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California to Strengthen Measurement of Agricultural Water Use to Improve Efficiency

2012-02-10T21:00:51Z

Doug Obegi, Staff Attorney, Western Water Project, San Francisco

Earlier this week, California’s Office of Administrative Law disapproved proposed agricultural water measurement regulations that would have exempted major water users in California from complying with requirements of the Water Conservation Act of 2009 (SB 7x 7). NRDC had repeatedly commented that these exemptions were unlawful and were bad public policy, and that all large agricultural water districts should have to implement the same basic practice of measuring the water they supply to farms. OAL largely agreed with several of NRDC's arguments and rejected the draft regulation, requiring the Department of Water Resources to rewrite the regulation to ultimately close loopholes they had created.

By way of background, the Water Conservation Act of 2009 is best known for the requirement that all urban water suppliers increase their efficiency by 20% by 2020. Although the Act did not include a similar quantifiable requirement for improved efficiency from agricultural suppliers, the Act included several requirements for improving agricultural water use efficiency, including a requirement (Water Code section 10608.48(b)) that all large agricultural water suppliers measure the quantity of water delivered to the farm gate and adopt a pricing structure that is based in part of the volume of water that is delivered.

Nearly all urban water suppliers in California require water meters and have a volumetric pricing structure (pay more for using more, pay less for using less). Adoption of these two practices has improved water use efficiency by 20% in many communities – after all, you can’t conserve what you don’t measure, and volumetric pricing creates an economic incentive to conserve water and use it more efficiently.

There are still a few urban water suppliers (such as Folsom and Sacramento) that are still installing meters and implementing volumetric pricing, but the vast majority of Californians have water meters to measure how much water they’re using.

In contrast, many agricultural districts do not have accurate water measurement devices to track how much water they deliver to farms. With nearly 9 million acres of irrigated farmland, and more than 30 million acre feet of water diverted or pumped each year for agriculture, improving agricultural efficiency is critical to sustaining California’s water supply and farm economy.

While many farmers have made progress in improving efficiency, reducing water use, and increasing yields, there are still substantial gains to be made. The State’s 2009 Water Plan Update estimated that improving agricultural water use efficiency could save up to 1 million acre feet of water per year. But improved efficiency isn’t just about reducing water use, and it won’t necessarily reduce water withdrawals. Improved efficiency can increase the amount of crops that are produced with the same amount of water, reduce the amount of agricultural runoff, reduce groundwater pumping and energy costs, and yield other benefits to both farmers and the environment.

But accurately measuring water deliveries at the farm gate is critical to improving efficiency. The 2009 Water Plan Update (page 2-23) concluded that, “Lack of data, mainly farm-gate irrigation water delivery data, is an obstacle for assessing irrigation efficiencies and planning further improvement” in agricultural water use efficiency. The Water Conservation Act of 2009 filled this gap by requiring all large suppliers to measure water deliveries at the farm gate.

However, the regulation that the California Water Commission adopted included numerous exceptions from these basic requirements, including an exemption for federal contractors and an exemption for many rice farmers. To its credit, the Department of Water Resources had warned that these exemptions, particularly the exemption for federal contractors, was probably unlawful, but the California Water Commission (including two members who were appointed by the prior Administration and who no longer serve on the Commission) decided to allow these exemptions.

Now that OAL has rejected this regulation, the State has to revise the regulation to be consistent with the requirements of the Water Conservation Act. The revised regulation should not include exemptions from the law, but instead should treat all water suppliers equally. We should learn more at the meeting of the California Water Commission later this month, but I’m optimistic that the State will do the right thing and eliminate these exemptions in order to ensure all large agricultural water suppliers accurately measure water deliveries to the farm gate. Requiring accurate measurement of farm gate deliveries by all large water suppliers will be be an important step towards improving agricultural water use efficiency, which is essential to sustain California agriculture and our environment.

Myths and Facts about California's Bay-Delta Estuary

2012-02-07T01:33:52Z

Doug Obegi, Staff Attorney, Western Water Project, San Francisco

We all know that our water comes out of the tap, but do we know how it got there? Many of us who work on California’s water issues weren’t surprised to learn that recent polling data released last week showed that the majority of Californian’s don’t know what the Bay-Delta is.

I’m guessing most everyone who reads this blog knows what the Delta is and why it’s important. But if you’re reading this and don’t know about the Delta, here’s a short movie that NRDC produced that interviews fishermen and farmers about the Bay-Delta and why we work to protect this estuary:

And on Sunday, the San Francisco Chronicle published an Op-Ed I wrote on California’s water myths and facts (available online here). It’s impossible to fit everything you want to say and still meet the word limit, so there were a great many things that had to get cut. You also don’t get to include graphics, and I wanted to share three graphics that I think help tell the story.

The first graphic (see Question # 6 in my Op-Ed) shows that data from the California Department of Water Resources (Water Plan Update 2009) there is more new water supplies available from investing in water recycling, agricultural and urban efficiency, stormwater capture, groundwater cleanup and conjunctive use, and similar tools than California has ever exported from the Delta. These tools are some of the most cost-effective and drought-proof new sources of water supply available.

The second graphic (Question #2 in my Op-Ed) shows the amount of water exports from the Delta by the State Water Project and Central Valley Project over the years, including the average level of diversions under the current biological opinions that regulate operations. It shows that current operations are about the same as the long term average, albeit lower than the record levels of diversions during the 2000s (when native fish populations plummeted). Flow is not the only factor affecting fish populations, but it is one of the most important factors (and one of the most controversial). By the same token, water exports from the Delta aren't the only source of supply for most water districts, and many districts (particularly in Southern California) are planning to take less water from the Delta, as my colleague Barry Nelson has been blogging about recently.

The third graphic (Question #4 from my Op-Ed) shows the abundance index for Delta smelt increasing last year to its highest level in nearly a decade. There’s no question that Delta smelt and other native fish haven’t recovered, and are still a fraction of their historic population levels (smelt historically were one of the most common fish found in the Bay-Delta). But the good news is that we’re making some progress in restoring salmon and other native fisheries in the Bay-Delta watershed. And that’s good news for everyone.

