Another Water Agency Perspective: Delta Bills, Part VII

In our 7th in a series of postings on the 5 Delta water bills now under consideration in Sacramento, we feature perspective from a Northern California water agency. The testimony points were authored and shared by John Herrick, Counsel for South Delta Water Agency.

We aren’t providing the opinions we’ve been posting to validate them or our particular perspective, but provide them to help you understand a few other perspectives. Each of them make some good points and miss the mark on others (in our opinion). We’ll let you decide which is which.

Comments on the “Perspectives on the Package” enclosure accompanying the agenda for the Senate/Assembly hearing on the Delta and Water Bills

In deliberating on the problems facing the Delta and California as a whole it is important to have all of the facts presented and understood. The Delta is certainly in crisis, as is California’s future water supply. The underlying causes of these problems are very clear, solutions must be tailored to address the problems, not to ignore and exacerbate them.

Ecosystem crisis: Many things affect fisheries, but “many things” are not the problem. Although it is generally well known that the federal ESA “take” authorization under the previous Biological Opinions were legally defective in protecting the fisheries, it is much less known that the SWP never had and still doesn’t have a “take” permit under California ESA. In addition, CalFed’s commitment to new and better screens at the export pumps was discarded early on. We see then that the lack of legal compliance with endangered species law and the failure to diminish take at the export pumps coincides with the crash of the fisheries. When commentators talk of “having to do something different now” because some fish might go extinct, the reply is not “what new things should we try?” but rather “enforce the law immediately.”

Delta Program Crisis: Calfed was a dismal failure in most respects. Its fatal flaw was putting  regulators and regulated together and giving/directing the regulators to adopt the goals of the regulated. The result was fishery agencies who were ordered to try to protect export supplies while also protecting fish. A worse idea one cannot imagine. The result was as expected; the protections of supply negated the protections for fish.

Water Supply Crisis: Describing this year’s minimal export supplies in terms of regulatory limitations is to ignore reality. Earlier this year, the CVP notified the Exchange Contractors that they would likely be getting at least some of their water from the San Joaquin River, not the Delta-Mendota Canal (export water). Briefly, when the CVP must give the Exchange Contractors SJ River water and not export water, it means that the upstream reservoirs have NO WATER AVAILABLE. At the time of the CVP notice, the reservoirs only had water for current year fishery needs, downstream priority right holders, some for urban needs and a minimal amount of carryover for the same purposes for next year. Such a situation is a direct result of hydrology, and has little to do with regulatory restraints on export operations.

This situation seems radical until one understands that most all export agricultural water supply was based on the idea of a fluctuating and intermittent supply; when it was wet there would be more water available, when it was dry there would be less or no water available. Instead of being limited by this ever-changing supply, export interests now want to get “reliable” supplies which are defined in the BDCP as somewhere over 6 MAF [million acre feet] per year. Think about that; systems set up to deliver fluctuating and intermittent supplies are now seeking firm, reliable supplies. This is something that simply cannot work unless other people’s supplies and rights are to be infringed upon.

It is true that regulatory restraints affect export supplies to varying degrees depending on the situation. Two things follow: The first is to remember that up until recently the projects have been exporting record amounts during times when there was/is no compliance with federal and state ESA. It would seem obvious that exports would have to be decreased in order to recover the fisheries which were impacted during the illegal operations. To assume that your supplies should increase (over regulatory limitations) after illegal exports destroyed the fisheries is ludicrous. Second, there very well may be a need to adjust contractor payments under the CVP and SWP due to a permanent inability to deliver promised supplies. If the exports now anticipated are significantly less that originally believed (and under which the programs were “sold”) then the obligations of the exporters could also be decreased. However, such a situation would require an analysis of the relative responsibilities of the involved parties to make sure that no one is relieved of the legal obligation of mitigating his/her/its impacts.

Delta Levee Crisis: An analysis of this issue requires a large amount of citations and discussions which cannot be done in this forum. Suffice to say that the predictions of inevitable doom for Delta levees are based on numerous inaccuracies and false assumptions. Two examples; (i) A year or so ago the IPCC released an updated estimate on global sea level rise, decreasing their previous estimate down to 23 inches over the next 100 years. Shortly thereafter, the two scientific advisors to CalFed suggested it was more appropriate to plan on 55 inches of rise.

Casually (more than) doubling the expected needs should be the subject of long debate and analysis; (ii) In calculating the odds of levee failures, the DWR DRMS study concluded that an interior central Delta island has a lower probability of flooding than does the recently constructed Brookside community in Stockton. Brookside has new, well engineered levees and is certainly better protected from any possible flood event than the interior island which is well below sea level. This highlights one of the many issues brought up by the Corps of Engineers in its critique of the DRMS study. The Corps pointed out many unsupportable conclusions and estimations in the DWR report. With just these two examples, it is clear the “doomsday” levee failure scenario is likely more hype than fact.

Delta Vision: Notwithstanding the beneficial collection of data presented in the Delta Vision Report, its underlying failure lies in its adoption of the “co-equal” goals idea. As we have seen, the supplies for exports were always known to be, and continue to be intermittent and fluctuating. Suddenly deciding that you want a stable, reliable supply does not change the facts of varying hydrologies or the limitations of existing water law. In fact, adopting the concept of “co-equal” goals means that you intend to try to subvert existing water right priorities so that someone without a firm supply can get water at the expense of those who do. Even worse, when you decide to secure this supply as a co-equal goal to the protection of fisheries, you repeat the curse of CalFed, by coopting the regulators. The fisheries cannot survive a repeat of this nonsensical approach.

Why wouldn’t the co-equal goals be “protecting fisheries and maintaining existing water right priorities?” The answer is clear, those who support the Delta Vision goals want to change California water law without the troublesome necessity of reviewing the existing laws (and their underlying justifications) and having a public debate about such monumental changes.

Of course the unspoken issue permeating this review and the Perspective to which it responds is the peripheral canal. The exporters want to create an isolated facility whereby they can get a reliable supply regardless of the hydrologic conditions. Clearly, such a structure does nothing to address the supply issues facing California; it creates no new yield for any system. It does not address what flows are needed for fisheries. In fact the BDCP (after having decided a PC is the “best” alternative early on) is now bogging down trying to decide what fishery needs are

The correct approach, and the legal approach is to ask first “what flows and when” are needed to protect fisheries under the law. Next, the law requires that we calculate how much water is needed for upstream, area of origin and in-Delta needs. Then and only then can we calculate what supply is available for exports and discuss how best to operate the SWP and CVP. Of course, they should be required to immediately comply with existing ESA laws. Unfortunately, we see that the legislators are either totally unaware of the issues and the law, or choose to ignore them. The proposed bills do not recognize the underlying facts, and thus are doomed to fail.

Whether or not any particular bill seeks to accomplish certain improvements, and some of them do, the situation will not improve until there is a process as outlined in this paragraph.

JOHN HERRICK

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I like going places: out West, west of the West, and all the way around the back of the globe to the East. I like to go by train, plane, automobile, horseback. Whatever. And I like writing about what I see, feel, hear, smell, and touch all along the way and once I get there.

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