Central Delta Water Agency (C2015-A4) Supplemental ...

Central Delta Water Agency (C2015-A4) Supplemental Submission Part 2

Lookout Slough Consistency Appeal (Cert. ID: C20215)

May 7, 2021

Introduction

Central Delta Water Agency (“CDWA”) appealed the Department of Water Resources’ (“DWR”) Certification of Consistency for the Lookout Slough Tidal Habitat Restoration and Flood Improvement Project (“Project” or “Lookout Slough”) on March 21, 2021. This Supplemental Submission responds to the Delta Stewardship Council’s (“DSC” or “Council”) April 19 and April 28, 2021 Supplements to the Notice of Public Hearing (“DSC Supplements”) and provides additional information and analysis in support of CDWA’s appeal. (See DSC Admin. Proc. Governing Appeals, Part 1, ¶ 11.)

This is Part 2 of CDWA’s supplemental submission. Part 1 was submitted on May 3, 2021.

Procedural Matters

Evidentiary Submission

CDWA has submitted the following materials in support of its appeal:

Submitted With March 21, 2021 Appeal

EIP/DWR Powerpoint: Lookout Slough Tidal Habitat Restoration and Flood Improvement Project, Informational Meeting, Salinity & Bromide, October 8, 2020

CDWA Letter to Governor Newsom re: Improper allocation of Proposition 1 Bond Funds, February 11, 2021 (with attachments A-K) A: The California Water Resources Development Bond Act Year/Election 1960 General B: Official Voter Information Guide, November 4, 2014 C: The California Natural Resources Bond Accountability Web Site - Proposition 1 Allocation Balance Report D: Delta Levee and Habitat Advisory Committee, September 4, 2020 E: Delta Levee and Habitat Advisory Committee, October 8, 2020 F: Lookout Slough Levee Setback project description and other references from Resources Agency Bond Accountability website G: Flood Hazard Mitigation Plan for the Sacramento-San Joaquin Delta dated September 15, 1983 H: DWR Map re: Potential Earthquake in the Western Delta I: Delta Emergency Response Plan, Supplement C, selected pages, October 2018

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CDWA Lookout Slough Consistency Appeal (Cert. ID: C2015-A4) Supplemental Submission Part 2

J: Metropolitan Water District, presentation on Freshwater Pathway for SWP, January 26, 2021

K: Technical Memorandum, Delta Risk Management Strategy Phase 1, Impact to Infrastructure, June 15, 2007

UC Soil Salinity Mgmt Fact Sheet, 2020 and SD Leaching Fractions Study Summary

South Delta Leaching Fractions Study Summary

Insights into the Problems, Progress, and Potential Solutions for Sacramento River Basin Native Anadromous Fish Restoration April 2011 Answer Justification: by David Vogel

Submitted With May 3, 2021 Supplemental Submission (Part 1)

Delta Plan Executive Summary excerpt, January 2019

EIP Habitat Restoration Concept Map

DWR Q & A re: Modernizing Delta Conveyance, May 2019

Submitted With May 7, 2021 Supplemental Submission (Part 2)

SWRCB Executive Director Letter to DWR and Reclamation, April 30, 2021

SWRCB Watermaster Letter to DWR, August 27, 2020

July 2018 Framework for the Sacramento/Delta Update to the Bay-Delta Plan

Water Code section 85225.10, subdivision (b), permits the Council to solicit additional evidence from appellants to supplement the agency’s submitted record. In addition, judicial notice allows the introduction of information that is so well known, or from such an authoritative source, that it cannot reasonably be doubted. Under Evidence Code sections 451–453, courts may take judicial notice of various official public documents. Specifically, judicial notice may be taken of official acts of legislative, executive, and judicial departments of both the Federal and State Government. (Evid. Code, § 452, subd. (c).) As an adjudicatory body, the Council may apply the rules of judicial notice and include information sources from government agencies. In addition, under Water Code section 85225.10, the Council may include information it deems relevant to a consistency appeal. The documents offered herewith are relevant to the CDWA Appeal, and offer uncontroverted information. CDWA offered several exhibits that constitute

Supplemental Submission of 15

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official government acts, including communications and contracts between government agencies. Some of these documents involve DWR directly, as a party to the contract or recipient of communications.

The submitted documents drafted by state or federal agencies are appropriate for official notice by the Council. (See In re M.W. (2018) 26 Cal.App.5th 921 [judicial notice taken of agency forms].) The other documents, including the CDWA letter to the Governor and the Vogel article are public documents that have been submitted to public agencies as part of the review of the Lookout Slough project or other projects in the Delta.

