Delta Flows June 28, 2010
It sounded like a good idea to us
The Delta Stewardship Council couldn’t wait to get started on the part of the Interim Plan that involves “review and approval of Proposition 1E expenditures for selected projects.”
When voters approved 1E in 2006, that approval included $35 million “to reinforce those sections of the levees that have the highest potential to suffer breaches or failure and cause harm to municipal and industrial water supply aqueducts that cross the Delta and which are vulnerable to flood damage.”
EBMUD partnered with Delta reclamation districts to propose a Delta Levees Special Flood Control Project that would protect the District’s Mokelumne Aqueducts, Kinder Morgan petroleum pipeline, Burlington Northern Santa Fe raid line, and other Delta infrastructure, including State Highway 4.
The FloodSAFE Environmental Stewardship and Statewide Resources Office (FESSRO), Delta Levees Special Projects Branch, recommended moving ahead with the project.
FESSRO noted that if the DSC didn’t approve the project, the legislative mandate would not be met; the funds (which had to be reserved by June 30) would revert; the opportunity to provide jobs in an economically depressed region would be lost; and water supply and reliability for the East Bay would remain at its current level of risk.
There were so many good reasons to move ahead with this, including the fact that “Recent court decisions have made it clear that the state and other public entities may be held liable for the consequences of failing to maintain a flood management system or for failing to mitigate a known danger.”
But DSC staff told the Council that indemnifications for the project weren’t adequate and that more CEQA work was needed. And Patrick Johnston wondered why EDMUD and the counties weren’t paying for this themselves.
Well, you see, there was this legislation. . . . . But never mind that. The DSC apparently has other plans for this money.
Correction: DSC Director Joe Grindstaff did NOT say the BDCP had “gone rogue,” as Restore the Delta reported last month. He did say that some believed they had “gone rogue,” but he said that he thought that was wrong and explained why.
We’re dancing as fast as we can
As Delta farmers struggle to file water use reports by July 2 to comply with last year’s legislation changing reporting requirements, the Senate will be voting this week on SB 565 (Pavley). This bill would establish several new penalty and investigative powers at the State Water Resources Control Board dealing with water rights, while reducing or eliminating existing due process and property rights protections for California water rights holders.
SB 565
- Allows the State Water Board to review and revise any water right without cause, giving this agency new invasive power to inspect private property for vaguely defined purposes to ascertain whether the beneficial purposes of water use are being met.
- Shifts the burden of proving forfeiture of a water right to the water right holder – dramatically increasing the likelihood of a frivolous lawsuit being filed by a third party.
- Forces property owners to pay for the extremely costly engineering reports that will ultimately be used against them by third party litigants.
- Increases exponentially the penalty to reflect the “market value” of water (regardless of the actual value of the water to the user)
These provisions were considered for inclusion in last year’s SBx7 5 on water rights enforcement, but were ultimately abandoned for lack of support.
Many Delta farmers believe, and we concur, that these new authorities will be used to litigate Delta farmers out of existence. By keeping Delta farmers in a position of defense, those who want to usurp their water rights will keep the financial pressure on, forcing Delta farmers to “sell” the farm. This is a blatant attempt to rewrite the California water code to justify taking away the historical water rights held by Delta families.
What is even more shameful about this proposed legislation is that it does not help to meet the long term environmental needs of the Delta, but actually sets the stage for even more water diversions.
Delta Flows, June 23, 2010
“Lipstick on a pig”
That was Senator Lois Wolk’s description of AB 2775, a bill that would amend the water bond to remove language that would allow nongovernmental partners to be part of joint powers authorities formed to own and manage dams.
Assemblymember Jared Huffman and Senator Dave Cogdill, who never agree about anything with respect to water, coauthored this bill focusing on a “narrow point of consensus,” a “surgical change” (to quote Huffman). Huffman presented it to the Senate Natural Resources and Water Committee on June 22. It has an urgency clause.
Why the urgency? In a deeply flawed water bond, the joint powers provision is one of the deepest flaws. Organizations opposing the water bond have noted that this provision would open the gate for more entities like the Kern Water Bank, where private investors profit from public infrastructure investments. The legislature wants to get it out of the water bond before the Secretary of State prepares the measure for the November ballot.
