At the January meeting of the California Water Commission, the agenda included an informational briefing on the Yolo Bypass Salmonid Habitat Restoration and Fish Passage Project, also known as the Big Notch. The project will create critical floodplain habitat for juvenile salmon and improve the migration corridor for adult anadromous fish between the Sacramento River, the floodplains of the Yolo Bypass, and the Delta.
Project overview
Maninder Bahia, Project Manager with the Department of Water Resources, began with an overview of the project. The project’s objective is to restore essential habitat for critically threatened and endangered native fish species by improving the connection between the Sacramento River, the Yolo Bypass, and the Delta. The project fulfills the regulatory requirement for the continued operations of the State Water Project and the Central Valley Project. And the project aligns with the California Water Resilience Portfolio and the state’s draft strategy to conserve 30% of California’s land and coastal waters by 2030, or the ‘30/30 Initiative.’
The project location is located in the Yolo bypass, a 60,000-acre floodway 40 miles long and anywhere from one to three miles wide. The bypass is designed to flood when flows in the Sacramento River are high to provide flood protection for the greater Sacramento area.
The Yolo Bypass was once a floodplain that provided floodplain habitat for juvenile salmon and other native species; it’s uniquely situated along a central migration corridor for salmon and sturgeon.
“This makes it the most promising place to implement such a large-scale floodplain restoration project,” said Mr. Bahia.
The project has been considered for implementation for over two decades now, initially with the Cal Fed Program effort and later as part of the Bay Delta Conservation Plan, so an extensive amount of science and data was available for project implementation.
In 2009, the National Marine Fisheries Service biological opinion made this project a requirement for continued operations of the State Water Project and the Central Valley Project, stating that the agencies, ‘to the maximum extent of their authorities, provide significantly increased acreage of seasonal floodplain rearing habitat…in the lower Sacramento River basin.’ The biological opinion specified 17,000 to 21,000 acres of floodplain habitat.
The 2009 biological opinion also required DWR and Reclamation to reduce migratory delays and the loss of adult and juvenile winter-run, spring-run, steelhead, and green sturgeon at the Fremont Weir and other structures within the Yolo bypass.
In 2019, DWR and the Bureau of Reclamation finalized environmental documents and selected a preferred alternative. Subsequently, the 2019 NMFS Biological Opinion again for continued operations for the State Water Project and Central Valley Project stated that this project shall be implemented by 2022. Likewise, the 2020 California Department of Fish and Wildlife Service’s Incidental Take Permit requires this project to be implemented.
Project planning and development began in 2013 with extensive stakeholder outreach and engagement efforts. DWR worked with the Department of Fish & Wildlife, Yolo County, the Bureau of Reclamation, NOAA Fisheries, NMFS, the Army Corps of Engineers, landowners, and NGOs to conduct public scoping meetings, workshops, and value planning exercises. There were also cooperating agency review periods, public draft comments, and an extensive amount of landowner meetings.
Mr. Bahia said project implementation focused on engaging landowners and getting their input on how the project should be evaluated and ultimately implemented, and the extensive outreach yielded some successes.
First, the Yolo Bypass was identified as the preferred location to implement the project. It’s a historic floodplain, and the land uses within the Yolo bypass have grown to accommodate the flooding there. Implementing the project elsewhere would have had substantially larger impacts.
Additionally, three of the six alternatives considered in the environmental documents were developed by stakeholders and NGOs. The preferred alternative ultimately chosen reduced impacts on landowners while maintaining the project’s benefits. The alternative chosen sets the peak flow for the project at 6000 CFS, and project operations for floodplain rearing habitat expire on March 15 (rather than April 30). After March 15, the flow rate was reduced from 1000 CFS to 300 CFS to accommodate the landowner’s interest.
The infrastructure proposed for the project, shown to the left, includes an intake channel connecting the Sacramento River to the Fremont Weir, the northernmost structure in the Yolo Bypass, and a three-gate headwork structure connecting to the Sacramento River so water and juvenile fish can enter the Yolo bypass and adults can reenter the Sacramento River.
Flow and fish will naturally enter the Yolo bypass between November 1 and March 15 when the river levels are high enough to do so. There are no pumps associated with the project; it’s all gravity-driven. So as river levels rise due to rain events, water will be allowed to enter through the structure and create floodplain habitat in the Yolo Bypass; the same flow entering the Yolo Bypass provides a means for the adults to return into the Sacramento River.
The Yolo bypass is designed to flood periodically; however, this project will enhance the connection to the Sacramento River, increasing the duration of flooding by about two weeks. However, not all the land in the Yolo Bypass will experience this increase.
