1

Draft Revised (b)(2) Decision – Comments and Reponses

May 9, 2003

Comment Response

State Agencies

1. Mary D. Nichols, Secretary for Resources

1a. Some proposed changes are clearly not required by the March 2002 U.S. 

District Court ruling. Eliminate those elements not required by the court 

ruling – e.g., Shortage Criteria.

Interior considered eliminating those elements not required by 

the March 2002 court ruling, such as the shortage criteria, and 

implementing the previous shortage criteria. However, Interior 

has decided to proceed with several changes based on experience 

gained in implementing the CVPIA. The shortage criteria in the 

Revised Decision is within the Secretary’s discretion as provided 

by the CVPIA. Interior decided to leave the shortage criteria as 

it is in the draft Revised Decision.

1b. The October 1999 policy is part of the regulatory baseline in the CALFED 

ROD – the new policy would have an effect on: (1) California’s ability to 

protect threatened and endangered species; (2) providing reliable urban and 

agriculture water supplies putting contractors’ water supply reliability at risk; 

and (3) place a greater burden on EWA.

Provide additional tools to address the shortfall in the regulatory baseline –

e.g., re-operation.

Interior recognizes that the October 1999 Decision on (b)(2) 

implementation was included in the regulatory baseline 

described in the CALFED ROD. However, it is unclear that the 

Revised Decision will necessarily affect the State’s ability to 

protect species, provide water supply reliability and place a 

greater burden on EWA. Interior is committed to working with 

its State and federal partners through the CALFED process to 

ensure that the Revised Decision does not adversely impact the 

CALFED Program goals. In an effort to provide additional time 

to coordinate the EWA and other CALFED ROD activities with 

the Revised Decision on (b)(2), Interior has decided to finalize 

the Decision at this time but to postpone implementation of the 

Decision until the 2004 water year

Interior has included provisions to allow for modifications of 

CVP operations, or re-operation, as provided for in CVPIA 

Section 3406(b)(1).
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Draft Revised (b)(2) Decision – Comments and Reponses

May 9, 2003

Comment Response

1c. Project and Management agencies would be hard pressed to maintain 

regulatory commitments for operation of the SWP and CVP.

Project and Management Agencies will need to continue careful 

management of those assets described in the 3 Tiers of the 

CALFED ROD. The agencies are being assisted in that effort 

with increased monitoring data provided by various programs 

and by information presented through the CALFED Science 

Program. Interior is committed to working with the other 

CALFED Agencies to maintain the regulatory commitments 

provided for in the CALFED ROD.

1d. California was not consulted during the development of the new policy. It 

is critical for the Federal government to work closely with California to 

address this change in the regulatory baseline.

The State members of the Water Operations Management Team 

(WOMT) were provided copies of the Draft decision prior to its 

release on December 18, 2002. However, in order to provide 

additional time to coordinate the Revised Decision with other 

ongoing water operations activities, Interior has decided to 

postpone implementation of the Decision until the 2004 water 

year.

Interior will work with the State of California, the CALFED 

Agencies and WOMT to ensure that the Revised Decision is 

coordinated with the CALFED process and the changes in the 

regulatory baseline are addressed as quickly as possible.

1e. Interior should work with State of California and stakeholders to address 

the change in the regulatory baseline to prevent a return to pre-Bay Delta 

Accord conflict.

As noted above, Interior is committed to working with both the 

State of California and stakeholders through the CALFED 

process and other operational forums.

2. Thomas M. Hannigan, Director, Department of Water Resources, and Robert C. Hight, Director, Department of Fish and Game

2a. Revisions of the interpretation will affect the State’s ability to balance its 

water supply and resource protection needs.

 See 1b. above.

2b. Revisions affect both the existing assumptions regarding the level of water 

available for environmentally protective actions and the concomitant 

regulatory commitments that are based upon the ability to take those actions.

See 1c. above. Interior supports implementing environmentally 

protective actions as provided in the CVPIA and the CALFED 

ROD.

2c. Section II. – Language is unclear whether (b)(2) water could be required 

to meet Vernalis standards. 

Suggestion: articulate accounting for use of (b)(2) water to meet flow 

standards and to meet salinity standards, and how accounting differs for each.

The Vernalis salinity standards were required prior to CVPIA by 

the SWRCB in D-1422. Therefore, it is included in the base case 

and not accounted for as a (b)(2) fish action. Interior’s 

preliminary analysis indicates the salinity standards required by 
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Draft Revised (b)(2) Decision – Comments and Reponses

May 9, 2003

Comment Response

the WQCP (D-1641) are generally consistent with D-1422.

The Vernalis flow standard required by the WQCP (D-1641) is a 

fish and wildlife objective established after CVPIA. 

Consequently, any additional CVP releases to meet this objective 

are accounted for as a (b)(2) fish action.

2d. Section II.A. – Supports an October – Sept accounting period and supports 

the 200k acre-feet target for use in the October – January period.

Interior agrees and selected the October-September accounting 

period because it is consistent with the life cycle of most of the

salmon and steelhead that spawn in Central Valley rivers, 

contributes to meeting the Anadromous Fish Restoration 

Program (AFRP) doubling goals, and promotes the efficient use 

of the 800,000 AF for the primary purpose of implementing the 

fish, wildlife, and habitat restoration purposes authorized by the 

CVPIA.

Interior believes that using up to 200,000 acre feet of (b)(2) 

water during the October – January period is a reasonable way to 

deal with unknown WQCP costs in the spring and summer, while 

still reserving flexibility to augment fishery needs in the fall and 

early winter.

2e. Section II.B. – Suggested text edits (italic addition and strikeout).

Footnote 4: “....As set forth in water rights draft decision 1641,At this time

the CVP and State Water Project are responsible for meeting the flow related 

objectives contained in the 1995 Delta WQCP.” 

 Last sentence following Footnote 4 annotation, suggest including the 

following: “Similarly, Interior will account for the costs of meeting the CVP’s 

ESA obligations after enactment of CVPIA against the annual (b)(2)

allocation remaining at the time cost is incurred.”

Interior has modified this sentence to read “The CVP and the 

State Water Project are responsible for meeting the flow related 

objectives in the1995 Delta WQCP.”

Interior has modified sentence consistent with comment.

2f. Section II.B.1.b. – Interior’s draft decision to pursue an incremental 

increase in Delta outflow for fishery purposes should be supported by the best 

available science.

Interior agrees and will work with the CALFED agencies on 

determining when upstream releases should flow through the 

Delta. Interior will also coordinate with the CALFED Science 

Program on the best available science and communicate 

information to the stakeholders.

2g. Section II.B.1.b. – With regard to Interior not specifying that a release is Interior recognizes that releases not needed for Delta outflow 
4

Draft Revised (b)(2) Decision – Comments and Reponses

May 9, 2003

Comment Response

needed for Delta outflow. Note that such a release may also be available for 

export by the SWP and/or the EWA as set forth in the 1986 COA for the SWP 

and CVP and the 08/28/00 EWA Operating Principles Agreement.

may be subject to other operational arrangements, such as the 

COA or the EWA Operating Principles Agreement. The Revised 

Decision has been modified to reflect the COA and EWA 

Operating Principles.

2h. Section II.B.2. – The explanation for the accounting methodology is 

confusing, the point of reference for measuring export increases or reductions 

is unclear.

Suggestion: “Action designated to affect conditions in the Delta that entail 

increased releases from upstream reservoirs and that do not reduce exports

will be accounted using the upstream metric. Other fish and wildlife actions 

upstream that do cause exports to be reduced will be accounted using this the

export metric.”

The Revised Decision has been modified to consistent with the 

comment.

2i. Section II.C. – Encourage Interior to use the (b)(2) Interagency Team as a 

forum for development of streamlined accounting methods. It is critical that 

the accounting of (b)(2) uses be rigorous and transparent and that efforts at 

streamlining the process do not result in it becoming obscure and inaccessible.

Interior agrees and will continue to work with the (b)(2) 

Interagency Team and the CALFED agencies on streamlined 

accounting methods that are rigorous, transparent, and 

accountable. Interior will continue to maintain a web site that 

summarizes (b)(2) operations to date, as well as the current 

month’s CVP forecast of operations.

2j. Section III. – Make it clear that CVPIA 3406(b)(1) can be used for fishery 

habitat improvements beyond just flow augmentations and that CVP reservoirs 

can be used to temporarily regulate or store water if the regulated or stored 

water is for fish and wildlife purposes. Per the CALFED ROD and EWA 

Operating Principles, EWA can store water in CVP facilities provided it does 

not adversely affect CVP operations and no additional costs are incurred. 

Suggestion: “Interior may modify CVP operations in accordance with CVPIA 

Section 3406(b)(1) to provide additional flows, improve river temperatures, 

regulation or storage of flows or export curtailments for fish and wildlife 

purposes.”

Develop a more comprehensive list of operations changes that could be 

implemented under Section 3406(b)(1).

Revisions to reflect CVPIA 3406 (b)(1) have been incorporated 

in the Revised Decision. Protocols will be developed to address 

use of project facilities for storage or conveyance of non-project 

water.

Interior will work with the CALFED agencies to develop a better 

understanding of potential modifications to operations and 

provide examples to stakeholders. Because most modifications 

will involve unique operational and environmental conditions, 

Interior will not list such modifications in the Revised Decision.

2k. Section IV.A. – Does not distinguish between reservoirs upstream of the Interior intends that these types of issues would be addressed 
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Draft Revised (b)(2) Decision – Comments and Reponses

May 9, 2003

Comment Response

Delta vs. reservoirs downstream of Delta export facilities (e.g., San Luis 

Reservoir). Water banking at each type of reservoir should be discussed.

through a Banking Policy that will be developed with the input 

of the State, CALFED agencies, and other interested parties.

2l. Section V. – Requires clarification; the baseline would be represented by 

the simulated CVP operations.

Recommend: “These costs will be accounted as the increase in releases and 

decrease in exports, compared to releases and exports that would have resulted 

from simulated CVP operations during the same period compared to the 

baseline.

Also, make it clear that Interior will account for water costs up to the balance 

of (b)(2) water remaining at the time the costs are incurred.

Comments noted. Revisions have been incorporated in the 

Revised Decision. . . “from simulated CVP baseline operations 

during the same period.”

Interior will account for (b)(2) costs at the time the costs are 

incurred, up to the annual limit of 800,000 acre-feet.

2m. Section V. – The Shortage Criteria was not challenged in Federal court. 

The modification will increase the number of years where less than 800,000 af 

of (b)(2) is available, thus constraining the fish benefits that can be provided in 

years when they are likely to be needed most. The criterion is not clear as to 

when the shortage will be established. If shortages are determined with the 

proposed method early in the year, unnecessary pressure may be put upon 

fishery agencies to curtail the fish protection actions they might otherwise take 

during the October-Dec period.