So why did Wolk, alone among the senators on the committee, vote against the amendment? Because, as she noted, the amendment makes the bond more palatable, but “This won’t eliminate the possibility of gaming the system.”
The real problem is with Section 6252 of the Government Code, which allows mutual water companies to enter into joint powers agreements with public agencies. For example, Westside Mutual Water Company is the entity that allows Stewart Resnick to control the Kern Water Bank. Removing the reference to nongovernmental partners from the bond won’t eliminate mutual water companies or change the Government Code.
Huffman admitted that this is a problem, but he wants to fix it some other time. Cogdill said he was surprised at the attention the issue had received. A number of legislators who voted for the water bond reportedly didn’t even notice the provision.
We wonder what else in the water bond they didn’t notice.
AB 2775 will require a 2/3 vote of the legislature, and requires fiscal committee review. Did we mention that it is urgent?
And while we’re tweaking things . . .
In their enthusiasm to pass the “historic water package” last November and create a Delta Stewardship Council to put things right in the Delta, lawmakers neglected to address the matter of paying for the Council.
To correct this oversight, Assemblymember Huffman presented AB 2092, a long-term financing plan for the DSC, to the Senate Natural Resources and Water Committee.
AB 2092 requires the DSC to develop a financing plan based on the “beneficiary pays” principle. This will involve defining private and public benefits, as well as identifying both benefits and negative impacts of any action.
A variety of financing strategies will be necessary. Huffman emphasized that any new fees would be subject to legislative approval. Both supporters and opponents focused on this issue of fees. Delta county representatives supported the bill but noted that fees need to be proportional to the benefits received, and that there should be a provision for fees to be offset by previous work. Several upstream water districts opposed the bill, expressing concerns that they could be charged for downstream impacts.
The bill contains a provision for crediting beneficiaries who “prepay,” coming forward in advance with money to pay for “time-sensitive” projects. Kathy Cole, representing the MWD, testified that larger urban water users would be the most likely to make use of this option. Senator Alex Padilla expressed concerns that the “prepay” strategy might influence outcomes. But Huffman insisted that that kind of “undue influence” will be avoided through “vigorous oversight.”
Unfortunately, we have seen how much difficulty Huffman’s Water, Parks, and Wildlife Committee has had already in overseeing the activities of the DSC.
Just to clarify one little point about beneficiaries: Huffman said that any diverter IN the Delta is diverting FROM the Delta. While his statement may be true in the grammatical and logistical sense, he forgot about a few codes like riparian and pre 1914 water rights, as well as the North Delta Water Agency Contract. Delta users are not beneficiaries diverting surplus Delta water. They are the Delta community, and the Delta is tied to their homes and their livelihood. Lumping them in with the State Water Project and Central Valley Project water exporters ignores a hundred years of California water law, and sets a dangerous precedent for blaming the victim in the mismanagement of the Delta.
Feinstein’s favor for Resnick et al. is still a bad idea
Senator Dianne Feinstein’s S. 1759, “Water Transfer Facilitation Act of 2009,” is on the U.S. Senate Legislative Calendar, and opponents fear that it could be included in omnibus legislation. This is the legislation that would relax the law in order to benefit the Kern Water Bank and other private entities profiting from taxpayer subsidized water and infrastructure. It would allow high flows in the San Joaquin River, crucial to the Delta’s ecological health, to be diverted outside of the CVP service area and to non-CVP contractors for use in the state’s multi-billion dollar private water sales market.
Under the legislation, federally subsidized $20 an acre foot water could be resold in the open market for more than $1000 an acre foot. Environmental review would be relaxed, with a single programmatic EIR used for the Central Valley Project transfers. This would help hide the environmental impacts of individual transfers.
Restore the Delta has joined conservation and fisheries communities in asking the chairs of the Committee on Energy & Natural Resources and the Subcommittee on Water and Power to prevent this legislation from advancing.
