Jennings Responds to Environmental Defense's Praise of Failed Water Bills

Jennings Responds to Environmental Defense's Praise of Failed Water Bills

Hi Cynthia:

Many of us always read the EDF blogs and comment letters. But, communication needs to be a two-way street. NRDC, TBI, EDF and TNC cannot negotiate backroom deals with MWD, Kern and Westlands and expect the excluded grassroots and Delta interests to simply acquiesce without explanation. Especially, when we're the ones in the trenches. Frankly, the legislation, while containing some very good points, read like CalFed 2.

As someone who regularly appears before the State Board in both water quality and water rights proceedings, I have a somewhat different take on the enforcement provisions of the legislation. If the State Board cannot bring itself to enforce existing law, additional requirements for them to ignore are of questionable value. While new reporting requirements and fees are a small step in the right direction, Sections 1110(b), 1111 and amended Section 2525 are essentially meaningless, as the State Board has long had that authority but refused to use it.

Just this year I was a party and testified in four evidentiary hearings as virtually all of the D-1641 standards for protecting the Delta have been violated.

1. In February, DWR and the Bureau illegally diverted more than a fourth of outflow requirements, yet the State Board couldn't bring itself to sanction them in evidentiary hearings in March.
2. In June, the Bureau absconded with more than 40% of required San Joaquin River flow (1250 cfs versus 2150 cfs) and, again, the Board ignored the matter.
3. South Delta salinity standards have been violated since last December. Responding to our request, the Board issued a Cease & Desist Order in 2005. DWR/Bureau failed to comply with the terms of the Order from inception and this year, less than a month from the final compliance deadline, asked for another extension. Even though the Board stated in 2005 that it would not consider an extension of the C&D (for standards initially adopted in 1978 and never enforced), the Board held a hearing in June. A decision has yet to be issued. We intend to sue.
4. In a related matter, DWR and the Bureau have been using the Joint Point of Diversion (JPOD) even thought they are explicitly prohibited from doing so when salinity standards are violated. Protests from us and South and Central Delta Water Agencies have been ignored - as were our protests last year. Again, we're going to have to sue.
5. The Board approved DWR/Bureau's request to consolidate their respective places of use following an April hearing despite extensive testimony/evidence that it wasn't needed and violated numerous requirements. A petition for reconsideration is pending and we may incorporate that into the Drought Water Bank lawsuit against DWR/Governor for waiving CEQA for droughts that occur a third of the time in California.
6. After more than a decade, the Board finally had no alternative but to schedule a hearing stemming from our protest of the Bureau's time extension request for its Auburn Dam water rights. Those rights were revoked following a July hearing. An easy decision as the Auburn Dam project had died long before.

The preceding doesn't include numerous protests of water transfers that have been essentially ignored; even though many of them are for water that Westlands is diverting to storage and will not use this year. Interestingly, DFG has not commented on transfers and staff was explicitly prohibited from testifying in the above hearings.

The Board's response to public trust and unreasonable use petitions is just as deplorable. They ignored a remarkable hearing record on the Mokelumne, issued increased flows on the Yuba that didn't include protective temperatures in the spring and then took back much of what they had granted by reducing spring flows in order to facilitate water sales by Yuba County Water Agency. They haven't addressed the Calaveras petition. They finally got around to conducting a required Triennial Review of the 1995 Bay-Delta Plan in 2005 but failed to make any significant changes despite the collapse of pelagic and salmonid fisheries. They ignored our public trust, unreasonable use and method of diversion complaint. The Board has a huge backlog of protests and petitions.

It's little different on the water quality side of the ledger. Responding to our petitions, the State Board remanded four permits back to the Regional Board over the last seven months and is considering three more tomorrow. But, we still have more than 50 petitions pending and have had to recently file lawsuits over the NPDES permits for the City of Tracy and El Dorado Irrigation District's Deer Creek POTW (and have three more in preparation). These are for some of the most fundamental permitting requirements in the SIP and federal Code of Regulations.

Responding to a few other of your ten points:

1. It requires the State Water Board to do a public trust analysis of the flow needs for the Delta ecosystem within nine months - well in time for the analysis to be of real value to the BDCP process. Granted, the bill does not require the BDCP to use this analysis (let me spare you the long, dull, lawyerly reasons for this), but the State Board is the public trustee for the state's fish and wildlife and - if the legislature provides it with the resources it requires to do the job - is the right place to get this done.

The requirement to conduct a flow assessment for the Delta ecosystem within nine months evidences a lack of understanding of how the Board works and its diminished staff and lack of resources. The State Water Board is already required to do a public trust analysis of flow needs for the Delta under existing law. The State Board is also required under existing law to have an EIR certified before they do so. Under the proposed legislation there is no time to do an adequate environmental document and Governor Schwarzenegger's handpicked Board will make the decision on flows.

2. It precludes the start of construction of any canal until the State Water Board issues certain permits. This addresses concerns that a canal could be built first, or construction begun, prior to a Board determination of flow needs. Moreover, those permits would be required to include flows for fish and wildlife protection.

