitoring program in considerable detail. However, given the lack of clarity of the BDCP’s purpose and of any effects analysis, it is difficult to evaluate the motivation and purpose of the mon- itoring program. An effective monitoring program should be tied to the effects analysis, its purpose should be clear (e.g., to establish reference or baseline con-

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Summary    7  ditions, to detect trends, to serve as an early-warning system, to monitor man- agement regimes for effectiveness), and it should include a mechanism for link- ing the information gained to operational decision making and to the monitoring itself. Those elements are not clearly described in the draft BDCP. In 2009, the BDCP engaged a group of Independent Science Advisors to provide expertise on approaches to adaptive management. The panel concludes that the Independent Science Advisors provided a logical framework and guid- ance for the development and implementation of an appropriate adaptive man- agement program for the BDCP. However, the draft BDCP lacks details to demonstrate that the adaptive management program is properly designed and follows the guidelines provided by the Independent Science Advisors. The pan- el further concludes that the BDCP developers could benefit significantly from adaptive management experiences in other large-scale ecosystem restoration efforts, such as the Comprehensive Everglades Restoration Program. The panel recognizes that no models exactly fit the Delta situation, but this should not pre- vent planners from using the best of watershed-restoration plans to develop an understandable, coherent, and data-based program to meet California’s restora- tion and reliability goals. Even a soundly implemented adaptive management program is not a guarantee of achieving the BDCP’s goals, however, because many factors outside the purview of the adaptive-management program may hinder restoration. However, a well-designed and implemented adaptive man- agement program should make the BDCP’s success more likely. MANAGEMENT FRAGMENTATION AND A LACK OF COHERENCE The absence of scientific synthesis in the draft BDCP draws attention to the fragmented system of management under which the plan was prepared—a man- agement system that lacks coordination among entities and clear accountability. No one public agency, stakeholder group or individual has been made accounta- ble for the coherence, thoroughness, and effectiveness of the final product. Ra- ther, the plan appears to reflect the differing perspectives of federal, state, and local agencies, and the many stakeholder groups involved. Although this is not strictly a scientific issue, fragmented management is a significant impediment to the use and inclusion of coherent science in future iterations of the BDCP. Dif- ferent science bears on the missions of the various public agencies, and different stakeholders put differing degrees of emphasis on specific pieces of science. Unless the management structure is made more coherent and unified, the final product may continue to suffer from a lack of integration in an attempt to satisfy all discrete interests and not, as a result, the larger public interests.

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8    A Review of California’s Draft Bay Delta Conservation Plan  IN CONCLUSION The panel finds the draft BDCP to be incomplete or unclear in a variety of ways and places. The plan is missing the type of structure usually associated with current planning methods in which the goals and objectives are specified, alternative measures for achieving the objectives are introduced and analyzed, and a course of action is identified based on analytical optimization of econom- ic, social, and environmental factors. Yet the panel underscores the importance of a credible and a robust BDCP in addressing the various water management problems that beset the Delta. A stronger, more complete, and more scientifical- ly credible BDCP that effectively integrates and utilizes science could indeed pave the way toward the next generation of solutions to California’s chronic water problems.