Confirmation of something we guessed
Writing in the California Progress Report, Alegria De La Cruz, Legal Director of the Center on Race, Poverty and the Environment, talks about those farmworker demonstrations on the Westside last summer:
“What about the ‘spontaneous’ demonstrations by farmworkers marching under the ‘Fish vs. Jobs’ banner? Go talk to the laborers in the small destitute towns of the regions such as Five Points, Firebaugh, Mendota and Dos Palos. I have. If you can gain their confidence, they’ll tell you, as they’ve told me: these demonstrations were orchestrated by farm labor contractors and their employers. Workers were either strongly ‘encouraged’ to joint the demonstrations with the implication that their jobs were at stake, or were simply paid to march. This is not meant as a criticism of the marchers; on the Westside, you cannot afford to pass up a day’s wages. The system is designed that way.”
De La Cruz’s family has been fighting corporate agriculture on the Westside for three generations. You can read the whole article, “Tales of the Westside” at http://www.californiaprogressreport.com/site/?q=node/7871
Delta Flows Newsletter
Tracking
Senator Feinstein wants to help out the Delta by introducing federal legislation that would designate the Delta a National Heritage Area.
This effort by the Senator has come at the request of representatives for the Five Delta Counties: Contra Costa, Sacramento, San Joaquin, Solano, and Yolo. Restore the Delta recognizes that the Five Counties have been working hard to protect Delta Communities in the myriad of Delta processes being led by the state.
Restore the Delta also thinks there may be some positive things about an NHA. But we’re suspicious of anything that comes from the top down rather than being initiated by the people who will be affected.
It is our understanding that the creation of an NHA usually involves many community meetings so that the area involved can articulate what it would like to see happen for itself within the designation. This type of ground level consensus building has not happened.
And of course we’re a bit suspicious of the Senator’s motives given her track record supporting water exporters.
Stay tuned.
They made a wrong turn back there
It has been 15 years since five State Water Project contractors and DWR met behind closed doors in Monterey to renegotiate how water is divided between urban agencies and agricultural users in drought years.
Before the Monterey Plus Amendments, DWR had to allocate water to urban areas first, which could force farmers to fallow their fields – at that time, mostly annual row crops. Under the Amendments, the division of water became 50% to farmers and 50% to cities.
Cities lost their “urban preference.” And a few agribusinesses got the deed to the Kern Water Bank.
Despite a lawsuit by the Planning and Conservation League and others, courts allowed DWR to operate provisionally under the Monterey Plus Amendments. On May 5, 2010, DWR formalized the 1995 agreement giving ownership and operational control of the water bank to the Kern County Water Bank Authority.
Last week, a suit was filed in Sacramento Superior Court by the California Water Impact Network, the California Sportfishing Protection Alliance, the Center for Biological Diversity, the Central Delta Water Agency, and the South Delta Water Agency.
The suit challenges the legality of the following:
- Institutionalizing the concept of “paper water” – water promised by contract that can never realistically be delivered.
- Eliminating the “urban preference,” which prioritized water deliveries to municipal customers during drought. This change resulted in water shortages and higher utility rates for southern California ratepayers.
- Illegally transferring state property known as the Kern Water Bank to private entities and undermining the California Water Code by masking the purpose and place of water use.
- Increasing water exports from the Sacramento-San Joaquin Delta, thus worsening water quality problems and triggering the collapse of the Delta’s ecosystem and fisheries.
The lawsuit seeks to reinstate the urban water preference during drought in State Water Project contracts, reduce the pumping of Delta water that has resulted in the collapse of fisheries, and return the Kern Water Bank to public ownership.
EPA to BDCP: Just what do you want?
In a letter this month to regional administrators for the Bureau of Reclamation, the National Marine Fisheries Service, and the U. S. Fish and Wildlife Service, EPA administrators expressed unwillingness to review the BDCP when its most recent Purpose Statement (in the 2/13 Notice of Intent) includes delivering up to full contract amounts of export water.
The EPA points out that the SWP and CVP have never exported more than about 6.3 MAF annually. (And as we know, that’s bad enough.) But the full contract amounts are “at least 1 million acre feet more than has ever been exported historically.”
The EPA notes that you can’t analyze the scope of alternatives when it isn’t clear whether the purpose of the project is to change the method of conveying the historical amount or to deliver the full contract amount. They also point out that increasing exports out of the Delta is inconsistent with recent state legislation.