Construction of a canal is already precluded prior to the State Board's issuing a change in the point of diversion. The rushed nature of this legislation simply caves in to the exporter's desire to approve this project before Schwarzenegger's appointees leave office.

3. It requires that an Independent Science Council must be involved with the BDCP. This Council would be charged with ensuring that the BDCP passes scientific muster. The last thing we need is another plan that fails to keep its ecosystem restoration promises.

CalFed had a science program. Actually, the CALFED environmental standards were higher than what we see in this program. The scientists will have no more authority and influence that they had in the CALFED program. They will be funded to do science that is disregarded if good, and praised if bad.

4. It requires that the BDCP must meet the recovery standard, and all of the other requirements, of the Natural Communities Conservation Planning Act and be certified by the fisheries agencies to be a Natural Communities Conservation Plan (NCCP) before that plan can be eligible for any public funding or other important benefits.

CALFED had a Multi-species Conservation Plan and a NCCP in its programmatic environmental document that was signed off on by DFG. That NCCP was no protection for the Delta species and didn't work at all to prevent the collapse of the Delta ecosystem.

The same Schwarzenegger appointees that will decide the flow determinations by DFG will approve this NCCP. All this NCCP will do is protect the peripheral canal from endangered species lawsuits.

5. It requires fishery agencies to establish new performance measures critical to achieving a healthy and resilient ecosystem in the Delta and its watershed, and includes a host of additional ecosystem health considerations that must be included in the BDCP and broader planning for the Delta estuary.

There were no standards protecting fisheries or water quality in the proposed legislation. It is far weaker than the protections in SB 200 in 1980 and ACA 90 in 1982. It is far, far weaker than the protections in the draft Water Quality Control Plan in 1988 that was pulled back by Deukmejian. It is far, far, far weaker than the protections in draft D-1630 in 1992 that was pulled back by Wilson. It is even less protective than the ratio-of-survival-at-Chipps Island doubling standard that was contained in USEPA's Bay Delta standards in 1995. Has no one retained any institutional memory?

DFG is little more than a subsidiary of DWR and the time period in the legislation (12 months) to develop standards makes it clear that Schwarzenegger will decide what DFG thinks is necessary for the environment.

The bottom line is that the estuary has collapsed because of an egregious failure to comply with and enforce existing law. We have a Water Code, state and federal endangered species, environmental review and water quality acts and a Fish and Game Code that would have prevented the present crisis. If agencies won't comply with existing law, new ones will make little difference.

We cannot continue to ignore the elephant in the room. We've simply promised more water than we can deliver and we can't solve our water problems without biting the bullet of adjudication. A good initial step would be for the legislature to restore the urban preference. The urban preference was an original part of the State Water Project because they knew they lacked the water rights to supply everyone during inevitable drought sequences (especially, when they failed to get 5 million AF off the north coast).

It is absurd to pretend that Kern County Water Agency (supplying several tenths of one percent of the California economy) is entitled to an equal amount of water during a drought as MWD (supplying 19 million people and almost half of the state's economy). It is absurd to penalize Delta farmers, irrigating some of the richest soils in the world with senior water rights, in order to supply subsidized water to irrigate impaired soils in the desert that belch toxic wastes back to the environment.

I'll close with four questions:
1. Show me an estuary or river that was restored by diverting massive inflow around it.
2. Show me a situation where water quality standards were met or improved by diverting dilution flows and increasing residence time.
3. How do you successfully complete the most complicated HCP ever envisioned in history, married to a massive hydraulic modification of an estuary and segregated from its upstream tributaries in less than two years?
4. How will increases in “habitat” under BDCP miraculously restore fisheries considering that Delta habitat acreage has essentially remained the same over the last 30-50 years (perhaps even increased with mitigation banking) and the pelagic crash occurred within the last ten years, as exports were ramped up.

There were a number of positive aspects in the legislation. Unfortunately, they were overwhelmed by the bad.

Cheers!


Bill Jennings, Chairman
Executive Director
California Sportfishing Protection Alliance
3536 Rainier Avenue
Stockton, CA 95204
p: 209-464-5067
c: 209-938-9053
f: 209-464-1028
e: deltakeep [at] aol.com
http://www.calsport.org


Environmental Defense Praises Water Bill Package As 'Pretty Good'

Dear interested editors and journalists:

With the very real possibility that a special session could be called in the California Legislature to cover proposed water legislation, The Environmental Defense Fund wants to stay in touch with you on priorities that we are working to include in legislation. Please feel free to contact me to interview one of our policy staff working on the water policy to be included in the legislation. You can get frequent update on California water policy at our blog here: http://blogs.edf.org/waterfront/

Thank you

Jennifer Witherspoon
California Communications Director
Environmental Defense Fund
"...America's most economically literate green campaigners"
- The Economist

http://blogs.edf.org/waterfront/

http://blogs.edf.org/edfish/

Whither water?

September 14, 2009 | Posted by Spreck Rosekrans in Bay Delta, Legislation

Cynthia Koehler is Senior Consulting Attorney for EDF.

