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How to Deny that Fish Need Water

2012-01-24T17:30:15Z

Kate Poole, Senior Attorney, San Francisco

I recently came across this checklist for global warming deniers on Michael Campana’s post:

Deny global warming.
After global warming is determined to be real, deny that it's human caused.
After it is determined to be human caused, deny that it will be harmful.
After it is shown that it will be harmful, claim that it's too expensive to stop.
After it is shown that it will be more expensive *not* to stop, send a threat to a climate scientist.
Engage some scientists who may have ‘street creds,’ but in another field.

Insert the words “Delta ecosystem collapse” for “global warming,” and you have the playbook of some of the biggest water users in California who are driven by a desire to continue profiting from an unsustainable level of water diversions from the Bay-Delta.

1. Deny ~~global warming~~ Delta ecosystem collapse.

The catastrophic crash of several Delta native fisheries, including delta smelt, was well under way by 2004. But this didn’t stop Westlands Water District, the San-Luis & Delta-Mendota Water Authority and the California Farm Bureau from suing the Fish & Wildlife Service that year to demand that the delta smelt be taken off the Endangered Species list. These large water users insisted that the smelt was out of danger based on the analysis of B.J. Miller and Bryan Manly, who concluded that “the probability of extinction [of delta smelt] by the year 2050 is about one to two tenths of one percent.”

When this Miller/Manly analysis was put to the test of independent peer review, the reviewers unanimously concluded that “the conclusions reached in the paper were not supported by either the data or the arguments presented,” were based on “selective use of the data and application of questionable analytical techniques,” and “ignored the results and implications of their work that were contrary to their conclusions.” Individual peer reviewers noted that the paper was “a seriously flawed analysis of a limited set of selectively chosen data, designed to support a predetermined conclusion,” based on methods that are “completely and totally inappropriate.”

Despite this scientific trouncing, Mr. Miller and Dr. Manly’s work continues to underpin much of the “science” on the Bay-Delta ecosystem advocated by large water interests, which, not surprisingly, concludes that soaring water exports from the Delta have a small to insignificant impact on the Delta ecosystem. Unfortunately, the Bay Delta Conservation Plan’s draft environmental documents currently rely on much of this information for its analysis, raising grave concerns about the ability of that process to seriously address ecosystem challenges.

2. After ~~global warming~~ Delta ecosystem collapse is determined to be real, deny that it's human caused.

Blame other fish (no matter that those fish managed to co-exist happily in the Delta for a hundred years).

3. After it is determined to be human caused, deny that it will be harmful.

Tens of thousands of Chinook salmon and other fish are killed at the Delta pumps every year, with a much greater number suffering mortality from being pulled off their migratory pathway into hazardous parts of the Delta due to the hydrological pull of the water project pumps. Nevertheless, one of the water users’ “experts” recently testified in court that salmon survival increases as pumping levels increase from the south Delta, relying on a model that concludes that it’s actually good for salmon to be pulled miles off their migratory pathway and sucked into giant water pumps. Unfortunately, BDCP’s current draft environmental analyses rely on the “Delta Passage Model” that was created by this expert and that generated these – shall we say – surprising results.

4. After it is shown that it will be harmful, claim that it's too expensive to stop.

Thanks to Sean Hannity, we’ve all heard the false claim that a court’s action to protect native fish in the Delta “shut down” the pumps and caused unemployment to soar to 40 percent in the Valley. It turns out that the court never ordered the pumps to shut down. And the widely cited unemployment rate in the city of Mendota that formed the basis of this claim was even higher in 2011 (42.7%) – during an extremely wet year with the highest exports from the Delta ever – than it was in 2009 (38.2%) – the third year of drought when south-of-Delta agricultural users received an initial allocation of 10% of their contract supplies. (Here’s a fact sheet produced by the University of the Pacific debunking claims that tens of thousands of jobs have been lost to protect fish.) Huh. The data sure seems to indicate that we face a different and more systemic employment problem in the Valley than problems tied to water supply.

5. After it is shown that it will be more expensive *not* to stop, send a threat to a ~~climate~~ fisheries scientist.

While much attention has focused on Judge Wanger’s statements about two agency scientists who testified in support of the need for increased flow through the Delta in the fall, those statements did not come out of the blue. They were the culmination of a relentless series of personal attacks by big water users against agency scientists who were doing their job to protect the public interest. The two most heavily targeted scientists were recently vindicated by an independent review panel and their superiors are defending their integrity.

6. Engage some scientists who may have 'street creds', but in another field.

The export water users have hired a sheep biologist to testify about what delta smelt need. And a statistician who acknowledges that “this whole thing about delta smelt biology is not my area.” And a tuna biologist who disdains the fundamental scientific practice of independent peer review and admits to knowing nothing about the Delta or delta smelt.

Ultimately, the playbook is transparent – whether it’s used to deny climate change, Delta ecosystem collapse, or a host of other inconvenient truths. But that doesn’t make it any less effective, unless agency watchdogs and decisionmakers get wise to these tactics and reject them publicly. That can still happen in BDCP if state and federal decisionmakers exert the control that’s needed to right this foundering ship. This kind of combat science may represent the litigation strategy of certain water users, but it won’t lead to workable solutions for the Delta, our endangered fisheries or the water supply for millions of Californians.

NOAA Protects Salmon in Fresh and Saltwater and We Should Keep it That Way

2012-01-13T23:59:41Z

Kate Poole, Senior Attorney, San Francisco

Nothing creates trouble like basing major government initiatives on false information. Yesterday, the White House announced what it characterized as an “ambitious plan of government consolidation” to transfer the National Oceanic and Atmospheric Administration (NOAA), currently housed in the Department of Commerce, to the Department of Interior. In announcing this new initiative, President Obama stated that: “As it turns out, the Interior Department is in charge of salmon in fresh water, but the Commerce Department handles them in saltwater,” drawing laughter and echoing statements that he previously made at last year’s State of the Union speech.

The President's claim may be a good joke, but it's simply not accurate.

The first time that President Obama made this comment, several groups corrected him, pointing out that the Commerce Department actually has primary responsibility for salmon, in both fresh and saltwater. In California, the National Marine Fisheries Service, a division of NOAA, is in charge of preventing our major freshwater dams and diversion projects from destroying our native salmon runs. In fact, the Obama Administration just made an announcement this week about NOAA’s efforts to reduce the adverse impacts of the Central Valley Project and State Water Project on threatened and endangered salmon and steelhead trying to migrate through the Delta on their way to the sea.

It's primarily the dams, not the salmon, that are under the aegis of the Department of Interior, which is why it's so critical for NOAA to have an independent voice. The Central Valley Project, for example, is operated by the Bureau of Reclamation, an entity within the Department of Interior, which has historically done a less than stellar job at protecting salmon. The Central Valley Project Improvement Act (CVPIA), enacted in 1992, did give one small slice of salmon management to the Interior Department, directing it to dedicate a certain amount of Sacramento River water every year to double beleaguered Central Valley salmon runs. Not only have salmon runs declined precipitously since that time, but a recent independent report on the CVPIA salmon doubling program stated that the reviewers were “flabbergasted” at how poorly this program had been managed by Interior.