Recommend: Any formal shortage to (b)(2) be established on the same 

schedule as CVP North-of-Delta agricultural contractors and provide all 

agencies/parties involved in CVP/SWP operations with information for 

assessing the risk of taking various actions throughout the year, a range of 

exceedance hydrologies to be used to develop operation plans.

See 1a. above

The Revised Decision has been clarified to indicate 

that formal shortages to (b)(2) will be established on the same 

schedule as CVP north of Delta agricultural contractors, 

beginning in February. The 200,000 acre-feet will be available 

for use in the October through January period as needed to 

implement fish protection actions. In addition, Interior will 

communicate information regarding operation plans, shortages 

and risks of taking actions with CALFED agencies’ staff and 

stakeholders. 

3. Richard A. Denton, OFF Designated Chair, CALFED Operations and Fish Forum

3a. Minutes of OFF Stakeholder discussions. Comments noted.

Federal Agencies

4. Karen Schwinn, Associate Director, Water Management Division, USEPA

4a. Both the NEPA evaluation for the CALFED PEIS and the programmatic 

BO were developed with the explicit assumption that CVPIA implementation, 

including (b)(2), would proceed as outlined in the August 2000 ROD, in 

addition, ESA commitments for water supply reliability were explicitly 

Interior agrees that implementation of (b)(2) as outlined in the 

August, 2000 ROD was an assumption in the Programmatic 

BOs, and that implementation of (b)(2) as described in the ROD 

was part of the regulatory baseline in Tier1. See 4c. below 
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Draft Revised (b)(2) Decision – Comments and Reponses

May 9, 2003

Comment Response

conditions on a particular interpretation of 3406(b)(2). addressing the CALFED PEIS/EIR.

Regarding ESA commitments, the EWA agencies reassess ESA 

commitments on an annual basis. The ability to issue ESA 

commitments is not a guarantee, nor is it directly related to the 

amount of (b)(2) assets available. It is dependent on hydrology, 

the monitoring and distribution of listed species, and the 

availability of a broad set of tools and/or resources in that 

particular year. 

4b. What is the current status of the Aug 2000 BO? Interior believes that the August 2000 BOs, along with the 

operational opinions on which the August 2000 Programmatic 

BOs are based, are still valid.

4c. Does the change in the baseline require any supplemental environmental 

analysis?

The CALFED PEIS/EIR modeled (b)(2) as the use of 800,000 af 

dedicated for environmental purposes between two bookends. 

Interior believes the Revised Decision is within those bookends 

that were modeled and analyzed in the CALFED PEIS/EIR and 

therefore no supplemental analysis is required. 

4d. Give that the baseline would change, what is the status of the ESA 

Commitments that were integral to the CALFED ROD? Is there a proposal for 

making up the environmental water being redirected?

The commitments are in place for this year as they were for 2001 

and 2002. The EWA and project flexibility may be used to 

accomplish fish actions that may have otherwise been considered 

(b)(2) actions under the 1999 Decision. Use of EWA in this 

manner must be by mutual consent of all the EWA agencies.

See 1d. above.

4e. To the extent that the BA would be revised, what is the scientific basis of 

the revised biological analyses? Any revised BA used to justify revisions 

needs to be publicly reviewed in the forum of the CALFED Bay Delta 

Program’s Science Program.

As noted above, Interior is not planning on revising the 

Programmatic BA. Reclamation and DWR are developing a 

revised BA for the Operations Criteria and Plan (OCAP). The 

CALFED Agencies, in coordination with the CALFED Science 

Program are planning a Science Symposium in June, 2003 to 

discuss issues associated with the OCAP consultation.

4f. Interior appears to be revising the definition of baseline, independent of 

any court mandate, which would result in (b)(2) water being “shorted” about 

1/3 of the time, instead of the current policy’s 1/10 of the time with a shortage 

that can range up to 200,000 af in critically dry years and 100k af in dry years.

See 1a. above. Interior does not agree that the change in the 

shortage criteria will result in shortages in one-third of the years, 

as EPA suggests. Even though dry or critically dry years occur 

approximately one in three years, North of Delta water service 
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Draft Revised (b)(2) Decision – Comments and Reponses

May 9, 2003

Comment Response

contractors are not shorted in every dry or critically dry year. 

However, Interior recognizes that this shortage criteria is 

changed from shortage criteria in the October, 1999 Decision, 

which was included in the CALFED ROD as part of the 

regulatory baseline.

4g. The effect of making a baseline change appears to be to reduce the amount 

of (b)(2) water available for active water management resulting in other water 

sources, primarily the EWA (which relies on taxpayer-financed State and 

Federal expenditures), to make up the difference. Concern that Interior has not 

completely evaluated the potential strains on water management that will 

reduce the availability of (b)(2) water and increase reliance on EWA.

See 1b., 1d. above.

4h. In the past Interior has worked closely with other State and Federal 

agencies, concerned that Interior’s draft decision to develop such a major 

proposal on it’s own, without other State and Federal agency partners, is a step 

backwards.

See 1b., 1d. above.

4i. Regarding Service’s ability to conclude the need for upstream (b)(2) 

releases.

Carefully consider information being developed through the CALFED Science 

Program about the reliance of salmon migrations on Delta flow conditions. 

Science suggests that the “default” assumption is that salmon do need the 

flows through the Delta. Revise the policy to require that upstream releases be 

maintained as flows through the Delta unless the Service makes a written 

finding, based on a BA, that such flows are unnecessary.

Interior will carefully consider information being developed 

through the CALFED Science Program. However, Interior 

disagrees that the Revised Decision needs to be modified. The 

Revised Decision provides Interior the ability to designate that 

an upstream (b)(2) release be allowed to flow out the Delta, 

when fisheries conditions warrant extra outflow. Consistent with 

the EWA Operating Principles, the Revised Decision also 

provides the flexibility to export (b)(2) water in the Delta and 

make part of it available as an EWA asset in San Luis Reservoir. 

See 2f., 2g. above.

5. James D. Keselburg, Regional Manager, WAPA

5a. The draft decision is outside of the range of alternatives that were 

evaluated by the CVPIA PEIS, as a result, Western is not able to evaluate 

potential impacts on CVP power.

Interior disagrees. The CVPIA PEIS evaluated the power 

impacts of (b)(2) implementation over a range of alternatives. 

The Revised Decision does not change the annual amount of 

(b)(2) water or the fundamental way in which it is used. The 

Revised Decision modifies the accounting methodology and 

revises the shortage criteria. However, the power impacts of 

(b)(2) implementation remain within the range of alternatives 
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Draft Revised (b)(2) Decision – Comments and Reponses

May 9, 2003

Comment Response

described in the CVPIA PEIS.

5b. Section II.A. – The accounting period should be March through February. Interior disagrees. The October-September accounting period 

was selected because it is consistent with the life cycle of most 

of the salmon and steelhead that spawn in Central Valley rivers, 

contributes to meeting the Anadromous Fish Restoration 

Program (AFRP) doubling goals, and promotes the efficient use 

of the 800,000 AF for the primary purpose of implementing the 

fish, wildlife, and habitat restoration purposes authorized by the 

CVPIA.

See 2d. above.

5c. Section II.B. – Clarify if Interior will be accounting for and making 

projections of WQCP costs separately to ensure that no discretionary (b)(2) 

actions will cause the use of (b)(2) to exceed annual allocation.

Interior will be accounting and making projections for WQCP, 

ESA, and other uses of (b)(2) water in an effort to effectively use 

the available annual (b)(2) assets while planning to not exceed 

the quantity available. Interior will continue to make projections 

of WQCP costs in the in the monthly forecast process. However, 

Interior will not account for WQCP costs separate from overall 

(b)(2) accounting costs.

5d. Section II.B.1.a. – If costs are determined by daily increases in releases, 

then why is the term “accumulated over the period” used? Unless the 

increases in daily releases are accounted for at the individual facilities, this 

would allow for “offset” which would be inconsistent with Wanger’s order.

The term “accumulated over the period” is simply meant to 

insure that upstream releases are properly accounted for within a 

given water year. Under the District Court ruling, “offset” is no 

longer allowed, and the text in this section is not intended to 

infer that “offset” accounting will take place.

5e. Section II.B.1.b. – Transfer of banked water would be coordinated to 

ensure the greatest instream benefit. It is not clear under which “applicable 

provisions of Section IV” accounting for this water would occur.

The applicable provisions would be determined by the nature of 

the action. Interior plans to develop a policy for banking and 

transfer/exchanges that will provide clarification of the 

provisions. 

5f. Section B.2.a. – The sentence “Fish and Wildlife actions upstream that do 

cause exports to be reduced will be accounted for under this metric.” seems to 

conflict with the discussion in Section II.B.1.b. which states that “Upstream 

releases specified to flow through the Delta would be accounted for solely 

under this provision, and not as Delta Actions.” What sorts of fish and 

wildlife actions upstream would result in a reduction of exports?

The text is intended to account for (b)(2) actions and assign 

(b)(2) costs appropriately. One example of an upstream fish 

action that could cause an export reduction would be as follows: 

Interior reduces releases from an upstream reservoir in order to 

preserve cold water for use later in the year for fish protection. 

In the event that CVP exports are reduced due to the upstream 
9

Draft Revised (b)(2) Decision – Comments and Reponses

May 9, 2003

Comment Response

reduction, then (b)(2) would be debited in the export metric.

Increase upstream releases specified to flow through the Delta 

that do not cause export reductions relative to the CVP baseline 

operation will be accounted for using the upstream metric. See 

2h. above.

5g. Section II.C. – How does Interior plan to meet monthly and annual 

accounting deadlines? On what day of the month is Service’s schedule due to 

Reclamation?

Initial daily accounting will be developed by the 15th day of 

every month showing the current account balance for that 

accounting year as of the end of the previous month. A final 

accounting of the amount of (b)(2) water used for actions during 

the October-January period will be completed by March 25 of 

each year. Final accounting for all (b)(2) actions during the 

February-September period will be calculated by November 15.

Reclamation and the Service will work on monthly operations 

forecasts with the goal of having the forecasts completed by midmonth. The Service will participate in review of daily 

accounting prepared by Reclamation staff and make decisions 

for use of (b)(2) water. Based on the current and projected (b)(2) 

accounting and the most current monthly forecast, the Service 

will update the fishery actions for inclusion in the next monthly 

forecast. The forecasts will be updated monthly.

5h. Section II.C. – The (b)(2) accounting process should outline the 

mechanisms for ensuring that reclassification of actions between (b)(2) and 

EWA does not occur. Concern that reclassification of (b)(2) actions as (b)(1) 

actions could occur after the fact as has been the case with (b)(2) and EWA 

actions.

Interior will continue to utilize and account for (b)(2) assets 

separately from EWA assets as well as changes in the CVP due 

to (b)(1) reoperations. Interior will utilize reoperation when 

conditions meet those described in Section III and both the 

Service and Reclamation agree. To the extent possible, the 

classification of these actions will occur prior to the action taking 

place. 

