Delta Flows-March 24, 2010
Good news, for sure
On March 15, Alameda County Superior Court Judge Alice Vilardi ruled that the Governor and the California Department of Water Resources (DWR) violated the law when they approved 2009 transfers to the Drought Water Bank.
Governor Schwarzenegger proclaimed a “drought emergency” in February 2009 and used that emergency to exempt water transfers to the Drought Water Bank from meeting the requirements of the California Environmental Quality Act (CEQA). In April 2009, the Butte Environmental Council (BEC), the California Sportfishing Protection Alliance (CSPA) and the California Water Impact Network (C-WIN), contested the emergency proclamation as an improper use of CEQA’s emergency provisions,
This month, Judge Vilardi agreed, finding that the Governor failed to declare “that there was a disaster, or identify a specific geographically described disaster-stricken area” as California law requires. The judge found no evidence of a sudden, unexpected occurrence involving imminent danger or demanding immediate action “to prevent or mitigate loss of or damage to life, health, property, or essential public services.” Possible consequences were “months or years in the future.” The Governor’s proclamation didn’t waive CEQA requirements and actually directed DWR to protect the environment.
This decision will change the way DWR, the State Water Board, and the U.S. Bureau of Reclamation can use the Drought Water Bank for transfers in the future.
Good news, sort of
The special panel of scientists assembled by the National Research Council at the request of Senator Feinstein has announced that—surprise!—proposals to reduced Delta water diversions to protect fish are “scientifically justified.” So yes, fish do prefer more water to less water. This confirms the conclusions reached last year by the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) in their biological opinions (BiOps) that led to shutting down the pumps for several weeks last summer.
The panel didn’t quibble with “whether,” but it did quibble with “when,” as in “what environmental triggers indicate when diversions should be reduced?” It will take careful juggling to figure out how to get fish the water they need, when they need it, while still providing water to all the human beings who expect to get their own reliable supply of water from the Delta. What they need is “reasonable and prudent alternatives” (RPAs).
For example, when is it OK to reverse the flows in Old and Middle rivers? (Why would it ever be OK to reverse the flows of a river? Ah, but that isn’t a reasonable or prudent question.)
The next task of the panel is to consider other stressors on listed fish and other RPAs. The report is due next year. Interestingly, the committee found that it was difficult to do a thorough evaluation partly because there is no good data on how much water is needed to implement solutions.
Bad news, but not a surprise
Governor Schwarzenegger has made his predictably political appointments to the Delta Stewardship Council: Francis Randall “Randy” Fiorini, a Turlock agribusiness owner; Philip Isenberg, a veteran political operative and lobbyist for the Irvine Water District (and chair of the Delta Vision Blue Ribbon Task Force); Henry “Hank” Nordhoff, a bio-tech corporate executive; and Richard Roos-Collins, director of legal services for the Natural Heritage Institute. They join the one lone Delta area representative on the Council, Don Nottoli, a member of the Sacramento County Board of Supervisors, who is automatically on the committee as head of the Delta Protection Commission. The Legislature weighed in with their nominations: former State Senator Patrick Johnston of Stockton (nominated by Senator Steinberg) and Gloria Gray, a former hospital administrator who sits on the board of directors of the Metropolitan Water District of Southern California (appointed by outgoing Assembly Speaker Karen Bass).
While Patrick Johnston authored the Delta Protection Act, has served honorably on the Delta Protection Commission, and is a joy to work with on other local issues, Johnston said in front of the state legislature this past summer that local Delta advocates were parochial in their view of Delta management. (We think that the idea think of local input in governance is an American right, and find it disheartening that such a basic ideal of democracy is now labeled by a former elected official as parochial.) He also indicated in his testimony that arguments about protecting the economic value of the Delta fishing and farming communities were not important because what was driving Delta economic interests was local development.
Unfortunately, retired Senator Johnston’s testimony indicates to us that he has little interaction with the thousands of people involved with the Restore the Delta campaign, has little understanding of the $3.5 billion dollar annual Delta family farming community, little appreciation for the multi-billion dollar California recreational and commercial fishing industries, or for the Delta boating and recreation economy – all of which are dependent on good water quality and adequate fresh water quantities. It will be interesting to see if former State Senator Johnston will represent the interests of the region that he represented in the past, or if his ties to the political industry in Sacramento will completely influence his thinking.
So there we have it: Delta governance firmly in the hands of people who have no or little appreciation for the Delta and no interest in protecting the region. Will the Delta be the first California region to be internally colonized by those who want to control California’s water supply?
Going with the flow?
Despite its demonstrated inability to do anything right for the Delta, the State Water Resources Control Board is once again earning its keep by listening to experts while trying to thread the needle of political expedience. This time, the Water Board’s task is “To Develop Flow Criteria for the Delta Ecosystem Necessary to Protect Public Trust Resources.”
RTD staff attended part of the first of three days of hearings this week. Questions from the board made it clear that they want to hear about nutrients, contaminants, sediment– anything except flows that might be affecting fish and habitat in the Delta. It was also clear that this is all about what we do until we get that peripheral canal up and flowing.
For a great analysis, check out by Mike Taugher an article on the balls the Water Board has dropped over the years at http://www.dailydemocrat.com/news/ci_14739369
Correction
In our last newsletter, we reported that Greg Zlotnick represented Santa Clara County on the BDCP steering committee, whereas he now actually consults for and represents Westlands Water District and the Metropolitan Water District. And he notes, “your reporting of my comment was/is incorrect. I pointed out that the statements of Assemblyman Huffman, and Ann’s reference to them, were wrong and that the legislation specifically does NOT contemplate reducing reliance on the Delta for current water supplies but rather it says it should not be looked to to meet ‘future water supply needs’ (emphasis added, § 85021).” We thank Mr. Zlotnick for calling these errors to our attention, and we apologize for our error.
