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News from Restore the Delta: December 17, 2014

“Justice will not be served until those who are unaffected are as outraged as those who are.”
― Benjamin Franklin

A less than tasty appetizer for 2015
A mixed up salad: Learning Delta Water Management
The Meat and Potatoes of the Tunnels Project
Remembering our friends
And Christmas Cookies

A less than tasty appetizer for 2015

Federal drought legislation failed to pass in the Senate this year and failed to move forward on the budget despite a Rule Committee waiver to legislate on an appropriations bill. We are grateful to our colleagues in numerous other environmental organizations and our participatory members for making your opposition to this legislation loud and clear to our elected representatives.

But, we are not out of the woods yet.

Proponents of this drought legislation want to weaken environmental protections and grab water. Unfortunately, when Senator Feinstein speaks about those impacted by the drought, she continues to talk about a narrow group of interests in the San Joaquin Valley, those who want the water, and does not mention the cities, communities, farming and Bay area tourism industry that is tied to the health Bay-Delta estuary. Delta farming and fishing, SF Bay and coastal fishing, and Bay-Delta municipalities are not invited to participate in negotiations regarding this push to increase exports from the estuary. Moreover, fisheries protections were only in place for a total of 57 days dispersed in intervals during the first half of 2014 – not exactly the cause behind reduced exports during a severe drought year.

Without a doubt, we will be calling on you all in 2015 to fight similar legislation. We will remain vigilante.

A mixed up salad: Learning Delta Water Management

By Stina Va
Learning Delta Water Management is a new series of columns by Stina Va, which will track the learning process that an engaged member of the public must undergo in order to understand Delta water management.

On December 2nd, 2014, the Delta Conservancy, a state agency and major beneficiary of the 2014 water bond, convened a group of water experts for their public workshop in Sacramento to discuss the topic of instream flow in Delta tributaries. These panelists were a group from the State Water Resources Control Board (SWRCB), South Delta Water Agency, Mountain Counties Water Resources Association, and the Earth Law Center.

Although panelists acknowledged and discussed the critical issue of deficient instream Delta flows, neither panelists nor the Delta Conservancy sought to properly define the concept of instream flow, which was the essence of the event.

Novices to water policy matters, such as myself and most members of the public would likely assume that instream flows means what it sounds like, which is “water flowing in a stream channel.” In the Delta, however, State and federal operations ultimately control the movement of Delta instream flows, not natural forces. Because most rivers are controlled, the national Instream Flow Council defines instream flows as “water flows and levels that support ecological functions in waterways.” In the Delta, they are operated according to state and federal water quality standards, instream flows have come to represent what it takes to keep a stream alive at minimum levels. Instream flows are more than a superficial appearance, as evidenced in panel presentations.

“We need standards when it’s dry, yet the current practice is for the Board to relax standards when it is dry,” asserted John Herrick of the South Delta Water Agency (and Restore the Delta board member) in his panel presentation. Herrick said that in dry times, the State Water Board routinely relaxes its own standards, which the board has done throughout 2014 and in the past 7 years.

During his panel presentation, Herrick noted that, “in most months of most years, the San Joaquin River does not even reach San Francisco Bay.” Part of the reason for that is that the federal Central Valley Project has allowed diversion of the upper San Joaquin River by Friant Dam near Fresno to Tulare and Kern counties. He criticized the State Water Board for setting the area of its Bay-Delta Quality Control Plan so that the upper portion of the San Joaquin River is severed from the rest of the Delta watershed, rendering half a million acre feet of potential instream Delta flows of water south to San Joaquin valley agricultural interests, unavailable by regulation to the Delta.

Daniel Schultz, public trust unit chief of the SWRCB, presented a very brief panel presentation that focused on describing the planning stages of the state’s current work on Delta instream flows, which is being carried out through Phase 4 of the Bay Delta Quality Control Plan. Phase 4 involves revising flow objectives and non-binding flow criteria that will result in standards for instream Delta flows. Notably, flow objectives require the considerations of competing uses of water and economic costs unlike the non-binding technical-based flow criteria. Phase 4 may also consider implementing and adaptively managing Delta tributary-specific policies that seek to mimic natural instream flow in order to benefit salmonid populations in the Sacramento River watershed.

“Someone’s ox will get gored,” Herrick warned more than once. He summed up government initiatives as, “shifting one region’s water shortage to another.” According to Herrick, the amount of export pumping by state and federal water conveyance systems, in the lower San Joaquin River, is greater than actual instream flow and pumping changes the direction of channel flows, so fishery flows (planned in Phase 4 by Schultz) will be powerless against such a “horrible, messy, complicated system.”

Clean Water Act (CWA) expert Linda Sheehan, who is executive director of the Earth Law Center based in Fremont, challenged the SWRCB’s work, arguing that the CWA’s standards are a federal mandate to fully protect the most sensitive beneficial use in a water body.

In contrast, said Sheehan, state water quality law allows the Board to enforce flow objectives providing just reasonable protection of beneficial uses, a significantly weaker rule. While the state board prefers to regulate to this standard, the most sensitive beneficial uses, she said, are protection of endangered species, such as Chinook salmon and Delta smelt. This is important because resident killer whales off California’s coast are now listed as endangered due to declining Chinook salmon populations. This means, she said, that the scope of the instream Delta flow problem extends beyond the Delta to the ocean offshore. She recommended that the State Water Board adopt instream flow water quality standards using the more holistic and stronger Clean Water Act rules, and warned that the state must not set flow objectives weaker than the CWA and/or with considerations of economic costs or competing uses, or risk imminent extinctions and litigation.

