CALIFORNIA DEPARTMENT OF WATER RESOURCES SAN JOAQUIN FIELD DIVISION HCP

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1 Prepared by: Chris Grunewald CALIFORNIA DEPARTMENT OF WATER RESOURCES SAN JOAQUIN FIELD DIVISION HCP Interviews: Dale Hoffman-Floerke, Chief, Environmental Compliance and Evaluation Branch, California Department of Water Resources (12/10/97) Peter Cross, San Joaquin Valley Branch Chief, Endangered Species Division, U.S. Fish & Wildlife Service (1/9/98 and 1/23/98) I. BACKGROUND: Running a significant length of the central portion of California is the California Aqueduct, one part of California s massive State Water Project. This project, with the aqueduct, provides the arteries that pump the fresh water consumed throughout Central and Southern California for agricultural, industrial, and urban uses. The California Department of Water Resources (DWR) is the state agency responsible for the operation and maintenance of the facilities of the State Water Project. The infrastructure of the California Aqueduct is complete and DWR s main activities with respect to the Aqueduct are routine operation and maintenance (O&M). In the course of operating the Aqueduct, DWR sells water to resellers or users. In Central California, the majority of Aqueduct water sales are for agricultural use either through sale to water contractors (including water districts) or directly to the farms themselves. In 1990, DWR began development of an HCP for the San Joaquin Valley portion of the Aqueduct that would cover existing O&M activities and any associated minor construction. In August 1991, DWR formed a Steering Committee composed of representatives from DWR, FWS, and CDFG. (Draft HCP, page 1-12). DWR has consistent contact with its customers and during the early 1990s DWR kept the major water contractors informed of this project. Sometime in 1993, DWR had a working draft HCP that it provided the agencies. That year, however, DWR withdrew the document and, soon after, altered the Steering Group s composition. In late 1994, DWR added representatives of water contractors in Kern and Kings counties to the Steering Group. (Draft HCP, page 1-12). Two major issues are at the heart of the negotiations over this HCP. The first issue is how to handle the easement holders along the Aqueduct. In acquiring the right-of-way (R/W) for the Aqueduct, the state cut across many parcels of property. In order to minimize impacts on the affected owners, the state granted these parties permanent legal rights known as easements. Along the relevant 121 miles of the Aqueduct, a number of parties hold easements. The exact nature of the easements vary but generally they provide access. DWR s position is that it cannot exercise any control over the easement holders and that the HCP and related permits should allow holders to sign on voluntarily. FWS, on the other hand, is not comfortable issuing the incidental take permits (ITPs) under the HCP without addressing the impacts that might A-California DWR-1

2 occur in the covered area from these easement holders. Negotiations on this issue are continuing but no substantial progress has been made yet. The second major issue is how to handle minor construction activities, specifically, turnouts. Currently, the Aqueduct has a number of existing turnouts, which are essentially gates allowing water to leave the aqueduct. Turnouts in the San Joaquin Valley are primarily to service agricultural water users. At times, DWR receives applications for turnouts as either replacements for existing ones (a change in location) or new water diversions. FWS s position is that construction of turnouts cannot be covered under this routine activity HCP because of the unquantifiable cumulative and interdependent impacts of increased water usage (i.e., the impacts of any change in land usage). DWR, however, does not want to act as a regulator of its customers. According to DWR, new turnouts do not always result in additional water usage or changes in land use and furthermore, the actions of the water users are beyond their ability to forecast or control. Negotiations on this issues is at a complete standstill. Participants: The participants involved in negotiating this HCP include the Department of Water Resources (DWR), the U.S. Fish & Wildlife Service (FWS), the California Department of Fish & Game (CDFG), and water contractor representatives. Status: Negotiations over the proposed HCP are currently stalled with no target date for HCP completion. As such, no implementation agreement nor incidental take permit are predicted for issuance in the near future. Location and Size: The HCP covers approximately 11,814 acres or 121 miles of the California Aqueduct and its right-of-way (R/W) in Kings and Kern counties, located in central California. The HCP area is the R/W along the California Aqueduct and the Coastal Branch Phase I and the areas owned or used by DWR at each of the pumping plants. (Draft HCP, page 1-1). Causes/Catalysts: According to DWR, 30 years of aqueduct operations and maintenance activities have not been a problem for the many threatened, endangered, and sensitive species that exist in the region with the aqueduct. The main purpose of this HCP is to provide some certainty for these current and continuous activities. As such, the HCP will satisfy the requirements of both the federal and California Endangered Species Acts. The HCP is not intended to serve as a master planning document for new development activities adjacent or related to aqueduct operations. Species Involved: DWR intends the HCP to cover multiple species but a list is not currently available as these terms are under negotiation. Duration: The duration is currently under negotiation. According to DWR, the proposed term of the HCP and related permits would be 30 years. Major Elements of the Plan: DWR proposes that this HCP cover routine operation and maintenance of DWR facilities, construction of minor new facilities, nuisance abatement, and A-California DWR-2