Ultimately, the problem with salmon management on the West Coast has not been an irrational division of responsibilities, but too much political interference in scientific decision-making. Only when the scientists were allowed to operate freely did NMFS conclude that continuing status-quo water project operations in the Delta would lead to the extinction of listed salmon runs in the Central Valley. The Bureau of Reclamation is now helping NMFS defend the changes in water project operations needed to avoid that disastrous result. Note that the scientists were within NOAA, which is primarily a science agency, unlike the vast Department of Interior, which has many different charges.

Streamlining government is a good goal, but let’s make sure that policy decisions are based on the facts. And effective streamlining isn’t about making things look more rational on paper, it’s about enabling the federal government to carry out its work more effectively for the public. In the case of protecting salmon, this move would not result in better results for the survival of fish and the communities that depend on them.

NOAA is and has long been the lead agency in charge of protecting salmon in salt and freshwater. It should stay that way. The proposed reorganization is a solution in search of a problem. If the Administration is interested in real improvements, it should be figuring out how to do more to ensure that NOAA’s scientists remain independent, well-supported, and insulated from political pressure.

The Endangered Species Act and Whale Tales

2011-12-08T19:06:29Z

Kate Poole, Senior Attorney, San Francisco

Certain misguided members of Congress continued their baseless assault on America's bedrock environmental laws this week. Representative Doc Hastings, Chairman of the House Natural Resources Committee, held the first of several promised hearings taking aim at the Endangered Species Act. But not all Congressmen have lost their perspective about the need to protect our natural resources, and the important reasons why President Nixon signed the Endangered Species Act into law in 1973 in the first place. Reprinted below is the opening statement made by Congressman Markey at Tuesday's hearing that provides an important reminder of why this law is critical to maintain. Thank you, Congressman Markey, for shining the light of fact and common sense through a thicket of misstatements and hyperbole.

Opening Statement, The Honorable Ed Markey, Committee on Natural Resources, Tuesday, December 6, 2011

Oversight Hearing entitled “The Endangered Species Act: How Litigation is Costing Jobs and Impeding True Recovery Efforts.”

Thank you, Mr. Chairman.

It is hard to believe that it was almost fifty years ago that Rachel Carson warned us of the potential for a silent spring. At that time bird populations – including our national symbol, the Bald Eagle – were decimated. Bears and wolves, icons of the western wilderness, were on the verge of extermination. Whales that had once been plentiful in the ocean were rare. Although whale oil brings to mind the era of Herman Melville and Moby Dick, the auto industry was still using it as a lubricant in 1970.

In response to these palpable losses, Congress passed the Endangered Species Act in 1973 to save species and their habitats. The law has been extremely successful at preventing extinction and in setting species on a path to recovery. In fact, only two species have gone extinct after receiving protection by the law.

Much like the animals it is bound to protect, the Endangered Species Act is that rarest of laws that has become a victim of its own success. We struggle to recall the dire circumstances that led to its creation in the first place.

Preventing extinction and recovering species is not just the right thing to do, it is the economically sensible thing to do. Biodiversity of plants, fish, and wildlife provide us with important benefits, from lifesaving drugs to clean drinking water. Nature has been producing cures for millions of years, including aspirin from the willow tree and high blood pressure medications from the pit viper. Imagine that -- a weeping tree that salves pain and snake oil that actually soothes the heart.

Hunting, fishing and wildlife watching produces $120 billion in annual revenues and employs more than 2.6 million people. In 2008 alone, tourists spent more than $125 million to travel and visit Stellwagen Bank National Marine Sanctuary off the coast of my home state of Massachusetts.

The Endangered Species Act also continues to receive strong support across state and party lines. The vast majority of Americans, both Democrats and Republicans, of all ages, ethnicities, and education, strongly support the Endangered Species Act. Americans also agree that decisions about wildlife protection should be made by scientists, not politicians, as the law requires.

Yet Republicans, through legislative proposals, reductions in appropriations, and funding limitations, continue to demonstrate their predilection for extinction.

If we want to recover endangered species, we must first work to provide adequate funds to implement the Act. The Endangered Species Act has been chronically underfunded. Our Republican counterparts have cut the Fish and Wildlife Service’s endangered species budget for next year by $44 million and the National Oceanic and Atmospheric Administration’s budget for protected species by $28 million.

Today we will hear from the Majority that litigation is hindering the recovery of endangered species. But the majority of activities that occur because of the Endangered Species Act take place without litigation. For example, on the lower Colorado River, a long-term program is in place to balance the interests of water users with conservation of endangered species, all without litigation.

When appropriate, litigation is used by industry and environmental groups alike to ensure that the government follows the rule of law. Litigation gives citizens the ability to challenge the decisions of the government when they believe they have been wronged. It is as fundamental to our rights as freedom of speech or the right to vote.

Captain Ahab is famously known for fixating all of his anger and blame on Moby Dick. Similarly, the Majority’s white whale is the litigants who are striving to ensure that the Endangered Species Act is implemented in accordance with the law. This whale of a tale only serves to distract us from preventing extinction and recovering species for our own benefit and for the benefit of future generations.

Good Government Takes the Scare Away From Mad Scientists and Lawyers

2011-10-31T18:37:35Z

Kate Poole, Senior Attorney, San Francisco

It’s shaping up to be a happy Halloween for California’s fishermen, boaters, birdwatchers, and drinkers of water – in other words, all of us who rely on a healthy Delta ecosystem.

First, the Supreme Court today denied the Pacific Legal Foundation’s request to hear PLF’s argument that fish who don’t manage to swim across state lines don’t deserve our protection. PLF’s argument was mad lawyering at its best. Every single court to hear their claim has denied it.

But neither PLF nor their corporate cronies who joined in the request for Supreme Court review let a silly little thing like the law and legal precedent stop them. Don’t let the clever names of these organizations fool you – in this case, the Pacific Legal Foundation, the National Federation of Independent Business Small Business Legal Center, the Mountain States Legal Foundation, the National Water Resources Association, and the Center for Constitutional Jurisprudence were advocating pure greed at the expense of the rest of us and the healthy natural resources that are our right, our children’s legacy, and a vital part of a healthy economy. As the Eleventh Circuit explained in rejecting a claim almost identical to PLF's here: "All of the industries we have mentioned – pharmaceuticals, agriculture, fishing, hunting, and wildlife tourism – fundamentally depend on a diverse stock of wildlife, and the Endangered Species Act is designed to safeguard that stock." Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250, 1271-77 (11th Cir. 2007).

The second good news on this Halloween is that, thanks to high flows and the protections provided by hardworking scientists at the Department of the Interior and National Marine Fisheries Service in the Delta biological opinions, fish counts are way up this year as compared to the last several. Here are some recent graphs prepared by FISHBIO showing early fall run Chinook returns in the San Joaquin and Sacramento basins:

These hopeful numbers reflect the numbers of several other Delta fish species, including delta smelt and longfin smelt, whose early fall abundance numbers indicate that their populations are beginning to recover after the extinction-threatening beating that they took in the early 2000s, when pumping from the Delta hit historic highs and fish were killed at the export pumps by the tens of thousands. This year, thanks to the protections of the biological opinions, low numbers of smelt were killed in the pumps, and the water projects provided decent habitat in the fall by allowing more freshwater to flow through the Delta.