Delta Flows-March 18, 2010
The BDCP Steering Committee Models Evasiveness
Ann Hayden, Senior Water Resource Analyst at the Environmental Defense Fund, kicked off the BDCP meeting on March 11 with a request to change the BDCP purpose statement to include language ensuring that reduced dependency on the Delta would be expressed as a goal of the planning effort. She noted that reduced dependence on Delta exports was a hard-fought addition (by Assemblyman Huffman) to the recent delta legislative package.
Chair Karen Scarborough, downplaying the importance of the purpose statement and questioning the steering committee’s authority to include such a rubric, said that such matters “reside within a legal realm” and sidestepped the request. She said that the Administration had directed the legal team to work in a more coordinated fashion with the EIR/EIS team to ensure compliance with the guiding legislation, before adding that in her opinion, over the last four years all of the options have been thoroughly examined.
This prompted a digression on the timeline for the remainder of 2010. Carl Wilcox of the Department of Fish and Game voiced concerns about the “aggressiveness” of the schedule, saying that there was a considerable workload on the biological staff in his agency and he was unsure if a quality product could be completed in the time allotted. Carl also expressed a desire to integrate and examine the upcoming SWRCB flow recommendation for the needs of the estuary, saying he felt that whatever was to come out of SWRCB flow determinations should be close to, or match up with, BDCP’s proposed conveyance operational criteria.
(RTD staff wonders how much real science is actually being done here. Is this just political calculus to get a sign-off on operational criteria that the BDCP expects to violate anyway?)
The group spent a good half hour rattling off reservoir capacities, snow pack survey results, and possible allocation increases or reductions. Westlands’ Jason Peltier began a mantra of “no water” which seemed to follow him throughout the meeting. Just when Westlands thought things couldn’t get any worse, it appears that the state and federal water projects have nearly reached their maximum allotment for sucking up smelt, which could lead to shutting down two more pumps. And then there is the annual “bloodbath” as striped bass gorge on out-migrating salmon smolts; Peltier suggested that anyone interested in accomplishing restoration work should do their part by catching a couple stripers in the Rio Vista Striper derby. This kind of sarcasm goes well with the brazen misinformation Westlands is handing out.
(Peltier added that 22 of the world’s 25 largest stripped bass were caught in the delta. Not true: Our state record isn’t even in the top 25.)
North Delta’s Melinda Terry asked for updated information on where state and federal liability ends on levee failure from an earthquake, but Scarborough dodged that question and instead pointed out that the Steering Committee had made substantial progress in the past several months (she actually said “checking-off the boxes”) and congratulated herself and all the other steering committee members. As she sees it, very little stands between the current document and the arbitrary Sept 23rd deadline to get the draft EIS/EIR out. Hayden questioned the ludicrous schedule while Roger Patterson (MWD) offered his kudos and pushed for a FIRM date of Sept 23.
The NOAA representative noted that as a co-lead on the EIS, his agency would have to sign off on the draft as well, but that doesn’t seem to be a rule that Scarborough considers binding. Peltier resumed his plaint of “no water” and took the opportunity to remind everyone how much shutting down two of the five operating pumps in Tracy “hurt” considering the current 5% allocation.
There was a discussion regarding habitat for terrestrial species and the acreage numbers associated with their preservation, conservation, or restoration. Everyone in the room asked for more justification for the acreage targets. Peltier and the representative from the San Luis Delta-Mendota Water Authority questioned the need for all the restoration work and the creation of “new” habitat types. Promises were made on the justification, but not much was said regarding the “new” habitat types. (RTD suspects that the steering committee doesn’t want to advertise the reasoning behind the need for the new types of habitat: The presence of salt in the estuary will result in the development of new types of habitat and possibly expansion of existing species/ranges and/or new species.)
Scarborough explained that everyone in the room seems to understand and agree on the appropriateness of the target ranges when the matter is discussed orally. “The difficulty comes when you try and put it on paper.” (RTD’s interpretation of that: The target stops moving, making it a bit more difficult to say whatever it is the reader wants to read.)
There was a brief discussion of expanding the project area in order to include any mitigation measures that may be done near but not inside of the project area. Agency staff seemed vehemently opposed to that.
Following a Powerpoint presentation on project alternatives, Peltier joked that with all the difficulty, uncertainty, and costs, perhaps a “no project” alternative was most prudent.
Osha Meserve, representing Reclamation District 999, took the opportunity to agree with Peltier, bringing the meeting back around to where it started. She said that it would be in the spirit of the current legislation to also reduce reliance on delta exports. Greg Zlotnick (Santa Clara Valley Water District) added that the legislative intent of the language was to reduce reliance for current needs.
Serious once again, Peltier said that reduced exports doesn’t work for Westlands and blamed the majority of the water and system impacts on upstream diverters.
