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Solimar Research

Court Ruling Underscores Need For New Delta Strategy

Apr 30, 2007

Alameda Superior Court Judge Frank Roesch sent shock waves rippling through California's water community in late March when he ordered the giant pumps at the heart of the State Water Project (SWP) to shut down, potentially cutting off water to two-thirds of the state's population.

The order didn't take effect immediately — Roesch gave the state time to rectify the situation before pulling the plug — but the nearly apoplectic reaction was swift and distributed as widely across California as the SWP's customers. And it added an emphatic coda to several weeks' worth of intensifying focus on the crumbling foundation of the state's most critical public asset.

The Harvey O. Banks Pumping Plant, located west of Stockton in the problem-plagued Sacramento-San Joaquin River Delta, has been forced to halt operations before, but usually because of such calamities as levee failures and toxic spills rather than judicial fiat. On March 22, however, Roesch ruled that the Department of Water Resources (DWR) was violating state law because it never obtained the permits required to kill threatened and endangered fish during plant operations — a routine occurrence that many scientists and activists believe has helped push several Delta fish species toward extinction.

Roesch gave the state 15 days to submit additional information before his ruling was to become final, and said the state would have 60 days after that either to obtain the permits or to halt pumping.

The Delta matters to California for many reasons, principal among them the region's role as a linchpin in two water-supply systems: the SWP, which pumps water from the Delta and sends it on its way to more than 20 million urban users in Southern California, and the Central Valley Project, which also pumps water from the Delta and delivers it by canal to irrigate several million acres of Central Valley farmland.

And the Delta is at risk, as numerous reports have detailed over the past decade. Salt and pollutants threaten water quality. Most of the land in the Delta is below sea level and sinking, at the same time that sea level is rising. The 1,100-mile network of earthen levees protecting farms, pumping plants and other critical systems are poorly built and poorly maintained. A study prepared last year for DWR estimated that there is a two-in-three chance of multiple simultaneous levee failures within the next 50 years. That level of disaster could halt water exports and cost the state as much as $40 billion.

The native Delta ecosystem also appears to be collapsing, with several species continuing to decline despite years of study and an investment of millions of dollars in ecological restoration in the Delta and the rivers that feed it. Invasive species are believed to be partly responsible for the decline of native flora and fauna, along with pollution and climate change. But experts also point a finger at the operation of the SWP and CVP pumps, which not only suck up and kill fish directly, but also alter water flows to such a degree that fish become fatally confused trying to make their way between upstream tributaries and the sea.

The March 22 ruling in Alameda County Superior Court represented a surprising and total victory for the obscure organization that brought the suit. Watershed Enforcers, an arm of the California Sportfishing Protection Alliance, sued DWR in October 2006, contending that the agency had never obtained an incidental take permit allowing it to kill fish — specifically winter-run Chinook salmon, spring-run Chinook and delta smelt — protected by the California Endangered Species Act (CESA).

DWR argued that although it didn't have a take permit for salmon and smelt from the Department of Fish and Game, it had something just as good: several fish-protection agreements with DFG that predated the Legislature's 1997 revision of CESA. Those agreements, DWR contended, were specifically recognized in the revised statute as authorizing the incidental take of protected species as a consequence of the Banks Pumping Plant operations.

The judge looked hard but said he could find nothing in any of those agreements that specifically authorized DWR to kill salmon and smelt under the provisions of CESA. One of the agreements DWR cited dates to 1986, before any of the three species had even been listed as threatened or endangered, and therefore could not possibly have authorized the species' take as a consequence of the pumping plant operations. The other documents consist mainly of descriptions of process rather than anything concrete that commits the DWR to address the needs of fish — which some critics would argue is the most salient characteristic of the faltering, decades-long effort by state and federal agencies to fix the ecological mess in the Delta.

"The best that can be said," the judge wrote, "is that the documents accept that fish will be killed in the Harvey O. Banks Pumping Plant Operations and that the parties agree that mitigation measures will be undertaken."