This confluence of increasing fish numbers is not surprising – not only do big fish eat little fish (just one of the fundamental deficiencies in PLF’s argument that we should ignore the little fish), but healthy flows and a healthy ecosystem provide good habitat for all fish that depend on the Delta. We, in turn, reap the benefits of that healthy ecosystem, including a revived salmon fishery in California and better drinking water quality in the Delta. That’s a Halloween treat.

Our Salmon Runs Are Going Extinct - The Time For Protections Is Now

2011-09-20T04:06:19Z

Kate Poole, Senior Attorney, San Francisco

On Tuesday, Judge Wanger issued what is likely his final ruling in the struggle to protect California’s mighty streams and rivers from the destructive impacts of excessive water diversions. His 279-page decision is not a surprise in light of the Judge’s previous rulings and the mountain of complaints that corporate agribusiness and others lobbed at the 2009 biological opinion. But it is a disappointment.

What’s in those rivers worth protecting? For one thing, our majestic king salmon runs and the many coastal fishing towns and families who rely on salmon fishing to make a living. For another, the thousands of family farmers in the Delta who rely on clean, clear flows to keep their crops growing.

The very life-blood of the Winnemem Wintu tribe, who define themselves by the water that flows and the salmon that swim in our rivers. And the intricate web of life that is sustained by healthy rivers, including all of us who drink the waters, recreate in the cooling flows, and revel in the birds and wildlife supported by our rivers and streams.

The Judge’s ruling is disappointing because he recognized (as any rational observer must) that the way in which the water projects operate the state’s many dams and reservoirs and the massive water diversion pumps in the Delta jeopardizes the very existence of most of our native salmon runs, steelhead, sturgeon, and other fish that try to run the gauntlet of these obstacles. The Judge also recognized that the protections laid out in the biological opinion were generally supported. These findings echo those that Judge Wanger made back in 2008 when he rejected the previous Bush Administration biological opinion on the effects of the water projects, finding that they clearly jeopardize salmon and other fish. Back then, the Judge sent the biological opinion back to the agencies and told them to rewrite it, and strengthen its protections to prevent jeopardy.

The agencies did as the Judge ordered, and came back with a new 844-page biological opinion in 2009. In a thorough and comprehensive analysis, the 2009 biological opinion recognized that the status quo operations of the water projects would wipe out our fisheries if we didn’t change the way the water projects were operated. It then recommended changes to the water projects that would still allow significant water diversions, but reduce the harmful impacts on fish. In fact, while the protections of the 2009 biological opinion were in place and protecting salmon and other fish this year, the water projects exported more water than ever before out of the Delta.

But Tuesday’s decision instructs the agencies to go back to the drawing board and study the issue yet again, making the perfect the enemy of the good. The next biological opinion is likely to look very similar to this one, because as Judge Wanger (and numerous other state and federal agencies and independent review panels) found, many of these protections are necessary. While the Judge remanded for greater justification for the specific flow requirements, nothing in the opinion suggests dramatic differences in how we manage the Delta.

It’s well past time for us to deal with these problems. Salmon fishermen just suffered through three years of the closure or near closure of California's salmon fishery – a step that had never been taken before. Some runs (like Winter run chinook) are in the worst shape in more than a decade. While we should -- and will -- continue to incorporate new scientific research and findings, California's salmon runs can't wait for perfect science, nor can the fishing and tribal communities that depend on their health.

HR 1837 and the Death of the Bay Delta Conservation Plan

2011-05-29T23:20:42Z

Kate Poole, Senior Attorney, San Francisco

Last week, Congressman Nunes introduced an eye-poppingly radical bill, H.R. 1837, which would:

Eliminate a century-old requirement that the federal government follow state water law whenever possible;
Overturn Endangered Species Act protections for the Bay-Delta and its imperiled fisheries;
Abolish the widely-supported San Joaquin River restoration settlement and its collaborative process to restore historic salmon runs;
Wipe out requirements to modernize the Central Valley Project in the Central Valley Project Improvement Act;
Override the historic state Water Reform Package passed in 2009 that adopted the co-equal goals of restoring the Bay-Delta ecosystem and improving water supply reliability as the twin drivers of California water management;
And turn state water rights on their head by making senior water rights holders responsible for the ecological mess made by the more junior Central Valley Project and State Water Project.

But that’s not all. One of the more insidious but less obvious effects of H.R. 1837 is the destructive effect it would have on consensus-based efforts to improve California’s water system. One of these efforts is the Bay Delta Conservation Planning process, an attempt to craft a habitat conservation plan under the federal Endangered Species Act and state Natural Community Conservation Planning Act. By eliminating Endangered Species Act and state law protections for threatened and endangered species in the Bay-Delta, H.R. 1837 pulls the rug out from under the BDCP. If H.R. 1837 were to pass, there would simply be no legal foundation on which to build a habitat conservation plan anymore.

H.R. 1837 would also likely make authorizing a new peripheral canal impossible. A new canal to carry water around the Delta has been a central aspect of BDCP. Such a canal would have to be authorized by the State Water Resources Control Board, which could only approve it if it caused no injury to other beneficial water users and uses, including fish protection. H.R. 1837 would likely make the State Board’s approval of such a permit impossible because it caps the flow and habitat contributions that the CVP and SWP could make at levels defined in 1994, long before we faced the ecosystem conditions and developed the scientific knowledge that we have today. Collectively, the limitations in H.R. 1837 would prohibit all of the proposed operations of a canal that have been seriously considered in BDCP to date. It’s hard to imagine how the proponents of a peripheral canal could show “no injury” to other water users in light of such restrictions. As a result, it’s hard to imagine how the BDCP could ever receive necessary state permits, if this bill were to pass.

H.R. 1837 would also hobble existing CVPIA restoration funds and flows that are currently used to mitigate the effects of the CVP on the Bay-Delta ecosystem, and do away with increased San Joaquin River flows under San Joaquin restoration settlement. By eliminating these existing contributions of the CVP to aquatic health, the bill would shift the burden to other water users to make up the difference under the status quo. To then impose the even steeper burden on these other water users of mitigating for the effects of a new canal on the environment would be daunting, if not impossible.

Perhaps most importantly, H.R. 1837 would erode the trust necessary for BDCP to succeed. BDCP is a process in which different water interest groups are trying to work together to craft a long-term plan to satisfy their many needs. Developing such a plan requires a fundamental degree of trust: trust that if a new peripheral canal is built, it will be operated in such a way that it will not harm the environment. Trust that the terms of a BDCP permit will be followed even if those terms cause some pain in the form of increased need for alternative water supplies in drought years. Trust that the parties won’t reach an agreement at the end of this lengthy process, only to have some parties turn around and seek a legislative rewrite of the deal when it becomes inconvenient for them.

It’s abundantly clear that, should H.R. 1837 become law, the BDCP process could not succeed. But even the legislative debate over the bill could be damaging. It’s challenging, to say the least, to cultivate an environment of trust in the BDCP’s efforts to restore California’s Bay-Delta when some parties are seeking to undermine existing protections in Congress.