Interior believes that the separation between (b)(2) and EWA 

will continue to improve at CVP facilities. Interior anticipates 

that EWA actions will be identified in advance and accounted for 

successfully in 2003 and beyond. See 2i. above.

5i. Section III. – CVPIA defines the term Central Valley Project to mean 

Federal reclamation projects. Thus, balancing of Shasta and Folsom to meet 

Reoperation between facilities is a standard CVP practice, which 

allows the Project to maximize the use of CVP water to meet 
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Draft Revised (b)(2) Decision – Comments and Reponses

May 9, 2003

Comment Response

Delta water quality requirements would be considered a “re-operation” since 

Spring Creek and Keswick are bypassed. This “bypass” would “conflict with 

fulfillment of the Secretary’s contractual obligations to provide CVP water for 

other authorized purposes.”

regulatory requirements. Under the Revised Decision, Interior 

will extend the use of reoperation to activities which benefit the 

environment, consistent with CVPIA, where and when such 

reoperations do not conflict with the fulfillment of the 

Secretary’s remaining contractual obligations to provide CVP 

water for other authorized purposes. 

5j. Section III. – Shifting exports from Tracy to Banks would not be a “reoperation” since Banks is not a Federal reclamation project. The shift from 

project use energy from Tracy to Banks is also a shift in the timing of the use 

of the energy, resulting in a major impact to CVP hydropower production.

The COA recognizes the use of Banks Pumping Plant by the 

CVP as does D-1641. Interior agrees that shifts in timing of 

exports can have major impacts to CVP hydropower production 

and will have to consider that factor in determining whether it is 

appropriate to modify CVP operations.

5k. Section III. –Unanticipated impacts should be mitigated. This decision 

should directly state Interior’s policy regarding reclassification. 

Reclassification of (b)(2) actions as (b)(1) after the fact might cause redirected 

impacts to project beneficiaries.

See 5h., 5i. above.

5l. Section IV. – Hydropower production is one of CVP’s authorized 

purposes. Making banking, transfer, and/or exchanges of (b)(2) water possible 

without impacting normal project obligations will be very challenging. 

Western looks forward to participation in upcoming discussion for defining 

banking, transfer, and/or exchange of (b)(2) water.

Interior will welcome participation by Western in developing a 

banking policy. See 2k. above. Interior agrees that hydropower 

production is one of the CVP’s many authorized purposes, which 

include river regulation, improvement of navigation, and flood 

control; irrigation, domestic uses and fish and wildlife 

mitigation, protection and restoration purposes; and power and 

fish and wildlife enhancement.

5m. Section V. – The last sentence implies that (b)(2) water use could exceed 

800,000 af in a given year. Reasonable projection of WQCP costs is needed to 

ensure that discretionary (b)(2) actions are not taken when there isn’t sufficient 

(b)(2) water to meet the WQCP.

See 5c. above. The Revised Decision implements the 

Congressional directive to dedicate and manage annually the 

800,000 acre feet. Interior will be using operations plans in an 

effort to meet WQCP obligations and post-October 1992 ESA 

requirements with available (b)(2) water. Model studies have 

indicated that in a few years in the historical record, those 

obligations and requirements may exceed the amount of (b)(2) 

water available. 

5n. Section VI. – Since allocation to water contractors is March 1 through 

February 28, does this mean that despite hydrologic conditions, (b)(2) 

allocation will be uncut from October through February? When will Interior 

Interior may use up to 200,000 acre-feet of (b)(2) water in the 

October through January period. How much will actually be 

used is dependent on fishery needs, but hydrologic and reservoir 
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Draft Revised (b)(2) Decision – Comments and Reponses

May 9, 2003

Comment Response

make its determination of shortage to (b)(2) allocation? storage conditions will be considered.

Interior will use the February 40-30-30 Index and the north of 

Delta CVP agricultural water service contractor allocation based 

on the 90% exceedance forecast for the initial determination of 

whether (b)(2) shortage provisions will apply in that water year. 

If subsequent indices in March, April, or May indicate wetter 

conditions, Interior will relax (b)(2) shortages accordingly. See 

2m. above.

Water Contractors

6. Jon D. Rubin, Attorneys for San Luis & Delta-Mendota Water Authority

6a. Recognize and incorporate into the final decision principles that allow for 

implementation of section 3406(b)(2) in a balanced manner, while recognizing 

the 800,000 af limitation and the flexibility inherent in the authorized (b)(2) 

uses.

See 6h.-6j., below.

.

6b. Change the accounting period for (b)(2) water and/or eliminate the 

200,000 af up front dedication.

See 2d., 5b. above, 8g. below. 

6c. Eliminate the water banking and transfer/exchange program or revise the 

existing description to make clear how Interior intends to use the program to 

fulfill the purposes of the CVPIA.

As stated in the Revised Decision, Interior intends to develop a 

banking policy at some point in the future. That policy will 

provide clarity on banking and transfer/exchanges. See 2k. 

above.

6d. Revise the description of section 3406(b)(1) to explain in detail how 

Interior intends to respect the limitation in 3406(b)(1), which precludes any 

action that will conflict in any way with fulfillment of the Secretary’s 

remaining obligations to CVP contractors.

Interior will implement any modifications of CVP operations (reoperation) consistent with Section 3406 (b)(1) to ensure that they 

do not conflict with fulfillment of the Secretary’s remaining 

contractual obligations to provide CVP water for other 

authorized purposes. As re-operation is implemented it will be 

coordinated with CALFED agencies and communicated with the 

stakeholders.

6e. Include a limitation on the actions taken in Delta and commit to using 

other resources, including EWA, to minimize adverse impacts to south of 

Delta contractors.

Interior has incorporated the 640,000 acre foot limitation on 

actions in the Delta that was included in the October 5, 1999 

Decision in the Revised Decision. See section II. In the 

CALFED ROD, Interior and the other CALFED Agencies 

committed to implementing actions, including EWA and Joint 
12

Draft Revised (b)(2) Decision – Comments and Reponses

May 9, 2003

Comment Response

Point of Diversion, as well as other water augmentation tools, 

which are intended to increase deliveries to CVP agricultural 

contractors south of the Delta.

6f. Employ a shortage criterion based on allocations to south of Delta 

contractors and impose shortages for (b)(2) uses when allocations to south of 

Delta contractors fall below 70%.

Interior considered changing the shortage criteria based on 

allocations to south of Delta contractors. Because the allocations 

to north of Delta CVP agricultural water service contractors are 

more clearly determined by hydrologic circumstances, Interior 

decided to leave the shortage criteria as it is in the Draft Revised 

Decision.

See 1a.,2m. above.

6g. Ensure that any fish protection and habitat restoration action is supported 

by the best available scientific data.

The rationale and scientific basis for improved flows and export 

reductions are found in a variety of sources (including AFRP 

documents, published literature, CDFG reports, and other 

restoration programs) and are generally based on results of 

instream flow and temperature studies conducted by the Service, 

CDFG, or others, as well as relationships between flow and adult 

returns, correlation analyses, and other life history information. 

As new information becomes available, Interior will incorporate 

it into decisions for (b)(2) actions.

6h. Need for Balanced Approach – The final decision must implement section 

3406(b)(2) in a manner that equitably allocates adverse impact among all CVP 

contractors and reflect the commitments made in the Accord, which prohibits 

any action taken for fish or wildlife that was not contemplated unless the 

Service makes a finding that the action is supported by the best available 

scientific data. The draft decision is not consistent with the commitments 

made by Interior as part of the CALFED Bay-Delta Program.

Interior believes that the implementation of (b)(2) as described in 

the Revised Decision meets the goals of Congress set forth in 

CVPIA, including achieving a reasonable balance among 

competing demands for use of CVP water, including the 

requirements of fish and wildlife, agricultural, municipal and 

industrial, and power contractors. (CVPIA section 3402(f)). 

Interior disagrees that the Revised Decision is inconsistent with 

the Accord or the commitments made by Interior as part of the 

CALFED ROD.

6i. Need to Recognize 800,000 af Limitation – The final should expressly 

provide that the CVPIA limits Interior to the annual dedication and 

management of up to 800,000 af of CVP water for (b)(2) uses, and thus 

Interior will not implement (b)(2) in a manner that could cause it to exceed 

that limitation.

The Revised Decision implements the Congressional directive to 

dedicate and manage annually the 800,000 acre feet. See 5m. 

above.
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6j. Need to Recognize Inherent Flexibility of Authorized (b)(2) Uses – The 

final should recognize that, although section 3406(b)(2) water is to be used for 

water quality control plan and post-1992 ESA requirements, water dedicated 

and managed for those uses also promotes fish, wildlife and habitat 

restoration; other authorized uses for (b)(2) water.

Interior recognizes that water used to meet the WQCP and post1992 ESA requirements may also benefit fish, wildlife and 

habitat restoration goals. However, only meeting the WQCP and 

post-1992 ESA requirements may not be sufficient to meet the 

anadromous fish doubling goal and other restoration purposes 

and measures included in CVPIA.

6k. The October to September accounting period diminishes CVP operational 

flexibility and creates a likelihood that Interior will exceed its 800,000 af limit 

in some years. This creates a substantial risk that Interior will give more than 

800,000 af for purposes that must be counted toward yield dedication and 

managed under section 3406(b)(2), without any real benefit to fish restoration.

Interior disagrees. See 2d., 5b., 5m. above, 8g. below.

6l. During October through January Interior cannot accurately forecast CVP 

demand at which time operations are not reasonably certain because the 

factors needed to forecast operations cannot be adequately determined.

Interior recognizes the uncertainty of hydrology while 

recognizing the importance of fishery actions in this period. The 

200,000 acre-foot target for use in this period provides for these 

needs while ensuring that sufficient (b)(2) water is maintained 

throughout the accounting period.

6m. By commencing the accounting period in October and taking (b)(2) 

actions during the October through January period, as opposed to a period 

when operational forecasts could be made with less risk, Interior must make 

conservative assumptions about precipitation during the coming season.

Interior believes that the accounting period, in combination with 

the 200 TAF target for (b)(2) usage during the October – January 

period, is a reasonable way to deal with unknown hydrology. 

See 2d., 5b., 5n. above, 8g. below. 

6n. The constraint on operations that will likely be realized if (b)(2) is 

implemented with the October through September accounting period is 

particularly egregious since the only benefit of the chosen accounting period 

and early dedication could be realized even if a later accounting period were 

used.

The benefit of the chosen accounting period and early dedication 

cannot be realized in all years if a later accounting period is used. 

See 2d., 5b., 5n. above, 8g. below.

6o. The draft violates the underlying principle of improving operational 

flexibility of the CVP. 

Propose that March 1 to February 28 period be used.

Interior disagrees. See 2d. above.

6p. The October to Sept accounting period, when coupled with an up-front 

use of 200k of (b)(2) water will impair, not improve, operation flexibility of 

the CVP.

Interior disagrees. See 2d., 5b. above, 8g. below.