PPIC Studies Assume Peripheral Canal Doesn't Increase Water Exports

2012-01-17T23:59:22Z

Doug Obegi, Staff Attorney, Western Water Project, San Francisco

Starting with its 2007 report entitled “Envisioning Futures for the Sacramento-San Joaquin Delta,” the Public Policy Institute of California (PPIC) has significantly advanced the public conversation about whether to build a peripheral canal to convey water from California’s Bay-Delta estuary. At least in part because of the PPIC’s work, NRDC’s position on a peripheral canal has also evolved from our position in the 1980s, when California voters overwhelming rejected building the peripheral canal and NRDC’s position was to “just say no” to a PC.

That said, many proponents of a peripheral canal have attempted to use the work by the PPIC to justify a massive peripheral canal that would significantly increase water exports from the Delta. NRDC generally believes that even with a peripheral canal, water exports from the Delta are extremely unlikely to increase in the near future, and are likely to decrease because existing environmental flows are inadequate (as the State Water Resources Control Board has already concluded).

Yet a careful look at the PPIC’s work on Bay-Delta issues suggests that the PPIC is increasingly weighing in on the side of maintaining current export levels, rather than substantially increasing exports. In its 2007 report, the PPIC estimated annual water exports from the Delta of more than 6 million acre feet per year (see page 166); this was consistent with the unprecedented levels of diversions during the 2000s under the Bush Administration, which led to the collapse of fishery populations in the Delta and the federal courts ordering pumping restrictions in 2007.

However, ever since that 2007 report, the PPIC has focused more on improving the physical reliability of the system and much less on increasing exports. The 2008 PPIC report ("Comparing Futures for the Sacramento-San Joaquin Delta) assumed water exports similar to the 1980-2000 period (see page 46), and in its 2011 report entitled “California Water: Planning for a Better Future,” the PPIC wrote that, “Given the extreme environmental degradation of this region, water users must be prepared to take less water from the Delta, at least until endangered fish populations recover” (see page 5). Most recently, in its 2012 report on the effect of a peripheral canal plan on the Delta economy (“Transitions for the Delta Economy”, the authors assume that a 7,500 cfs canal is built that exports 4.9 million acre feet of water per year, the average levels exported during the 1980 to 2000 period (See pages 35 and 40). 4.9 million acre feet of water exports per year (the 1980-2000 average) is the same level of water exports that are permitted under existing biological opinions to protect salmon and other fisheries in the Bay-Delta, as I’ve written about here.

The PPIC has substantially advanced the public conversation about a peripheral canal. We hope that the PPIC’s work will also advance the public conversation about how California can thrive with current levels of delta exports (which are the same as the average levels during the 1980-2000 period) by reducing reliance on water exports from the Delta and investing in regional supplies like water conservation and recycling (as required by section 85021 of the California Water Code). A Bay Delta Conservation Plan that does not increase water exports from the Delta, but instead focuses on improving the physical reliability of the system against the risks of earthquakes or levee failures while also investing in water recycling, conservation, and transfers (among other tools), has a far greater chance of succeeding politically, economically and scientifically. Unfortunately, that doesn't seem to be what's in the current draft plan for BDCP.

Independent Scientific Review Vindicates DOI Scientists

2012-01-07T02:01:00Z

Doug Obegi, Staff Attorney, Western Water Project, San Francisco

Yesterday, an independent scientific review vindicated the two scientists from the Department of the Interior who were criticized by Judge Wanger in a highly unusual diatribe from the bench shortly before he retired and began working for the Westlands Water District. Judge Wanger’s invective, which came in response to a motion brought by Westlands and others, was rejected as baseless by the independent review, which concluded that “Judge Wanger’s criticisms were without merit and not supported by the record.” We completely agree – and that conclusion is also borne out by the response of Bay-Delta fisheries this past year.

The report was prepared by independent scientists who reviewed the court transcripts and thousands of pages of court testimony. It concluded that the scientists had not failed to use the best available science and states that,

“The panel members find that there is no evidence for either Mr. Feyrer or Dr. Norris operating outside the norms of behavior in the fields they operate in.

We find that in neither case is there evidence suggesting deliberate falsehood, interpolation of personal opinion into science, or other professional misconduct by either Mr. Feyrer or Dr. Norris. We do not believe that further investigation would be likely to produce evidence of such misconduct.”

(emphasis added) These strongly worded conclusions from the independent scientific review are also borne out by the results of fisheries surveys in the Bay-Delta this past year, which show a significant rebound in the populations of Delta fisheries. The two scientists were criticized by Judge Wanger for their testimony supporting the need to increase outflow from the Bay-Delta estuary this past fall. Biologists from an entirely separate state agency -- the California Department of Fish and Game -- recently concluded that the substantial increase in the population of Delta smelt was likely due to the increased outflow that the scientists had recommended, providing real-world support for the importance of these flows to restoring estuarine habitat and function.

We commend the Interior Department for conducting this review, to ensure that important decisions concerning management of the west coast’s largest estuary – the Bay-Delta – are based on sound science. This independent scientific review is the latest of numerous independent peer reviews of the science used by the Department and the National Marine Fisheries Service in the Bay-Delta, with the National Academy of Sciences and numerous other independent peer reviewers all concluding that the protections in the biological opinions are scientifically justified. We also commend the Department for standing up for the work of its scientists, who took unwarranted criticism for standing up for good science, even when unpopular with some powerful interests. And finally, we hope that this report will reinvigorate agency efforts to ensure that the Bay Delta Conservation Plan is based on sound science – a principle that has been missing from the current BDCP planning process. As the Department states, it will continue to “stand behind the consistent and thorough work of our scientists, and …continue to rely upon their expertise and professionalism in our efforts to meet the co-equal goals of improving water supply reliability and restoring the health of the Bay Delta.”

2011 in Review: Bay-Delta Fisheries & Water Supplies

2012-01-04T00:48:56Z

Doug Obegi, Staff Attorney, Western Water Project, San Francisco

2011 was a great year for all of us who care about California’s native fisheries and water supply. Thankfully, 2011 was a wet year that ended several years of drought, resulting in record water exports from California’s Bay-Delta estuary (enough to cover more than 6.5 million acres with one foot of water). These record water exports have replenished water supplies for Southern California, leaving the Metropolitan Water District of Southern California with more water in storage than ever before.