These next few weeks will be a very delicate time for BDCP. We will be watching closely to see whether BDCP participants demonstrate their commitment to a collaborative, science-based solution to California’s water challenges by opposing the Nunes bill, or whether they decide to roll the dice in Congress and doom BDCP to failure.

Another Episode of "The Real Buffalos of California Water"

2011-04-11T04:04:01Z

Kate Poole, Senior Attorney, San Francisco

I recently stayed up far too late watching the Real Housewives of some city or another. It was like watching a slow-motion train wreck. While there were many opportunities to avert disaster, the players seemed to choose the wrong path every time – histrionics do, after all, make for far higher ratings than sensible problem-solving. And then it hit me: it was just like California water politics, with way more sparkly stilettos and elaborate up-dos.

California water politics certainly has its share of drama queens. You have the type who labels anyone who disagrees with them a Nazi or the most-reviled tyrant of the moment. You have those who love to repeat baseless rumors – 40,000 jobs lost to save six fish, anyone? – in a transparent effort to turn an angry mob on their hapless target. Others would rather see their neighbor’s well go dry before allowing regulators – who always arrive in black helicopters in these minds’ eyes – to monitor the level of our common store of groundwater. And then there are those who would travel thousands of miles just to storm out of a meeting in a dramatic tour de force.

These are the players who tend to receive most of the air time in the world of California water. But these water buffaloes are about as “real” as the housewives on Bravo, who belittle the hard and important work performed by actual housewives of raising the next generation and generally caring for everyone around them. The showboating tactics of “The Real Buffaloes of California Water” do not reflect the vast majority of people working hard to protect California’s precious rivers and streams and to ensure a stable water supply now and well into the future. Their antics do a disservice to the serious issues and concerns that these reasonable men and women are trying to solve. And the attention that they receive threatens to derail cooperative problem-solving and throw us headlong into the path of that oncoming train.

The challenges facing California water policy are substantial. Our fishing communities and Native American tribes struggle mightily as many of California’s salmon runs dwindle to a tiny fraction of what they once were. The fortunes of our fishing industry now rise and fall with the fate of the one remaining stock that is viable enough (for the moment) to stay off the endangered species list. The flood threats facing the Delta, including Sacramento, are as bad or worse as those produced by Hurricane Katrina. And we’ve clearly surpassed the limits of the old approach of tapping the next river system to meet the needs of California’s growing population and economy, and must now focus on improving the efficiency of use, wasting less, and reusing more as the core tenets of water supply.

Solutions to these challenges exist, but it will take the serious attention of serious people to get them implemented. We may revel in the guilty pleasure of watching The Real Buffaloes of California Water. We may even be entertained for a day. But let’s not let the show obscure the reality. There comes a time to turn it off and get down to business, and for the real water caretakers to stand up and be heard.

Sugaring Up the Already Sweet Deal of the Sacramento River Settlement Contractors - Is This How Congress Will "Fix" California Water?

2011-03-03T18:39:00Z

Kate Poole, Senior Attorney, San Francisco

On March 1st, a group of Congressmen from the Central Valley of California wrote a letter to Interior Secretary Salazar complaining about the administration of the largest single block of contract water in the federal Central Valley Project – the 2.2 million acre-feet allocated every year to the Sacramento River Settlement Contractors to grow hundreds of thousands of acres of subsidized rice and other crops in the Sacramento Valley. The letter’s authors include many of those who recently sponsored language in the House Continuing Resolution that would block protections for endangered salmon and other species in the Bay-Delta, threatening to shut down completely the massive state and federal water pumps that provide water to many of their constituents. This scorched-earth approach has been roundly criticized by such “radical environmentalists” as the Kern County Water Agency, Paramount Farms, and the Metropolitan Water District of Southern California. Now, these Central Valley Congressmen are at it again – pursuing a wrong-headed approach that threatens to reduce water deliveries to their own constituents and harm everyone else in the state who cares about improving the predictability of water supplies and the health of the Bay-Delta.

The thrust of the letter is a request to place the Settlement Contractors above the law – to exempt them from having to provide a single drop of water to help restore the battered Bay-Delta ecosystem from which their Sacramento River pumps divert water. It’s hard to imagine a reasoned policy basis explaining why the Congressmen singled out this particular set of water users for special treatment. After all, the Settlement Contractors are among those lucky few water users who received 100% of their contract deliveries over the last several drought years, while most others in the state were tightening their belts and making do with less water. The Settlement Contractors also receive enormous quantities of water relative to everyone else – the Metropolitan Water District of Southern California, serving most of urban southern California, has a contract for less water than the Settlement Contractors – and they get it for pennies on the dollar. As my colleague explained here, one of the largest Settlement Contractors complained about paying $9.03 for an acre-feet of CVP water during the height of the drought, when other water users were spending hundreds of dollars an acre-foot. And it doesn’t appear that the Settlement Contractors need nearly as much water as they once used, due to improved efficiency. One of their representatives explained earlier this year that the Settlement Contractors can grow as much rice as they’ve always grown with more than 2 acre-feet per acre less water due to efficiency practices and improvements.

Despite this apparent wealth of cheap, abundant water, the letter (posted in its entirety here) complains that the United States has recently changed its position on whether a portion of the 2.2 million acre feet of water known as “project water” can be shorted in times of drought, or to protect water quality or endangered species. “Project water” is less than 20% of the total contract amount of the Settlement Contractors, most of which is classified as more secure “base supply.” The so-called “change” in position to which these Congressmen object is a single line in a brief recently filed by the Interior Department explaining that: “Should it ever prove necessary for project water under the SRS contracts to be reduced to meet legal obligations under the ESA to benefit the delta smelt or other listed species, Article 3(i) gives Reclamation the same ability to do so as it has under [other CVP] contracts.” But this is neither a fundamental change in the position of the United States, nor is it the wrong policy or legal approach.

The Bureau of Reclamation has consistently taken the position that the “project water” in the Settlement Contracts can be reduced to meet legal obligations, such as ensuring adequate water quality or protecting endangered salmon that spawn, rear and migrate in the upper Sacramento River near these contractors’ diversion facilities. In fact, the contracts themselves, renewed in 2005, expressly note that the contractors may not receive the full contract amount of water due to the "errors in operation, drought, or unavoidable causes" or "actions taken ... to meet legal obligations." Echoing this language, the Bush Administration explained in a court filing in 2008 that “these contracts ... insulate Reclamation from liability for the non-delivery of project water when necessary to 'meet legal obligations,' including the terms and conditions of a biological opinion prepared under the ESA." A federal district court judge in Fresno agreed, explicitly finding that the Settlement Contracts “specifically and unmistakably reserve[] to the United States the right to reduce Project Water diversions by SRS Contractors.”

The current position of the U.S. government is clearly not a “fundamental change” from the position it has long held through a series of Republican and Democratic administrations. So what is really going on here? Plain and simple: the Sacramento River Settlement Contractors do not want to do their part to help restore the imperiled Delta ecosystem, even though their upstream diversions significantly affect the amount, timing, and quality of flows into that ecosystem. In fact, they are fighting tooth and nail against NRDC’s efforts to get the Bureau merely to consult on the impact of these contracts on threatened and endangered species.