And as we have always expected…
While reduced exports “doesn’t work” for Westlands, apparently the water deliveries announced for Westlands growers for 2010 mean a highly profitable year. According to an email sent by Westlands’ grower Mark Borba to Congressman Dennis Cardoza, Congressman Jim Costa, and other Westlands leaders, the announcement of Westlands water allocations was a “$140,000,000 phone call.” (To read the email on-line, visit http://aguanomics.com/2010/03/water-is-money-is-politics.html)
Although Westslands officials insist publicy that they are entitled to full contract deliveries of water, otherwise farmers and farm workers alike will suffer in the Central Valley, the delivery of surplus water which can range from zero to over one million acre feet per year, depending on the availability of surplus water, is what Westlands is entitled to under the terms of their contract with the Bureau of Reclamation. Their water rights are appropriative and junior compared to other regions in California, but they have a business model and a marketing campaign based on water reliability — an allotment that they are not legally entitled to receive. Here are some excerpts from the email Borba sent:
Thought I’d share my rough calculation of the impact of the (30% + 8-10%) = 38-40% allocation announcement now anticipated (thanks to all of your tireless efforts) from the Bureau on March 15th:
It was a $140,000,000 phone call!…..adding an average of $312/ac to the “margins” of every grower’s budget in the District:
(Increase by 35%) = 420,000 AF X $300/af (ie. $465-vs-$165; Supplemental -vs- O&M)
(Total 40%) = 480,000 AF X $30/af (ie. Est.reduced O&M/af)
$140,000,000 over 450,000 acres = $311/acre
How growers elect to “spend” that is anybody’s guess:
Plant more acres (Cotton?)
Substitute for Supplemental water (no acreage change; lower input costs; shift to capital spending?)
Substitute for Well Water (no acreage change; lower input costs; add margin to financing package?)
“blend” all water costs; farm more acres (NOTE: +35% = 0.8925 AF/acre)
Any grower talking to a lender about 2010 financing not only shows this increase in margin, but can now “show me the water”, which has become the bankers lament…and a prerequisite to getting crop financing.
Thanks to Cong. Costa and Cardoza for not only pushing for this accelerated announcement in the increased water supply, but for insisting that the allocations (both the 30% and the addn’l 8-10%) be delivered at “Contract Rates”.
This is HUGE…combined = $140,000,000!
So of course, reduced exports will not work for Westlands. After all, their profit each and every year is more important than the Delta’s economy and ecosystem. Cotton and almonds for export trump native salmon fisheries and Delta family farmers.
So how is implementation of the BDCP going to restore the Delta? How are we supposed to trust that proper governance of new conveyance will bring the Delta back to life when Westlands growers have access to Congressional Members and Senators who ignore Delta communities?
Time and time again, the people of the Delta are called provincial, pesky, and limited in their thinking when we question governance as the answer. They (Westlands, the Coalition for a Sustainable Delta, Metroporitan Water District, and ACWA) have made us and the Delta smelt into the enemy. This time is at hand to expose their water profiteering ways for what they are and to show that they will never willingly agree to lessen their dependence on the Delta.
Delta Flows Special Edition
It its haste to begin fixing what the state and federal governments spent decades breaking, the legislature last year came up with a tight schedule for the Delta Plan. And once lawmakers passed the 2009 Delta Legislation, the Administration wasted no time in getting started.
Former CALFED Director Joe Grindstaff moved right over as Acting Executive Officer of the newly created Delta Stewardship Council. And staff transferred from CALFED got busy sending out RFQs-Requests for Qualifications-for things like developing performance measures and tracking ecosystem health. The RFQ screening process is already underway. The Department of Water Resources (DWR) didn’t want to wait until later this year to get a consulting team on board.
On March 9, at a joint Assembly/Senate oversight hearing on Funding and Implementation of 2009 Delta Legislation, Assemblymember Huffman, Senator Pavley, and their committees (Assembly Water, Parks and Wildlife, and Senate Natural Resources and Water) were surprised to learn how much DWR has already done-without legislative oversight.
SB 1, the Delta Governance/Delta Plan bill, took effect February 3, and the timeline gives the Delta Stewardship Council (DSC) only six to eight months to do the RFQs. DWR thought its services would save time and said that the DSC will be involved in the final consultant interviews.
In addition to getting things moving with the stewardship council, DWR made some “interim” decisions about the Independent Science Board created by the legislation. DWR is using the existing CALFED lead scientist, but only until the DSC is in place and can recruit its own lead scientist. (The fish can’t wait.) DWR is also staffing the new Delta Conservancy but hasn’t hired an executive officer.
(So far, only one person is in place for all this new governance: Sacramento Supervisor Don Nottoli, appointed to chair the Delta Conservancy and thus also a member of the Delta Stewardship Council. Huffman hastened to announce that no other appointments had been approved, although RTD has heard that former Speaker Karen Bass put forward the name of Metropolitan Water District board member, Gloria G. Davis, to serve as a Delta steward.)
Huffman acted like he had been blind-sided by the water bureaucracy. He pointed out that the legislation specifically says that the DSC will choose its own staff. Huffman seemed to think that making Grindstaff head of the DSC, even temporarily, was not the Administration’s decision to make.
Huffman said that lawmakers intended to initiate a change, not a shift of staff and a continuation of the status quo. Senator Cogdill, too, expressed concern that the CALFED Bay Delta office has just rolled over into this new council, without changing the ineffective CALFED culture.
RTD staff cannot help but point out to the legislative leaders who insisted last year that this water pack was the solution for the Delta that we saw the water package as nothing more than a continuation of the status quo. Not because the bill was riddled with bad legislative intent, but because we know major reform of the existing water agencies is essential to ensure proper governance of the Delta.
Much in the same way that the architects of the financial system collapse will never create real financial system reforms for the benefit of average Americans, the water bureaucrats who have brought the Delta to the brink of complete collapse cannot be trusted to bring about the changes needed to restore the delta, regardless of how much oversight and attention is given to their work by legislators with good intentions. We need new leaders and a new work culture in the Department of Water Resources, the State Water Resources Control Board, the Department of Fish and Game, and the Natural Resources Agency.