2011 also saw a big rebound in the population estimates for delta smelt, and a pretty good salmon fishing season. After several years of the salmon fishery being totally or partially closed, it was a relief for fishermen to be able to get back on the water, and NRDC staff took a successful salmon fishing trip out of San Francisco. Reports of lots of two year old salmon returning to hatcheries at the end of 2011 have fishermen excited by the prospect of even better fishing (and salmon returns) in 2012.

Despite even wetter conditions in 2006, delta smelt populations didn’t rebound like they did in 2011. What was the difference? The California Department of Fish and Game has said that, “The improvement [in delta smelt numbers] is likely due in large part to higher than usual Delta outflow which resulted in more and better habitat.” These fall outflows (also known as Fall X2) were controversial, but the fall midwater trawl survey seems to vindicate the state and federal biologists who concluded that this action was needed to protect and recover the delta smelt population. Likewise, the restrictions on pumping by the CVP and SWP limited the numbers of smelt killed at the pumps the last several years (including this year), ensuring that there were some fish left to take advantage of good flows and habitat conditions this year.

While implementing the biological opinions in the Delta had minimal impact on water supplies this year (hence the record water exports from the Delta), the rebound in smelt numbers shows that these scientifically justified protections are working to restore the estuary and its fisheries. As one newspaper columnist concluded recently, “the arguments made for the cause of the decline of the Delta fishery being water diversions just received a boost from the Delta smelt abundance survey. The extra water that went down our river systems was in large part responsible for the 11-fold increase of the Delta smelt.” Or, as the Department of Fish and Game was quoted in a recent story about the rebound in smelt numbers, “flow always helps.”

Of course, not everything is rosy as 2012 begins. We’ve yet to see a major storm this winter in the Sierras, with very little snowpack providing a worrying reminder that drought could come back any time. However, thanks to the wet conditions in 2011, California begins 2012 with above average storage levels in upstream reservoirs, and these nearly full reservoirs should help ensure that water allocations for 2012 will result in a surplus of water for Southern California (more than sufficient water to meet demand, according to Metropolitan) and much higher allocations for Central Valley farmers than a few years ago. Despite the very low snowpack measurements today, DWR is still predicting an adequate water supply next summer thanks to the reservoir storage. And the winter is still young, so we're all hopeful for more snow and rain in the months ahead.

In addition, although the fall run Chinook salmon population is on the rebound, populations of endangered winter run Chinook salmon collapsed in 2011 to their lowest level in nearly a decade, with operations at Shasta and Keswick Reservoirs a likely cause of the collapse. And even with the rebound in the Delta smelt numbers in the fall midwater trawl survey, it is still a small fraction of its historic population and has a long way to go to recover.

Still, 2012 has demonstrated that providing adequate flows in the Bay-Delta will help restore our native fish populations and the health of the estuary, and that even with reasonable protections in place for the Delta, the state and federal water projects can export a lot of water that can be saved for drier years ahead.

It’s great to start 2012 with most of our native fisheries in the Delta starting to rebound, with decent water allocations and with a lot of water stored in reservoirs and groundwater basins. But we all need to use that water wisely, for we never know what this year (or the next year) will bring.

BDCP Independent Science Review: Still Not Passing Muster

2011-12-08T01:20:31Z

Doug Obegi, Staff Attorney, Western Water Project, San Francisco

Just about everyone agrees that the success of BDCP will rely on using sound science to guide the development of a plan for the Delta. Not surprisingly, both state and federal law require use of the best available science in this process. But there’s lots of disagreement about what constitutes the best available science. That is why independent peer review is critical to the success of BDCP and other projects in the Delta. Getting the science right in BDCP is critical not only to the future of the Bay-Delta ecosystem and California’s salmon fishery, but equally important, high quality analysis is needed to ensure that water rates aren’t increased unnecessarily by billions of dollars as compared to a different BDCP project (such as one that would decrease reliance on water exports from the Delta and invest in local and regional water supplies).

Yesterday, the Delta Science Program released an independent peer review (online here) of two chapters of the Bay Delta Conservation Plan (BDCP) effects analysis. Unfortunately, like all of the prior independent science reviews of BDCP (including the National Academy of Science’s scathing review earlier this year, the independent review panel expressed significant concerns that the BDCP’s scientific analysis to date continues to be inadequate. The executive summary to their report concluded that:

“However, the Effects Analysis does not yet provide the “big picture” necessary to evaluate how the effects of complex hydrodynamic, geophysical and ecological changes in the Bay-Delta are going to be synthetically analyzed as a system to ensure conservation and management of covered species, and that ecological processes of the Bay-Delta will be preserved and enhanced under future operations.”
“We found the present draft with only the two (of proposed nine) appendices to be somewhat confusing, incomplete and fragmented, and as a result, our review seemingly premature.”
“While we recognize that the BDCP Effects Analysis involves a large, complex process with various levels of completion and detail that have yet to be satisfactorily integrated, the Panel’s Phase 1 review raises many issues that suggest the findings of the Effects Analysis could be highly uncertain under its present formulation.”

The independent peer review identified numerous specific criticisms and recommendations for the next draft of the effects analysis. Many of these criticisms and recommendations echo concerns that NRDC, the Bay Institute and Defenders of Wildlife raised in our comments on the same chapters (attached here). Moreover, many of the comments on the effects analysis submitted by state and federal agencies (available online here) also were confirmed by this initial peer review.

While we all should be grateful that the state and federal agencies have committed to independent peer reviews of the science used in BDCP, the real question is whether and how the effects analysis – and how the BDCP project – change in response to these comments and critiques of the science. The review panel stated explicitly that “review and refinement of such an effects analysis requires an iterative process” in light of the current status of the effects analysis. This means that the state and federal agencies must ensure that the effects analysis is substantially revised in response to the comments from the agencies, NGOs, and the independent peer reviews. Equally important, it also means that the project currently described in BDCP will almost certainly have to change in response to a scientifically valid effects analysis. Both of those tasks are undoubtedly difficult on the present timeline (and may be politically difficult if a valid scientific analysis demonstrates that BDCP may not result in increased exports), but they are essential to the success of BDCP.