Therefore, CDWA requests that the Council should admit these documents pursuant to its broad statutory authority under Water Code section 85225.10, and other applicable authority.

Responses to Council Questions Regarding CDWA Appeal

D. Inconsistency with Policy G P1(b)(3) (Cal. Code Regs., tit. 23, § 5002, subd. (b)(3)): Best Available Science

a. Please cite to specific evidence in the record supporting your statement that the Department “mischaracterized its modeling efforts as predictive, when it is not” (CDWA Appeal, p. 3) and explain why the modeling is not predictive.

DWR claims its modeling for water quality is predictive. (See, e.g., 21.10.8 LOS Agency Info Mtg PPT WQ Only, pp. 7-8, 19 [submitted with CDWA Consistency Appeal]; see also DEIR [LOS.4.00001], Appendix F.) According to the powerpoint presentation prepared by DWR and EIP, “the model replicates 67-80% of observed EC variance at some locations.” (21.10.8 LOS Agency Info Mtg PPT WQ Only, p. 6 [bold added]; see also FEIR, Appendix X, p. 15.) Replicating variance at “some locations” is not a mark of accuracy and indicates that the model is not in fact predictive. Thus, the project proponents’ own documents admit that the water quality modeling is not predictive. Final EIR Appendix X provides many examples of how the predictive ability of the RMA model is very poor in various locations, particularly in the fall.

Maintenance of water quality in fall months is very important to Delta agricultural irrigators. In addition, irrigation does not occur over a two week average. Water applied to crops reaches crop roots at the time of water application and can have deleterious effects on agricultural productivity. In general, Delta farmers do not have the ability to store and mix diverted water over a two-week period, thus making compliance with the D-1641 standard ineffective in protecting beneficial agricultural uses of water and preventing unwanted soil salinity buildup. This problem is explained in comments


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submitted by Local Agencies of the North Delta and RD 501 on the Draft EIR. (FEIR, pdf p. 281.) The FEIR did not address the inadequacy of D-1641 with respect to maintenance of beneficial agricultural uses, including changes to water quality outside of the period regulated by D-1641. (FEIR Master Responses 1 [pp. 3-2 to 3- 13] and 5 [pp. 3-17 to 3-18].) In any case, the RMA model cannot predict compliance with EC salinity averages required by D-1641 because the predictive ability of the RMA model is very poor. For instance, at D-22 Sacramento River at Emmaton for 2009 and 2010, there are many periods of time when observed EC much higher than modeled.

(FEIR [LOS.3.00001], Appendix X, p. 173; see also pp. 174; pp. 191-192 (2016 [same].)

The RMA model also underestimates EC during several time periods in 2009 and 2010 at Antioch (ANC).



(FEIR, Appendix X, p. 18.) RMA model also underestimates EC in the Fall for Jersey Point (JER) in 2016. (FEIR, Appendix X, p. 190.) Figures in Appendix X show that for Rio Vista (RIV) and Emmaton (EMM), the model also underestimates EC as compared to observed EC. (FEIR, Appendix X, pp. 172-173.)

If the actual salinities are much higher than simulated or predicted by the water quality model, then the water quality impacts are likely to also be much greater than simulated and the model lacks the predictive ability claimed.

The RMA model also does not attempt to model a critically dry year (FEIR, p. 3-8) or to address the prospect of D-1641 exceedances or issuances of Temporary Urgency Change Petitions. Just as one example, the SWRCB recently sent a letter regarding the “[f]ailure to achieve salinity requirements in the southern Delta that are the collective responsibility of DWR and Reclamation that have persisted since February 11 that threaten to continue throughout the summer.” (See SWRCB Executive Director Letter to DWR and Reclamation, April 30, 2021.) DWR’s approach to modeling of the project provides no



information regarding the effects of the project, along with cumulative restoration, during critically dry years or when D-1641 is violated or excused.

As a result of these and other inadequacies, the water quality modeling is not predictive in any sense. Furthermore, as described below, this failure is contrary to the Best Available Science (“BAS”) of the Delta Plan applicable to covered actions.

b. Please cite to specific evidence in the record supporting your assertion that the Department “ignored” (CDWA Appeal, p. 3) the Project’s impacts on agricultural productivity. Please explain which best available science criteria are implicated. (See Cal. Code Regs., tit. 23, § 5001(f) and Appendix 1A for best available science criteria.)

“Chapter five of the Delta Plan outlines recommendations and policies for Delta agriculture, stating that the continued viability of agriculture in the Delta would require the protection of sufficient farmland and fresh water to support commercially viable operations and provide ways for agriculture to coexist with habitat restoration.” (FEIR, p. IV.B-7.)