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And we’re paying for this how?
Staff is using $2 million from the Governor’s budget allocated to DWR from Prop. 84, and they’ve asked for an additional $14 million to develop the Delta Plan, which must be completed by January of 2012. (Never mind that Prop 84 was supposed to fund levee improvements to protect the millions of Californians living behind levees.) Staff was to be paid primarily with $5-$6 a year from the general fund, plus some Environment License Plate Fund money and some bond funds that go to the science side. Pavley would still like to see beneficiaries paying more through fees, but right now there is no long-term funding strategy. Assemblymember Salas suggested including wastewater dischargers and diverters as beneficiaries for purposes of assessing fees.
Catherine Freeman, author of the 2008 “California’s Water: An LAO Primer,” presented an analysis of SB 1 by the Legislation Analyst’s Office. She noted that the legislation created the Delta Conservancy and the Delta Stewardship Council but provided no continuing funding for these new governance bodies. Also, the water bond wasn’t created to fund the whole package. Freeman said that the LAO, too, was concerned about the timeline for the Delta Plan and thought that the DSC would be seated by now. Freeman noted that the seven-member DSC has been given 58 support positions, nineteen of them executive level staff. (And this doesn’t include the Water Master.) Yet much of the work is to be contracted to state agencies or other consultants. The LAO recommended reducing the number of contracts under the Delta Plan, arguing that executive staff should handle much of that work. The LAO also recommended replacing Metropolitan Water District as the BDCP liaison, a contract MWD has held under CALFED. MWD’s status as a major stakeholder gives the appearance of conflict of interest. (Well, yes.) Freeman said the BDCP contract and others should not be funded until a budget for the Delta Plan is in place. Freeman said that all CALFED costs are continuing, with DWR funding two-thirds of CALFED’s expenditures, much of it from off-budget water project contractor fees. Senator Pavley said, and Freeman agreed, that the SWP should be brought on budget because there are problems with the way DWR is accounting for funding and tracking expenditures. For example, if a contractor funded anything outside the process, DWR wouldn’t know. The Legislature can put all or part of the SWP on budget to give itself some oversight. LAO needs to know how the Council plans to manage its tasks before determining how many staff are needed and what the costs should be. The LAO recommended a financing plan with a zero-based budget rather than a budget based on increases over previous similar expenditures. The LAO also wants to see a workload analysis for all the agencies involved. Freeman agreed with Senator Cogdill that if the bond fails, they will have to look at water user fees or other revenue sources (or existing funding) to meet the policy goals. Lester Snow, newly appointed director of the newly renamed Natural Resources Agency (formerly the Resources Agency), assured committee members that the Administration intends to work with the Legislature on DSC appointments. DWR is providing funding until a long-term funding plan can be developed. He and Grindstaff insisted that once the DSC is seated, they can change anything done so far. But Assemblymember Huffman expressed concern that contracts are “off and running” before the DSC has even been formed. And Senator Wolk suggested that having so much already laid out would make it difficult for the DSC to function as the Legislature intended. There is plenty of pressure to get the council seated. Freeman said the legislature should continue oversight, and the sooner the council is seated, the better. In the meantime, the Legislature will be working with existing CALFED staff. |
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Do this our way and no one gets hurt…
After getting the news on how little oversight they actually have, the oversight committees turned to the question of how the Delta legislation is beginning to be implemented. They heard first from David Nawi, Senior Advisor to the Secretary of the Interior. Since the Legislature has no authority to oversee the Department of the Interior, everyone was at pains to make it clear that Nawi was appearing voluntarily, by invitation.
Nawi said that Interior Secretary Salazar thanked the Legislature and the Governor for enacting the Delta legislation and said that all involved federal agencies are committed to the coequal goals. They have even issued a federal interim work action plan and are committed to working with the BDCP, which they see as the best mechanism to solve the state’s Delta-related problems. Assemblymember Tom Berryhill, voicing concern for west side economic dislocation and reliance on foreign food supplies, wondered why Salazar had gone back on his promise, made last summer in Fresno, to put the Two-Gates Project on a fast track. Assemblymember Caballero, too, said she thought Two-Gates was a priority. According to Nawi, the project was on a fast track until fish biology intervened in hydrology, and the projected cost of what was supposed to be an interim project more than doubled. (Nawi also mentioned that west side landowners are holders of junior water rights.) (RTD staff cannot help wandering how supporting the Two-Gates Project, also know as the full Delta pumping plan, would help secure American food supplies. All it would do is finish off the Salmon fishery, a local protein source, while securing maximum water for junior water-rights west side landowners so they could export more almonds to China.) Wolk raised the issue of the involvement-or lack of it-of local land use permitting authorities in the BDCP. Nawi’s position was that counties had had the opportunity to be involved in the steering committee process but had chosen not to be. Now, local cities and counties can participate in the EIR for the plan. Following Nawi, the oversight committees heard from Karen Scarborough, Undersecretary of the Natural Resources Agency and Chair of the BDCP. Scarborough said that the BDCP is incorporating habitat restoration and other stressors in its plan. She emphasized that the Natural Community Conservation Plan (NCCP) that the BDCP is pursuing meets a higher standard than a regular Habitat Conservation Plan. Huffman asked Scarborough about the Purpose and Need Statement first published in the Federal Register for the BDCP. At that time, the purpose was to protect the ability of the projects to deliver up to the full contract amounts. Since the 2009 legislation includes measure to reduce dependence on the Delta, Huffman suggested that the Purpose and Need Statement needed to be redone. He also asked whether the BDCP included demand management actions as part of its analysis. Scarborough said that the BDCP focuses on Delta water and is not the forum for considering other management strategies. She deferred to DWR on the question of what the SWP can deliver. Huffman wondered why the BDCP was pushing forward to have a draft plan by the end of this year, a schedule that will put it out before the Delta Stewardship Council has determined how much water the Delta ecosystem needs and before it has completed the draft of the Delta Plan. Wolk called it an “artificial rush to judgment.” Scarborough justified the aggressive schedule as necessary to maintain the momentum of “people at the table.” But the committee seemed to think this was all about politics and getting a plan out before the Governor leaves office. Never mind the science. Here’s a recap of a brief exchange: Huffman: Is the BDCP considering a full range of flow and operational criteria, including different scenarios and sizes? Scarborough: The EIR/EIS will incorporate all alternatives required by the legislation. Huffman: Is conveyance less than 15,000 cfs still being considered? Scarborough: It will be part of the EIR. Huffman: Who will select the final alternative? Scarborough: She’ll be looking for steering committee concurrence. She’ll be noting any “trepidation” when she looks around the table. But the Potentially Regulated Entities-the water exporters-will ultimately decide.
