On July 9, 2015, the California Department of Water Resources released the Bay Delta Conservation Plan/California WaterFix Partially Recirculated Draft Environmental Impact Report/Supplemental Draft Environmental Impact Statement for public review. The public comment period is July 10, 2015 through August 31, 2015. The BDCP’s new documents include a new sub-alternative-Alternative 4A (California WaterFix) – as the proposed project. Alternative 4A separates the conveyance facility and habitat restoration measures into two separate efforts: California WaterFix and California EcoRestore. Those significant changes were the result of the project’s abandonment of the goal to secure 50-year environmental permits from federal agencies. 

The new “WaterFix” part includes “water conveyance facilities (three new intakes along the Sacramento River and dual-bore tunnels to convey water to the existing state and federal pumping facilities).”  The location and design of the intakes were changed in the latest version to minimize the disruption and dislocation of Delta residents, and to reduce the environmental footprint of the project. Local farming groups and agencies in the Delta are concerned about the further degradation and salinity of the Delta waters caused by the project. Also, the reality that the federal environmental permits will be far less than 50 years in length is giving the water agency proponents great pause is deciding whether or not the revise project is financially viable, despite already spending about $235 million to get the proposal this far. 

The new “EcoRestore” portion of the project consists of a 5-year plan to purportedly “pursue more than 30,000 acres of critical Delta restoration under the EcoRestore program, and pursuant to pre-existing regulatory requirements and various enhancements to improve the overall health of the Delta.” However, 25,000 acres of that 30,000 number were already committed to by state and federal officials in agreements entered into in 2008 and 2009. Thus, the Natural Resources Agency confirmed on July 13 that the new BDCP project will actually commit to only 15,600 acres for habitat restoration to offset any environmental harm from construction of the tunnels. That is only one-sixth of the original 100,000 acres of habitat restoration that was promised in the original BDCP proposal. Thus, Sacramento County Supervisor Don Nottoli opines that the revised project “really doesn’t fix anything.” 

Meanwhile, Dean Cortopassi, a Stockton-area farmer and food processor, is seeking to place on the November 2016 ballot an initiative that would force large public works projects requiring revenue bonds costing more than $2 billion to go before the voters for approval. That initiative could impact the current BDCP project, depending upon how the project is financed. If that initiative passes and the current BDCP project is subject to voter approval, a former official of the Brown Administration opines that the project would be “very much in danger of failing,” and that project proponents therefore need to modify the project to avoid a public vote.

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Glen C. Hansen is Senior Counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.