There’s broad recognition that the status quo in the Delta is not sustainable, and the job facing the BDCP and the Delta Stewardship Council in crafting an effective plan is not an easy one. Getting the science right could be the difference between success and gridlock.

An Additional 391 Billion Gallons of Water from the Delta Isn't "More Water"?

2011-11-21T17:55:51Z

Doug Obegi, Staff Attorney, Western Water Project, San Francisco

A week ago, Tom Birmingham, the general manager of the Westlands Water District, wrote an op-ed in the Sacramento Bee about the Bay Delta Conservation Plan, which stated,

“The public agencies that depend on this water system are not trying to take more water out of the Delta. We are trying to secure the same amount of water as we used to have and that has been promised to us under law.”

Mr. Birmingham’s definition of “not trying to take more water out of the Delta” would make George Orwell proud because, in fact, BDCP is proposing to take a lot more water from the Delta, more than they used to have, and more than is promised to them under law.

As the chart below shows, under the water contractors’ proposal for BDCP, long term average water exports from the Delta by the CVP and SWP (part of it through a peripheral canal) would be nearly 6 million acre feet per year.

That’s a lot more water than what the CVP and SWP have historically exported from the Delta. From 1980-2000, the average level of water exports from the Delta was 4.9 million acre feet. With current protections for salmon and other endangered species in place, on average the Central Valley Project and State Water Project can export approximately 4.9 million acre feet of water per year out of the Delta. Of course, if that’s the average, in wetter years they can export a lot more; we saw this in 2011, when even with protections for listed species the projects exported more than 6.5 million acre feet of water, the highest ever levels of water exports from of the Delta. Thus, even with protections for salmon and endangered species, water exports are approximately equal to the long term average. Today, the export contractors are receiving, as Mr. Birmingham puts it “the same amount of water as we used to have.”

Admittedly, several decades ago, the water allocation for the 600 farmers served by Westlands was typically 100%, But back then, the 19 million people served by the Metropolitan Water District of Southern California took a lot less water from the Delta. For instance, the initial 2011 allocation for Metropolitan is more than 1.146 million acre feet, and this amount is likely to increase substantially if 2011 is an average or wet year; however Metropolitan's 1996 allocation was just over 738,000 acre feet. I’m guessing that Metropolitan does not want to have “the same amount of water as we used to have,” as it would be a lot less than it receives today.

So the latest proposal is for BDCP to take about 391 billion gallons a year (1.2 million acre feet of water) more from the Delta. That’s a nearly 20% increase over current pumping levels – or what Mr. Birmingham calls “not trying to take more water out of the Delta.”

Heck, even the flawed BDCP effects analysis admits that BDCP will “[i]ncrease total amount of water exports” (of course, they describe increased water exports as a conservation measure). It seems that the contractors would like to return to the unsustainable level of water exports in the 2000s, when massive increases in Delta exports led to the collapse of delta smelt and other fisheries in the Delta. I don’t begrudge the water contractors advocating for their own interests, but the fact that their interests are narrower than the public interest is precisely why they should not be permittees and should not be given a privileged role in implementing BDCP (as my colleague Barry Nelson wrote recently).

Finally, there’s the question of what “has been promised to us under law.” Westlands Water District has a contract for up to 1.15 million acre feet. The key point there is that their contract, like the contracts for other CVP and SWP contractors, is for “up to” a maximum amount, with no liability if the CVP and SWP deliver less. The Westlands contract is very explicit that they are unlikely to receive that amount of water in most years. The U.S. hasn’t breached its contract with Westlands, because Westlands wasn’t promised under law more than they are getting today.

The reality is that water supplies in the Bay-Delta watershed are massively oversubscribed, with more water rights than there is water. In addition, in 2010 the State Water Resources Control Board concluded that, “The best available science suggests that current flows are insufficient to protect public trust resources,” and the Board recommended providing additional flows beyond the existing protections for salmon and other endangered species.

Maybe it’s time for an honest conversation about what the purpose of BDCP really is: is it to significantly increase water exports from the Delta, or is it to increase the physical reliability of exports? In light of the scientific evidence that current environmental flows are inadequate, focusing on the physical reliability of the system, rather than significantly increasing exports, seems more likely to succeed; together with investments in local and regional water supplies like water recycling, improved efficiency, and stormwater capture, that BDCP project could reduce reliance on water exports from the Delta and help California achieve a 21st century water policy.

Delta fish populations rebound, vindicating DOI scientists

2011-10-12T18:42:33Z

Doug Obegi, Staff Attorney, Western Water Project, San Francisco

“Just add water.” For several years, fishermen, conservationists, and scientists have argued that if we provide adequate freshwater flows to the Bay-Delta, native fish populations would begin to rebound. In 2007, a federal court required pumping restrictions to protect native fisheries in the Delta, and this year, the CVP and SWP provided sufficient flows in September and October to restore habitat for delta smelt (what’s known as the Fall X2 action).

Not surprisingly, it worked – fish populations rebounded. Last week, the California Department of Fish and Game quietly announced that the September surveys for Delta fisheries showed a huge rebound for delta smelt, as well as substantial increases for most of the other species assessed by the survey. The Fall Midwater Trawl survey provides the best estimate of the abundance of delta smelt and the September value of 50 was the highest level seen in more than a decade. Indeed, this year’s September index was higher than the annual index (combined values of the Sept-Dec monthly indices) since 2005. This big increase in the population of delta smelt is great news for a species that just a few years ago many biologists predicted might go extinct in the very near future.

It also provides evidence that we can reverse fisheries declines and restore the health of the Bay-Delta estuary. While the ongoing extensive monitoring and scientific studies will continue to refine our understanding of the relationships between flows, habitat and fish populations, I think this year’s results speak for themselves. Delta smelt population abundance increased only after the protections of the 2008 biological opinion were implemented. These results vindicate agency scientists who testified that providing adequate fall habitat (Fall X2) and reducing entrainment at the pumps would allow this native fish to begin to recover. For the men and women at the Department of the Interior who have toiled under incredible political pressure for the past several years, this year’s September FMWT results show that these protections are paying off.