Wolk, noting concerns expressed particularly by Solano County, said that there doesn’t seem to be good integration of local Habitat Conservation Plans into the BDCP. Scarborough said they are looking at a “tiered approach” to working with counties. Whatever that means. |
Following the smoothly dismissive Scarborough, who clearly knows that the real power doesn’t lie in legislative oversight, the few members of the oversight committees who hadn’t already left for lunch heard from John McCamman, Director of the Department of Fish and Game.
McCamman said that DFG has a trustee and regulatory role in the Delta, and he praised the BDCP as a plan that will create a “stable regulatory framework.” He said the department will need $1 million and three positions to complete the flow criteria; DFG has created a water branch to deal with flow issues and the BDCP. They will also be working with federal fish agencies.
Huffman asked whether biologic objectives and flow criteria are numeric and quantifiable. McCamman said they are. Huffman noted that the Central Valley Project is supposed to comply with state water law and will need a California Endangered Species Act (CESA) permit if the federal biological opinions are invalidated. McCamman agreed that the CVP has a compliance requirement but has violated it in the past.
One committee member raised the issue of predation by striped bass, and McCamman said that the federal fish agencies are considering making rules about striped bass. Huffman suggested that the department focus on operational answers to predation, such as whether the water projects create traps. McCamman said they are researching that.
He also told the committees that the NOAA biological opinion includes acquiring habitat, and Prospect Island is being acquired with that in mind.
Wolk asked about collaboration with local land use agencies as the BDCP becomes a Natural Communities Conservation Plan. McCamman said that DFG can’t participate in the Delta region because of lack of staff.
Tom Howard, Chief Deputy Director of the State Water Resources Control Board, talked about the nine-month development process for Delta flow criteria. He said the Water Board is also developing flow criteria for the San Joaquin River.
The Water Board has prepared paperwork for hiring a Water Master but needs a salary and job description, plus approval from the Department of Personnel Administration. This process, like others discussed earlier, needs to be done with the Delta Stewardship Council.
Pavley asked Howard about the process of identifying illegal diversions. Howard said they had received authority to proceed with this only a few weeks ago, after the legislation went into effect, and they would be hiring staff in May. Nevertheless, the Water Board has already identified 370 water diversions on Union and Roberts islands and issued eleven cease-and-desist orders. RTD questions the accuracy of the research behind those orders. Reliable Delta sources suggest many false assumptions are being made by state officials in this work.
The fifth panelist discussing implementation of the legislation was Mark Cowin, newly appointed Director of the Department of Water Resources (DWR). He said that SB 1 requires early action on habitat restoration projects; by the end of March, DWR expects to certify and approve a restoration project on Dutch Slough in eastern Contra Costa County.
DWR has new monitoring responsibilities under SB 6 (Groundwater Monitoring) and SB 7 (Statewide Water Conservation). Cowin reported that DWR already has protocols and reporting methods lined up.
Referring to Judge Wanger’s periodic decisions about pumping, Cowin commented that “a federal judge is making real-time operational decisions for us.” He said that DWR biologists have science that supports “more reasonable measures” for fish protections than are allowed under the biological opinions. Nevertheless, the Department is remaining neutral in the matter of legal challenges to the BiOps.
The final panelist was Linda Fiack, Executive Director of the Delta Protection Commission (DPC). She reported that a recast commission-reduced from 23 to 15 under the 2009 legislation-has already met. They have adopted a formal schedule for monthly meetings. By July 1, the Commission must propose changes in the Delta primary zone using a zone expansion study. That is already underway.
In addition, Fiack reported that the Commission has adopted a revised management plan, the first revision since the mid-’90s. Regarding funding, she reported that the DPC has three staff and a budget under $500,000, covered from non-general fund sources. The Commission has proposed expanding staff from three to nine and will need more funding for additional responsibilities under the new legislation, but Fiack is confident that they can manage with little guaranteed funding, as they have in the past.
Assembly Member Yamada commented that even people who are not fans of the legislative package approve of streamlining and strengthening the Delta Protection Commission.
After sitting through this Joint Oversight Hearing, RTD staff felt like the Legislature has taken five steps forward and four steps back. It is clear that water and regulatory agency leaders do not feel that legislative oversight has any real impact on their day-to-day activities. It remains to be seen whether legislative oversight can bring about any improvements at all for the Delta.