If these Congressmen get their way and succeed in insulating these contracts from complying with the Clean Water Act, the ESA, and other state and federal laws, they’ll end up imposing a higher burden for compliance on the backs of many other contractors and water users in the state, including the Delta exporters that they’re supposed to represent. Be careful what you wish for, Congressmen – you might get it.

Judge's Ruling On Biological Opinion Confirms Overall Approach, Asks For Refinement

2010-12-15T00:46:01Z

Kate Poole, Senior Attorney, San Francisco

Today, Judge Wanger issued his long-awaited ruling on the legality of the Fish & Wildlife Service’s protections for threatened and endangered fish in the Delta. These protections, described in a 2008 biological opinion, were issued in response to the ecological collapse of the Delta and its native species over the last decade. In particular, the endangered delta smelt has declined at a shocking rate, sounding the alarm for all of us who rely on the Delta for drinking water, agricultural water supply, recreation, or our livelihood, that something is desperately wrong.

Because the biological opinion recommended reducing levels of water exports out of the Delta from the historically-high levels we experienced in the first part of this decade, it was vehemently opposed by many powerful interest groups who profit from a cheap, seemingly endless supply of water from the Bay-Delta’s complex river system. Six different lawsuits were filed, raising many different claims on nearly every aspect of the biological opinion. Although Judge Wanger agreed with a handful of these claims (wrongly, in our view), he rejected the great majority. In addition, Judge Wanger rejected the notion that we could go back to the destructive policies of the Bush Administration, which allowed the state and federal water projects to drastically increase the amount of water they took from the Bay-Delta. Those policies helped lead to the complete closure of our salmon fishing industry, costing California’s economy more than a quarter billion dollars per year and thousands of jobs. As Judge Wanger recognized in an earlier ruling: “the economic pain and hardship has been no less to the fishing industry that relies on salmon than has been the economic consequences to the Central Valley agricultural community.”

Today’s decision explains that “[i]t is undisputed that Project pumping ‘kills Delta smelt by sucking them directly into the pumps; by drawing them into fish ‘salvage’ facilities which collect fish diverted from entering the pumps, a process that kills the smelt; and drawing smelt into the SWP’s Clifton Court Forebay from which the fish cannot escape and where they will die even if they are not drawn into the salvage facilities or the pumps.’” [Page 8, note 3]. The decision also agrees with the conclusion in the biological opinion that entrainment of fish by water project operations causes harm to delta smelt. [Pages 36-38]. The decision confirms that the Fish & Wildlife Service used and relied upon the best available science in numerous places, including in determining the need overall for reasonable limitations on Project pumping to reduce entrainment of fish by Project operations.

Where the decision grants Plaintiffs’ claims, and requires more explanation from the Fish & Wildlife Service, is primarily in areas where the Judge agreed that protections are necessary, but asked for more information about the precise range of flow levels that could be permitted. For example, the Court recognized that the Project pumps harm fish when they cause rivers to flow backwards (specifically, Old and Middle Rivers, tributaries of the San Joaquin River), but he asked for more justification about the specific levels at which permissible negative flows should be set. While the Fish & Wildlife Service demonstrated that large amounts of fish are killed when those rivers run backward at a rate of -5,000 cfs (historically, in the tens of thousands), the Judge asked them to compare those large amounts of fish to overall population levels to ascertain the effect on the population as a whole. [Pages 53-74]. The difficulty with this request is that we have no reliable estimates for the population of delta smelt as a whole; only comparative measures of abundance from year to year. Importantly, when federal scientists attempted to use these comparative abundance levels to refine the flow range in court, the result was a flow cap of -4,000 cfs – a more restrictive cap that would result in a lower level of water exports than the current cap of -5,000 cfs. [Page 70].

Similarly, the decision questions the agency’s use of an alternative model and data when the one preferred by the water contractors gave unreasonable and unrealistic results. [Pages 93-94]. Although the Court (and we all) would prefer to have perfect data and perfect models on which to base our decisions, such is not the perfect world in which we reside. We must – and, we believe, the FWS did – use the best information that is available to us. The law does not require anything more.

In fact, the decision itself explicitly ignores the multitude of scientific evidence issued after the biological opinion was released that supports its analysis and conclusions. Judge Wanger acknowledged but refused to consider the fact that the National Academy of Sciences – perhaps our most esteemed scientific body – has completed a comprehensive review of the biological opinion and concluded that it was “scientifically justified.” [Pages 12-13]. Similarly, the Judge refused to consider an independent peer review conducted by another firm at the request of one set of plaintiffs that endorsed the approach and conclusions of the biological opinion. The State Water Resources Control Board has also subsequently confirmed that higher flows than present are needed in the Delta to restore the estuary and its fisheries. Perhaps when the analysis is brought back into the realm of the professional biologists, these important omissions will be corrected.

Ultimately, we are disappointed by today’s decision because it merely prolongs the battle over the restoration of the Delta and its ecosystem in the quest for more perfect information that we are unlikely ever to obtain. The best way to restore a stable and predictable water supply from the Delta is to restore it as a functioning ecosystem. It’s time to get down to it.

Bay-Delta: A Glimmer of Consensus amidst the Sound and the Fury

2010-12-02T01:07:25Z

Kate Poole, Senior Attorney, San Francisco

We all love a good show, and the foot-stomping theatrics of Westlands and their close allies the San Luis & Delta-Mendota Water Authority have captured much of the attention of Bay-Delta watchers over the last week. But a more interesting and potentially much more important story has been quietly unfolding over the same period. Several other water contractors across the state – mostly agencies serving urban areas – have not only reiterated their commitment to the Bay Delta Conservation Planning process, but have explained that the point of the process is not to increase the amount of water diverted from the Bay-Delta, but to restore the ecosystem and improve the predictability and security of our water supplies. This recommitment to the original impetus for BDCP stands in marked contrast to the demands of Westlands and SLDMWA for more water from the Delta. It also provides a clear and hopeful path forward for the process.

As bluntly stated by representatives of two water agencies that serve customers in the Bay Area, “[w]e are not looking for more water.” Instead, the Zone 7 Water Agency and Alameda County Water District recognize that “[t]he status quo is unacceptable for the Delta ecosystem and for the reliability of our community’s water supply.” These water agencies seem to get the underlying reality that improving the perilous state of the Bay-Delta ecosystem equals a more stable water supply – one that is less subject to emergency cutbacks to deal with levee collapses caused by earthquakes or floods, or protections for endangered fish – and that such a result is a win for everyone.

A similar sentiment was recently expressed by Tom Philp, “executive strategist” (one of the coolest job titles on the planet) for the Metropolitan Water District of Southern California. Discussing Met’s new 25-year water plan, Tom explained that “you won’t find expectations of ever-increasing supplies from Northern California. The plan has as its highest target the retention of a traditional Northern supply via the State Water Project.” Although Tom wasn’t precise about the amount of Met’s “traditional Northern supply via the State Water Project,” it’s not a difficult calculation to make. Assuming that the last twenty years make for a “tradition,” and generously including deliveries surplus to their base contract amount (known in waterspeak as “Article 21 deliveries”), Met received about 52% of its contract allocation on average from 1990-2008:

(As mentioned, this is a generous estimate because it includes the unsustainable deliveries from the record-setting years in the past decade.)

