The Delta Stewardship Council hears from Jerry Meral on the BDCP’s proposed governance structure, the challenge of an integrated state-federal water project, funding, and more

DWR Delta Mokelumne #1At the February 21, 2013 meeting of the Delta Stewardship Council, Jerry Meral from the California Natural Resources Agency updated the Council on the proposed governance structure for the Bay Delta Conservation Plan.  Jerry Meral spoke about the complexities of an integrated state and federal water project, adaptive management and the role of the stakeholder council, as well as answered questions from council members about dispute resolution, funding for the project, and expanding storage.

Chief Deputy Executive Officer Dan Ray began by explaining the Council’s roles regarding the BDCP, which includes consulting with the Natural Resources Agency about the BDCP, as well as reviewing the draft EIR when it is released later this summer.  The Council could potentially hear an appeal of the BDCP if it is approved by the Department of Fish and Wildlife, and once the BDCP is approved and incorporated into the Delta Plan, the Council will then, through the implementation committee, play a role in overseeing both the Delta Plan and the BDCP, he said.  “It’s really important that if we’re going to have the more effective Delta governance with adequate science, financial support and authority … that the BDCP and the rest of the Delta Plan implementation actions fit together smoothly and the structures have some kind of harmony so we can have a program that works together.”  Mr. Ray then introduced Jerry Meral, lead for the State’s work on the Bay Delta Conservation Plan, who will brief the Council about the proposed governance structure as currently proposed in Chapter 7 that was released in December.

Click here for more from the Delta Stewardship Council.

Governance of the BDCP structure may be of the greatest interest to the most number of interest groups,” began Jerry Meral, noting that out of all the BDCP’s working groups, the governance working group is always the most attended, with often 30 to 40 interest groups showing up.  “The reason is of course, is who’s in charge.  If there’s going to be a facility built, if there’s going to be a lot of habitat implemented, they want to know who’s actually in charge of that and how does that fit it with our state and federal HCP and NCCPA permits,” said Mr. Meral.

The version of Chapter 7 that is currently posted at the BDCP website has been heavily vetted with the major interest groups, the water contractors, the state and federal wildlife agencies, the NGOs, the Delta counties, and many other agencies within the Delta that attend the meetings, Mr. Meral said, adding “not to say it can’t be changed; it will be changed, I’m sure, based on public comment … but I think it is not a bad balance between the interests of all these different groups.”

The hardest part of this Plan is developing something that the federal government can live with, explained Mr. Meral:  “If you read through the chapter you’ll see a dozen or more references that say ‘nothing in this chapter takes away the power of the federal government.’  That’s basically what they want to say and we have to, of course, accede to that, but it makes governance a little bit tricky.  You’ll see if you read through it how often that phrase or something like it recurs. This is very much a state and federal project.”

For governance, there would be two bodies that are roughly equal but have very different responsibilities, Mr. Meral explained.  The Authorized Entity Group (AEG) consists of the Bureau of Reclamation and the Department of Water Resources, and possibly the water contractors, although that isn’t certain yet, he said.  The Permit Oversight consists of fish agencies – USFWS, NMFS, and DFW.  “Originally we had this set up as a unified group and it became pretty apparent that the roles of the two groups were pretty different, and actually Director Chuck Bonham from DFW suggested this current structure, which is really good idea,” said Mr. Meral.

The Authorized Entity Group (AEG) directs the implementation office and the Program Manager would report to that group, said Mr. Meral.  The AEG would be in charge of implementing the Plan and carrying out 23 different conservation measures, complying with hundreds of permits requirements and achieving hundreds of biological goals and objectives.

The Permit Oversight Group (POG) is a coequal partner that has the role of ensuring that the permit requirements are being met as well as ensuring that the Plan is achieving the biological goals and objectives, said Mr. Meral:  “This whole plan is about achieving biological goals and objectives and so they will monitor, very closely, whether that is happening.  And where the rubber meets the road, in a sense, is in adaptive management.”

It’s likely that some things won’t achieve what we want them to achieve, said Mr. Meral, so adaptive management will be necessary, noting that adaptive management is only briefly discussed in Chapter 7, but is discussed much more extensively in Chapter 3.  “It isn’t in the implementation structure, it’s a whole separate process … the reason it’s in Chapter 3 is that’s where the project is described and how it will be implemented and adaptive management is part of the project.  So you have to read the two together,” he said, noting that Chapter 3 isn’t specifically out yet but will be released next month.