6q. DWR analysis suggests that in about 25% of the years, Interior will, if it The Revised Decision does allow for 200,000 af of (b)(2) water 
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Comment Response

dedicates 200,000 af of (b)(2) water in the October through January period, 

dedicated more then 800,000 af of water pursuant to (b)(2). The problem 

arises because the draft decision requires the 200,000 af to be dedicated during 

October through January, and if after January more than 600,000 af is needed 

to meet the requirements of the 1995 WQCP or post-92 ESA requirements, 

then Interior will have exceeded the statutory limit. This is unlawful.

to be dedicated and managed in the October through January 

period; however, the actual amount used in that period will 

depended on fishery needs and hydrologic and reservoir storage 

conditions. Interior does recognize that in some years the 1995 

WQCP and post-1992 ESA requirements, when added to the 

water used in October through January period, can exceed a total 

of 800,000 af. In some years the 1995 WQCP and post-1992 

ESA requirements can exceed 800,000 af. Modeling indicates 

that these circumstances often occur in years that show high 

costs for meeting X2 days required by the WQCP. As stated in 

the Revised Decision, Interior will account for the total amount 

of CVP water costs against the annual (b)(2) allocation, up to the 

balance of (b)(2) water remaining at that time. Interior does not 

believe that meeting its obligations is unlawful.

6r. The program for water banking and transfer/exchange is not adequately 

addressed. This section should be deleted and developed on a schedule 

separate for the draft decision.

See 2k., 6c. above. Section IV was not intended to be 

comprehensive. As the Revised Decision indicates, Interior will 

be developing a banking policy at a later time. Interior believes 

that the principles outlined in Section IV are important and will 

remain in the Revised Decision.

6s. If this section is to be included, the final must make the principles of water 

banking and transfer/exchange program more definitive and eliminate the 

existing ambiguity. An overriding principle should be that no banking or 

transfer/exchange will occur if the action could adversely impact other CVP 

water purposes.

See 6r. above. Section VI. C. states “The transfer, exchange, and 

/or banking cannot interfere with the storage, diversion, or 

delivery of water for other purposes of the CVP.”

6t. The draft decision does not adequately explain how implementation of 

(b)(2) will be coordinated with (b)(1) actions.

See 5h., 5i. above.

6u. Explain how determinations will be made to modify CVP operations to 

provide additional flows or exports curtailments for fish and wildlife purposes 

in accordance with (b)(1).

Processes are in place, including regular meetings and 

conference calls of groups such as the DAT, B2IT, EWAT, and 

CALFED Ops Group, that provide for Reclamation and Service 

staff to coordinate water and power operations requirements with 

fishery needs. Reclamation staff will compare projected daily 

operations to potential alternatives that may better meet the 

fishery needs. If, for example, there is no identified net increase 
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Draft Revised (b)(2) Decision – Comments and Reponses

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Comment Response

in CVP reservoir releases or net reduction in exports by 

implementing an alternative that achieves the fish needs, 

Reclamation staff could modify the operation and communicate 

that decision through these processes. If the modification 

appears to cause impacts to the fulfillment of the Secretary’s 

remaining contractual obligations to provide CVP water for other 

authorized purposes, it will not be implemented without use of 

assets such as (b)(2) water or the EWA.

6v. Suggest Interior (1) report and describe quantitatively the proposed (b)(1) 

action prior to re-operating the CVP an (2) identify and quantify in its end of 

the year accounting summary of CVP operations all (b)(1) actions.

Interior does not intend to implement a separate annual 

accounting process for (b)(1) actions. However, Interior staff 

will document modifications of operations on a periodic basis 

and communicate that information to stakeholders. See 6u. 

above.

6w. The analysis used to determine that the proposed re-operation does not 

conflict with fulfillment of the Secretary’s remaining contractual obligations to 

provide CVP water for other authorized purposes must be completed prior to 

re-operating the CVP.

Interior will make the determination that there are no anticipated 

impacts to the fulfillment of the Secretary’s remaining 

contractual obligations to provide CVP water for other 

authorized purposes prior to implementing a proposed reoperation.

6x. The final should include protections to avoid undue or unnecessary impact 

to other CVP purposes – include assurance that Interior will use other 

resources, like EWA, to mitigate for adverse impacts to the water supply of 

south of Delta contractors.

Interior and the other CALFED Agencies made the commitment 

in the CALFED ROD to implement water management actions, 

such as EWA, which are intended to alleviate some of the 

impacts to the water supplies of CVP agricultural contractors 

South of the Delta. Interior does not believe that commitment 

needs to be reiterated in this Revised Decision.

6y. To accomplish a more equitable balance among competing uses, the 

shortage provision should be revised. Nowhere in the CVPIA is the 

Secretary’s discretion limited to impose shortages to circumstances when 

agricultural water service contractors north of the Delta suffer reduced 

allocations.

See 1a., 2m., 4f., 5n., 6f. above.

Interior agrees that the Secretary’s discretion was not limited to 

circumstances when agricultural water service contractors north

of the Delta suffer reduced allocations. However, the Secretary’s 

discretion is limited to reducing the amount of (b)(2) water 

available based on hydrologic circumstances. Shortages to 

agricultural water service contractors north of the Delta are more 

affected by hydrology whereas agricultural water service 

contractors south of the Delta are more affected by export, 
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Draft Revised (b)(2) Decision – Comments and Reponses

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Comment Response

conveyance, and San Luis Reservoir storage constraints.

6z. The shortage criterion should reflect a reduction in the amount of water 

dedicated to (b)(2) uses whenever agricultural deliveries of CVP water are 

reduced due to hydrologic circumstances equal to the percentage realized by 

CVP contractors, but not more than 25%.

See 2m., 6y. above.

6aa. Propose that the final decision include a shortage provision that assumes 

reductions are imposed upon ag deliveries of CVP water due to hydrologic 

circumstances when south of Delta ag deliveries fall below 70% of their 

contract entitlement.

See 1a., 6.f., 6.y. above.

6bb. The proposed fish protection and habitat restoration actions are 

unsupported by the record. There exists inadequate scientific data to support 

the measures described in Attachment 2.

Interior disagrees with this characterization. See 6g. above.

7. James Snow, Deputy General Manager – Water Policy, Westlands Water District

7a. The draft decision continues to allow Interior to implement section 

3406(b)(2) in a manner that is uncertain, is unnecessarily conservative, and 

inequitably impacts south-of-Delta CVP contractors.

Interior disagrees. See 6h. above.

7b. Refer to San Luis & Delta Mendota Water Authority’s comments. See 6a.-bb. above.

8. Richard A. Denton, Water Resources Manager, Contra Costa Water District

8a. Forecast and account for water quality effects and environmental benefits 

of (b)(2) actions.

Interior recognizes a need for annual accounting and 

accountability of (b)(2) actions. The monitoring of fish and 

wildlife and habitat conditions to assess biological results and 

effectiveness of the use of (b)(2) water will be the primary focus 

although the data may also be used to assess water quality 

effects. 

8b. Suggestion: Interior forecast each year how (b)(2) water will be used, the 

environmental benefit, and water quality effects. At the end of each 

accounting year Interior review (b)(2) actions, accounting for water quality 

benefits and impacts as well as environmental benefits. Such a review can be 

used to inform and adjust (b)(2) use in subsequent years.

Comment noted. However, quantifying changes to water quality 

in the Delta resulting from (b)(2) action will not be a requirement 

of the (b)(2) accounting process.

8c. An accounting for water quality effects will complete the current 

accounting for the environmental benefits of (b)(2) actions.

Accounting for water quality affects will not be a requirement of 

the (b)(2) accounting process.
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8d. The process for section 3406(b)(1) accounting needs to be defined in order 

to differentiate between (b)(1) re-operation actions and (b)(2) actions. All 

accounting of the water quality effects and environmental benefits should be 

performed for (b)(1) actions as well.

See 5h., 5i., 6v. above. 

8e. Ensure that upstream release specified to flow through the Delta do in fact 

flow through the Delta.

If and when Interior specifies that an upstream release of (b)(2) 

be allowed to flow through the Delta, Interior will pursue the 

necessary regulatory protections for that release. 

8f. Section II.B.1.b. – Suggest that the release also be over and above other 

WQCP requirements such as minimum outflow requirements and the flows 

required to meet M&I water quality standards. This will ensure that flows 

designated to flow through the Delta actually increase Delta outflow and result 

in both improved fish habitat and water quality.

See 2f., 2g., 4i., 4e. above.

8g. Address potential difficulties with October-September accounting year. 

This misalignment creates a risk of possibly not being in compliance with the 

directions of the District Court. The risk can be minimized by either 

modifying the accounting period or providing a mechanism to backstop (b)(2) 

actions, such as carryover of (b)(2) water, exchanges with contractors, other 

water users or the EWA, and purchases in coordination with EWA and water 

purchased under section 3406(b)(3).

Interior considered several alternatives for the (b)(2) accounting 

period and acknowledges there were potential difficulties with 

each one of them. Interior will work with the CALFED agencies

to resolve any potential difficulties in accomplishing fishery 

protection actions and communicate with stakeholders. See 2d., 

5b., above.

8h. Use of 40-30-30 index for shortage criteria is an improvement. Supports 

the replacement of the Shasta criteria with shortage criteria tied to agricultural 

contractor allocations and the Sacramento 40-30-30- index.

Comment noted.

9. Nicole A. Tutt, Counsel for Pajaro Valley Water Management Agency

9a. Some features of the draft decision allow for CVPIA implementation that 

will continue the prior history of uncertainty, unnecessarily conservative 

contract allocations and inequitable distribution of the impacts to south-ofDelta contractors.

Interior disagrees with this characterization of the Revised 

Decision.

9b. Refer to San Luis & Delta Mendota Water Authority’s comments. See 6a.-bb. above

10. John Sweigard, General Manger, Patterson Irrigation District

10a. The burden of the reallocation of 800,000 af of CVP water for purposes 

of section 3406(b)(2) has been placed almost exclusively on south-of-Delta 

CVP water service contractors.

Interior disagrees. The CVPIA requires that 800 TAF of CVP 

yield be dedicated to fish, wildlife, and habitat restoration 

purposes. The agricultural allocation process is a separate issue, 
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Comment Response

and is based on hydrology, storage, conveyance capability, and 

water rights.

10b. Pleased that the draft decision counts as part of the (b)(2) dedication of 

all the CVP’s post 1992 WQCP and ESA requirements, and the reset and 

offset accounting mechanisms have been removed.

Comment noted.

10c. Refer to San Luis & Delta-Mendota Water Authority’s comments. See 6a.-bb. above.

11. Dennis Falashi, General Manager, Panoche and Pacheco Water Districts

11a. The burden of the reallocation of 800,000 af of CVP water for purposes 

of section 3406(b)(2) has been placed almost exclusively on south-of-Delta 

CVP water service contractors.

See 10a. above.