This 52% traditional supply is less than the 60% SWP delivery that the Department of Water Resources estimates that Met will receive on average under the current biological opinions. See Table 6.3 in the 2009 State Water Project Reliability Report. Thus, Met, too, seems to recognize that the purpose of BDCP is not to increase water diversions from the Delta, but to stabilize supplies by stabilizing the ecosystem.

This realistic position is also reflected in two important developments at the state level over the past year. The first is the new state policy of reducing our reliance on the Delta. The second is the State Water Board Flows Criteria, which suggests (as do many other scientific investigations) that water agencies should not plan for increased diversions from the Bay-Delta.

I’m thankful for this pragmatic acknowledgement by urban water agencies that saving the Bay-Delta is vitally important and worth the investment, even though we are unlikely to squeeze more water out of the estuary for export. Such a clear-headed approach is just what we need to finally end California’s boom and bust cycle of water politics.

[1] From Dept. of Water Resources State Water Project Reliability Reports, 2002, 2005, 2009, Appendix D.

And Now, Will the Real BDCP Project Purpose Please Stand Up....

2010-11-23T23:46:01Z

Kate Poole, Senior Attorney, San Francisco

Predictability, stability, and the confidence that a large chunk of our water supplies (and the heart of California’s aquatic ecosystem) are more than one earthquake away from total collapse – that is what the Bay Delta Conservation Plan is likely to buy California’s water supply in the long run. That goal, along with the promise of restoring the battered Bay-Delta ecosystem and the salmon fishing and other industries that it sustains, are why NRDC believes we must continue to try to develop a plan that achieves the co-equal objectives of restoring the Delta’s ecosystem and improving the reliability of California’s water supplies. But not everyone agrees that those two little words – “improving reliability” – mean ensuring a long-term predictable and stable water supply. Some seem to believe that “improving reliability” means that BDCP must vastly increase the amount of freshwater siphoned out of the Bay-Delta ecosystem. Or do they?

Much has been written in recent days of the current state of the BDCP as we near the waning days of the Schwarzenegger Administration. Almost all of the Steering Committee participants have acknowledged that progress has been made in plan development, but that there is a long way to go before the underlying analysis will be developed enough to propose an actual draft plan. Last week, the Kern County Water Agency reaffirmed its commitment to BDCP, and the State Water Contractors likewise recommitted to completing the BDCP process. The one glaring exception has been the Westlands Water District, which has loudly proclaimed its intention to quit the process.

According to Westlands’ press release, it is quitting “in response to political interference from the Department of the Interior” that it claims is emanating from Deputy Secretary of the Interior David Hayes. So Westlands will only proceed with a BDCP planning process that is based on sound science and lacks “political interference”?

Well, no. In fact, just last week, the Chief Deputy General Manager of Westlands testified before a State Assembly Committee that what BDCP needs is for political appointees to step in and “manage” “mid-level biologists.” I guess that the type of “management” that Westlands is looking for is not the kind where the Deputy Secretary supports the findings and recommendations of his agency’s scientists, but another kind of “management” where those scientists are overruled by politics.

The other reason that Westlands provides for quitting the BDCP process is because, they claim, the Deputy Secretary has told Westlands that “it is unrealistic for the contractors to expect to achieve water supplies that are comparable to the supplies that resulted from the Bay-Delta Accord.” (Deputy Secretary Hayes has clarified that what he actually told Westlands was that “the goal identified by the water contractors of having operational criteria that will achieve an average of 6.2 million acre feet of water exports may not be realistic, given our scientists’ preliminary views that this level of exports may not be consistent with satisfying the co-equal goal of restoring the ecosystem.”) So Westlands will only stick with a BDCP planning process that results in water supplies equivalent to those seen in the mid-1990s, following completion of the 1994 Bay-Delta Accord?

Not exactly. If you look beyond the rhetoric to the facts, exports from the Delta in the 1990s averaged 4.7 million acre-feet, which is equivalent to the amount of water exported from the Delta in 2010 and less than the 4.9 million acre-feet that can be exported from the Delta on average under the current biological opinions. Even the decade of 2000-2009, during which exports reached four of the five historically highest levels, witnessed average levels of exports of 5.5 million acre-feet – far below the 6.2 million acre-feet that Westlands is currently demanding in BDCP.

So it must be that Westlands really just wants more water than has ever been consistently exported before, and that the stability and predictability aspects of reliability don’t matter much to the agency, right?

Wrong again. In an article printed in the Capital Press today, Westlands’ spokesperson, Sarah Woolf, is quoted as saying that Westlands is frustrated by “indications that water deliveries could shrink under a finalized BDCP, Woolf said. But Westlands accepts that outcome if supplies become reliable, she said.” This sentiment is consistent with the views previously expressed by Westlands’ farmers, that it is not more water they want, but more predictability that allows them to make planting and other investment decisions in a timely and rational manner.

Of course, the best way to achieve more reliable water supplies is for BDCP to focus on restoring the ecosystem and addressing vulnerability concerns associated with earthquake risk, not seeking promises of historically high export levels that can never be sustained. Various participants of BDCP may have different views about the purpose of BDCP (and some participants hold wildly differing views all within the same organization….). But the decisionmakers must keep their eye on the good public policy purposes of BDCP, which were articulated well by the Governor’s Blue Ribbon Delta Vision Task Force:

The current condition and uses of the Delta are unsustainable. Rising sea levels will lead to intrusion of salt water farther upriver in the Delta, altering the ecology of fish and plants and contaminating waters withdrawn for diversion to agriculture and urban uses. Inevitable floods will inundate vast areas, overwhelm levees, destroy property and infrastructure, and endanger lives in flood-prone areas. Less certain but potentially more catastrophic earthquakes could profoundly alter the physical geography of vast areas of the Delta, obliterating settled areas with major flooding, destroying bridges, levees, roads, power transmission, gas pipelines, and buildings.

Our vision accepts the judgment that the current situation of the Delta is not sustainable. We recognize, among all the uses that must be accommodated in planning for the future of the Delta, two overriding priorities – ecosystem protection and water provision for human use. By giving a priority to ecosystem protection, we do not mean restoration to historical conditions that prevailed prior to the alterations that humans have effected over the past two centuries. We mean adapting patterns of construction, settlement, and uses to enhance the functioning of the Delta as an integral part of the San Francisco Bay-Delta Estuary to the extent practicable within a relatively mature and developed economy. By assigning a priority to water provision, we do not envision any increases in available supplies for export outside the Delta. To do so would compromise our priority for ecosystem protection. [Delta Vision report at 55]

There’s a great deal at stake in the Delta – for Delta residents and farmers, for water users, for fishermen, for the state economy and the environment. Crafting a successful plan is too important to be knocked off the tracks by this piece of clumsy brinksmanship.