The Permit Oversight Group has some very specific duties.  They have to approve changes in conservation measures through the adaptive management program, and that’s a huge role, said Mr. Meral:  “Adaptive management in this project will be decisions that affect billions of dollars of infrastructure and could cost many, many millions of dollars to implement, depending upon what has to be done to get closer to achieving the goals and objectives,” he said, adding: “The power to approve, along with the Authorized Entity Group, is a very important role and we don’t want to underemphasize that.”  The POG will also have roles on the adaptive management team, and they will have decision making in real time operations.  “Real time operations simply means we’ve got a slug of fish coming down the river, and even though the criteria say we should divert x, we think that this slug needs a different kind of management, we want to back off, we want to pump earlier, actually operating in real time to make the project work better,” he said.

The Permit Oversight Group will have major input into staff selection; the Program Manager and the Science Manager will have to be vetted with the fish agencies before they can be selected, he explained.  The POG will also review the Delta Operations Plan and the annual budget: “They have essentially approval power – it doesn’t quite say that but it’s really what they have there – they have to review the annual reports.  They are involved day to day in this thing in a really big way.  Even though they are not actually directing the Program Manger, they have a tremendous role to play in directing the Science Manager through the Adaptive Management Team.  So I think there is a pretty good role for them.”

We are reviewing the science board’s comments and will respond to them, Mr. Meral said.  They raised some good points and we want to work with Peter Goodwin and the whole board to make it better, noting that the plan is not yet complete and there will be more information in the upcoming Chapter 3.

It is very delicate,” said Mr. Meral.  “Implementing adaptive management in this program will be a multi, multi million dollar decision.  Not just in terms of changing monitoring, but it could be massive shifts in the program if it’s not working right, an expenditure of money … very important decisions that will have to be made.  We want them to be made based on science, but we also have to recognize that they’ll have impacts on water consumers throughout the state.  So they’re not just a scientific experiment, they are critical to the way the water users actually receive water, or will be.”

One of the unresolved questions is whether the water contractors will be themselves permitees.  It is something the water contractors have requested, but “when we talk to the fish agencies, they said we don’t know, we have to look at the permit application and see if they are really undertaking activities that require them to be permitees under the state and federal endangered species acts.  And until they see a final application and a final plan … they will not commit one way or the other,” he said, noting that this is frustrating to both the water contractors who want to be permitees, and the NGOs who think they should not be permitees. “The fish agencies have that power and we simply have to be patient and wait and see what comes out of it.  It is an important issue to a lot of people.”

Regarding the stakeholder council, Mr. Meral noted that the science board in their draft report questioned the need for the stakeholder council, but “the people in the Delta, especially, need a voice and a forum in this program.  We cannot try to implement it in a way that ignores their concerns in any way and doesn’t give them a real voice in the process. Now they have different thoughts, frankly, among the various interest groups in the Delta about what their role really should be, and I’ve heard a lot of different views.  But in any case, the stakeholder council is very populated with the Delta counties, the farm bureaus, the reclamation districts – the people who really care about how this program gets implemented on the ground.  And so we would advocate pretty strongly to keep the stakeholder council,” he said, noting that it may not be as strong as everybody would like, but at least it’s a very visible public forum.

The stakeholder council would review everything: proposed adaptive management changes, changes in the budget, staffing, all kinds of things they would care about, he said.  They are also proposing a technical subcommittee that would work with modelers to look at things like adaptive management changes to see if they meet the criteria the stakeholders care about, and whether they are scientifically valid from their point of view.  He added: “They do have a point of view about that.  People in the Delta have extraordinarily good modeling capabilities and they want to run our data through their models; the stakeholder council will be one way to do that.”

This project is a very delicate balance of the state and federal governments, he said, pointing out that there has never been a truly joint state federal project. People may point to San Luis and the canal “but in some ways, San Luis is almost two different projects glued together.  This one is not.  This is an integrated project.  We’ve never done that,” he said.  “The financing challenges of doing something with the federal government which has a completely different way of looking at water projects than we in the state do, is the hardest challenge of all in this whole project.  In governance, we’re trying to build them in, and you’ll see references to decision making officials, so that someone in the governance structure from the federal government will have the power to spend federal money.  Now they have to check in Washington, but they’ll have that power.  We’ve never had that kind of integration before, and it’s the most challenging part of the project.”