11b. Pleased that the draft decision counts as part of the (b)(2) dedication of 

all the CVP’s post 1992 WQCP and ESA requirements, and the reset and 

offset accounting mechanisms have been removed.

Comment noted.

11c. Refer to San Luis & Delta-Mendota Water Authority’s comments. See 6a.-bb. above.

12. David Weisenberger, General Manger, Banta-Carbona Irrigation District

12a. The burden of the reallocation of 800,000 af of CVP water for purposes 

of section 3406(b)(2) has been placed almost exclusively on south-of-Delta 

CVP water service contractors.

See 10a. above.

12b. Pleased that the draft decision counts as part of the (b)(2) dedication of 

all the CVP’s post 1992 WQCP and ESA requirements, and the reset and 

offset accounting mechanisms have been removed.

Comment noted.

12c. Refer to San Luis & Delta-Mendota Water Authority’s comments. See 6a.-bb. above.

13. William D. Harrison, General Manger, Del Puerto Water District

13a. The burden of the reallocation of 800,000 af of CVP water for purposes 

of section 3406(b)(2) has been placed almost exclusively on south-of-Delta 

CVP water service contractors.

See 10a. above.

13b. Pleased that the draft decision counts as part of the (b)(2) dedication of 

all the CVP’s post 1992 WQCP and ESA requirements, and the reset and 

offset accounting mechanisms have been removed.

Comment noted.

13c. Refer to San Luis & Delta-Mendota Water Authority’s comments. See 6a.-bb. above.
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14. Sargeant J. Green, General Manger, Tranquillity Irrigation District

14a. The burden of the reallocation of 800,000 af of CVP water for purposes 

of section 3406(b)(2) has been placed almost exclusively on south-of-Delta 

CVP water service contractors.

See 10a. above.

14b. Pleased that the draft decision counts as part of the (b)(2) dedication of 

all the CVP’s post 1992 WQCP and ESA requirements, and the reset and 

offset accounting mechanisms have been removed.

Comment noted.

14c. Refer to San Luis & Delta-Mendota Water Authority’s comments. See 6a.-bb. above.

15. David J. Coxey, General Manger, San Luis Water District

15a. The burden of the reallocation of 800,000 af of CVP water for purposes 

of section 3406(b)(2) has been placed almost exclusively on south-of-Delta 

CVP water service contractors.

See 10a. above.

15b. Pleased that the draft decision counts as part of the (b)(2) dedication of 

all the CVP’s post 1992 WQCP and ESA requirements, and the reset and 

offset accounting mechanisms have been removed.

Comment noted.

16. John Herrick, Counsel, South Delta Water Agency

16a. The WQCP requires that four Delta water quality objectives for 

agricultural beneficial use be met, including the objective commonly referred 

to as the Vernalis Standard. Reclamation’s modeling indicates that it will not 

meet the Vernalis Standard in approximately half of all water year types. 

Reclamation’s New Melones permits specifically require it to meet the 

Vernalis Standard. Since Reclamation’s current New Melones operation plan 

is not predicated to meet the standards, the draft decision is contrary to law.

Interior disagrees that: (1) the current New Melones operations 

plan is predicated on not meeting the Vernalis Standard, (2) the 

New Melones operations plan is at issue in the Revised Decision, 

and (3) the Revised Decision is contrary to law.

16b. Reclamation has a pre-existing obligation in what is referred to as the 

1997 Department of Fish and Game Agreement. Reclamation must fulfill its 

contracts with Central San Joaquin Conservation District and Stockton East 

Water District before it can release (b)(2) water on the Stanislaus for fish and 

wildlife.

Interior believes this Commenter is referring to the 1987 

agreement with the Department of Fish and Game. The 1987 

agreement provides for releases in excess of 98,300 acre-feet 

when certain conditions are met. Interior recognizes that 

implementing Section 3406(b)(2) has involved a significant 

reallocation of CVP yield. The New Melones authorization 

statute subordinates deliveries to out-of-basin contractors to inbasin needs, which include Vernalis water quality and instream 

fishery flows in the Stanislaus River. Interior will continue the 
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Comment Response

effort to prepare operations plans that reflect prior agreements 

such as the 1987 Department of Fish and Game agreement.

16c. Recent transfers of CVP water have violated section 3405(a)(1)(I) which 

requires the transferred water result from a decrease in consumptive use by the 

transferor. Reclamation must abide by the principle that CVPIA mandates 

transfers not simply by a reallocation of existing supply in order to 

accommodate greater consumptive uses.

Interior disagrees that recent transfers of CVP water have 

violated CVPIA section 3405 (a)(1)(I).

16d. It’s not clear how Reclamation can legally “make-up” lost yield through 

EWA or other operations. Reclamations recovers part of the dedicated water 

through EWA or joint point operations with DWR, then the final accounting 

for the year will net less that 800,000 af. This requires further analysis and 

explanation.

Water released for an instream purpose upstream may be 

diverted for a second purpose downstream unless Interior 

determines that these flows are needed for Delta outflow. 

Interior is not attempting to “make-up” lost yield by allowing 

(b)(2) water to be diverted for another purpose, such as EWA. 

Rediverting upstream releases does not result in Interior using 

less than 800,000 af of water in any year.

Some actions for fishery protection can be taken using EWA 

assets. Joint Point of Diversion is considered a water 

augmentation tool that can be taken only when various protective 

provisions are satisfied. Stage 2 use of the Joint Point of 

Diversion is not accounted as a credit to (b)(2) actions.

17. Jeanne M. Zolezzi, Counsel, Stockton East Water District

17a. One of the purposes of the CVPIA is “to achieve a reasonable balance 

among competing demands for use of CVP water.” Interior has not considered 

this purpose when formulating and implementing its annual (b)(2) plan. The 

draft decision does nothing to accommodate this purpose.

Interior disagrees. See 6h. above.

17b. Taking an average of 100,000 af from a project facility with a yield of 

3,000 af does not “achieve a reasonable balance ...”. The draft decision should 

include language confirming that Interior’s (b)(2) allocation from any area 

included in the yield calculation will not exceed that area’s available yield.

The Interim Plan of Operations for New Melones Reservoir was 

developed recognizing the limited yield based on the 1987 –

1992 drought period and also recognizing that there are many 

wet periods in the historical record when substantial water 

supplies are available. Interior agrees that achieving a 

reasonable balance is an objective when developing operations 

plans. Annually, Interior will use its discretion when 

implementing (b)(2) fish actions based on providing the greatest 
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Comment Response

biological benefits considering the hydrologic conditions.

17c. Interior’s monitoring has been inadequate. On the Stanislaus River, 

Interior has done no work to determine the value of continued high release. 

The draft decision must include and describe specific monitoring plans.

Interior disagrees that fisheries monitoring has been inadequate. 

Current efforts on the Stanislaus River include juvenile surveys 

(rotary screw traps, snorkel surveys, and coded-wire tag studies) 

as well as adult escapement surveys. Interior has expressed its 

intention to continue to monitor fish and wildlife and habitat 

conditions in cooperation with other fisheries agencies and 

stakeholders to assess the biological results and effectiveness of 

the use of (b)(2) water in the Revised Decision. 

17d. Section II.B.2.a. – Is there an example of upstream fish and wildlife 

actions that cause export reductions?

A CVP reservoir release could be reduced to conserve cold water 

resources for later in the year. If, during balanced conditions in 

the Delta, the reduced flow cannot be made up with an increase 

from another source, exports would be reduced. See 5f. above.

17e. Section C. – With regard to the stakeholder process, the draft decision 

states that this process will be accomplished through “bi-annual workshops 

with all interested parties.” Attachment 2 does not provide additional 

information on the form that this “stakeholder process” will take. Past 

meetings were only an opportunity to report on actions that have occurred –

not to “seek input regarding development of the annual (b)(2) fishery actions 

plan and how the plan is integrated into the operations forecast.” This process 

must be fully developed and described in the draft decision.

Interior disagrees that past bi-annual workshops have only been 

focused on after-the-fact (b)(2) reporting. One function of the 

workshops has been to discuss annual (b)(2) fishery action plans 

with the stakeholders as well as other agencies. Another 

function has been to report on the accounting for (b)(2) fish 

actions. In addition, Interior coordinates the implementation of 

fish actions with the CALFED agencies and interested parties at 

the CALFED Operations Group meetings, and the DAT and OFF 

conference calls. Interior believes the process is working and 

will continue to use it in the future.

17f. The draft decision does not describe how the accounting process will be 

communicated to the public – it has been difficult obtaining this information in 

the past. Strongly recommend that monthly reports be maintained on the 

website for public access.

In addition to the bi-annual workshops and other meetings 

discussed in 17e., Interior maintains an internet web site at 

http:/www.mp.usbr.gov/cvo/ which contains the current month’s 

detailed (b)(2) and EWA operational forecasts. There is also a

summary of (b)(2) and EWA placeholders for the current water 

year. These reports are updated monthly. The (b)(2) accounting 

is made available at the bi-annual workshops and on the website 

after the numbers are finalized.

17g. The draft decision must include a process for (b)(1) determinations to be 

made, including development of criteria, and an opportunity for public review. 

See 2j., 5h., 6d. above.
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If re-operation draft decisions are not subject to public review and scrutiny 

there is no opportunity to determine whether or not the CVPIA requirements 

are being followed.

17h. Will there be an opportunity for public input into the banking policy? 

Will water banking be undertaken before the policy is adopted?

See 2k. above.

17i. Any banking policy adopted must include a method for Interior to 

determine whether or not a banking proposal interferes with the storage 

diversion or delivery of water for other CVP purposes, particularly carry-over 

storage. Methodology should include an opportunity for contractor input.

See 2k., 6r., 6s. above.

17j. Section VI. – Provide support for Interior’s interpretation of this 

provision. There is no support for severe restrictions to occasions when only 

those agricultural water service contractors north of the Delta are reduced.

See 6f., 6y. above.

Hydrologic conditions in CVP controlled streams are considered 

when making decisions for (b)(2) actions.

18. Mr. Dante John Nomellini, Manager and Co-Counsel, Central Delta Water Agency

18a. It appears that the regulation will perpetuate the failure to assure that the 

Vernalis Salinity Standard will be met. The requirement of meeting the 

standard is a water quality requirement imposed as a SWRCB permit 

condition.

 Interior acknowledges that meeting the Vernalis Salinity

Standard is a condition of Reclamation’s water rights permit. 

However, Interior disagrees that the Revised Decision 

perpetuates a failure to assure that the standard will be met. 

Studies of New Melones yield indicate that New Melones does 

not have enough water to meet all purposes, including 

maintaining minimum permit requirements at desired levels 

through an extended drought.

18b. Congress intended that the (b)(2) and (b)(3) water would provide 

increased benefits to fish, wildlife and habitat including water quality over and 

above the requirements in existence on 10/30/92. Shifting water from the 

purposes of meeting the pre-existing requirements to the purpose of meeting 

the new requirements is a circumvention of the law. Footnote 6 is not a 

forthright representation of the real intention, which is not to meet the preexisting requirements.