Delta Flows for March 8, 2010
An Opportunity for a Tidy Little Profit
Just in case you weren’t invited (and there’s a good chance that you weren’t), you may be interested to know that The Seminar Group, which provides continuing education for lawyers, is hosting a two-day seminar in Santa Barbara next week called “Investing in Our Water Future: A Focus on California.” And they do mean INVESTING, as in making money from.
Day One focuses on matters like financial partners and private equity. On Day Two, they’ll look at water transfers and supply development, plus water marketing. (Yes, water is definitely something we have to persuade people that they need.) DWR will be there along with all those investment advisors, and of course no meeting like this would be complete if they didn’t hear from the Metropolitan Water District, Westlands, and the Nature Conservancy.
Most interesting is the seminar’s co-sponsor, WestWater Research, LLC. According to its website, WestWater “is the leading firm in the water rights industry.” (Water rights are an industry???) “WestWater specializes in transaction advisory services, water right valuations and appraisals, marketing services, water resource economics, and investment services.”
A fun feature on the WestWater website is a map with drops for Selected Project Locations. The Delta region has two drops, one for Transaction Advisory and one for Economic Planning. Now wouldn’t we like to know what that is all about?
A Little Salt Will Bring Out the Flavor
You know all that salty, selenium-laced groundwater that Westlands can’t figure out what to do with? Thank goodness they’ve come up with a plan. They’re planning to put it in the California Aqueduct!
That’s right: Westlands’ “Conveyance of Nonproject Groundwater from the Canal-side Project Using the California Aqueduct” proposes to discharge up to 100,000 acre feet of groundwater into SWP’s California Aqueduct. This is a great new idea for cleaning groundwater: Filter it through people!
The plan is to pump the groundwater from land near the California Aqueduct and convey it through the Aqueduct for withdrawal and use on other land within the district. Sort of like taking an on-ramp to Interstate 5 somewhere south of Santa Nella, then taking the off-ramp at Kettleman City. Of course, they won’t have any trouble keeping that ground water (50% of it too brackish to use, according to the Bureau of Reclamation) from mixing with the other water in the canal and passing on through to some of the 20 million people who rely on the SWP for drinking water.
Westlands is the lead agency on the EIR for this project. Maybe that’s not a good idea. This is a water agency that has given up any pretence of being willing to collaborate on anything with any other group. It has even terminated its membership in the Association of California Water Agencies (ACWA).
Now Where Did They Put That Annual Report?
Speaking of Westlands Water District, purely by accident, RTD discovered that the district hasn’t posted an annual report on its website since 2005-2006. That’s after posting them regularly every year beginning in 2000.
Curious to see what we were missing, we took a look at the 2005-2006 annual report. The front cover features a tree with blossoms, apparently almond. The back cover features cotton. Facing General Manager Tom Birmingham on the second page is a lovely picture of . . . an orchard. The featured family farmers pose in front of a field of . . . cotton.
Check it out before they pull it off the website.
Contentious Conversations on Mercury
When the Central Valley Regional Water Quality Control Board released its Basin Plan Amendment for Delta Methylmercury Total Maximum Daily Load (TMDL) for public review in 2008, it heard from a lot of unhappy stakeholders.
Apparently nobody was happy with the proposed plan and regulations-not the dischargers who will be regulated and not the people advocating on behalf of those eating mercury-laden fish.
The Regional Water Board’s solution was to bring in a neutral third party (the Center for Collaborative Policy from CSU Sacramento) to convene a stakeholder process to advise the Board. The Stakeholder group is now in its second year of negotiating a phased, adaptive approach to TMDL implementation.
At its February 24 meeting, the Stakeholder group, some of them joining the meeting via conference call or webinar, spent several hours discussing a one-page document of Basin Plan Amendments related to an Exposure Reduction Program. Among the issues generating controversy: when should the word “shall” be used, designating a requirement, and when should “should” be used, designating a strong recommendation. Dischargers of mercury or methylmercury are supposed to make some contribution to educating people about the danger of eating fish from the Delta. But exactly what is it reasonable to require those dischargers to do?
Moreover, where will the funding come from? Who pays how much? The meeting ended without answering any of those questions.
Phase 1 of the TMDL Program is anticipated to last eight years, beginning with approval of the Basin Plan Amendment. During Phase 1, dischargers and State agencies will conduct mercury and methylmercury “characterization and control studies,” including actions to minimize increases in mercury and methylmercury discharges to the Delta; development of a program to reduce mercury-related risks to humans; and development of mercury control programs for tributaries to the Delta.
At the end of Phase 1, the Water Board is expected to re-evaluate the methylmercury allocations for all sources and consider adjustments, as well as implementation of a Delta Mercury Control Program.
The Stakeholder Group will be involved throughout the process.
A report is expected to be available for public review in April. The Water Board has scheduled a Special Meeting on Basin Plan Amendments for a Mercury Control Program for the Sacramento-San Joaquin River Delta Estuary and will take public testimony on April 22 (Earth Day). The meeting will be held at the Regional Water Quality Control Board office at 11020 Sun Center Dr #200, Rancho Cordova, CA 95670-6114.
No Good Deed Goes Unpunished
An Orange, California couple who replaced their grass with wood chips to save water and money have been cited for violating a law requiring live landscaping to cover 40% of the yard. They’ve since put in drought-tolerant plants, but the city isn’t satisfied. Quan Ha still faces up to six months in jail and a $1,000 fine.
This is a family that should be proclaimed California environmental heroes. Instead, they are being punished for creating a sustainable California landscape.