Finally, we would ask the state and federal governments to prepare an annual operations plan so there would be a specific publicly visible, publicly disclosed and commented on operations plan every year so all the stakeholders and fish agencies could actually see what the plan is to operate the project for the coming year,” he said.  And with that, Mr. Meral concluded his presentation and took questions from council members.

Councilman Randy Fiorini asked how the BDCP’s governance structure would interact with the Delta Science Program.

Mr. Meral answered: The way we treat science is evolving pretty rapidly right now, partly driven by the litigation over the biological opinions:  “The water contractors and the NGOs both feel that the process is opaque.  It’s a black box, something comes out, they don’t how it came out or why it came out, and so there is dissatisfaction from both sides.  What we want to do … is to make it more of an open process.”

He continued: “The regulatory part of science here is really the agencies tell us what to do.  Which is fine, that is their the role, but the way they get there is not very satisfying,” he explained: ”We hope the new process is going to be transparent and allow the regulators to have other people participate – not in setting the regulations but in seeing how they are developed.  Then we need to merge that into BDCP.  We really haven’t done that yet,” said Mr. Meral, noting that there also isn’t a broader science outlook of regulation integrated currently into the BDCP.    “We need to work with the federal agencies and DFW and with the science board to tune that up.  It’s not done.”

The current version of the science chapter is ‘unsatisfying’, admitted Mr. Meral, “So we want to work really closely with the science board, IEP , and the state and federal agencies to develop something that the interest groups will find to be credible.  I think that’s the biggest challenge.”

Councilman Pat Johnston asked if the POG or AEG had veto power?

Mr. Meral answered:  “No.  Only the regulatory agencies have ultimately have a veto, or in a sense, have an ability to implement over people’s objections.  In the end, we have to comply with our permit.  And the determiners of compliance are the state and federal biological agencies. … If they say to be in compliance, you have to adopt this measure, and we’re going to pull your permit if you don’t …  They get to decide,” noting that the water agencies could appeal to the Secretary of Interior, but there’s not a lot of history of the Secretary of the Interior overruling these agencies.

Councilman Don Nottoli asked what Mr. Meral felt was the real role of the stakeholder council, besides a forum and taking input. “I don’t see it being much more than advisory if even that in some cases … Is there any meaningful or decision making role that the stakeholder council has?

Mr. Meral answered: “Honestly, no.  It is not a decision making body. and that’s not satisfying to a lot of people in the Delta who would like to have a seat at the table,” he said.  They’ve been discussing ways to find a more substantive role for Delta interests, especially the counties.  Possibly there might be a separate body that would be just the counties that would have a formal interaction role with the program manager or with the AEG, or maybe a representative of the counties might serve on the AEG.   “If we could find a way that was acceptable to the various parties that gave the Delta interests a stronger voice … it would make a lot of people happy, and I think the water contractors would perhaps be open to at least something along that line. I don’t want to speak for them, but I do feel that it’s a bit of a lack.  We have the stakeholder council and I think it’s useful to have that, but like you say, it’s not a decision making role.  That door is not closed in my view, and we should continue to work with the Delta Counties Coalition so that we all agree and can gain the support of those who are on the AEG already.”

Mr. Nottoli then referred to Mr. Meral’s blog post which spoke of permanent inundation of areas below sea level in the Delta, saying he was deeply concerned about that.  “Are people starting to talk about permanent inundation because … it paints a very grim and not a very fair picture of the Delta,” he said.

Mr. Meral answered:  There are three things that could cause permanent inundation, he explained.  Sea level rise, for one; “The statute 55” of sea level rise – that may or may not be sustainable in the Delta.  I don’t think we know.”  An earthquake in the near future is not a danger of permanent inundation unless it was a massive earthquake that destroyed levees so much that they aren’t economically rebuildable, but that’s less likely to happen, he said.

But what really caught his attention was the article in the January issue of Scientific American on atmospheric river storms: “The article showed a picture from space, recreated, of what the Central Valley looked like, in their view, after that storm event in 1862-62 where we had 42 days of rain with a couple of inches a day.  The lake in the Central Valley dwarfed San Francisco Bay,” he said.  He asked the author how much outflow, and the author replied it was ‘unimaginable and uncalculable’ and he didn’t even know where to begin to calculate it.  “It’s hard to imagine the Delta levees surviving anything like that.  … Frankly this was news to me as I had never contemplated events of that size.  I think it would be hard to reconstruct the Delta after that happened because there’d be no vestige of the levees left. It would simply be an inland sea out there,” he said.  Maybe they could be reconstructed, but the costs would be high.  “An atmospheric river event isn’t so much a hypothetical danger. … a major earthquake in the Delta, we don’t exactly know, but we’ve had this other event … having read this article and seeing that it does, for thousands of years, recur every 150 years or so, is very scary.”