Interior disagrees that its intention is to not meet pre-existing 

requirements and that footnote 6 is not a forthright representation 

of Interior’s intention in implementing (b)(2).

18c. The explanation following Section II.A. is misleading in that it equates 

the needs of fall run salmon to those of endangered steelhead/rainbow trout. 

The difference is that steelhead rear in freshwater for a longer period and thus 

suitable habitat conditions in the upstream rearing areas should be maintained 

Comment noted. While the text in section II.A. does not 

specifically discuss juvenile steelhead rearing for one or more 

years in upstream areas, Interior recognizes the need to maintain 

adequate temperatures and flows to protect them throughout the 
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Comment Response

throughout the year. year. In practice, Interior has used (b)(2) assets to protect 

juvenile steelhead and will continue to do so in the future.

Environmental Interests

19. Barry Nelson, NRDC; Spreck Rosekrans, Environmental Defense; Christa Swanson, The Bay Institute of San Francisco; Zeke Grader, 

PCFFA; and David Lewis, Save San Francisco Bay Association

19a. The draft decision prematurely seeks to implement district court rulings 

that may or may not be upheld, and its issuance at this time is ill-considered.

Recommend that Interior withdraw the revised draft policy until the 9th circuit 

has ruled on pending appeals. The appropriate forum for resolving this issue is 

clearly the federal court proceeding.

Interior disagrees. Interior believes that finalizing the Revised 

Decision at this time is an appropriate exercise of the Secretary’s 

discretion.

19b. Shortage Criteria: Strongly oppose the proposed revision to the (b)(2) 

shortage criteria which is inconsistent with the CALFED ROD and goes 

beyond the scope of the district court ruling. The criteria would more 

frequently reduce the amount of water dedicated to the environment and would 

harm fish and wildlife and further interfere with the achievement of the 

CVPIA’s fish and ecosystem restoration mandates. This revision would 

undermine the Tier 1 ROD requirements in the EWA and the BO.

See 1a., 1b., 2m., 4f., 6f. above.

19c. Upstream Actions: Support the target of using 200,000 af of (b)(2) water 

for upstream action during October to January.

See 2d. above.

19d. Excluding (b)(2) flows through the Delta from the E/I ratio: Support the 

draft decision to continue to exclude (b)(2) flows that are needed to flow 

through the Delta from the E/I ratio in the WQCP. The question of under what 

circumstances (b)(2) may be redirected to consumptive use even when it could 

be beneficially re-used for environmental purposes is before the court of 

appeals and this is not the proper forum to discuss these concerns.

See 2f., 2g., 4i., 8e. above. Interior disagrees that the Revised 

Decision is not the appropriate forum to address the 

circumstances under which (b)(2) water may be rediverted for 

another purpose.

19e. Banking Criteria: The revision merely reflects that CVPIA authorizes 

banking, it does not include strategies to utilize banking or indicate that 

banking will be implemented effectively in the future. Banking of (b)(2) water 

could be an important tool to maximize environmental benefits, including 

implementing the restoration mandates of the CVPIA, as well as to ensure that 

Interior does not utilize more than the 800,000 af.

Urge the development and implementation of banking criteria.

See 2k. Interior agrees that banking could be an important tool 

for maximizing (b)(2) benefits.
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19f. Streamlined Accounting: “... reviewing the accounting process ...” is 

inadequate to meet legal requirements. If Interior considers “streamlining” 

proposals, we urge Interior to coordinate fully with the State, to carefully 

evaluate consistency with the CALFED ROD and to evaluate possible changes 

in an open and inclusive process.

Interior disagrees that streamlining the accounting process is 

inadequate to meet legal requirements. 

See 2i. above.

19g. Joint Point: The draft decision does not directly address CVP use of the 

SWP’s Bank pumping facilities. For (b)(2) accounting purposes, CVP use of 

SWP pumps should count the same as its use of its own Tracy pumps.

Recommend that Interior include reference to the changes regarding joint point 

of diversion in the policy implementing section 3406(b)(2).

Interior, in addressing reductions of CVP exports, including use 

of Banks Pumping Plant, has chosen not to include use of Stage 

2 Joint Point of Diversion as a credit in accounting of (b)(2) 

water use. As permitted by the SWRCB, and as intended in the 

CALFED ROD, Stage 2 Joint Point is a method for augmenting 

CVP water supplies. The approval process for using Stage 2 

Joint Point requires response plans to address concerns about 

water levels in the southern Delta, water quality in the southern 

and central Delta, and protection of fish and wildlife and other 

legal users of water.

19h. Modeling Errors: With regard to the Accounting Process, Interior should 

provide specific assurances that errors have been corrected.

The forecast model has been modified. That model is used to 

forecast operations, including use of (b)(2) water. The actual 

daily accounting properly addresses these concerns.

19i. Failure to fully implement (b)(2) and salmon doubling: Interior’s failure 

to correctly implement use of the 800,000 af of (b)(2) water has contributed to 

the failure to achieve salmon doubling goals and in some cases has resulted in 

direct harm to the same fisheries that the CVPIA was intended to protect.

Interior will continue its efforts to achieve the anadromous fish 

doubling goal identified in the CVPIA. While the doubling goal 

has not been fully realized, salmonid populations in the Central 

Valley are generally improving from pre-1992 levels, and that 

overall (b)(2) implementation has benefited salmon and 

steelhead. Interior disagrees that it has caused direct harm to 

fisheries. Commenter’s allegations regarding fall run Chinook 

mortality in 2001 is inaccurate as to the cause; the primary 

reason for the high water temperatures was low storage due to 

dry hydrologic circumstances.

20. Robert N. Ferroggiaro, Vice President, Conservation, Federation of Fly Fishers

20a. The draft decision fails to provide for releases to provide water 

temperature control for steelhead, which are protected by ESA.

Interior recognizes the need to maintain adequate temperatures 

and flows to protect juvenile steelhead in upstream areas 

throughout the year. Interior has used (b)(2) assets to protect 

juvenile steelhead in the past, and will continue to do so in the 
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Draft Revised (b)(2) Decision – Comments and Reponses

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Comment Response

future.

20b. The single provision of water in a timely fashion would provide for 

temperature control and have a profound and positive impact on the recovery 

of the species, and make greater contribution to the recovery of the species 

than the cumulative impact of all the proposed regulations. Urge compliance 

with obligation under section 3406(b)(2) to provide adequate flows to provide 

temperature control for steelhead.

See 20b. above.

20c. Of the 800,000 af of (b)(2) water intended to double Central Valley 

fisheries, only 200k to 300k now remain available.

Interior disagrees. Interior will continue to dedicate and manage 

the full 800,000 af annually for the purposes set forth in CVPIA 

Section 3406 (b)(2).

21. Eric Wesslman, regional Representative for CA/NV/HI Sierra Club; Mr. Nick DiCroce, Board of Governors, California Trout, Inc.

21a. The draft decision will significantly undermine the level of fishery 

protection that was intended by the CVPIA.

Interior disagrees. Interior will continue to dedicate and manage 

the full 800,000af annually for the purposes set forth in CVPIA 

Section 3406 (b)(2).

21b. The definition of modification of CVP operations that would be applied 

pursuant to section 3406(b)(1) is absurdly narrow. The draft identifies only a 

small fraction of anadromous fish actions that should qualify under section 

3406(b)(1).

See 2j., 5h., 5i., 6d., 17g. above. 

21c. Any re-operation should count under section 3406(b)(1) whenever it is 

made. For example, Interior knows in advance that it will not need to make 

releases in August and September to support the 195,000 af of “D1485 

Wheeling” in exports and the SWP’s pumps – Interior should be able to 

increase its release earlier in the water year in the amount that these late 

summer releases are reduced by a (b)(1) operation. It is not necessary that the 

re-operation be anticipated in advance.

See 19g., 21b. above.

21d. Sometimes it is unknown whether an entire action or only part can be 

accomplished through re-operation, in these cases the (b)(2) account, or the 

EWA, could be used as an insurance policy to accomplish either the entire reoperation or part of it.

Comment noted. In the event a planned re-operation is 

interrupted or results in water supply impacts, Interior will use 

(b)(2) assets to accomplish the fish action, or will discontinue the 

action.

21e. Interior should not undermine the CVPIA by arbitrarily ignoring most of 

the re-operation that takes place in annual CVP operations.

Interior disagrees that it is arbitrarily ignoring most of the 

reoperation that already occurs. Interior is committed to 

repoerating the CVP to enhance assets available for fishery 
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Comment Response

purposes when consistent with the Revised Decision.

21f. Refer to NRDC, Environmental Defense, The Bay Institute of San 

Francisco, PCFFA, and Save San Francisco Bay Association comments.

See 19a.-i. above.

22. Marc Christopher, Policy Advocate, Friends of the River; and Byron Leydecker, Governor, California Trout

22a. Refer to NRDC, Environmental Defense, The Bay Institute of San 

Francisco, PCFFA, and Save San Francisco Bay Association comments.

See 19.a.-i. above. 

22b. The draft decision does not reflect the stated intent of CVPIA – it takes 

great effort to undercut efforts aimed to improve the environment – the draft 

decision elects to adopt the least environmentally beneficial construction.

Interior disagrees with this characterization of the draft Revised 

Decision.

22c. The draft decision misinterprets the language of 3406(b)(1) and (b)(2). 

A modification or release of water that does not affect the operation or 

obligations of the CVP should qualify as a (b)(1) action. Example would be 

the June 2000 operation.

See 2j., 5h., 5i., 6d., 17g., 21b. above.

22d. Requiring an absolute determination of “No Anticipated Impact” before 

allowing a modification of operations is arbitrary and not supported by the 

statute.

CVPIA (b)(1)(B) allows Interior to modify operations to provide 

flows of suitable quality, quantity and timing to protect all life 

stages of anadromous fish. These flows are to come from water 

dedicated under 3406(b)(2), water acquired under 3406(b)(3), or 

from other sources which do not conflict with fulfillment of the 

Secretary’s remaining contractual obligations to provide CVP 

water for other authorized purposes.

See 6d. above.

22e. Section III would require Reclamation to know, in advance, that it 

possesses the resources to take compensating future actions. To require that 

these actions have not identified impact, or foreseeable risk of impact, ignores 

the fact that neither the CVP nor their contractors have done any modeling or 

set forth any evidence that could lead one to adequately determine whether or 

not there is a “foreseeable risk of impact.” Therefore it is impossible to claim 

with any degree of certainty that re-operations would or would not have 

impacts on deliveries. This would limit re-operations improvements under 

(b)(1) to an ineffectual level.

Interior disagrees. It is possible to analyze the potential risk of 

impact on a case by case basis. Interior believes that its 

interpretation of reoperation does not reduce improvements to an 

ineffectual level but instead provides operational flexibility to 

allow for greater improvement. See 2d., 5h., 5i., 6d., above.