Westlands' Version of Scienciness: May the Biggest Politician Win

2010-11-19T01:11:15Z

Kate Poole, Senior Attorney, San Francisco

A remarkable bit of honesty was committed earlier this week by representatives of the Westlands Water District. The Chief Deputy General Manager of Westlands, Jason Peltier, testified before an Assembly Committee that Westlands’ vision for salvaging the Bay-Delta Conservation Plan process requires political appointees to “step in” and “manage” “mid-level” federal agency biologists. [See video here at 1:12] Westlands’ statement follows news that agency biologists have indicated that Westlands’ proposed plan for BDCP – one that would vastly increase exports from the Delta over the levels seen in nearly every previous year – could lead to the extinction of at least one species that the plan is supposed to recover. In the words of Mr. Peltier, “if we simply just sit back and say: what do you think mid-level biologists? We’re going nowhere.” [See video here at 1:12:30]

So much for Westlands’ commitment to “ensure that the [Endangered Species] Act is implemented in a manner consistent with its requirement that decisions be based on the basis of the best available science.” [http://westernfarmpress.com/westlands-water-district-files-lawsuit-biological-opinion] When the science doesn’t tell Westlands what it wants to hear, it appears they are ready to run straight to the politicians to cook up a different answer.

The “mid-level biologists” that Mr. Peltier so scornfully derides did not deliver a message that surprised anyone who has been paying attention. The notion that we can recover the Delta’s ecosystem by taking even more water out of it has been resoundingly rejected by numerous recent studies, including ones conducted by the State Water Resources Control Board, the National Academy of Sciences, the Public Policy Institute of California (see page 5, explaining that even with a peripheral canal, “water users must be prepared to take less water from the Delta, at least until endangered fish populations recover”), and the Chief Scientist of the CALFED Science Program. These “mid-level biologists” are the very people to whom our laws have delegated the task of assessing the environmental impact of proposed projects. We make this delegation in our society of laws for the purpose of obtaining an objective analysis of the long-term impacts of our actions before deciding to embark on a multi-billion dollar project that would dwarf the size of the Chunnel connecting France and England. And these “mid-level biologists” – who, unlike Westlands’ paid consultants, are not generously compensated to reach a pre-ordained result – are the best hope that we have of finally getting past the crisis management that we’ve experienced in the Delta over the last couple of decades and onto a path of recovery, stability and predictability.

This is a critical time for the future of the Bay-Delta, and the stakes are very high. But the solutions are out there – we can save California’s 150 year-old salmon fishery, restore the Delta as the heart of the Pacific Flyway, and provide for plentiful water supplies for agricultural, residential, and industrial use now and well into the future. The question is: are we going to listen to the science and chart a path towards a sustainable water future, just as California has done in the world of climate change and energy; or are we going to revert to a battle of raw political power and continue the cycle of broken water policies?

Science or Scienciness?

2010-10-29T20:05:37Z

Kate Poole, Senior Attorney, San Francisco

In the endless debates and warring proposals about how best to manage the imperiled Bay-Delta ecosystem, it seems that all sides agree on at least one principle: management decisions must be rooted in science. NRDC certainly considers that tenet a core building block for just about any natural resource management decision, including ones involving the Bay-Delta. But underneath this veneer of consensus, different players in the Bay-Delta debates actually mean wildly different things when they refer to “sound science,” some of which bear no relation at all to objective scientific principles or practices. Dr. Jeff Mount from UC Davis recently described these alternatives to real science as crisis science, combat science, science by powerpoint, blog science, and even “science that sounds good” (quite a spin on “sound science”). As “truthiness” is to truth, these brands of “scienciness” are to real science.

On October 26th, the federal district court in Fresno rejected one version of scienciness in the Delta debate. The decision in Family Farm Alliance v. Salazar is an offshoot of the many cases challenging protections for endangered salmon and other fish species in the Delta. The Family Farm Alliance challenged the U.S. Fish and Wildlife Service’s biological opinion under the Information Quality Act, a relatively recently enacted federal statute that is designed to ensure that federal agencies base decisions on high quality information. In response to the Family Farm Alliance’s complaint, the U.S. Fish and Wildlife Service subjected the 2008 biological opinion to yet another independent peer review (it had already undergone two peer reviews that supported the analysis) by a group of outside experts. This third independent peer review, conducted by PBS&J, largely confirmed the findings of the first two peer reviews, concluding that the analysis in the biological opinion was sound and its protective measures supported. Among other things, the independent peer review concluded that the peer reviewed studies underlying the biological opinion “constitute the best scientific and commercial data available” and support the conclusion in the biological opinion that “pumping may have an important ‘sporadic’ effect on delta smelt abundance, particularly during the past decade.” The independent peer reviewers also pointed out that “[a]nything that contributes to lengthening the recovery period increases the risk of setting recovery back even further because, in a sporadic impact scenario, it increases the probability that another major impact will introduce a setback to recovery.” Finally, the independent peer review report states that “[t]he episodic frequency of catastrophic impacts on survival can make the difference between survival and extirpation when the population is small.”

This, of course, was not the kind of science that sounded good to the Family Farm Alliance, so, even though they had pressed to have this independent scientific review of the 2008 biological opinion conducted, they fought like crazy to keep the PBS&J report from being considered in the very courtroom where they were challenging the scientific basis of the biological opinion.

The court rejected Family Farm Alliance’s claims this time around, but we are far from winning the war of science against scienciness. As Dr. Mount points out:

The Delta has been embroiled in combat science for decades. Combat science usually involves the selective use of facts or analyses to advance the political or legal position of one group and/or to disadvantage the position of another. … But combat science is not science, because the goal is principally to win, not to advance understanding through the objective collection of facts and the testing of hypotheses. …In the past year, the funding, sophistication and effectiveness of combat science has steadily increased. Indeed, the state and federal water contractors have decided to form their own science program to compete within the scientific adhocracy. Their first efforts indicate intent to wage combat science with great enthusiasm.

Here’s hoping that real science will win the day before too much more damage is done to the Delta.

Recipe For A Solid Bay Delta Conservation Plan

2010-10-04T17:25:06Z

Kate Poole, Senior Attorney, San Francisco

Where men build on false grounds, the more they build, the greater is the ruin. -Hobbes, Leviathan

The Bay Delta Conservation Plan (BDCP) has received much attention lately. This is a good thing. We need a comprehensive, long-term solution to the not-so-slow-motion demise of the Bay-Delta estuary, and, for all the faults of the current process, NRDC has long supported efforts to develop a credible, scientifically-based plan to restore the Delta and has worked hard to steer the BDCP in that direction. But, as my colleague Zeke Grader recently explained, the straw Bay-Delta plan released last week by the State falls far short of the goals of restoring the imperiled Bay-Delta ecosystem and providing for a sustainable future water supply. Why is it so hard to define a recipe for success in the Bay Delta?

The basics are not complicated.

1. Add Water. Less than two months ago, the State of California itself, in the form of its expert agency on water resources, described the flows that are needed to restore the Bay-Delta ecosystem and the salmon, sturgeon, steelhead and many other species it sustains. The State Water Board established those flows after hearing from a wide range of independent academics, scientific experts, and stakeholders who care about and depend on the Bay-Delta. The State Water Board’s report reflects the current state of the science and is the starting point for any credible restoration plan.