And the EPA says that “significantly increasing exports out of a stressed Delta is the wrong policy.”
EPA suggests that either the federal action agencies return to the project purpose in the 4/15/08 Notice of Intent or start with the “coequal goals” language in the 2009 Legislation.
Failure to sort it out could slow down the BDCP’s expedited schedule.
A Flood Management Plan inches forward
Can the Central Valley Flood Management Plan (the CVFMP) achieve what the Legislature intended in 2007 when it directed DWR to develop documents to guide integrated flood management for the Central Valley?
Five regional work groups (the Upper and Lower Sacramento regions, the Upper and Lower San Joaquin regions, and the Delta) have produced a Regional Conditions Summary Report, the first step in generating the Central Valley Flood Protection Plan (CVFPP), due in 2012.
The report is over an inch thick. It turned out to be so long and detailed that DWR produced a second document, “Interim Progress Summary No. 1” for elected officials, the general public, and others who need something more user-friendly.
In producing these documents, DWR used an outreach effort it describes as “robust.” The work groups included 192 members across the five regions, and they met eight times. A team of engineering and collaborative policy consultants ran interference between DWR and often-skeptical Delta work group members.
So did that robust outreach produce accurate documents? In early drafts, “fragile hub of California’s water supply” descriptions dominated discussions of the Delta. Much of that framing is gone. Not every levee failure is described as “catastrophic.” Delta work group participants succeeded in giving the Delta a face as a region worth protecting for its own sake.
On June 3, work group representatives from all five regions met for a CVFMP Valleywide Forum in West Sacramento. Two panels gave their views on what needs to happen to make this process effective.
A sample of concerns expressed:
- Can this plan actually be implemented? Is this just the latest in a long series of time-consuming processes that end when they reach a difficult place?
- How will it be paid for? How can we avoid unfunded mandates?
- How will the process be integrated with local land use planning? The state pays for flood damage, but local agencies have authorized development, usually with no real understanding of flood risk.
- The feds are more interested in urban projects; do we want the same level of protection in a rural area if it would encourage development?
- How do we get back to a system that can at least handle design flows?
- Why wasn’t the Corps of Engineers at the table during the Phase 1 process?
DWR Director Mark Cowin told the audience that the norm will no longer be single purpose projects regulated by just one agency. The Department will integrate all flood management process and focus not on risk management but on sustainable flood protection.
Participants agreed that without a unified vision and a systemwide plan, permitting takes too long and agencies give conflicting advice.
There is plenty of disagreement among work group members. For example, participants disagreed on the subject of dams, with one asking how you get to 200-year protection without dams upstream and another arguing that dam removal in some places has increased flood safety. Another said that slowing flood flows rather than moving them through is “a recipe for disaster.”
One of those representing the Delta was Marci Coglianese, who noted that floods are more costly disasters than earthquakes. And after all of this, there is still no emergency response plan in the Delta.
DWR and the consultants got a lot of initial pushback from Delta work group members about assuming that conveyance was a given and that we would just have to do flood management around it. The BDCP and associated conveyance do not appear in the Summary Report under “Pending Projects and Programs.” Included are projects under construction, approved for construction, or in final planning stages and due to be completed before the CVFPP update in 2017.
The Delta workgroup fought to have flood planning and public safety considered before the BDCP went forward. Last year, Secretary Chrisman sent a memo to the work group promising coordination between the CVFPP and the BDCP. DWR staff insist that all the Department’s “top people” support Chrisman’s promises, and a meeting of consultants and the public is tentatively scheduled for July or August. It looks like that will be just in time for the BDCP’s EIR/EIS Scoping Report.
Phase 2 of the CVFPP process will be looking at “solution sets.”
By invitation only?
Joe Del Bosque, a Fresno farmer and a member of the California Latino Water Coalition (CLWC), was sworn in last Friday as a member of the California Water Commission, the agency resuscitated by November legislation to hand out money for dams if voters approve the water bond in November.
Also appointed to the Water Commission by Schwarzenegger is Daniel Curtin, Director of the California Conference of Carpenters. According to the California Farm Water Coalition, Curtin is also a member of the CLWC.