Delta Plan Policy G P1, subsection (b)(3), (23 CCR section 5002(b)(3)) requires that covered actions must document use of BAS as relevant to the purpose and nature of the project. BAS is defined in Appendix 1A of the Delta Plan (https://deltacouncil.ca.gov/pdf/delta- plan/2015-appendix-1a.pdf) as the best scientific information and data for informing management and policy decisions. Six criteria are used to define BAS: relevance, inclusiveness, objectivity, transparency and openness, timeliness, and peer review. (23 CCR, § 5001, subd. (f).)

The BAS policy generally requires that the lead agency clearly document and communicate the process for analyzing project alternatives, impacts, and mitigation measures of proposed projects, in order to foster improved understanding and decision making.

The Relevance criterion states that scientific information used should be germane to the Delta ecosystem and/or biological and physical components (and/or process) affected by the proposed decisions.

The Inclusiveness criterion requires that scientific information used shall incorporate a thorough review of relevant information and analyses across relevant disciplines.


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The Objectivity criterion requires that data collection and analyses considered shall meet the standards of the scientific method and be void of nonscientific influences and considerations.

The Transparency and Openness criterion states that the sources and methods used for analyzing the science (including scientific and engineering models) used shall be clearly identified.

Timeliness means that (1) data collection shall occur in a manner sufficient for adequate analyses before a management decision is needed, and (2) scientific information used shall be applicable to current situations.

The Peer Review criterion explains that the quality of the science used will be measured by the extent and quality of the review process. Independent external scientific review of the science is most important because it ensures scientific objectivity and validity. The following criteria represent a desirable peer review process.

DWR’s Final EIR responses to comments on the potentially significant impacts of the project on agricultural productivity states that:

Several comments expressed concerns that increases in irrigation water salinity can build up in Delta soils, damage crops, and impair agricultural productivity. As discussed above, the potential for salinity changes in the Delta channels, from which surface water is diverted for agriculture, has been analyzed for the Proposed Project conditions, and the modeling indicates no change in compliance with D-1641 EC standards. In addition to the salinity of the diverted water, salinity build-up in soils is also a function of water management (e.g., timing of diversions during low tides) and soil characteristics of a particular site, which is not related to the Proposed Project.

(FEIR, p. 3-10.)

Evidence submitted by CDWA in support of its consistency appeal shows that soil salinity can have a negative impact on agricultural production, and can be difficult to impossible to manage in areas with a low permeability soils or high groundwater, such as many parts of the Delta. (See UC Soil Salinity Mgmt Fact Sheet, 2020 and SD Leaching Fractions Study Summary.) Additional information explaining these potential effects on agriculture were also submitted in Draft EIR comments. (See FEIR, pdf p. 281 [referring to Dr. Leinfelder-Miles Testimony re: same on FEIR, pdf pp. 294-303].) The limitations



on use of leaching to address salinity, make maintenance of good water quality for beneficial agricultural uses in the Delta essential.

The Draft EIR response to comment refers to timing of diversions and soil characteristics as being related to the issue of whether increases in salinity levels in irrigation water from the project could decrease agricultural productivity. This response ignores Relevance and Inclusivity criteria of BAS. The Draft EIR and Final EIR reveal that the project would lead to increases in salinity at various locations in the Delta according to the RMA model. In order to determine whether these increases could affect agricultural productivity, DWR would have needed to undertake additional analysis to determine whether the increases in salinity from the project, along with cumulative restoration, would reduce agricultural productivity. Farmers cannot be expected to cease diversions when the project would increase salinity, nor can farmers in the Delta control salinity through leaching.

DWR failed to use BAS when it ignored cumulative and long-term effects of reduced flows through the Delta and corresponding increases in salinity in the Central and South Delta, among other locations.

Though the Draft EIR mentions BAS requirements on page IV.D-46, neither the Draft EIR nor the Final EIR for the project describe any sort of peer review. The Draft EIR merely asserts listed fish literature was peer reviewed. (DEIR, p. IV.D-78.) Thus, DWR also fails to meet the peer review criterion for BAS.

c. The CDWA Appeal states that the Department’s “assumption that compliance with D-1641 EC standards would mean there will be no impacts on Delta agriculture did not use best available science” (CDWA Appeal, p. 3). Please cite to specific evidence in the record supporting your statement. Please explain which best available science criteria are implicated. (See Cal. Code Regs., tit. 23, § 5001(f) and Appendix 1A for best available science criteria.)

The State Water Resources Control Board has adopted water quality standards for agricultural water uses in the Delta that apply April to the June, July or August months, depending on the water year type. (FEIR, Appendix X, p. 98 [pdf p. 787].) Irrigation for agriculture in the Delta, however, also occurs during time periods for which there is not a D-1641 may not apply.

