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Perspectives on Legislative Lunacy and the Perils of Ignoring the Lessons of the Sorcerers' Apprentice

"If they robbed us yesterday, does that now give them a vested right to keep on robbing us?" Paraphrasing the 19th Century economist and philosopher Henry George

by Bill Jennings, Executive Director, CSPA

August 24, 2009 -- After standing on the sidelines of fishery and water quality protection for three decades, legislative leaders have decided to ram a convoluted package of water bills through legislature in the waning days of the session.  This ill conceived, poorly written and internally inconsistent package of bills proposes to overturn 130 years of water law and legal precedent, redefine the public trust and institutionalize degradation of the San Joaquin Delta estuary.

Beyond their threat to Delta restoration, the bills symbolize the collapse of responsible democratic process and a breathtaking abdication of legislative oversight, fiscal accountability and due diligence.  Normal bill making protocols have been discarded, prudent deliberation and thoughtful analysis have been abandoned and public participation has been marginalized.  The frantic effort to hammer the package through in the last weeks of the session epitomizes sleazy backroom power politics on steroids.

The five bills are: AB 39, the Delta Plan (Huffman), AB 49, Water Conservation (Feuer), SB 12, Delta Governance (Simitian), SB 229, Water Use Reporting (Pavley) and SB 458, Delta Conservancy (Wolk).  AB 39 and SB 12 are bullets aimed at the heart of the Delta estuary and its fisheries.

The package's failure to define numerous terms like “coequal,” “balanced” or “reliable” ensures twenty years of litigation as attorneys and the courts battle over their meaning.  None of the bills acknowledge the elephant in the room: the fact that the State Water Board has issued rights to far more water than actually exists.  Indeed, the Legislature avoids the two actions that would meaningfully address the present water crisis: a mandate that the State Water Board aggressively begin the long overdue process of bringing water rights into balance with the amount of water that actually exists and a repeal of the Monterey Agreement that eliminated an “urban preference” that ensured water for the 20 million people on the South Coast during California's inevitable droughts.

To fully appreciate the grievous harm these bills will cause, one must shift through the hyperbolic rhetoric pledging commitment to fishery restoration and Delta protection and focus on the absence of effective standards and guarantees, the consequences to the Water Code and Public Trust doctrine, the enshrinement of an over-allocated system, the placement of the fate of the estuary into the hands of those who chaperoned its demise and the fact that the package is, without mentioning the word, a roadmap to a peripheral canal.

Below, we identify four of many fundamental flaws in the bill package and then pose a series of question that beg to be answered before this package goes forward.  

Legislative Attack on the Public Trust

For the first time, the legislature proposes to enact into law its interpretation of the Public Trust.  The Public Trust is the doctrine declaring that rivers and estuaries, like the seas and the air, are common property rights belonging to all people and that they must be protected before private parties can make use of them.  The doctrine's roots extend back to Roman law, English common law and Spanish civil law.  It has been repeatedly upheld by multiple California Supreme Court decisions. 

Now the California Legislature proposes to redefine the Public Trust as merely coequal to water supply reliability.  Reliable delivery of subsidized water to irrigate subsidized crops on drainage-impaired lands in the desert that belch toxic wastes back to our waterways will now be coequal to the protection of our rivers, estuaries and once prodigious fisheries. 

Water agencies will now argue that water delivered, under the most junior water rights, to Westlands is now coequal to the delivery of water to Delta farmers, who have some of the most senior water rights in California.  Despite the fact that water delivered to Westlands harms fisheries while Delta farmers depend upon water that is necessary to support fisheries.  More absurdly, attorneys for Kern County Water Agency will surely argue that delivery of 1.9 million acre-feet of contracted water to support a half of one percent of the California economy is coequal to the delivery of 1.9 million acre-feet to the Metropolitan Water District serving 20 million people, representing almost half the state economy.