Restore the Delta wonders who else will be appointed to this Commission?
Thus far, as reported last week, we have a representative from The Nature Conservancy – the group that wants to convert Delta farming communities into an inland sea with some land for habitat that TNC’s friends can manage; a representative from the community that wants to continue farming unsustainable crops and selling water to developers; and a representative from the trade groups that wants to build new Delta Conveyance. (Members of the building trades should be put to work improving levees throughout the state using existing bond money.)
Perhaps, the Governor will add an expert on privatizing water for profit to the Commission? That way the cabal to destroy the Delta will be complete.
Delta Flows- June 3, 2010
Ten more years to deal with that pesky selenium?
West side farmers just can’t make that deadline for cleaning up their irrigation water. They’ve been trying for 14 years and have spent $100 million – although not all their own money, of course. But they need more time to develop a water treatment plant to eliminate contamination from 97,000 acres between Firebaugh and Interstate 5.
The Central Valley Regional Water Quality Control Board has given its approval for a 10-year extension for the Grassland Bypass Project. The California Sportfishing Protection Alliance and the California Water Impact Network argued that contamination will jeopardize revival of salmon runs and harm wildlife as far out as Suisun Bay. They said that a two-year extension would have been more reasonable than a full decade.
Farm representatives argue that fish pass through the river when higher flows dilute the selenium level.
Next, the matter goes to the State Water Resources Control Board, which is not known for making decisions that might inconvenience west side agriculture. They apparently still don’t view selenium as a stressor.
Read more: http://www.fresnobee.com/2010/05/28/1950835/west-side-farmers-clear-water.html#ixzz0pd9sWHk2
Only fast thinkers need apply
On May 28, the State Lands Commission, on behalf of the Delta Protection Commission, sent out a letter soliciting Proposals for Consulting Services entitled “Development of the Framework for Preparation of an Economic Sustainability Plan for the Sacramento-San Joaquin Delta” (Bid Log No. 2009-14).
The final date for proposal submission is June 14, by 2:00 p.m.
That allows just 17 days, 14 if we don’t count the Memorial Day weekend that immediately followed the letter’s mailing date.
The timeframe could be viewed as favoring bidders already well-connected to Delta policy and governance processes.
Of course, the DPC is itself driven by the same legislation that is driving the rest of Delta governance activities. The legislation gave the Delta Stewardship Council a January 1, 2012 deadline for delivering the Delta Plan. The DSC need a an interim plan by this August in order to have a first draft of the Delta Plan by November and allow three turnaround drafts during the comment period.
A positive angle: The economic sustainability plan must include flood protection recommendations to state and local agencies.
Estimated contract start date is July 15.
No hurdles for Mount
The Delta Reform Act of 2009 requires the new Delta Stewardship Council to appoint an Independent Science Board “not directly affiliated with a program or agency subject to the review activities of the ISB.” It also requires that the ISB review and comment on the draft EIR/EIS for BDCP.
At the DSC meeting on May 27, ten candidates out of a pool of 63 applicants for the ISB were submitted to the Council. The candidates were selected by Dr. Cliff Dahm, the interim lead scientist; Phil Isenberg, the chairman; and Dr. Jeffrey Mount, the chair of the previous CALFED Independent Science Board.
The candidates included Dr. Mount.
According to what definition is this “independent”?
For several years, Mount has been saying that significant portions of the western and central Delta will inevitably revert to open water habitat. That is the future he envisions.
We hope to see people on the Independent Science Panel who might be more inclined to consider reinforcing levees so that they can withstand floods, earthquakes, and sea-level rise, protecting people and property, infrastructure, agriculture, and recreation.
You couldn’t run a business this way
by Karen Medders
It has been interesting theater witnessing the learning curve of the private citizens who are our new Delta Stewardship Council members. Besides sorting out the overwhelming number of agencies, entities, outside and inside interests all with fingers in the Delta pie, these new members have to learn about water rights laws and the current paper water mess. They’ve also gotten a crash course in BDCP 101.