Whereas D-641 is in place April through June, July or August, irrigation and pre-irrigation occurs in other months. The FEIR for the project explains that irrigation in the Delta can take place year-round. (See FEIR, p. IV.D-18 [referring to “year-round, rotating flood irrigation” on the project site].) In addition to irrigation for seasonal crops (approximately April through October) (FEIR, pdf. p. 297), Delta farmers also may



irrigate in winter months to prepare the soil for the growing season. Thus, higher levels of salinity in water can negatively affect Delta agriculture during months when D-1641 does not apply.

FEIR Appendix X, shows that the maximum observed EC at Emmaton in the Fall of 2016 is well over the modeled result. Though this time period is not covered by D-1641, this is a time period when Delta water may be diverted and applied to crops.

(FEIR, Appendix X, p. 103.)

DWR’s failure to consider these deleterious effects is contrary to the Inclusiveness criterion of BAS, which requires that scientific information used incorporate a thorough review of relevant information and analyses across relevant disciplines. Despite CDWA and other members of the public providing detailed technical comments on the limitations of D-1641 to protect agriculture in the Delta, the Final EIR and the consistency determination fail to use BAS to address the potential for increases in salinity from the project. This failure also implicates the Transparency and Openness criterion, where sources and methods used for analyzing the science, must be clearly identified. DWR provides no explanation of its failure to consider factors other than D-1641 in its



assessment of impacts on agriculture in the Delta from increases in salinity from the project.

DWR also failed to consider relevant information regarding the tenuous relationship between salinity in waterways and effects on crops. As explained by Dr. Leinfelder-Miles, “The salinity of water in surface waterways is not an accurate representation of what the crop takes up. Additionally, monthly averages of salinity in surface waterways do not accurately represent what the crop takes up. Monthly averages of surface waterway salinity should not be used as a substitute for the seasonal average applied water salinity to a field.” (FEIR, pdf pp. 297-298.) Yet DWR’s Final EIR and consistency determination dismisses concerns regarding increased salinity in irrigation water and increases in soil salinity.

DWR has failed to substantiate its contention with evidence in the record that compliance with D-1641 EC standards would prevent adverse impacts on Delta agriculture. This is especially concerning since the SWRCB recently relaxed the South Delta salinity standard, making D-1641 less protective of agricultural uses occurring in that area. (See https://www.waterboards.ca.gov/plans_policies/docs/2018wqcp.pdf; see also Delta Watermaster letter dated August 27, 2020 [noting exceedances of standard].) Failure to address these issues is inconsistent with BAS criteria of Inclusivity and Relevance. DWR should have reviewed and incorporated materials regarding the negative effects on Delta agriculture of increased salinity in water used for irrigation, as well as the inability to manage such increases in salinity where high water table levels preclude salt management with leaching.

DWR’s failure to address these issues constitutes a failure to apply BAS, as required by the Delta Plan.

d. Please cite to specific evidence in the record supporting your assertion that the Department “failed to use best available science” regarding “cumulative and long-term effects of reduced flows through the Delta and corresponding increases in salinity in the Central and South Delta” (CDWA Appeal, p. 3). Please explain which best available science criteria are implicated. (See Cal. Code Regs., tit. 23, § 5001(f) and Appendix 1A for best available science criteria.)

Cumulative restoration projects included in the RMA model did not include Little Egbert Tract (shown in green below), which is a cumulative restoration project proposed to be located just downstream of the Lookout Slough project. (FEIR, Appendix X, pp. 22-23.) The failure to consider this cumulative project further undermines the ability of the RMA model to provide useful information about the water quality implications of the Lookout


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Slough project. This implicates the failure to include all Relevant information in the analysis. DWR’s approach is also contrary to the Inclusiveness criterion, which requires that scientific information used incorporate a thorough review of relevant information and analyses across relevant disciplines.



e. Please cite to specific evidence in the record supporting your assertion that the studies that the Department relied upon fail to meet the Peer Review best available science criterion (CDWA Appeal, p. 4).

According to the Draft and Final EIRs, DWR’s analysis of the project’s water quality impacts was not peer reviewed, and therefore fails to meet BAS as defined by the Council.

H. Inconsistency with Policy ER P1 (Cal. Code Regs., tit. 23, § 5005): Delta Flow Objectives

a. Please cite to specific evidence in the record supporting your statement that “This project would significantly affect flow in the Delta” (CDWA Appeal Letter, p. 4).