“For this increase in the duration of flooding, we will be requiring flow easements for the purpose of fish restoration, for present and future permitted construction, and for fish passage operations,” said Mr. Bahia.
There was a change between the 2009 biological opinion and the 2019 biological opinions toward the project, and a pivot regarding how the project would be implemented, said Mr. Bahia. In early 2021, a decision was made to use the state’s eminent domain authority to require the flow easements for the project. An extensive amount of outreach was held to inform elected officials, state agencies, local NGOs, other organizations, and landowners of this decision.
“We thought it was critical to make sure folks knew that this decision was being made and understand the backstory to it,” said Mr. Bahia.
Resolutions of necessity
At this point, Rachel Taylor, an attorney with the Department of Water Resources Office of General Counsel, then discussed the real estate acquisition process and the Commission’s role regarding Resolutions of Necessity.
Background note: A Resolution of Necessity is a precursor to eminent domain proceedings; in short, a resolution of necessity is the state’s formal determination that it hasn’t reached a voluntary agreement with landowners, so it has become necessary to use eminent domain instead to force the owners to sell, or in this instance, agree to the flow easements. And it’s important to note that there are no Resolutions of Necessity before the Commission at this point.
Ms. Taylor pointed out that the role of the Commission is to make specific findings on the Resolutions of Necessity, and documentation would be presented to the Commission to verify and confirm the validity of the intended use of the eminent domain process.
This presentation is a high-level overview of what would be included in the subsequent presentations; the Commission will be given much greater detail should a Resolution of Necessity come before the Commission.
Ms. Taylor said some basics for the resolutions have to be established. First, the Commission must be presented with an adequate project description of what the project is, where it is, and how it will be operated so that the Commission and the landowners have sufficient information to determine what the impacts will be to the properties. DWR’s statutory authority for eminent domain must be presented; because this is related to the State Water Project, that authority is under water code 250. And the particular public use for which the property rights are being acquired must be presented; in this case, it is a fish passage project, and the legislature has declared that fish and wildlife is a legitimate public use.
Four findings must be met to approve the Resolution of Necessity:
- The public interest and necessity require the proposed project: in this instance, it is a requirement of the federal and state regulatory agencies for continued operations of the State Water Project
- The proposed project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. Taylor noted the stakeholder outreach and the locally generated product alternatives resulted in the preferred alternative that meets the project goals but reduces impacts to the landowners, including limitations on flow.
- The property described in the resolution must be necessary for the proposed project and includes a map, the APN, and the legal description.
- Either the offer has been made to the owner or owners of record, or the offer has not been made because the owner cannot be located with reasonable diligence. She said to her knowledge, there aren’t any owners that can’t be located so far. The Commission would be provided the full written offer made to the landowners.
Ms. Taylor noted that they have a duty to negotiate that continues past the resolution of necessity. “Our intent is to settle to the extent possible with all the landowners, understanding that in a few cases, for various reasons, it might be necessary to go to court, which is why we need the resolution of necessity. But this doesn’t mean we have to go to court or that we will. So we will continue our efforts to negotiate, but due to the time constraints of the contract and the 2023 operation timeframe, we do have a set schedule for when we need to start processing resolutions of necessity if we’re unable to settle.”
Ms. Taylor noted that for the appraisal process, landowners are allowed to accompany the state’s appraisers in evaluating the property; they’re also entitled to have the opportunity to seek their own appraisals if they disagree with our analysis and can be reimbursed for the cost of appraisals up to $5,000.
She also pointed out that if the landowner chooses to object at an eventual trial, they have to preserve the right at the hearing for the resolution of necessity. So landowners will often raise objections during the hearing process to protect their rights in the future should the matter end up in court. Standard objections would be objecting to the state’s right to take, object to the public use for the property, or it’s not going to be used for the purposes intended.
The hearing is an opportunity to hear from the landowners; they will be noticed, and they will have the opportunity to speak as well as submit written comments.
In terms of schedule, design and permitting was completed in 2021. The real estate acquisition process began last year and will continue through 2023. Construction is planned to start in May of 2022, with the project being operational in November 2023.
Commissioner Makler asked how many landowners are affected? If hearings are needed, how would that affect the construction schedule?
“There are roughly 40 acquisitions that are being planned,” said Mr. Bahia. “Many landowners own multiple parcels, so we’re grouping those into single transactions to occur. Construction will last roughly a year to a year and a half. So the plan is to pursue the right of way and the easements on a parallel track to construction, and have both completed in November of 2023.”
Ms. Taylor added, “The property rights for construction are on existing DWR land. The easements we’re seeking would be for the operation of the project.”