At the May 27-28 DSC meeting, they got a taste of what we are accustomed to from the BDCP, including the MO of waiting until the very last minute to provide any documentation for PowerPoint presentations. The Council also got to see the usual fuzzy prints projected on the wall for nobody to see, not to mention all of the acronyms which of course will make your eyes bleed.
It was satisfying to hear Council member Hank Nordhoff give the BDCP Public Outreach Panel a well-deserved rebuke. Mr. Nordhoff, chairman and chief executive officer of Gen-Probe, with an MBA in international business and finance from Columbia University, said that the lack of time to read and process this new information was making him feel like a complete idiot. He also chastised the presenters for the poor quality of the slides being projected.
Later the first day, Mr. Grindstaff commented that the BDCP has ‘gone rogue’ and is in need of monitoring. To that end, Mr. Nordhoff requested the BDCP provide a written summary of the previous month’s activities to be submitted for review at each DSC meeting. He also suggested the Council come up with its own list of alternatives and instruct the BDCP to address those alternatives, instead of the other way around.
The Council members will also be dropping in on BDCP Steering Committee meetings to monitor how the meetings are coming along.
It is nice to finally see the dog wag the tail, instead of the tail wagging the dog. We just might have a real opportunity to get this out-of-control government process back under some scrutiny and control. Thank you, Mr. Nordhoff and Council members!
Will the DSC be better listeners?
The DSC heard from three panelists from outside the BDCP process regarding their perceptions of what “success of the BDCP” would look like to them.
Gilbert Cosio of MBK Engineers raised the issue of flood control, an issue about which the North Delta Water Agency’s Melinda Terry continually reminds the BDCP Steering Committee. Mr. Cosio commented on the failure of the BDCP to incorporate any mention of flood control in their plan. He then addressed the current situations with Delta levees and advised the Council against waiting to take near-term actions.
Mr. Cosio mentioned that monies from Propositions 84 and 1E have been appropriated, but the Reclamation Districts cannot get the funds from the Department of Finance; $15,000,000 has been waiting at the Department of Finance since April 2009. Matching grants for maintenance and repairs have been funded, but the RDs have no idea if bonds have been sold, and DWR has no idea when the money will be released.
Dick Poole, owner of San Francisco-based Pro-Troll Products (a company that creates and markets innovative fishing and marine products) spoke on behalf of the salmon fishing industry. He said that their major stakeholders have been “mostly shut out” of the process.
He reminded the Council of the economic losses sustained by the salmon industry during the past 2 years. Mr. Poole noted that at the April 11th Assembly Water, Parks and Wildlife hearing, there was no mentioned of protections for fish. Aggressive deadlines make it impossible to adequately address these issues.
Mr. Poole presented 10 Action Steps to the Council. Included is a request that the Council write a letter in support of the Biological Opinions and also support the State Water Board flow in-Delta criteria submitted to the Interim Plan process. This would be helpful in turning around the salmon numbers. This same report was presented to the National Academy of Science and has been cited by the NAS in their presentation in Davis.
Mark Pruner, President of North Delta Community and Residents for a Stable Environment (CARES) represented landowners and residents in the North Delta area of the Primary Zone and Clarksburg stakeholders’ interests. Along with most of the previous panel members, Mr. Pruner criticized the BDCP for its failure to make use of extensive local Delta expertise and knowledge. He also criticized BDCP’s failure to seriously consider viable alternatives.
To the question whether local landowners, residents and business owners would have the people to participate in these processes, the answer was a resounding “YES”.
As supervisor Don Nottoli said, “We cannot solve the problems of the state on the backs of the people of the Delta. It is not just the Delta environment at stake, it’s the people, too.”
A glimpse of how the Dutch view floods
The DSC got a European perspective from Annemieke Nijhoff, Director-General, Directorate-General of Water Affairs at the Ministry of Transport, Public Works and Water Management, the Netherlands. She said that the Netherlands designs for 10,000 year sea flood events and 1,250 year river flood events. By contrast, here in California we are thinking in terms of 100, 200, or 500 year floods.
Another point Ms. Nijhoff made is that for sea level rise or other fresh water concerns, entrepreneurs must have time to change their business operations and long term plans, and the business community, especially agriculture, needs 30-40 years to make changes.
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