22f. Section III – The “proximity in time requirement” for determining (b)(1) 

actions is arbitrary and is not supported by the statute. The proximity in time 

The proximity in time requirement is neither arbitrary nor 

unsupported by the CVPIA. Having an operation and 
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Comment Response

of two modifications is irrelevant to the effect on the project purposes. The 

time proximity of the operations, such an action would not affect the project 

purposes and should be considered a (b)(1) action.

corresponding reoperation occur in relative temporal proximity is 

important for assessing the risks to and preventing unanticipated 

impacts to other CVP purposes.

22g. The draft decision is arbitrarily changing the shortage criteria resulting in 

even further reductions to (b)(2) water. By using the new criteria, the amount 

of (b)(2) water would be reduced because of a “dry” or “critically dry” year on 

the average of roughly 1 in every 3 years.

See 1a., 2m., 3f., 4f., 5n., 6f. above.

23. Chuck Knutson, President California-Nevada Chapter, American Fisheries Society

23a. The draft decision seems to back away from the stated intent of the 

CVPIA to achieve a reasonable balance among competing demands. The 

protocols outlined will result in substantially less protection for the many fish 

species adversely impacted by CVP operations.

See 6h., 20c. above.

23b. With accounting system proposed, there will be many circumstances 

when the (b)(2) water account will be charged for changes in CVP operations 

that do not affect the CVP’s water delivery capability or yield. This will occur 

because use of (b)(2) water is measured in terms of any and all changes in 

project operations compared to a calculated baseline even when compensating 

operational changes or favorable hydrology could eliminate the effect of the 

action on annual water deliveries.

Interior is accounting for dedication and management of 800,000 

acre-feet annually. Interior is not accounting for effects on 

annual deliveries. Project yield has been defined in the statute as 

delivery capability during the drought period of 1928 – 1934. 

The methods and procedures for annual accounting were chosen 

to simplify and clarify the accounting of use of (b)(2) water. 

23c. The proposed protocols will substantially reduce the extent to which the 

(b)(2) water can be used in furtherance of the CVPIA and AFRP goals. The 

accounting rules mean the (b)(2) water will be used up more quickly each year 

as fish protection actions are taken. The shortage criteria will result in more 

frequent reductions in size of the (b)(2) account, from 800,000 af to 600,000 

af.

See 1a., 2m., 3f., 4f., 5n., 6f., 23b. above .

23d. Implementation of 3406(b)(2) was a key component of the CALFED 

ROD. The proposed rules not only appear to diminish the ability of Interior to 

achieve congressionally mandated fishery restoration goals but also erode the 

agreed-upon baseline restoration capability of the CALFED Program.

See 1b., 4d. above.

23f. Support the intent to target 200,000 af of (b)(2) water in the October 

through January period.

See 2d. above.

23g. Support the full use of modifications of CVP operations that will provide See 6d., 22d. above.
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Comment Response

benefits to fish without affecting CVP deliveries.

Businesses and Organizations

24. Paul Olmstead, Water and Power Resources Specialist, SMUD

24a. Request response to comments prior to finalizing decision. As with past decisions on implementation of (b)(2), Interior is 

releasing these responses to comments with the final Revised 

Decision.

24b. Section II.B.1.a – Clarify the definition of the term “period” in this 

section. Is the period the water year (October – Sept) or a daily period? 

Regarding the calculations based on daily releases, are the calculations based 

on CVP wide operations or individual changes in reservoir operations?

In general (b)(2) accounting will be based on daily changes at 

CVP facilities, excluding (b)(1) operations. See 2h., 2i., and 5h. 

above.

24c. Section II.B.1.b. – Section IV accounts for the action in Section II.B.1.b, 

then is the water not released under Section II.B.? Can this water be rereleased for additional fishery benefits if banking, transfer and/or exchange 

deals have been made in advance?

Where is this release accounted for and is it considered (b)(2) water? Is the 

initial accounting of this water taking place in Section II.B. or Section IV?

Footnote 7 – Butte Creek is a non-CVP controlled stream but is addressed as 

providing (b)(2) water as a backstop. This needs clarification.

The text in section II.B.I.b. has been revised to clarify that 

upstream releases of (b)(2) water specified to flow through the 

Delta are not available for banking, transfer, or exchange.

Upstream releases of (b)(2) under section II.B.I.a. are available 

for banking, transfer, or exchange if the water is identified as 

such before it is released, and will be accounted for in section 

IV.

Re: Footnote 7 and Butte Creek. Interior is working on an 

agreement with certain parties to exchange up to 40 cfs of water

in Butte Creek (a non-CVP stream) for water from the 

Sacramento River (a CVP stream). The exchange would not 

impact CVP contractors, but (b)(2) assets will serve as insurance.

See 2h., 2i., 5h. above.

24d. Section II.B.2. – Are actions that are referred to here considered 

“backing up?” Explain how actions taken upstream, which are used for 

fishery benefits, reduce exports? Is “backed-up” water that is accounted for in 

this section available for banking, exchange or transfer?

Regarding banking, see 2k., 5e., 6r. above.

Regarding an example of an upstream fish action that would 

cause an export reduction see 5f. above.

24e. Section IV.A. – Define banking. Is (b)(2) water that is “backed up” into 

CVP reservoirs considered banked? If so, does this concur with court order? 

Clarify if banking includes water deliveries to off-stream storage and how 

“deliveries” as they are defined in Section IV.B. will take place.

A Banking policy will be developed (see 2k., 5e., 6r. above). 

The basic concept is to identify a specific amount of (b)(2) water 

as well as a specific facility for storage, and to hold the water for 

use in a subsequent accounting year.
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24f. Section IV.A. and B. – Is all banking, transferred or exchanged water 

accounted in Section IV? Does this conflict with Section II which states it 

needs to be accounted for under the provisions of that section?

There is no conflict with the text in section II. Section II states 

that all banked, transferred, or exchanged (b)(2) water will be 

accounted for in section IV. 

24g. Section IV.C. – Principles need to be provided to clarify how Interior 

will “arrange” to cover costs of banking, transfers, and exchanges. Additional 

language is needed that states these are non-reimbursable and that any 

“arrangements” will not redirect impacts to other project purposes including 

project pumping costs.

Comment noted. 

24h. Recommend WAPA be included in developing CVP operating plans so 

its obligations to CVP preference power customers will not be impacted.

WAPA will continue to have the opportunity to participate in the 

b2IT, EWA Team, and CALFED Operations Group meetings as 

well as the DAT and OFF conference calls. See 17e. above.

25. Jane Dunn Cirrincione, Assistant General Manager, Legislative & Regulatory Business Unit, Northern California Power Agency

25a. To maintain the balance of competing demands for the use of CVP water 

the decision needs to promote a process that increases the transparency of both 

the (b)(2) water management actions and the (b)(2) accounting, and needs to 

emphasize the “no conflict” principle for (b)(1) re-operation.

See 2i., 6d., 6h. above.

25b. Section II.B.1.a. – Needs to be more specific in its definition of the 

“period” for which upstream flows are accounted. Language in Section II.A. 

suggests that this period is the October – Sept water year but II.B.1.a. appears 

to allow a deviation to a different timeframe.

The accounting year in both sections is October 1 through 

September 30. The term “accumulated over the period” in 

II.B.1.a. is meant to insure that upstream releases are properly 

accounted for within the timeframe (i.e., the number of days) that 

(b)(2) actions differ from baseline operations at a CVP facility.

25c. Section II.B.1.a. – Needs to be specific in the accounting of daily 

changes accumulated on an “individual facility basis.” The current language 

suggests that calculations would allow or even support offsetting scenarios that 

are inconsistent with the court order.

Section II.B.1.a. will not allow for offset that is inconsistent with 

the Federal District Court decision. See 5d. above

25d. Section II.B.1.b. – The language regarding the accounting of (b)(2) water 

that is banked, transferred or exchanged is confusing/conflicting.

See 2k., 6r. above.

25e. Water that is release under II.B.1.b. may be banked, transferred or 

exchanged if the water is identified for such use before release and shall be 

accounted for under Section IV – this is conflicting language if the action and 

accounting is handled by Section IV, then the water is not being released under 

Section II.B.

See 2k., 24e., 24f. above.
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25f. Is it the intent that II.B. water can be re-released at a later period for 

additional fishery benefits if banking, transfer and/or exchange deals have 

been made in advance, and that re-release does not get re-accounted as (b)(2)?

The intent is that water will be accounted for a the time it is 

banked, and not re-accounted for at the time of release.

25g. Perhaps the solution is recognizing that banking, transferring, and/or 

exchanging (b)(2) water doesn’t require a (b)(2) accounting but is “merely” a 

(b)(2) water management activity.

Comment noted.

25h. The last sentence in the explanation for Section II.B.2.a. is unclear. It is 

unclear how upstream actions would by themselves cause exports to be 

reduced? Is a “backing up” scenario implied here, where reduced releases 

from reservoirs occur in conjunction with a pumping curtailment? If so, how 

is that water managed after it is backed up since it has already been accounted 

for under Section II.B.2. and doesn’t seem to fit the banking/exchange/transfer 

conditions?

See 2k., 24d., 24e. above.

25i. Section III language needs to be clarified to fully support CVPIA’s “no 

conflict” principle. Not all impacts can be anticipated given the complexity of 

the CVP system. It is expected that any impact is mitigated to achieve no net 

impact to other project purposes, regardless of it having been anticipated.

 See 2j., 5h., 5i., 6d., 6v. above.

25j. Section IV.A. – A definition of banking is needed. Does this include 

“backing” (b)(2) water into CVP reservoirs? If so, how is this not a form of 

crediting, which was disallowed by court order? Does it include deliver of 

water to off stream storage? If not, how do “deliveries” discussed in Section 

IV.B. occur?

See 2k., 24e. above.

25k. A more precise set of principles need to be provided to explain how 

Interior will “arrange” to cover costs of banking/transfers/exchanges. Suggest 

language that reiterates non-reimbursable sources and that such 

“arrangements” will not have a redirected impact on other project purposes. 

Costs to other project purposes as a result of banking/transfers/exchanges may 

result from other circumstances than a change in storage, diversion and/or 

delivery.

Suggest: In the last sentence of Section IV.C. add “, or otherwise have an 

unmitigated adverse effect on,” after “delivery of water for.”

See 2k., 6r., 24e, above.

26. Bill Pauli, President, California Farm Bureau Federation
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Comment Response

26a. Further work must be done to eliminate some of the ambiguities that 

continue to remain. These flaws will continue to diminish operational 

flexibility, may lead to a violation of the CVPIA, and allow implementation of 

Section 3406(b)(2) in an inequitable manner.

Interior disagrees that there are flaws in the Revised Decision 

that diminish operational flexibility, violate CVPIA or allow for 

implementation in an inequitable manner.

26b. Recognize and incorporate into the final decision principles that all of 

implementation of Section 3406(b)(2) in a balanced manner.