We cannot help pointing out how promoting unsustainable water policies through local laws reinforces support for a statewide water system that privatizes profits from water, a public trust resource, for the few. At the same time, infrastructure and environmental losses related to unsustainable water development will continue to be socialized and paid for by all Californians — especially the people of the Delta.
Delta Flows Newsletter March 10, 2010
Senator Feinstein Backs Off for Now
After Interior Secretary Ken Salazar announced the Bureau of Reclamation’s Initial 2010 CVP Water Supply Forecast last week, Senator Feinstein dropped her controversial legislative amendment that would have compromised Delta fish protections in order to send more water to Westlands. This was a proposal that astonished and angered diverse water interests up and down the state and revealed the Senator’s lack of good information. We shouldn’t expect the proposal to be gone for good, because Westlands will never be satisfied with junior water rights, and Westlands money will always buy influence.
Interior will still be looking for extra water to meet the “serious water supply challenges” on the west side. This will include “securing water from urban water suppliers in exchange arrangements; capturing and using excess restoration flows in the Mendota Pool; improved operations through more precise compliance with Old and Middle River flows by the Bureau of Reclamation and the State Water Project; additional water transfers to be made available from senior east side water users to the west side, over and above customary east to west side transfers; and authorization of additional pumping capacity at Banks Pumping Plant by the U.S. Corps of Engineers during times that are not restricted by water rights permit conditions or environmental requirements.”
Civil Discourse, Few New Answers
A lecture hall full of people spent four hours on February 22 hearing about the legislative, economic, research, and legal situation in which we find ourselves in the wake of the 2009 Legislative Water Package. Hosted by UOP at its McGeorge School of Law in Sacramento, the water forum was subtitled “Where Are We, and Where Do We Go From Here?”
The goal, said the moderator, a McGeorge adjunct professor, was to provide a neutral place for people with differing views to discuss the subject.
Panelists generally agreed that the water bond is laden with pork added to the soup at the last minute, in the dead of night, to make it palatable to more legislators. Even Assemblyman Bill Berryhill, who signed on to the original package for the new storage, said that pork in the water bond outweighs storage and delivery projects three to one and that legislators didn’t understand what they were voting on.
Senator Lois Wolk recapped the water package’s flaws: no significant representation for Delta counties, no enforceable flow criteria, no realistic revenue source, no water rights protections, and no provision for the new Stewardship Council to require contractors to do anything differently in the future than they have in the past.
Kathy Cole, legislative representative for the Metropolitan Water District, said MWD thinks the water package “does what it needs to do” in terms of conservation and respecting co-equal goals. Tim Quinn, Executive Director of the Association of California Water Agencies (ACWA), was more enthusiastic in his praise of the “truly historic” water package.
Quinn pointed out that the “magnificent system we rely on” was built in a time of extraction-based policies that didn’t assign value to the ecosystem. The water package is part of the difficult transition to sustainability-based policies. Quinn said that the projected cost of fixing transfer and storage infrastructure isn’t high compared to what our parents paid to build the system in the first place. He said it is reasonable to ask ratepayers to pay for it.
Economists and scientists alike said that we don’t have the information we need to make good decisions about water in general and the Delta in particular.
Dr. David Sunding, a professor of economics and water policy from UC Berkeley, said that discussions about the Delta, formerly dominated by engineering and biology, now see economics coming to the forefront, but data about costs is lacking. This involves not just the actual cost of whatever we do but the cost of doing nothing, the cost of catastrophic failure, the value of a more reliable water supply, and the value of biodiversity. If we assume a 5-year construction period and costs financed at 5% for 40 years, we get a cost per acre foot of water that is considerably higher than the present cost. Would the benefits justify that increased cost? No one has calculated the benefits.
Water markets, he said, are not a silver bullet; their performance has been disappointing, with urban agencies having trouble arranging transfers. He said we need to get to the bottom of transfers, a view with which Restore the Delta agrees. There may be a lot of transfers going on that economists and the rest of us don’t know about.
Dr. Jeffrey Michael from UOP’s Business Forecasting Center addressed the issue of water and jobs. He pointed out that facts are things you know only when all the data is in, so some recent figures on farm employment that have been presented as “facts” are very preliminary. Restore the Delta readers are familiar with Dr. Michael’s analysis of the history of employment in the San Joaquin Valley and the factors affecting recent increases in unemployment: construction job losses, not farm job losses. Last summer’s biggest losses were sustained by farmers, not farm laborers. He pointed out that, “We don’t know what farm jobs would have been with full water.” (Dr. Michael didn’t say it, but Restore the Delta has to wonder: If there had been more water, how much of it would have been used for farming?)
Ryan Broddrick, former Director of the Department of Fish and Game, said that DFG has plenty of experience with “command science” responding to events but little with activities such as data collection and monitoring, which aren’t “sexy.” Rich Breuer from the Department of Water Resources echoed Broddrick, referring to “crisis-driven science.” Broddrick said that Delta science is young, and research is not keeping up with demand. Therefore, statistics rather than science has driven many decisions. Broderick also commented on the trend to “out-sourcing” science to universities and consultants in connection with natural resources and water bonds passed in the 1990s. People with regulatory authority are not doing much of the research.
Jonas Minton of the Planning and Conservation League unveiled PCL’s alternative to the five-intake, two tunnel BDCP conveyance proposal now on the table. PCL is calling for one tunnel with one Sacramento River intake. Capacity for each: 3,000 cfs, or 2 ½ million acre feet maximum. Some advantages: less surface disruption, lower cost, reduced South Delta diversions when fish are in the estuary, and less opposition. Part of PCL’s message: show us how you manage a small tunnel before we talk about more changes in diversions.