2. Create Habitat. The Bay-Delta has lost a great deal of its functioning aquatic habitat over the last 100 years of dam-building, levee creation, and land use development. We need to restore a good portion of that habitat, especially the parts that are critical for ecosystem function, like rich tidal and floodplain habitat where nutrients grow and young fish thrive. Improving upon and expanding the healthier areas of the estuary, like Yolo Basin, Suisun Marsh and Cache Slough, are the logical places to start.

3. Define Recovery Objectives. Once habitat is restored, it may be possible to modify flows and still have healthy fisheries. But to figure that out, we need to define what we mean by healthy fisheries. Even though the environmentalists participating in BDCP have been calling for this step for years, the process has yet to develop these objectives. It shouldn’t be that difficult - Congress and the State Legislature have already done some of the work, saying that salmon populations must be doubled from the levels seen during 1967-1991. What the law requires is always a good place to start.

4. Invest in Alternative Water Supplies. The State’s Department of Water Resources released a plan last year showing the untapped potential in California for vastly expanding our water supplies by investing in common-sense tools like using less water for the same job (improved urban and agricultural efficiency), using the same drop of water multiple times (more water recycling), and replenishing our depleted aquifers in wet years to store water for use in drought years (better groundwater storage and management). According to the State’s report, the first two of these measures alone can provide more water than has ever been exported out of the Bay-Delta ecosystem.

5. Let Others Test Your Product. Independent peer review is a fundamental tenet of the scientific process. Letting independent experts review and critique any BDCP effects analysis would help ensure objectivity, integrity, and the creative input of many different minds into an analysis that might otherwise be viewed as biased toward those footing the bills (primarily water exporters). BDCP should commit to obtaining independent peer review of its effects analysis by a range of scientific experts with knowledge and experience in the Bay-Delta system.

6. Seriously Consider Moving the Pumps. The giant pumps for the water projects are in a terrible location in the south Delta; not only for native fish – which can’t avoid getting sucked into the pumps or stranded in inhospitable habitat by the pumps’ pull on the currents – but also due to their extreme vulnerability in the case of an earthquake in the Delta and sea level rise due to climate change. New pumps and a new pipeline or canal may need to be part of the equation, especially to protect a reliable water supply from the threat of a catastrophic collapse of the Delta. But to justify the multi-billion dollar investment that such a change would entail, BDCP must analyze a wide range of canal and pipeline configurations, operations and pump sizes, and compare that investment against the cost of alternative water supplies and solutions. I wouldn’t buy the biggest kitchen sink on the market just because it gives me “maximum flexibility” to someday convert my home into a restaurant. There are tradeoffs associated with such a decision, including the price of the sink, installation costs, operating costs, and opportunity costs. Without analyzing the costs and benefits associated with those tradeoffs – which BDCP has still not done – forward progress is unlikely.

7. Address Delta Concerns. For BDCP to succeed, the process must be open to Delta interests, and must address local concerns like on-the-ground impacts of a new water facility, water quality, and long-term concerns regarding flood management. It’s just a bad idea to have a party in your neighbor’s backyard and not invite them.

These key ingredients are largely missing from the State’s recent straw BDCP plan. Why is that? Transitions are always painful, and the transition from a water-profligate, dam-building, fish-destroying era to an environmentally sustainable, efficient, regionally-based approach is no exception. But not planning for the future is even worse. I know – I’m from Detroit, where we came a tad late to the world of 21st century transportation and are paying a dreadful price for that failure today.

This Administration has a few more months to fix the flaws in its recent proposal and get the BDCP on track to develop a credible plan. Let’s hope they don’t waste the opportunity.

What Exactly Is The Purpose of the Bay Delta Conservation Plan?

2010-07-20T22:55:40Z

Kate Poole, Senior Attorney, San Francisco

Bertrand Russell once said that “The greatest challenge . . . is stating the problem in a way that will allow a solution.” One would think that articulating the problem to be solved with a habitat conservation plan for the Bay-Delta would be straightforward: to conserve and restore the natural habitat and native species that rely on the Bay-Delta ecosystem. But it seems that nothing is straightforward in the topsy-turvy world of California water.

Instead of focusing the conservation plan on establishing a comprehensive path for restoring the critically-imperiled Delta and its crashing fisheries in the context of the many stressors facing these species, the current stated purpose of the Bay Delta Conservation Plan includes to “restore and protect the ability of the [State Water Project] and [Central Valley Project] to deliver up to full contract amounts.” As my colleague Barry Nelson writes, this project purpose threatens to take a wide range of options for restoring the Delta off the table before we’ve even left the starting gate. This is not a sensible way to find a solution to one of the thorniest resource management challenges facing California.

Why not modify the project purpose to make clear that any Delta solution will be based on a comprehensive look at all of the science and tools at our disposal? If the solution indicates that we need to reduce deliveries to contractors from the Delta, then we need to analyze alternative water supplies, such as increased investment in water recycling, stormwater capture and reuse, and conservation and efficiency measures. We wouldn’t be taking water supplies off the table – on the contrary, we’d be taking a broader look at the many ways to meet the water needs of California’s growing population while sustaining its bountiful resources.

Some proponents of the Bay Delta Conservation Plan argue that we needn’t bother modifying the project purpose because the project purpose won’t be used to limit the range of alternatives to restore the Bay-Delta simply to those that substantially increase deliveries to SWP and CVP contractors. Under this view, the project purpose is essentially meaningless, and isn’t worth the effort to get right. While these assurances are comforting to those of us who are hoping for a meaningful, long-term solution to the problems in the Delta, it ignores the real legal vulnerabilities created by this constrained “project purpose.”

For example, many of the State Water Project and Central Valley Project contractors that are part of the BDCP, as well as the Department of Water Resources, are currently trying to convince a federal judge that the existing delta smelt biological opinion is unlawful because the measures it recommends to protect this critically-threatened species are inconsistent with the “project purpose” of the OCAP – the “operating criteria and plan” that describes one approach to operating the CVP and SWP for the next twenty years or so. They pin this claim to a regulation that states that “[r]easonable and prudent alternatives refer to alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action….” The contractors and DWR argue that the water supply impacts of the delta smelt biological opinion are inconsistent with the “intended purpose of the project,” which, in the case of the OCAP, is “continued operation of the CVP and SWP.”

If the purpose of the Bay Delta Conservation Plan includes “to restore and protect the ability of the SWP and CVP to deliver up to full contract amounts,” it’s a safe bet that these same entities, or any other water contractor who gets Delta water supplies and is unhappy with the final Plan, will argue that any approach that reduces contract deliveries from the Delta conflicts with the BDCP project purpose. Whether this is a winning argument remains to be seen. But why create a legal risk up front when any realistic observer recognizes that a legitimate Bay Delta Conservation Plan is going to leave some people unhappy and will (already has) incite litigation?

Let’s take the time to state the problem correctly that we are trying to solve with the BDCP, so that a real solution is possible. Otherwise, we run the risk of wasting valuable time and resources that we can no longer afford to squander with nothing to show at the end but inadequate solutions and a court order to start over again.