We are grateful to the scientists at the Department of the Interior, DFG, and other state and federal agencies who have had to bear the brunt of these attacks; to the agency managers who have stood up for their scientists; and to their lawyers at the Department of Justice who have defended the agency from unjust attacks. In particular, these data should put to rest the unjustified and unreasonable attacks on two Department of the Interior scientists, attacks that former federal court judge Oliver Wanger has acknowledged, “have been somewhat misconstrued and blown out of proportion,” and were made on “exceedingly limited grounds.”

We have a long way to go in restoring the Bay-Delta ecosystem and its imperiled fish. But if we stay the course on implementing needed Delta protections, we’re hopeful that monitoring surveys will continue to show improvement in the population of delta smelt and other local species. We also expect that this data will strengthen the resolve of the Department of the Interior to stand by its scientists and continue to implement the biological opinions to protect and restore the Bay-Delta estuary.

San Joaquin River Restoration Program Receives 2011 Partners in Conservation Award from Interior

2011-09-26T20:55:51Z

Doug Obegi, Staff Attorney, Western Water Project, San Francisco

I am proud to announce that the San Joaquin River Restoration Program last week received the Department of the Interior’s 2011 Partners in Conservation Award, an award which recognizes conservation achievements that include the collaboration of diverse parties to achieve conservation goals.

In a press release issued by DOI last week, Secretary Salazar stated that the Partners in Conservation Awards “demonstrate that our nation’s greatest conservation legacies often emerge when agencies and citizens from a wide range of backgrounds come together to address shared challenges.” That rings true for the San Joaquin River Restoration Program.

As the Partners in Conservation Award reflects, the San Joaquin River Restoration Program is the successful product of untraditional partnerships between farmers, environmentalists, state and local agencies, and the federal government to both restore the San Joaquin River and its historic salmon populations and to also implement water supply and flood protection programs to benefit local farmers.

Despite (or perhaps because of) these diverse interests, the Program has made significant progress towards its intended restoration and water supply management goals. See my colleague Monty Schmitt’s blogs on the restoration and rewetting of the San Joaquin River. In 2009, water flowed down the length of the San Joaquin River for one of the first times in nearly half a century. In 2011, juvenile fall run Chinook salmon were released into the river as part of a scientific experiment and successfully migrated downstream. And the Program has provided more than 550,000 acre feet of low cost water to local farmers, more than fully offsetting the water supply impacts from implementing the Program in WY 2010 and 2011.

(Image courtesy of the National Marine Fisheries Service)

Receiving this honor comes on the heels of Secretary Salazar’s speech in September at the San Francisco Commonwealth Club, where the Secretary expressed his strong support for the restoration program, as well as his disapproval of bills in the House of Representatives to dismantle environmental programs, including the restoration of the San Joaquin River. Salazar specifically criticized House attacks on the San Joaquin Restoration Program, implicitly HR 1837, a bill sponsored by Rep. Devin Nunes, stating that “a few members of Congress are bent on killing a restoration program that is restoring water flows to the river, bringing stability and certainty to agricultural users, and that will bring the first salmon runs in half a century.” This show of support by the Administration is critical as the Restoration Program continues to defend against legislative attacks to defund and derail the restoration of California’s second longest river.

NRDC is honored by the Administration’s recognition of the San Joaquin River Restoration Program’s extraordinary progress, and we are grateful for Secretary Salazar’s vocal defense of the Program’s diverse merits in the face of legislative attacks. While we all recognize that future challenges remain in implementing the Program, the Award demonstrates that by working together we can make progress toward the common goal of protecting our current water supply and meeting California’s future water needs.

Record Bay-Delta Water Exports = 80% of Maximum Contract Allocations

2011-07-19T16:36:11Z

Doug Obegi, Staff Attorney, Western Water Project, San Francisco

2011 has been an amazing year for California’s water supply. California’s upstream reservoirs are still nearly full in mid-July, and the San Luis Reservoir south of the Delta is storing an incredible amount of water, with much of it likely to be saved for next year. The Metropolitan Water District of Southern California anticipates that “the end-of-year level in Metropolitan's regional storage portfolio is expected to be at an all-time high,” and they have so much water they’re having a hard time storing all of it. Allocations to many farmers and agribusinesses in the San Joaquin Valley are higher than they have been in years, and California agriculture is thriving.

Our colleagues at the Environmental Defense Fund recently concluded that water exports from the Delta are likely to hit record levels this year. And modeling by the Bureau of Reclamation, summarized below, shows that more water likely will be exported from the Bay-Delta than ever before in the history of the State Water Project and Central Valley Project. Even with the biological opinions protecting endangered salmon and other species in effect, the CVP and SWP will export a record amount of water from the Delta.

Total CVP/SWP exports through June 2011

Source: Monthly USBR Fish Reports

4,545,937 Acre Feet

Total CVP/SWP exports July – Sept 2011 (estimated)

Source: USBR May 2011 50% Water Ops Summary

2,076,000 Acre Feet

Total WY 2011 CVP/SWP Exports (estimated)

6,621,937 Acre Feet

6.6 million acre feet is a lot of water: it would be enough to cover all of Los Angeles County with more than 2 feet of water. It’s also important to keep in mind that this is only a small fraction of the total water diversions for farmers and cities in California, since the majority of water for farmers and cities in California is not exported from the Delta by the SWP and CVP.

The previous high of 6.41 million acre feet of water exports occurred in 2005, and until this year, water exports from the Delta have exceeded 6 million acre feet only six times: in 1989, 2000, 2003, 2004, 2005, and 2006. Average water exports from the Delta during the 1980s and 1990s were 5 million acre feet, virtually the same amount that can be safely exported under the biological opinions protecting endangered salmon and other species. The record highs in the 2000s coincided with the collapse of the Delta ecosystem, and many independent scientists and agencies, including the State Water Resources Control Board, have recommended significantly increased environmental flows.