In the last few years, California's appellate courts and Supreme Court, in decisions on the CalFed Record of Decision and the State Board's decision implementing the Bay-Delta Plan, have ruled that water exported from the estuary are subordinate to environmental protection of the estuary's environment and that the beneficial uses of water in and upstream of the estuary are superior to beneficial uses of water exported from the Bay-Delta.  These rushed and poorly drafted bills undermine these precedential decisions and essentially tell the courts they're wrong.

Subversion of the Water Code

The bills are a thinly disguised attempt to reallocate the state's water and represent a back-door attack on 130 years of California water law and legal precedent.  It's not surprising that the State Water Contractors are supportive of this scheme to enable water exporters, holding the most junior water rights, to secure upstream water at the expense of the most senior water rights holders.  Incredulously, the scheme then tags the upstream water rights holders with much of the expense for facilitating the reallocation of water and mitigating the environmental consequences of reallocation.

Recognition that California's water had been over-appropriated in the early 1900s led to the development of the modern Water Code between 1913 and 1928.  The system is predicated on the dual rights of riparian and appropriative diverters.  Simply put, those living adjacent to waterways have the most senior rights to water.  Appropriative rights to divert to storage and transport to other areas are based on a seniority system.  Water must be put to beneficial use and the waste and unreasonable use of water is prohibited.  

Political pressure has resulted in a vast over-appropriation of water in California: far more water has been promised than exists.  The over allocation of water has resulted in the degradation of waterways and the destruction of historic fisheries.  Proper enforcement and compliance with the Water Code would have prevented the present water crisis and enforcement and compliance would solve it.

California's water problems cannot be resolved without addressing the cause of the problem: the over-allocation of water.  Colorado recognized the problem in the 1970s and undertook a ten-year adjudication that balanced water supply with water availability.

Unfortunately, rather than accepting the politically difficult task of addressing the root causes of the crisis, our legislators embrace the politically expedient course of making the “reliable delivery” of over-appropriated water coequal with protection and restoration of California's waterways.  It is a recipe for environmental disaster.

The Absence of Standards

Despite an abundance of rhetoric on the value of the Bay-Delta ecosystem and the intent to restore it, the bill package is embarrassingly silent on specific standards, goals or yardsticks that would measure and ensure restoration.  It assigns all responsibility to develop protective measures to a Bay Delta Conservation Plan (BDCP) process that is largely comprised of the individuals and agencies that for the last two decades ignored, acquiesced and chaperoned the collapse of the estuary.  In fact, BDCP is largely a conveyance project masquerading as a Habitat Conservation Plan.

The 1980 peripheral canal legislation that was defeated by a vote of the people in 1982 contained specific measures and standards, such as minimum outflows, to protect fisheries.  It even included a constitutional amendment to protect the Delta.  The 1995 federal water quality standards for the Bay-Delta adopted by the U.S. Environmental Protection Agency following its disapproval of state standards for inadequacy contained a number of specific requirements protecting fisheries.  Among these were outflow and salinity standards to protect striped bass and required percentage survival ratios of outmigrating salmon and steelhead sufficient to attain the doubling goal of the Central Valley Improvement Act.  The federal standards were ignored after the State Water Board implemented new state standards.  Not only are the state's Bay-Delta Plan standards seriously inadequate, the Department of Water Resources and U.S. Bureau of Reclamation routinely ignore them.  In fact, they have violated virtually all of them during 2009.  

Any new water legislation must include specific enforceable standards to protect the estuary.  However, new standards cannot be proposed, evaluated and discussed in the remaining days of this legislative session.

Legislative Abdication

In a stunning abdication of legislative responsibility, the package authorizes the creation of the Delta Stewardship Council comprised of four members appointed by the Governor, two from the legislature and the Chairperson of the Delta Protection Commission.  The Council would have authority to implement the recommendations of the BDCP and assess fees and issue bonds to fund them.  The centerpiece of the BDCP process is the contradictory goals of restoration and export reliability and an alternative conveyance scheme (i.e., peripheral canal) to secure delivery reliability.   In other words, our legislature proposes to allow the Governor, who strenuously advocates building a peripheral canal, the authority to appoint a majority of members to a Council that has authority to build and fund it.  Despite claims that the legislative package doesn't, per say, authorize a peripheral canal, its clearly an enabling roadmap to its construction.