3 emergency response within the HCP area. (Draft HCP, page 1-5). More specifically, DWR proposes this HCP cover, among other things: embankment maintenance, road maintenance, drainage and drainage structure maintenance, fence installation and repair, building and grounds maintenance, and pest control. (Draft HCP, page i to ii). Monitoring and Adaptive Management Provisions: These terms are currently under negotiation. Initial proposals for the HCP include reports annually, every three years, and every six years. II. DESCRIPTION OF THE PUBLIC PARTICIPATION PROCESS: The process being used to develop the DWR HCP began as a strictly applicant-agencies model. From 1990 to late 1994, HCP development followed the model characterized by the applicant and the FWS and State wildlife agency negotiating behind closed doors. In late 1994, the process for HCP development changed when DWR invited some of the stakeholders from Kern and Kings counties to the closed-door negotiations. The current process is characterized by negotiations between the applicant, the agencies, and a limited number of stakeholders. The draft HCP and related documents are not available to the public yet, nor are there explicit plans for independent scientific review of the data or the HCP. At present, no NEPA actions (scoping or drafting of environmental decision documents) have occurred. Through interviews, one place was identified where some type of public participation has occurred to date in the development of the DWR HCP: the inclusion of representatives of agricultural water users in the HCP steering committee (now called the Oversight Committee ). III. DISCUSSION: Oversight Committee Meetings: When DWR first investigated the possibility of an HCP for the California Aqueduct, they entered into negotiations with FWS and CDFG on their own. Although DWR and the agencies achieved agreement on many issues and DWR drafted language for an HCP, DWR s main customers, the agricultural water contractors voiced criticism of the process and the products. As a result, DWR included representatives from this element of the public in subsequent negotiations over the HCP. No other stakeholders have been approached to participate in the closed-door negotiations with the agencies. To Peter Cross from FWS, DWR has given an extremely strong hand to one of the interest groups. This expanded committee is composed of representatives chosen by the Water Contractors, representatives of the agencies, and DWR personnel acting as facilitators. Meetings take place all around the proposed HCP area, not solely in Sacramento where both FWS and DWR have offices. The group does not have formal decision-making authority, rather the purpose appears to be two-party negotiation between FWS and the Water Contractors. According to Peter Cross, of FWS, decision-making has been by concession; FWS basically has just made concessions to some of what has been proposed by the Contractors. A-California DWR-3

4 According to Dale Hoffman-Floerke of DWR, the Water Contractors motivation for involvement is Because they re paying the bill, they re concerned about what they may be required to do as a result of the HCP, what they might have to give up. Since the inclusion of the Water Contractors, DWR has taken the role of disinterested third party. (Hoffman-Floerke). In the opinion of FWS, the DWR is sitting on the sidelines and deferring to the wishes of the water users. (Cross). Because of the large number of related land use concerns by the Water Contractors, hidden agendas have plagued the negotiations. (Cross and Hoffman-Floerke). Committee meetings have been confrontational (Cross) and the level of animosity between FWS and the Contractors remains high. (Hoffman-Floerke). Effects of Public Participation: The most obvious effect of including the Water Contractors has been to force re-negotiation of the preliminary HCP language. From the perspective of DWR and FWS, this has added a two years to HCP development and placed the negotiations at impasse. Inclusion of the Water Contractors has specifically affected the HCP s scope by raising the issue of new turnout construction. This is strictly an activity and does not directly increase the acreage covered by the HCP. According to FWS, however, including turnouts will increase the potential impacts to covered species and habitat from the land uses associated with the new water diversions. In the opinion of DWR and FWS, the controversy for the Water Contractors greatly increased when those stakeholders got involved. However, for the general public, this HCP has not been a concern and the inclusion of the Water Contractors has neither raised awareness nor generated any controversy. (Hoffman-Floerke and Cross). Satisfaction with Process/Product/Participation: Regarding satisfaction with the process of developing the HCP, FWS was unsatisfied (one out of five) while DWR was neutral (three out of five). Both DWR and FWS were neutral on whether the level of public participation was satisfactory (three out of five). Dale Hoffman-Floerke from DWR indicated some indecision on how much outside participation is desirable noting, I hate to think that opening it up to the public would have put us through more grief than we ve already been through. Peter Cross from FWS pointed out that, The FWS doesn t think that it s proper to dictate who an applicant should or shouldn t invite to attend. IV. CONCLUSION AND LESSONS: This case study provides a good example of the risk involved for a public agency using a NEPA-only public participation model. The opposition of a key constituency for the applicant agency can torpedo HCP development and force re-negotiation of all major terms, potentially negating the gains of many years and much effort. This case study also illustrates the difficulties of structuring public involvement in closed-door negotiations on HCP development. These problems include hidden agendas, high controversy, and lack of trust between participants. A-California DWR-4

5 The DWR HCP experience allows us to draw some lessons about these two models of minimum public involvement and suggest some recommended actions for applicants, agency staff, and interest group representatives in future HCP efforts of this type. 1) Inclusion of affected stakeholders (besides the applicant and the agencies) early during HCP development can prevent wasted time and effort. The exclusion of the Water Contractors, the stakeholder group affected the most, made the draft HCP unacceptable. Facing opposition from their largest constituency, the DWR had no alternative but to allow the Contractors access to the HCP development process. Exclusion of other affected stakeholders (industrial and urban water users, conservation groups) may prevent this HCP from making further progress. 2) Providing a clear, explicit purpose for public participation as well as defined roles for participants might defuse controversy. From the perspective of FWS, the Contractors appear to be making the decisions for DWR in negotiations. This has contributed to the FWS frustration with the process and difficulties in communication. Clear definition of both the roles for participants and purpose for the planning process (advisory vs. decision-making) can help focus effort on the real interests and issues. 3) Identifying and defining the issues covered by the planning process is crucial to making progress in highly controversial situations. The scope of the proposed DWR HCP has changed from omitting turnout construction to including turnout construction. This has raised the question of indirect impacts from related land use. As things stand currently, the FWS and the Water Contractors remain polarized over the issue of turnouts. Notably, both DWR and FWS raised the concern the Water Contractors having hidden agendas about land use. Unless all parties true interests and motivations are identified, negotiations on this point will not be able to cover additional ground. Furthermore, lack of communication of interests has fueled distrust between FWS and the Water Contractors. A-California DWR-5