Yet despite the record exports of 2011, the CVP and SWP will not make 100% allocations to all contractors. While most CVP contractors will get 100% allocations, South of Delta agricultural contractors will receive 80% of their maximum contractual allocations, and State Water Project contractors will receive 80% of their maximum contractual allocations.

(Keep in mind that these 80% allocations underestimate total water deliveries to many CVP and SWP contractors, because many of them are also obtaining what’s known as Article 215 water from the San Joaquin River and/or Article 21 water exports from the Delta. So contractors like MWD are getting the equivalent of 90% or more of their maximum contract allocation, when you include these “surplus” CVP and SWP supplies.)

How can it be that record exports result in less than maximum contract allocations? Part of the reason is because the contracts promise much more water than can be delivered. The State Water Resources Control Board has previously acknowledged that there are as much as eight times more water rights than there is water in an average year. Of course, in a dry year, there’s far less water to go around. Talk about subprime water rights…

Another reason is that all contractors now request their maximum contract amounts. Until 2001 the Metropolitan Water District of Southern California did not regularly request its full contract allocation from the Bay-Delta, and relied on substantial water deliveries from the Colorado River which they haven’t received in recent years (see page 2-78 of the OCAP biological assessment for more info). This meant that more water was available to the other CVP and SWP contractors historically. Now that MWD requests its full allocation from the Delta, agricultural contractors have to share water with the millions of people in Los Angeles. Even so, the water allocation for the 600 farmers in the Westlands Water District is equal to more than half of the allocation for the 19 million people in MWD’s service area.

		Contract	2011 %	2011 AF
District	Customers	Maximum	Allocation	Allocation
Metropolitan Water District	19,000,000	1,911,500 AF	80%	1,529,200 AF
Westlands Water District	600	1,150,000 AF	80%	920,000 AF

NRDC has long argued for the reform of CVP contracts, so that farmers and cities can have realistic expectations of water exports and make rational planting and planning decisions. As obvious as it sounds, the Bureau of Reclamation should not write contracts for more water than the CVP can reliably deliver. Recent years have brought a constant refrain from water users calling for “full contract deliveries.” Renewing current unrealistic contract totals would simply lock in decades of future conflicts.

2011 proves the folly of existing contract amounts: even with record levels of water exports from the Delta, the CVP and SWP can’t deliver maximum contract amounts. So if you’re expecting 100% contract deliveries for all SWP and CVP contractors in the future, I have some Greek bonds I’d like to sell you at face value.

Why We Work to Protect California's Bay-Delta Estuary

2011-07-07T16:05:47Z

Doug Obegi, Staff Attorney, Western Water Project, San Francisco

Over the past several years, fights have raged in the Courts and Congress over protections for salmon and other endangered species in the Bay-Delta estuary. Much of the media coverage has focused on a small set of vocal critics of environmental protection. On Hannity and on signs on I-5, the message is clear – we must choose between fish and people. But we all know that’s a false choice, that a healthy economy and a healthy environment go hand-in-hand.

The Bay-Delta is a great example of this; it is a place where farmers, fishermen, and local communities have deep roots and understand that a healthy environment sustains the economy. They know that their past and their future are linked to California’s largest aquatic ecosystem.

But few people in California (and even fewer across the country) know where the Bay-Delta is located or are familiar with the communities that live there.

This is why NRDC today released this short film about farmers and salmon fishermen working together to protect California’s Bay-Delta estuary.

In the film, farmers and fishermen explain in their own words why protecting the Bay-Delta and its endangered species protects their jobs, and sustains their way of life.

Protecting the Bay-Delta is about protecting our legacy as Californians. The farmers interviewed in the film are only a few of the thousands of family farmers working their fields on the islands in the Delta, as they have for generations. Likewise, the fishermen interviewed in the film are only a few of the thousands of fishing jobs in California that depend on healthy salmon runs, and of the hundreds of thousands of families that want to again feel the thrill of a salmon on their fishing line, or enjoy grilling a salmon with friends and family. Protecting the Delta and ensuring sustainable water withdrawals protects their family farms, their fishing jobs, and ensures that future generations can enjoy wild salmon, steelhead, and a healthy environment. That’s one reason why a growing chorus is speaking up in opposition to efforts to sacrifice the Delta ecosystem and thousands of jobs for the benefit of a few.

But protecting the Bay-Delta is also about protecting the future of California, because much of the state depends on the Delta for part of its water supply, and because the struggle over scarce water resources in the Delta will also play out across the West in coming decades, as climate change and population growth increase the stress on our rivers and wildlife. Finding sustainable water solutions is a challenge we must meet.

Working together, we can sustain our fisheries, farming, cities and the environment. The first step is to meaningfully reduce our reliance on water exports from the Delta by investing in proven, cost-effective improvements in water supply: groundwater, water efficiency, stormwater capture, and water recycling. Taking more water from the Delta, or worsening water quality in the Delta, is not the answer for the environment or for our economy.

But don’t take my word on it – watch the film and see for yourself. Talk with fishermen, or farmers in the Delta. Their livelihoods depend on the future of the Delta. Let’s join them, and help protect the legacy – and the future – of California.

Congressman Nunes Skips Congressional Hearing on His Own Bill (HR 1837)

2011-06-13T21:21:04Z

Doug Obegi, Staff Attorney, Western Water Project, San Francisco

This morning, the House Energy and Water Subcommittee held a second hearing on HR 1837, inviting testimony from representatives of California’s largest commercial fishing association, delta water agencies, the National Marine Fisheries Service, and the Western States Water Council. These critics of HR 1837 were excluded from the first hearing last week. But today, they had an opportunity to explain how the bill would destroy thousands of jobs in the salmon fishing industry, radically preempt state law, and overturn state water rights so senior water rights holders have to mitigate for the environmental harm caused by the state and federal water projects.

Yet as press reports have noted, this was an unusual hearing because most of the subcommittee’s GOP members, as well Rep. Nunes (R-CA) and the bill's two co-authors, simply didn’t show up. Additionally, the subcommittee’s Chairman, Rep. McClintock (R-CA), did not ask a single question of the 4 witnesses. Apparently, the majority didn’t care to hear from salmon fishermen, delta water agencies, the federal government, or a representative of the 17 Governors of Western states.