Of course, everyone still seems to be assuming that the Sacramento River provides an inexhaustible supply of water.
There was general agreement that we need a better way of communicating good science to policymakers, and a general sense that science is reacting to policy decisions rather than informing them. And everyone agreed that we need more data. Asked about research criteria, Minton said that we need to find out what we need to have a healthy Delta. USGS hydrologist Steven Phillips said there are major gaps in data regarding water availability in California; we have no water use data from private irrigators.
In response to a question about Senator Feinstein’s proposed rider to the jobs bill, Minton said Feinstein’s information on jobs is not good. He also said that if there are no fundamental assurances on the Endangered Species Act, environmentalists will abandon the BDCP.
On legal issues, attorneys were asked whether the recent package of bills represents a step forward regarding water rights. Attorney Stuart Somach represents clients in the North Delta and the Sacramento Valley and serves as an outside counsel for Sacramento and Yolo counties. He said the package is too Delta-centric to be helpful in developing water policy. Somach echoed earlier speakers in noting that creating more layers of governance was not a good idea. He commented that the Delta Stewardship Council abrogated decision-making from elected officials to appointed officials.
Attorney Scott Slater, who represents people north and south of the Delta, talked about the importance of “managing misery” so that people rise and fall together and have equal incentive to find a solution. He called for everyone to “put down their swords.”
Dante Nomellini, counsel and general manager for the Central Delta Water Agency, didn’t mince words in declaring that there was nothing good about the Delta package. He criticized the Delta Risk Management Study (DRMS) as a study undertaken to provide a scientific basis to support the unsustainability of the Delta. He noted that DRMS predicted 3.8 levee breaks a year (a situation never seen so far) and led to a Blue Ribbon Task Force that was committed at the outset to an isolated conveyance facility. The Delta Stewardship Council has been designed to ensure that interests now in control will remain in control well beyond the present administration. Why, he asked, don’t we have a Westlands Stewardship Council or a Desert Development Stewardship Council?
Asked about water rights, Nomellini noted that the Water Board is not impartial. Requiring diverters to measure their diversions will put the politicized Water Board in charge of allocating water (actually water shortages). Slater called for a recognition that water rights are a form of property rights, although they have a social duty associated with them. But Somach noted that destabilizing the present water rights system is in no one’s best interest.
UOP will be issuing summaries of the McGeorge presentations along with answers to audience questions not addressed at the forum.
BDCP Gives Another Big Shrug
Last week’s BDCP meeting discussed several big areas of uncertainty:
1. The reach of the project. There seems to be a lot of uncertainty about how the BDCP effort will affect existing Federal Energy Regulatory Commission (FERC) and Endangered Species Act (ESA) requirements for upstream reservoir operations. Could the plan alter existing agreements?
2. Collaboration with local governments. No one understands how county and community plans will work with the BDCP. Even now, local governments like Yolo County don’t have a good idea of the timeline for BDCP to address their concerns.
3. Accounting for effects of planned projects (City of Woodland) and completed projects (EBMUD and City of Stockton) to avoid incomplete incremental analysis.
4. Lack of data. Environmental organizations criticized the lack of justification for terrestrial mitigation acreage targets, and also the lack of biological response numbers or goals. The Westlands representative wanted others to be responsible for that kind of data. There was also dissatisfaction with numbers used in land acquisition for an eastern alignment.
RTD staff continue to be surprised at the ease with which BDCP steering committee members say that they have no idea about a topic when questions are asked that they either do not have an answer to or just don’t feel like they have a publicly digestible answer for. Either an issue isn’t their responsibility or they haven’t thought about it yet. They behave as if they are acting in a vacuum when they insist that they will come up with necessary flows and continue to protect water quality; it is unclear that they will be able to alter upstream releases required to meet these obligations.
They might as well plan on getting an additional 10 MAF of precipitation in California every year.
BDCP staff announced that local interest groups are in queue and that agendas will be out in mid-April.
Conversations on Water/Hablemos del Agua
On March 6, the University of the Pacific Inter-American Program, Hispanics for Political Action and the Coalition of Mexican American Associations will sponsor the first of two informational forums on current water issues. Topics for the March program include Water and Jobs; Can the Delta Be Saved?; Bay Delta Conservation Plan (BDCP); Description of Water Legislation; and Description of the Dual Conveyance System. Dr. Jeffrey Michael and Dante Nomellini are among the speakers. Sponsors include Defenders of Wildlife and the Dolores Huerta Foundation. Both forums will be held in Grace Covell Hall at UOP from 8 a.m. to noon. There is no charge for either program. For more information, contact Esther Vasquez at (209) 477-1589, esther.ari@sbcglobal.net
Central Valley Water Forum Scheduled for Fresno
On March 13, the Valley Water Consortium will present “Central Valley Water Forum: Facts vs. Fictions.” The Forum will be held from 9 a.m. to 4 p.m. at the Social Science Building at Fresno City College.
Topics to be covered: Water and Jobs; Water and Land Use; Water Conservation; Can the Delta Be Saved?; Water Law: Whose Water Is It?; Water, Soil and Climate Change; Is Our Water Supply Sustainable?; Ecological Impact of Our Water Crisis; Pro & Con Debate on the Water Bond Initiative; and Water: Community Rights to Health vs. Corporate Rights to Profit. Among the scheduled speakers is Restore the Delta’s Campaign Director, Barbara Barrigan-Parrilla.
The event is free, but lunch is available for $6 for those who order by March 10. A registration form is available at http://www.revivethesanjoaquin.org. For more information, call (559) 313-7674.
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