See 6h. above

26c. Recognize and incorporate principles that maximize the flexibility 

inherent in the authorization Section 3406(b)(2) uses. Modify the decision to 

allow for an equitable distribution of adverse impacts among all CVP contracts 

in order to comply with the letter and spirit of the law.

See 6h., 6j. above

26d. Explicitly recognized the 800,000 af limitation. The court had held that 

Interior has no discretion whether to annually provide more or less than 

800,000 af of CVP yield for (b)(2) purposes, unless Interior makes certain 

findings under Section 3406(b)(2)(c). Interior should expressly state that 

Interior will not implement Section 3406(b)(2) in a manner that could cause it 

to exceed the 800,000 af limitation.

See 5m., 6i. above

26e. Change the accounting period for water and/or eliminate the 200,000 af 

up-front dedication of water for fishery purposes. Choosing an accounting 

period that may violate the law in 25% of all years is simply unacceptable.

See 2d., 5b., 5n., 8g. above.

26f. The accounting period actually creates a substantial risk that Interior 

would give more than 800,000 af for purposes that must be counted toward 

yield dedicated and managed under Section 3406(b)(2) without any real 

benefit to fish restoration. During the October through January period, Interior 

cannot accurately forecast CVP demands because the factors needed to 

forecast operations cannot be forecasted. The earliest operations forecast with 

the least amount of risk cannot occur until Feb 15. It is better policy for the 

(b)(2) accounting period to follow CVP operations period.

See 2d., 5b., 5m., 5n., 6i., 8g. above.

26g. The accounting period, when coupled with the up-front dedication of 

200,000 af of water for fishery purposes, will likely cause more than 800,000 

af of (b)(2) water to be dedicated annually. DWR analysis suggests that in 

about 25 percent of the years, Interior will dedicate more than 800,000 af if it 

dedicates 200,000 af of (b)(2) water in the October through January period.

See 5k., 5m., 6i., 8g. above.
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26h. Delete the section related to banking and transfers and develop the water 

banking and transfer/exchange on a separate schedule or make the principles 

of the water banking/transfer/exchange program more definitive and function 

as part of the final decision. The final should state that no 

banking/transfer/exchange will occur if the action could adversely impact 

other CVP water purposes.

See 6r., 6s. above.

26i. Adequately explain how implementation of (b)(2) will be coordinated 

with implementation of (b)(1).

See 2j., 5h., 5i., 6d., 6u., 6v., 17g., 21b., 22d. above.

26j. Interior only explains that the determinations on whether to modify CVP 

operations will be made on a case-by-case basis and with the concurrence of 

the Service and Reclamation – it doesn’t explain how Interior will make the 

determination.

The Revised Decision provides the factors that Interior will 

consider in making any determination to reoperate the system.

26k. Failing to conduct analysis to determine that proposed re-operation does 

not present any conflicts prior to re-operating the CVPA would amount to 

offsetting or resetting of the accounting.

Interior has committed to making a determination of impacts to 

the fulfillment of the Secretary’s remaining contractual 

obligations to provide CVP water for other authorized purposes 

before reoperation occurs.

26l. Interior should commit to, whenever possible, report and describe 

quantitatively the proposed (b)(1) action prior to re-operating the CVP.

See 5h., 5i. above.

26m. The proposed fish protection and habitat restoration actions are 

unsupported by the record. There exists inadequate scientific data to support 

the measures describe in Attachment 2 (reference SL&DMWA’s October 31, 

1997, comments).

Interior disagrees. See 6g. above.

27. John C. Coburn, General Manager, State Water Contractors

27a. Fall upstream releases – Concern about (1) the process for determining 

whether or not these releases may be exported after meeting their upstream 

purpose, and (2) the possible impact that the targeted fall releases may have on 

ESA assurances provided through the EWA.

See 1b., 2f., 2g., 4i. above

27b. Export of upstream releases – unaware of scientific evidence suggesting 

that additional fall outflow would be beneficial to fish or the Bay-Delta 

ecosystem. SWC questions whether exports could be restricted in the context 

of Article X, Section 2 of CA’s Constitution and general water law – and 

would expect the SWP to pump the releases, pursuant to the SWP’s water 

Interior disagrees. The California Water Code section 1707 

provides for protection of instream flows and Interior will pursue 

such protection when the biological benefits justify that 

protection. 
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Comment Response

rights, subject to whatever SWRCB limitations are then in effect.

27c. Impact on ESA assurances – Concern about possible collateral impacts 

from such a policy upon the EWA – under certain circumstances the Service 

might attempt to use EWA in the spring or summer to replace the (b)(2) water 

it used for the discretionary action of providing upstream releases during the 

fall. EWA assets should not be used to make up for (b)(2) shortages if such 

reprioritization weakens EWA’s ability to meet its primary purpose of 

providing ESA commitments to the SWP/CVP.

The ability to provide ESA commitments in a given year 

depends on hydrology, listed species abundance and distribution, 

export levels, and the amount of (b)(2) and EWA assets 

available.

The EWA by itself is not sufficient for the CALFED agencies to 

give ESA assurances. The EWA’s ability to meet the primary 

purpose (i.e., to help provide conditions that lead to an ESA 

commitment) is directly linked to the amount of Tier 1(including 

(b)(2)), Tier 2 (EWA and ERP), and Tier 3 assets available.

See 1b., 4a., 4d. above.

27d. Vagueness – Concerned that the draft decision is written too broadly, and 

leaves a great deal of discretion to the Service and Reclamation to shape how 

the decision will be implemented. It could probably be interpreted in ways 

that differ by a hundred thousand acre-feet of water or more each year. A 

great deal more work needs to be done to define how the policy will be applied 

and accounted for. 

Interior disagrees that the Revised Decision is written too

broadly. The Revised Decision allows for appropriate flexibility 

in (b)(2) implementation.

27e. Consider the distinction between (b)(2) charges and (b)(1) re-operation. 

The policy could accommodate either a very limited or very expansive 

approach to (b)(1).

See 5h., 5i., 6v. above.

27f. Are there any criteria for the development of the D-1485 baseline? Until 

there are, (b)(2) accounting will always remain vulnerable to changes in 

policy.

See 2i., 5h. above.

Individuals

28. Felix Smith

28a. In recognized opinions of the DOI Solicitor in Washington, fish and 

wildlife purposes of the CVP was specially added by the 1954 CVP 

reauthorization.

Comments noted

28b. Brief review of history placed in a contemporary setting. Comment noted.

28c. Support information for the protection of fish and wildlife. Comment noted.

28d. Reclamation’s monitoring program to evaluate the effectiveness of its Interior disagrees that current fisheries monitoring efforts in the 
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Comment Response

mitigation and maintenance flows was a no-show on the American River prior 

to 2000, and in inadequate in its present form.

lower American River are inadequate. Several agencies work 

cooperatively on spawning escapement surveys, redd surveys, 

and juvenile assessment surveys (using rotary screw traps and 

snorkeling). In addition, Interior actively monitors and manages 

river temperatures in the summer and fall to reduce temperature 

impacts to salmonids.

See 17c. above.

28e. Present American River flow regimen is day-to-day usually based on 

Delta conditions and export needs. Reclamation should provide evidence that 

such flows are meeting the Folsom projects mitigation requirements.

Reclamation operates Folsom and Nimbus Dams consistent with 

its water rights. Interior has been and will continue to focus 

attention to fishery needs in the lower American River.

28f. Water stored in Folsom from previous water year’s runoff is really what 

is released during the October through December to meet the temperature and 

flow needs of Chinook salmon.

Comment noted.

28g. Water costs to meet the Delta WQCP should be a mitigation/ 

conservation feature of the CVP. The water to meet the Delta WQCP should 

not be a (b)(2) cost, but a total project obligation/cost.

Interior disagrees. The statute specifies that one of the purposes 

of water dedicated and managed under (b)(2) is to assist the State 

of California in its efforts to protect the waters of the San 

Francisco Bay/Sacramento San Joaquin Delta Estuary.

28h. Meeting the intent of CA law per Section 8 of the 1902 Reclamation Act 

includes Code Section 5937 and it also means meeting and supporting the 

principles of the public trust doctrine as developed by CA law.

Interior disagrees with this characterization. Section 8 of the 

1902 Reclamation Act does not require Reclamation to meet the 

intent of California law, but rather requires conformance with 

State laws pertaining to control, appropriation, use or distribution 

of water, where not inconsistent with Federal law.

28i. The court ordered accounting is not based on or linked to CVP delivery 

capability. The (b)(2) accounting must be linked to CVP delivery capability 

for the given water year plus carryover storage.

The District Court placed limitations on Interior’s accounting 

methodology. Interior has revised its methodology within those 

limitations.

28j. Comments regarding the operation of Folsom Dam and related facilities. Comments noted.

29. Arther Unger

29a. Object to any use of (b)(2) water for agriculture. The 800,000 acre-feet is dedicated and managed for fish and 

wildlife needs. When (b)(2) water is released from CVP 

reservoirs to implement upstream fish actions, it is available for 

recapture and reuse in the Delta, including export south of the 

Delta, unless otherwise specified (see section II .B. 1. b. of 
35

Draft Revised (b)(2) Decision – Comments and Reponses

May 9, 2003

Comment Response

Revised Decision).

See 16d. above.

29b. It is better to restrict water to California’s alfalfa production by 800,000 

af and consequently harm California’s dairy industry than to further harm our 

fisheries.

Comment noted.

29c. Another way to decrease California’s water use is to stop retiring the 

farmland that produces the most jobs with a given amount of water (we retire 

such land to build houses).

Comment noted.

29d. Restore polluted coasts and devote 800,000 af fish and wildlife habitat, 

we might again be able to have jobs in fish packing plants.

Comment noted.

29e. Even if each af of water provides more jobs in agriculture than in 

fisheries, California will attract more employers if we preserve the character of 

California by using these 800,000 af only for fish and wildlife habitat.

Comment noted.

30. Warren Linney

30a. Against the draft policy because it would allow Reclamation to declare 

drought conditions an average of once every 3 years, instead of the once a 

decade average under the existing rules.

See 1a., 4f. above.

30b. Reclamation should be increasing flows in the summer months to restore 

the fish runs instead of sending the water to farmers at heavily subsidized 

rates.

Interior is dedicating and managing the 800,000 acre-feet for fish 

and wildlife purposes, both upstream and in the Delta. Increased 

instream flows are being provided primarily in the fall, winter 

and spring months when they provide the greatest fishery 

benefits. Interior has also implemented water temperature control 

operations in several CVP controlled streams to provide for 

improved survival of Chinook salmon and steelhead trout.

31. Delores Rodriguez

31a. Please act responsibly to save water for the San Joaquin Delta. Declaring 

drought once every 3 years is too much.

See 1a., 4f. above.

31b. The formula for environmental releases has been in effect for 10 years 

and salmon have still not reached this desired numbers. More needs to be 

done to restore the fisheries and the Delta.

See 19i. above.