Today’s Los Angeles Times features a good story in the business section documenting the challenges facing California’s salmon fishery, and the men and women who try to make their livelihoods catching this magnificent fish. Unfortunately, California’s salmon fishery had to be completely shut down in 2008 and 2009, resulting in the loss of thousands of fishing jobs each year, and between 2005 and 2011 the number of salmon fishing licenses dropped in half, according to the story in the LA Times. But do the authors of HR 1837 care about the thousands of fishing jobs this bill puts at risk? They certainly weren’t listening to the commercial fishermen who spoke today, and indeed, Rep. Nunes stated at last week’s hearing that claims of people being put out of work by the complete closure of the salmon fishery were “complete nonsense.”

Rep. Nunes and his coauthors, Reps. Denham (R-CA) and McCarthy (R-CA), would like you to forget that their bill risks the future of California’s salmon fishery and the thousands of jobs that depend on its health. It’s as if the Congressman is afraid to say the word “salmon,” except when he’s denigrating the men and women who make their livelihoods fishing for salmon. It seems he’d rather talk about fried red herrings than have a meaningful discussion based on actual facts.

The good news is that even though Rep. Nunes and his coauthors of this radical bill aren’t listening, the rest of California is – and they’re opposing the bill. Over the weekend, both the Sacramento Bee and Contra Costa Times issued editorials opposing HR 1837. And as the McClatchy story noted, farmers are on record opposing the bill, joining fishermen, water agencies, Tribes, conservation groups, the State of California, and the federal government. Our updated list of opposition materials is on my blog here; as you can see, it's getting to be a very long list.

Bipartisan Opposition to H.R. 1837 Continues to Grow

2011-06-10T16:39:06Z

Doug Obegi, Staff Attorney, Western Water Project, San Francisco

H.R. 1837, the so-called “San Joaquin Valley Water Reliability Act” sponsored by Congressmen Nunes, McCarthy and Denham, has met with strong and widespread opposition, including water agencies, Delta farmers, sport and commercial fishermen, conservation groups, state and federal elected officials, the press and the state of California and the federal Administration. Last week, Congressman Wally Herger (R - CA) announced his opposition to the bill, and this bipartisan opposition to H.R. 1837 continues to grow.

Below are links to many of the letters, fact sheets, blogs, and testimony opposing HR 1837 (I'll update this blog post as opposition continues to pour in). These documents provide numerous arguments against this bill which, in the words of one environmental coalition letter, “undermines environmental protections for salmon and other commercially-valuable species, preempts state law, interferes with state water rights, guts the 1992 Central Valley Project Improvement Act, and overturns the broadly supported and court approved settlement to restore the San Joaquin River.”

Congressional Opposition

State of California Opposition

U.S. Department of the Interior Opposition

Water District and Local Government Opposition

Tribal, Environmental, Fishing and Business Opposition

Editorials & Op-Eds

Blogs:

Fact Sheets

Updated List of Bill Opponents (as of July 15, 2011)

HR 1837: Preempting State Water Law to Prioritize Junior Water Rights?

2011-06-02T00:57:15Z

Doug Obegi, Staff Attorney, Western Water Project, San Francisco

For more than one hundred years, under section 8 of the Reclamation Act of 1902, federal water projects generally complied with State law regarding the appropriation and use of water. In 1992, Congress and President Bush reaffirmed this federalism scheme in enacting the Central Valley Project Improvement Act. Yet despite this long history of deference to state water law, H.R. 1837, legislation introduced by Congressman Nunes and other San Joaquin Valley members, seeks to radically overturn and preempt state law, including the system of water rights under California law. If enacted, H.R. 1837 would likely lead to Westlands and other junior Central Valley Project (CVP) contractors effectively taking water from more senior water rights holders in the Sacramento Valley and San Joaquin River basin, in order to protect fisheries, the environment and water quality.

Here’s an example of how this might work, if H.R. 1837 is enacted into law.

Currently, permits issued by both the State and federal governments require the CVP and State Water Project (SWP) to release water in the fall of wetter years to mitigate the impacts of the CVP and SWP on endangered species. These protections, however, are not explicitly part of the 1994 Bay-Delta Accord, so under sections 108(a) and 108 (b)(1) of H.R. 1837, neither the state of California nor the federal government could require the CVP and SWP to provide these flows. However, under state and federal law, the State Water Resources Control Board is required to use the best available science to update its water quality control plan for the Bay-Delta. If the State Board included these Delta outflows in the updated water quality control plan (the Board included these flows in their 2010 report on flows to protect Public Trust resources), the State Water Resources Control Board would have to require farmers and other senior water rights holders in the Sacramento Valley, San Joaquin Valley, and the Delta to release water and/or not divert water to meet these flow objectives. So even though their water rights are more senior to the CVP and SWP, and even though the operations of the SWP and CVP largely created this impact on endangered species, other water rights holders would be responsible to mitigate the impacts of the CVP and SWP on salmon and other species. Thus, H.R. 1837 would turn California’s system of water rights on its head.

In order to fully understand the radical implications of this legislation, it’s critical to understand a little bit of the history of the Reclamation Act, and the attempts by Westlands to take water from other water users and the environment.