Panelist John Kingsbury of the Mountain Counties Water Resources Association emphasized that Sierra mountain counties are vital because of instream flows they provide throughout the Delta watershed. His association serves most of the Sierras, from the southern tip of Lassen County to Fresno. While favoring the Bay Delta Conservation Plan (BDCP), he thinks expanding a broader range of water storage capabilities and yield, is urgently needed in order to address adverse climate change impacts that will continue to diminish water supply in the Sierras in the long-term. These could include such initiatives as sedimentation of reservoirs, meadow restoration, raising and updating water infrastructures. Dangerous wildfires, floods, and extreme weather events will worsen the issue of adequate instream Delta flows without these efforts, conveyed Kingsbury.

“Governor Jerry Brown said there would be no new obligations on upstream users for Delta protection” through instream flows to the Delta, said Kingsbury. “The state and federal governments will make sure implementation of the Bay Delta Conservation Plan will not impose any obligations on water users upstream to supplement flow in and through the Delta,” he added.

Since Schultz’s revising process of Delta instream flow objectives will take several years of planning, there may not be much in the way of new instream flows to benefit fish in the Delta unless the State Water Board goes against the governor’s statement to supplement flows to the Delta from upstream users. Given that the governor appoints some state board members, this does not appear likely.

As the Delta Conservancy’s workshop concluded, panelists emphasized the need for holistic solutions and customarily called for stakeholders to come together. Of course, coming together to discuss holistic solutions will ultimately become a political discussion and struggle. Furthermore, the complexity of such matters as instream flows, which took a novice analyst like me a lot of time to fully understand my own notes from the Delta Conservancy’s meeting, will likely discourage huge amounts of public participation. Ironically, I also think more public participation in support of instream flows could lead to better results in the Board’s decision making. The resulting flow objectives coming from the state will likely be politicized flow objectives that will be heavily influenced by special interests.

The Meat and Potatoes of the Tunnels Project

Negotiations between contractors of the State Water Project with the California Department of Water Resources over financing and allocating costs of the Bay Delta Conservation Plan’s tunnels project got under way last Wednesday, December 10th at DWR’s offices in Sacramento.

However, the first offer from the contractors to DWR will not be tendered until their next meeting, scheduled for February 17, 2015.

The 29 state water contractors get most of their water directly from the Delta.

The future of the Delta is at stake in these negotiations. They in part determine whether the Delta lives or dies, and which other parts of California will benefit at the Delta’s expense, like Silicon Valley, Kern County, and the Metropolitan Water District.

The water contractors told DWR that their negotiation objectives include “greater flexibility for SWP contractors to meet current and future water supply challenges,” and to allocate State Water Project costs of the Bay Delta Conservation Plan “proportionate to the benefits received by individual SWP contractors.”

Key questions center on the cost of the tunnels and who pays, and some contractors are balking. Butte and Plumas counties, who receive SWP supplies from the Feather River before they reach the Delta, have put forward another negotiation objective to give contractors an “opt-out” provision should any decide they did not want to participate or benefit from the Tunnels project. Other contractors are considered on the fence about its cost and financing.

Jonas Minton of the Planning and Conservation League, speaking to the negotiators at the end of last Wednesday’s meeting, urged the parties to address whether amendments to state water contracts will require “step-up” provisions for contractors to pick up additional costs should other contractors default on their payments to DWR for the tunnels, and whether the costs will be allocated among all or only some of the state contractors. A related problem is how tunnels costs will be handled by federal water contractors. He also urged them to clarify whether property taxes will be used in contractor service areas to pay for the tunnels project.

Tom Stokely of the California Water Impact Network agreed with Minton and urged the parties to avoid “scare tactics that are currently being used to coerce SWP contractors into supporting the Bay Delta Conservation Plan. Contractors shouldn’t lose their contract allocations if they don’t want the amendments in their contracts, especially if they’ve kept current on their payments.”

These negotiations are public because as part of settlement terms between environmental groups and DWR in 2003 over secretly negotiated “Monterey Amendments” to SWP contracts, the Department must hold all future negotiations with the state water contractors in public.

The parties announced an agreement in principle to extend the existing contract terms from 2035 to 2085 in June this year. This new round of talks centers on amendments that will be crucial to Tunnels financing and cost allocation.

We cannot stress enough the importance of these talks. Through these negotiations, the water takers have to arrive at how the tunnels project gets financed and who pays what for it, or they don’t have a project.

Remembering our friends

Many of you have asked us for news or details on how to reach California water advocate Jerry Cadagan during his recovery. He and his wife Kristin were in a bad accident on Thanksgiving, and Kristin passed away.

Jerry is staying with his family as he heals, and he is following water news at a pace that is comfortable for him presently. He is in our hearts and thoughts at all times during this time of profound change and transition for him.

He is reading emails, and people should feel free to contact him through email. We will let you know when he is ready for snail mail.

And Christmas Cookies

We hope that all of the holidays are joyous, festive, yet relaxing for our readers and supporters. We wish you all and your family members good health, peace, and prosperity in 2015.

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