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KEY MISTAKES IN WATER MANAGEMENT PROVISIONS OF AB 39 AND SB 12    Bay-Delta Conservation Plan

by Bill Jennings, Executive Director, CSPA

September 11, 2009 - The following is a point by point listing of the mistakes in the current bills, AB 39 and SB 12 as they relate to the Bay-Delta Conservation Plan. (BDCP)

• State Water Resources Control Board (SWRCB) is required to do a public trust analysis of flow needs for the Delta within 9 months, in time to affect the BDCP process.
    
This mistake is that the SWRCB is required to do a public trust analysis of flow needs for the Delta under existing law.  The SWRCB is also required under existing law to have an Environmental Impact Report (EIR) certified before they do so.  Under this provision there is no time to do an adequate environmental document and the decision on flows will be made by Governor Schwarzenegger's hand-picked Board.  A loss for the environment and senior water rights.

• SWRCB must include Delta flow criteria in any change in point of diversion for the Central Valley Project (CVP) and State Water Project (SWP).

     This mistake is similar to the mistake in the first bullet point.  Schwarzenegger's Board will do a rush job on the flows to the detriment of the environment and Delta and other senior water rights.  Another loss for the environment and a win for the BDCP crowd.

• Start of construction for an isolated conveyance facility is precluded prior to SWRCB issuance of a permit for a change in point of diversion. 
    
Another loss for the environment and the Delta since the start of construction is already precluded prior to the SWRCB 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.

• The Council and its Science Program must be involved in the development of the BDCP, during development and as a responsible agency reviewing the draft EIR.
    
The naïve trust that these folks have in the Council is a reminder that the same three groups brought us the CALFED program that caused the fish crash in the Delta before CALFED was finally recognized as a failure.  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.  Lots of money will go to U.C. Davis to get whatever results that the Council wants.

• The BDCP must meet the recovery standard and all of the other requirements of the Natural Communities Conservation Plan Act (NCCPA) to be eligible for public funding.
    
CALFED had a Natural Communities Conservation Plan (NCCP) in its programmatic environmental document last time.  That NCCP was no protection for the Delta species and didn’t work at all to prevent the collapse of the Delta ecosystem. 

This NCCP will be approved by the same Schwarzenegger appointees that will handle the flow determinations at the Department of Fish & Game.  A definite win for the Governor and a grave loss for the environment because this NCCP will protect the peripheral canal from endangered species lawsuits.

• In addition to being certified as an NCCP, the BDCP must meet a number of additional substantive requirements to be included in the Delta Plan.
    
This is simply verbiage without any specifics.

• The legislation does not authorize a Delta canal, or delegate the decision to approve a canal to the Council.
    
No, the legislation does not authorize the canal as far as we can tell, thank God.  The legislation does authorize the contractors to build one and use the people’s water rights to fill it.
    
• Delta water exporters are required to pay for any isolated Delta facility.
    
The contractors have been saying for years that they will have their ratepayers pay for the canal.  Therefore, this is no victory for the environment or anything new at all.

• The BDCP EIR must address a number of specific requirements for the California Environmental Quality Act (CEQA) analysis, including a range of flow criteria, operations and design.
    
CEQA already requires a range of alternatives and this legislation limits the alternatives to different sizes of a peripheral canal, but does not require a reduction of alternatives.  This is no benefit to the environment beyond existing law and eliminates the possibility of a reduction of exports solution.  This is another incremental win for the contractors and the Governor and another loss for the environment.

• DFG is required to develop biological performance standards (12 months).
    
DFG is controlled by the Governor and the time period (12 months) makes it clear he will decide what DFG thinks is necessary for the environment.

• BDCP is now required to include a decision-making process for project operations that gives clear authority to the fish agencies to ensure that biological performance measures are achieved.

     This might be useful, but again, the decision-making process will only work if the DFG finally stands up to the Governor’s policy people on operations and that almost never happens in practice.

Water Management

• Establishes a new state policy to reduce reliance on Delta water, by investing in efficiency, recycling, advanced water technologies, local and regional water supply projects.
    
A useful new policy if there are no hidden hooks in the unread policy bill that bite the environment later.  Are the policies high-lighted from the bill that was released on 9/11/09 or something to be released later today?  This is pure garbage as political process and is unfair to the public and the members of the Legislature.

• The co-equal goals are amended so that they no longer “assure” full water deliveries, instead, the Delta Plan will provide “more” water supply reliability.
    
Thank you for not mandating or “assuring” full water deliveries and merely legislating that Westlands, Delta-Mendota and Kern will get “more” water.  This is a clear loss for the environment and a nightmare for the Delta and the tributary rivers and streams.

• Does not include water user proposal to give the Council review authority over water quality, Endangered Species Act (ESA) and other environmental regulatory decisions.

     Thank you very much for coming to your senses on this issue.

• Creates a watermaster under the SWRCB with the authority to enforce water rights.
    
The watermaster (Jason Peltier, Susan Kennedy ?) will make recommendations to the same SWRCB and will use the same authorities that the Governor’s appointee to the Board have presently.  This is simply another layer of government without any benefit to anyone or to the Delta environment.

• Requires consideration, in developing the Council’s Delta plan, of the actions included in the Delta Vision Strategic Plan (which includes strong ecosystem restoration and flow recommendations.)
    
Consideration is not mandatory language and the Council will be likely to operate much as the CALFED Bay/Delta Authority did and discard the Delta Vision Strategic Plan since it has out-lived its usefulness.  How did CALFED work out?