In 1961, the State Water Resources Control Board issued Decision 990, which approved the federal Central Valley Project. Decision 990 relied on section 8 of the Reclamation Act of 1902 to impose conditions on the CVP’s water rights that were intended to protect senior water rights holders and fish and wildlife from harm caused by construction and operation of the Central Valley Project.
In 1978, the U.S. Supreme Court held in California v. United States, 438 U.S. (1978), that under Section 8 of the Reclamation Act the State Water Resources Control Board could impose conditions on the “control, appropriation, use, or distribution of water” from the CVP, unless the conditions required by state law were inconsistent with clear Congressional directives regarding the CVP. The conditions on the Bureau’s permit at issue in that case were intended to protect downstream water rights holders, as well as fish and wildlife, from the effects of the construction, filling, and operation of New Melones Dam.
In 1992, Congress and President George Bush enacted section 3406(b) of the Central Valley Project Improvement Act, which reaffirmed the requirement to operate the CVP to comply with state (and federal) laws, including water quality and water rights decisions of the State Water Resources Control Board.
In 1993, in Westlands Water District vs. United States, 10 F.3d 667 (9th Cir., 1993), the Court of Appeal upheld the Bureau of Reclamation’s water allocations, despite the fact that the Bureau announced an initial allocation of 0% for Westlands, and 75% of contract amounts for the Exchange Contractors. The Court found that the San Luis Unit was constructed to “deliver surplus Delta water” to Westlands and other South of Delta contractors, and noted that the shortage provision in the Westlands contract applies “[i]n any year in which there may occur a shortage from any cause.”
In 1998, NRDC v. Houston, 146 F.3d 1118 (9th Cir. 1998), the Court of Appeal held that under section 8 of the Reclamation Act of 1902 and provisions of the CVPIA, federal law did not preempt section 5937 of the California Fish and Game Code, as applied to the Bureau of Reclamation’s operation of Friant Dam, leading to the historic settlement of this litigation in 2006 and the enactment of the San Joaquin River Restoration Settlement Act in 2009.
In 2003, in Westlands Water District v. United States, 337 F.3d 1092 (9th Cir. 2003), the Court of Appeal again denied Westlands’ claims for more water, holding that, “Under section 8 of the Reclamation Act of 1902 (43 U.S.C. § 383), the Bureau is required to comply with state law in acquiring water rights for the diversion and storage of water by the CVP,” and that Westlands’ claim to an equal allocation with the Exchange Contractors “ignores the Exchange Contractors priority to CVP water.”

Yet despite this history, and despite Westlands’ junior status, H.R. 1837 seeks to radically overturn more than 100 years of Reclamation law, and to eviscerate the requirement for the CVP to comply with State law pursuant to Section 8 of the Reclamation Act of 1902.

Section 108(b)(1) of H.R. 1837 explicitly preempts California law and seeks to prevent the State from imposing scientifically justified restrictions on operations of the CVP to protect salmon and other threatened and endangered wildlife. Moreover, this section also prevents the State of California from enacting scientifically based protections that limit operations of the State Water Project – interfering in the State’s regulation of its own water project.
Section 108(b)(1) may even apply more broadly than endangered species, preventing the State from limiting CVP and SWP operations to protect commercially valuable species, like fall run Chinook salmon, that are not listed under the Endangered Species Act, or from limiting CVP and SWP operations to prevent a species from being listed.
Section 108(b)(2) preempts certain state wildlife laws.
Sections 202 and 204(2) preempt state law, including the State’s Public Trust doctrine, as applied to the Friant Division of the CVP.

There would undoubtedly be years of litigation if this bill were to be enacted into law, and clever lawyers would argue whether the bill really accomplishes the breadth of state law preemption (and evisceration of fish and wildlife protection) that its authors seek. But there is little question that if it was implemented, it would lead to dramatic harm to California’s wildlife and the thousands of fishing jobs that depend on healthy fisheries. The protections from the Bay Delta Accord (a 3 year agreement covering 1995 to 1997) that this bill would substitute are 17 years out of date, substantially weaker than existing requirements, and are not based on current science; and as my colleagues at the Environmental Defense Fund have noted, H.R. 1837 is intended to allow dramatically higher level of water exports than actually occurred under the Bay-Delta Accord from 1994-1997.

H.R. 1837 effectively guarantees that the CVP and SWP need not comply with the best available science; the bill would prohibit the state and Feds from imposing scientifically justified protections for the Bay-Delta that mitigate the impacts of the CVP and SWP. As salmon and other fish species continued to decline under H.R. 1837, the end result would likely be that existing senior water rights holders would have to give up water in order to protect the Bay-Delta, salmon and other fish species. Senior water rights holders under state law would be considered junior under federal law.

For 100 years, deference to state law has been the foundation of federal water policy. H.R. 1837 would demolish this foundation. If it were to become law, the long-term implications for California and the rest of the West could be far-reaching, disruptive and damaging to water users and the environment alike.

Happy Earth Day - Have you Thanked a Scientist Today?

2011-04-22T17:36:00Z

Doug Obegi, Staff Attorney, Western Water Project, San Francisco

On Earth Day, we celebrate the majesty and wonder of our planet, and the progress we have made in protecting and sustaining our natural environment and economy. Take some time to enjoy the outdoors and be inspired by the awe and wonder of our amazing planet; go hiking or fishing, go surfing or kayaking, or just take a moment to watch the wildlife in your backyard. And if you can't get outdoors and need some inspiration, check out this amazing video of the northern lights in Norway.

In the past several decades, America has improved the quality of the water we drink, helped clean up the air we breathe, helped restore fisheries and endangered species, and helped protect wilderness, forests and natural habitats. Unfortunately, as we all know, there’s still a lot more work to be done, particularly as Members of Congress seek to roll back environmental protections and sacrifice our county’s natural heritage.

As we enjoy the outdoors and celebrate our natural heritage, take a moment to think of all the people who work to protect our rivers, forests, deserts, and oceans; to clean up our drinking water and the air we breathe; and to ensure that our fisheries and wildlife are sustained for future generations to enjoy.

Scientists and managers in state and federal agencies across the U.S. work long hours, with anonymity and little fanfare, to improve the quality of life in our communities and to protect our natural heritage. All too often we forget that everyone who works at the EPA and other agencies is someone’s neighbor, friend, or family member. They don’t make the big bucks (certainly less than the hired guns who work for developers, oil companies, and other interests). They work with limited resources, often under political pressure to sacrifice environmental protections. They hike through the mud, work in the pouring rain, and prepare detailed environmental reports, in order to advance our scientific understanding and to sustain our environment and economy.

So as we give thanks this weekend and celebrate the outdoors and our environment, pause a moment to give thanks to the scientists and managers and countless volunteers who have helped make it possible. And if you know an agency biologist or scientist, tell them thank you. All too often we take them for granted, and don’t let them know how much we appreciate their work.

Happy Earth Day. And thank you.