The Powerpoint presentation prepared by DWR shows less Sacramento River water mixing in the Central Delta as a result of the project. (21.10.8 LOS Agency Info Mtg PPT WQ only, p. 19.) This is also described in FEIR, Appendix X, p. 33: “Restoring Lookout Slough increases tidal exchange between the CSC and the Sacramento River, thereby drawing lower salinity water from the Sacramento into most of the complex.”



b. Please cite to specific evidence in the record supporting your statement that “The project will increase the loss of freshwater through evaporation from the water surfaces, wetland vegetation and conversion of range land to irrigated agriculture” (CDWA Appeal, p. 4).

Evaporation is discussed in public comments on the Draft EIR and supporting technical materials. (See, e.g., DEIR, pdf. pp. 224, 282, 315-328, 330-346.) With no plan to control weeds such as hyacinth, and increased open water, the project will lead to loss of fresh water via evaporation.

c. Please cite to specific evidence in the record supporting your statement that the Project will “result in more flow going into and through the Yolo bypass rather than down the Sacramento River and into the interior of the Delta through the Cross Chanel and Georgiana Slough” (CDWA Appeal, p. 4).

See Response H.a above. The statement should have been that more water would flow through the sloughs in the northern Delta to the west, rather than travelling down the Sacramento River, the Delta Cross Channel and Georgiana Slough to freshen the Central Delta.

d. Please cite to specific evidence in the record supporting your statement that “Modeling prepared for the project is incomplete and does not demonstrate compliance with SWRCB flow objectives” (CDWA Appeal, p. 5).

In 2018, the SWRCB staff stated that “The need for flows that protect uses within the tributaries, as well as Delta outflow needs, were considered in determining the proposed 55% unimpaired flow starting point for the inflow objective.” (See sac_delta_framework_070618, p. 15.) The Final EIR does not, but should, discuss the project’s compliance or consistency with forthcoming unimpaired flow requirements into or through the Delta.

K. Policy DP P2 (Cal. Code Regs., tit. 23, § 5011): Respect Local Land Use When Siting Water or Flood Facilities or Restoration Habitats

a. Please cite to specific evidence in the record supporting your assertion that siting of the Lookout Slough Project would degrade water quality for existing uses (CDWA Appeal, p. 6).

Final EIR, Appendix X shows water quality degradation expected to occur as a result of the project. The 2009 Delta Reform Act sets as state policy that Bay-Delta projects must



contribute to improving, not degrading, water quality in the Delta. (Cal. Water Code, § 85020, subd. (e).)

b. Please cite to specific evidence in the record supporting your assertion that the Project is inconsistent with Solano County’s Climate Action Plan for Energy and Efficiency (CDWA Appeal, p. 6) and clarify how consistency is relevant to avoiding or reducing conflicts with existing uses and is within the scope of DP P2.

CDWA did not cite the Solano County’s Climate Action Plan for Energy and Efficiency.

c. Please cite to specific evidence in the record to clarify how the use of Proposition 1 funding is relevant to avoiding or reducing conflicts with existing uses and is within the scope of DP P2 (CDWA Appeal, p. 6).

Existing land uses in the Delta require adequate flood protection for which limited funds have historically been available. Use of Proposition 1 funding for levee work that is primarily intended to comply with Biological Opinion requirements for the CVP and SWP fails to respect local land uses. Misallocation of such funds makes it less likely that adequate funds will be available to protect existing land uses in the Delta, as required by DP P2. (See CDWA Letter to Governor and Exhibits, dated February 11, 2021.)

Conclusion

The Delta Stewardship Council was established by the 2009 Delta Reform Act, in which the Legislature described the Delta as “a critically important natural resource for California and the nation” that “serves Californians concurrently as both the hub of the California water system and the most valuable estuary and wetland ecosystem on the west coast of North and South America.” (Wat. Code, § 85002.) For these reasons, the Delta Reform Act was clear that reliance on the Delta to meet future water supply needs must be reduced. (Wat. Code, § 85021.) Similarly, the 2009 Delta Reform Act sets as state policy that Bay-Delta projects must contribute to improving, not degrading, water quality in the Delta. (Wat. Code, § 85020, subd. (e).)

This Council’s legal obligation to render a decision that is free of pre-decisional bias and which is the product of a careful well-informed evaluation of DWR’s Consistency Determination in light of all the evidence from all quarters arises from the 2009 Act itself and other provisions of California law.



For all the reasons stated herein, in the CDWA’s other submissions, and in the submissions of other Appellants, the Council should conclude and rule that DWR’s consistency determination is fatally flawed and must be rejected.

Respectfully submitted,

SOLURI MESERVE A Law Corporation

By: Osha R. Meserve Attorney for Central Delta Water Agency


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