Anything less than retention of authority to review and approve any final BDCP plan and issuance of fees and bonds would represent an abominable abdication of legislative responsibility.

Questions Begging for an Answer

How can we believe that promises, assurances or even laws will protect the estuary when state and federal agencies have grievously failed to enforce and comply with them in the past?  In other words, how do you achieve restoration by placing the fate of the estuary in the hands of the architects of its collapse?

How can you solve the Delta's problems by excluding the farmers, fishermen, businessmen and communities who live and work in the Delta from the process?

Is it really acceptable to construct a peripheral canal that would leave salmon and Delta smelt with only a 20-50% and 10-40% chance of survival, respectively? (Note: this is the estimate of the PPIC report, based upon an analysis of a peripheral canal exporting 40% less water than was exported between 2000-07)  

How do you marry the most complicated HCP and the largest hydrologic modification of an estuary in history, disconnect them from tributary waters and ram it through in record time?   And, how do you begin CEQA/NEPA review of that process without a project description?

How do you protect the estuary's water quality by diverting dilution flows?  Diversion of relatively good water around the Delta can only increase the concentration and impacts of pollutants in the Delta.  How will further degrading Delta water quality comply with the federal Clean Water Act?

Why would you proceed with engineering a peripheral canal to protect export reliability without evaluating the cost and feasibility of constructing no-fail seismically safe levees, especially as analysis shows that the 53-75% of exports during dry and critically dry years must still come from the south Delta?

Why would you spend 15-30 billion dollars building and mitigating a 15,000 cfs peripheral canal that analysis shows will be dry three times more often than it will be full and will export less than 4,500 cfs half the time?  And why would you size a peripheral canal to divert more water than is in the Sacramento River 46% of the time?

Isn't 30 years enough time for Westside farmers to stop discharging prodigious quantities of selenium and other pollutants into the San Joaquin River?   What can be the justification for sacrificing Delta agriculture so that we can continue to provide subsidized water to irrigate impaired lands in the desert that belch toxic wastes back to our rivers?

What is the rationale for refusing to comprehensively analyze the benefits to California's environment and the costs to the California economy of eliminating all Delta exports?

How do you restore the San Joaquin River when 98.5% of its water molecules and fish never reach San Francisco Bay?

Why should we trust the same individuals and agencies that caused and acquiesced in the crisis to now solve it?  

Does anyone really believe a few hundred industrial farms in the south Valley deserve the same amount of Delta water as the 20 million people and the economic engines of the south coast and Santa Clara Valley?

What is the justification of requiring urban areas, that use 20% of developed water supplies, to become 20% more efficient and not establishing targets for agriculture, which uses 80% of the water?

Are you really contemplating the sale of the State Water Project to the State Water Contractors?

If the State Water Board has failed to comply with the law, how does delegating the powers of the Board to a Watermaster who is answerable to the Board substantively change anything?  Do you really believe yet another layer of bureaucracy will solve the problem?

A Final Observation

We have constitutional provisions prohibiting unreasonable use and diversion of water, a comprehensive water code, state and federal endangered species act, water quality acts, environmental review acts and a Fish and Game Code that - while imperfect - are sufficient to equitably distribute available water and protect pelagic and salmonid fisheries.  We have regulatory and resource agencies charged with implementing and enforcing these laws. 

The present crisis would have been prevented had these laws had been complied with and enforced.  These laws are sufficient to fix the problem over time, if enforced.

But, if the Legislature lacks the will, creativity or authority to enforce existing laws, no new laws or layers of bureaucracy will restore Delta fisheries and water quality or equitably and reliably deliver water to those who need it.