Roesch also concluded his ruling with a sort of judicial sigh, noting that the one agency that could have declared definitively that the DWR had been issued a take authorization — the Department of Fish and Game, which is granted that authority under CESA — contributed not a single document or comment to the proceedings.

"The court regrets that an important case such as this one must be decided without all the possible relevant information," Roesch wrote. His thinly veiled exasperation was echoed in more forceful terms several days later when state senators demanded to know why, 19 months after they first asked about DWR's lack of a permit to kill fish, the agency had still not obtained one or even asked DFG to issue one.

"Even today, Fish and Game and DWR don't even seem to recognize the problem," said Sen. Mike Machado (D-Linden), who chairs the Senate's Delta Resources Subcommittee.

The reaction among water-industry leaders to the decision was somewhat oblique. They were unanimous in declaring the judge's ruling to have been wrong, but dwelled more on the magnitude of economic harm it could cause than on any alleged flaws in his facts or reasoning.

"We find the prospect of curtailing pumping to be unacceptable in terms of the economic consequences to the state," said DWR Director Lester Snow.

"We are disappointed with the court's proposed ruling and believe the court has interpreted the statute narrowly and has not properly accounted for the state's intent to comply with the spirit of the law," said Steve Hall, executive director of the Association of California Water Agencies.

But even critics of the ruling were unanimous in suggesting that it offered compelling evidence — in case anyone really needed the reminder — that the status quo in the Delta serves no one's interests well and will likely lead to disaster.

Roesch's ruling, likely to be appealed, came just a month after the Public Policy Institute of California (PPIC) issued a comprehensive review of several approaches to remedying the long-term ills of the Delta. Release of the PPIC report coincided with Gov. Arnold Schwarzenegger's appointment of a "Delta Vision" task force to develop a comprehensive package of policies and projects for the Delta that address its multiple roles and multiple liabilities.

The PPIC report, envisioned as providing an historical, scientific and analytical framework for the work of the governor's task force, concludes that several options frequently put forth as Delta "solutions" simply make no sense because their costs greatly exceed their benefits or because they fail to actually solve any problems. Written by a team of researchers both inside and outside PPIC, it draws heavily on the years of work invested in studying the Delta by UC Davis geology professor Jeffrey Mount and fisheries biologist Peter Moyle, as well as specialists in engineering and economics.

They evaluated a suite of alternatives broadly divided among three scenarios: one in which the Delta remains a freshwater system, something nature never intended it to be; another in which salinity is allowed to fluctuate more or less naturally, and one in which water exports from the Delta are reduced or even halted. Within each of those broad scenarios, they looked at more specific strategies and tried to gauge the effect they would have on water quality, ecosystem integrity and the long-term stability of the system.

Simply walking away would not work, they concluded, because the Delta ecosystem has been too compromised by more than a century of meddling. The business-as-usual approach also should be disregarded, they recommended, because of the system's demonstrated fragility and the likelihood it will deteriorate over time. Also worth ignoring, they said, is the option of spending billions of dollars on mammoth salinity barriers and giant armored levees — the "fortress Delta" approach. The costs are too high and neither option addresses the collapsing ecosystem, they said.

Several options are worth investigating further, they concluded. These include a canal bypassing the Delta — a resurrected Peripheral Canal similar to the one rejected by voters in 1982 and anathema to politicians ever since — as well as variations on that approach that route water around the Delta to the lower San Joaquin River or convey it through the Delta in an armored canal.

They also recommend examining what they call the "opportunistic Delta" approach, in which exports would occur only during times of particularly high flows in the river systems. This would require storage somewhere else. And they also encourage further evaluation of a scenario under which the Delta is restored to a more or less natural but managed state, as a giant ecological preserve.

That last vision echoes one assembled a year earlier by students in UC Berkeley's Department of Landscape Architecture and Environmental Planning, who noted that urbanization in the flood-prone Delta is accelerating and projected to result in a doubling of the region's population by 2050. The paper the students produced calls for creation of a giant regional park encompassing all the Delta lands, assembled through the activities of a land conservancy like the one responsible for acquiring open space in the Santa Monica Mountains. Such a park, they suggested, could combine preservation of farming activities with recreation, ecological restoration and maintenance of historic "legacy towns" important to the region's identity.