The demise of a package of five water policy bills in the state legislature late Friday night, while predictable given end-of-session deadlines, had this sliver of surprise buried in it: the 5 policy bills taken together were pretty good. By “pretty good,” I mean good in the sense of “an important and meaningful advance over the water policy status quo for the environment” as opposed to “guaranteeing the water policy outcomes that would be ideal” from an environmental perspective.

How can the policy package possibly be construed as good, when it was linked to a water bond that included billions for construction of new dams under a poorly-defined assumption that they would provide public benefits?

Let’s stipulate that the longstanding practice in California of holding solid water policy reform hostage to a massive public spending commitment is of questionable wisdom at best. (I’ll let you come up with your own descriptions of the “at worst” side of this equation.) Let’s further stipulate that water bond proposals in play could lead to the construction of controversial dams and other water projects that could cause substantial environmental harm.

Nevertheless, it is still extremely important to talk about the water policy piece in the light of day and determine whether – on its own merits – that policy is pretty good or not. The fact is whether the state builds dams or not, California’s water policy is broken and it needs to be addressed if we are to move past the hand-wringing stage and into the fixing things stage.

The tug of war between our highly degraded ecosystem with its barely surviving salmon on the one hand, and the two massive water projects that provide 15% of the state’s water supply to farms and cities on the other, has dragged for decades. The Bay Delta Conservation Planning process (BDCP) is the place where much of the current action to find a solution is taking place. However, there are serious concerns about whether this will just be another in a litany of failed efforts and broken promises leaving the estuary, our salmon, and our state in even worse shape than before. It is of particular concern that a potential peripheral canal lies at the center of the BDCP’s work. The Governor’s Delta Vision Task Force has proposed a set of policy course corrections. The Environmental Defense Fund does not concur with every one of the Task Force’s recommendations, but believes that its Strategic Plan has real merit. In particular, its recommendations that the legislature must act to correct certain out-dated water policies and give guidance to the BDCP process.

So why is the water policy package that emerged just before Friday’s deadline pretty good? Here’s my top ten:

1. It establishes a state policy of reducing reliance on the Sacramento-San Joaquin Delta by increasing water recycling, cost-effective efficiency, and regional self-sufficiency.

2. It substantially increases the State Board’s power to enforce water rights and stop illegal diversions of water.

3. It substantially expands groundwater management and monitoring efforts.

4. It requires the State Water Board to do a public trust analysis of the flow needs for the Delta ecosystem within nine months – well in time for the analysis to be of real value to the BDCP process. Granted, the bill does not require the BDCP to use this analysis (let me spare you the long, dull, lawyerly reasons for this), but the State Board is the public trustee for the state’s fish and wildlife and – if the legislature provides it with the resources it requires to do the job – is the right place to get this done.

5. It precludes the start of construction of any canal until the State Water Board issues certain permits. This addresses concerns that a canal could be built first, or construction begun, prior to a Board determination of flow needs. Moreover, those permits would be required to include flows for fish and wildlife protection.

6. It requires that an Independent Science Council must be involved with the BDCP. This Council would be charged with ensuring that the BDCP passes scientific muster. The last thing we need is another plan that fails to keep its ecosystem restoration promises.

7. It requires that the BDCP must meet the recovery standard, and all of the other requirements, of the Natural Communities Conservation Planning Act and be certified by the fisheries agencies to be a Natural Communities Conservation Plan (NCCP) before that plan can be eligible for any public funding or other important benefits.

8. It requires fishery agencies to establish new performance measures critical to achieving a healthy and resilient ecosystem in the Delta and its watershed, and includes a host of additional ecosystem health considerations that must be included in the BDCP and broader planning for the Delta estuary.

9. It requires Delta agencies to respond to climate change and the threats it presents to the Delta communities.

10. It contains a substantial new water conservation program, which, while watered down from earlier versions — and less likely to reach its lofty objectives — still represents an important advance from today’s more anemic conservation efforts.

Is this nirvana? If this bill were enacted today, would we be assured that the conflicts discussed above will be finally resolved, that the salmon fishery restored to health, and that threats to our ecosystem will be banished? It’s probably safe to say that this is unlikely. But would these measures together represent real improvement over the status quo, do they provide important levers for moving decisions and processes in a more productive direction; do they provide greater hope for the future? I believe so. Taken together they give the Delta a fighting chance, while still recognizing the need for a reliable water supply for cities and farms, a threshold test any viable legislation will have to meet.

But what of the linkage between the water bond and the policy bills? At the end of the day, who cares if you have a pretty good water policy bill if you only get it by agreeing to a water bond that could fund new infrastructure that threatens new harm to the ecosystem we are working so hard to restore?

This is a fair and reasonable question, and it is the reason that EDF is taking different positions on these two pieces of legislation. But we need to be able to talk seriously and clearly about policy on its own, first, and then work to de-couple discussions about water bonds from discussions about policies to address water supply reliability and ecological devastation that have been the scourge of this state for decades.

To do otherwise is simply giving in and allowing the hostage taking to continue, to be party to the unending ideological standoff. At that point, California’s only hope is the one we have relied on to date – pray for rain.

We’ll post again soon on the legislative process and continue to explain why policy reform is necessary – not just for the environment but for California’s cities and farms as well.