It is likely that any successful (meaning: politically and financially possible) strategy will encompass elements of several of the alternatives that have been put forth. But the question remains whether the burst of attention drawn by the Delta since 2005, when hurricanes Katrina and Rita showed what can happen when poorly designed levees fail, will make more progress in the near future than it has in the past decade. Speaking in February, during a meeting of the American Association for the Advancement of Science in San Francisco, Mount was blunt about the shortcoming of the state's current approach to the Delta.

"Hope is not a strategy," he said.

Contacts:

PPIC Report: "Envisioning Futures for the Sacramento-San Joaquin Delta": http://www.ppic.org/main/publication.asp?i=671UC

UC Berkeley's "ReEnvisioning the Delta" report: http://landscape.ced.berkeley.edu/~delta/

Judge Frank Roesch's decision in Watershed Enforcers v. Department of Water Resources, No. RG06292124: http://www.alameda.courts.ca.gov/courts/

Steve Hall, Association of California Water Agencies, (916) 441-4545.

Lester Snow, Department of Water Resources, (916) 653-7007

 

 

The Public Policy Institute of California released a detailed analysis of the Delta in February. The report, "Dealing with the Delta: Envisioning Futures, Finding Solutions," makes this observation:

"As an immediate response to concerns over the health of the levee system, the state significantly increased the budget for levee repairs in 2006, and two bond measures passed in November 2006 allocate additional funds for flood control in the Delta. But there is as yet no broader plan for responding to the crisis in the Delta, including how the bond funds should be spent. Some planning efforts are now under way, including the Delta Vision process, launched by the governor in fall 2006. As these efforts go forward, some new ways of thinking about the Delta should be taken into account.

"First, a comprehensive solution for the Delta needs to consider the new understanding of the Delta's ecosystem that has emerged over the last several years. For the past 70 years, the state's policy has been to maintain the Delta as a freshwater system. However, to address the problems of the Delta's native species, a fundamental change in policy is needed. A Delta that is heterogeneous and variable in terms of its salinity levels and water flows is more likely to support native species than is a homogenously fresh or brackish Delta. It is also more likely to reduce the efforts of invasive alien species, which tend to thrive in more homogeneous environments. …

"Second, new management solutions must also include goals for the human use of Delta resources — including land use, and water supply and quality. But again, a change in thinking is necessary, particularly in terms of the ability to satisfy all goals simultaneously. The approach adopted by Cal-Fed in the mid-1990s was the ‘everyone would get better together,' and it was assumed that this could be achieved by managing the Delta as a single unit, simultaneously achieving improvements in habitat, levees, water quality and water supply reliability. Going forward, California will need to recognize that the Delta cannot be all things to all people. Tradeoffs are inevitable."

 

 

Alameda County Superior Court Judge Frank Roesch dealt primarily with the assertion from the Department of Water (DWR) that it had legal authority to kill — "take" in legal parlance — protected species of fish while operating the State Water Project's Harvey O. Banks Pumping Plant in the Delta. In his proposed statement of decision, Judge Roesch wrote:

"The best that can be said for the five documents put forth by DWR as a pre-1997 agreement for compliance with the incidental take requirements of the CESA [California Endangered Species Act], read separately or as a whole, is that the documents accept that fish will be killed in the Harvey O. Banks Pumping Plant Operations and that the parties agree that mitigation measures will be undertaken. While the documents certainly demonstrate the fact that DWR was and has been attentive to the issue of the incidental take caused by the pumping plant operation, it cannot be said that the documents state any agreement by the DFG [Department of Fish and Game] authorizing the take of any species of fish, endangered or not."

"Examining the documents advanced by DWR, it is clear that contrary to the assertion of respondent [DWR], they do not qualify as the carte-blanche authorization of incidental take at the Harvey O. Banks pumping plant operation for all species of endangered fish …"