Chair Phil Isenberg asked about the dispute resolution process.  It is essentially voluntary, it’s an encouragement to dispute resolution, but it’s not binding arbitration, Mr. Isenberg said.  How is the new structure going to be more efficient in decision making than the current fragmented structure?

Mr. Meral answered that dispute resolution is really hard in the context of ESA.  Under the endangered species act, the final authority of these regulatory agencies is essentially absolute.  “I think the water agencies would welcome anything like what you are saying because they don’t have a lot of influence on this.  We see it right now in the current dispute over exports at the pumps.  We have some huge impacts, but the final answer comes from the USFWS or whichever agency is involved.  I would be very open to the concept, but I don’t know if under the ESA and NCPPA whether you could have anything that compromises the authority of those agencies in a more formal dispute resolution process. I doubt that.”

Mr. Isenberg commented that in California, “we’re much given to creating new structures to deal with old problems which are largely generated by multiple structures having multiple authority, but we have a pretty good track record that without other things changing, continuing and making more complex the government status quo is not the best way to proceed.”  Mr. Isenberg then pointed out that Governor said science would guide exports, but “I did not see in this chapter or in chapter 3 how science would guide exports. I think that this plan puts science in a silo, ecosystem in a silo, and water operations in a silo, and it’s that silo mentality that complicates the status quo. The silos of government agencies is classic.  It’s always struck me that forcing the same collection of people to deal with a range of problems simultaneously seemed to me to be a better approach than saying you take this piece of the problem, and someone will take this piece …  

Mr. Meral: “The whole science emphasis in exports has been on impacts on south Delta ecology, so that they are simply a stressor. … The other science part of exports is of course really why a new facility might have beneficial impact because you’re relocating the impacts hopefully to an area where they have less biological damage. Whether or not there are other elements of science that ought to affect exports – there’s timing, that’s a very big deal, not just volume but when you divert, and the mechanics of fish screens and things like that,” said Mr. Meral.  “Whether there are middle levels of science that could examine exports in a way that might help achieve the coequal goals or even the part about Delta as a place is an interesting question and I think we should talk to the science board and see.  We may be missing larger issue because we’re so focused on the mechanics of exports, which is huge and very important.”

Mr. Isenberg say that day to day water operations involve telephone calls, taking water from different places, and switches turned on and off; how do you get science involved in that stage?

Mr. Meral answered:  “An example of that would be something we call the Water Operations Management Team that’s in existence today … the WOMT is a group of the five agencies, DWR, Reclamation, USFWS, DFG and NMFS, and they actually look day to day at what’s happening in the Delta and what can be changed,” he said, noting that there’s also a separate team just for the Delta smelt.  A lot of this will be formalized in the BDCP; some of it will be covered in chapter 7, but real time operations will be covered as a separate section in Chapter 3.  “From the fish agencies point of view, they want to interact with the water operators day to day, hour to hour, because they can monitor the biology out there and see what’s happening and want to make changes in an instant.”

Mr. Isenberg commented: “You were discussing with Hank Nordhoff earlier what happens if biological goals and objectives are not achieved or funding isn’t available for the activities … from your answer I got that ultimately there’s a death penalty provision in that ultimately the permit is withdrawn.  My experience is that if the only option is a death penalty provision, it’s almost never exercised, which leads to unhappy parties demanding the courts intervene to impose other limits, such as the Delta smelt-salmon dispute that’s been raging for many years …  Something tells me that BDCP ought to consider a range of options, actions, alternatives, conditions, available so we don’t just create the situation where there are great promises and no way to balance these things.  That will lead to more litigation which seems to me to be the worst possible way to manage either a water system or an improved Delta ecosystem, by court order.”   Mr. Isenberg then asked: “How will the ecosystem activity be funded and who will pay?  … What happens to this whole thing and a new Delta export facility if there is no guarantee of financing for the identified resources side of the equation?

Mr. Meral answered that Chapter 8 will cover financing; it will come out in March also, and it’s fairly well done.   “The problem is with 50 year permit and the need for funding throughout the 50 years, it’s hard to guarantee everything up front.  We point out that there’s money in the current water bond that could be used for the habitat part of the program, but we also say that wouldn’t be enough.  We’d probably have to do another one somewhere in the 50 year life of the program.  There’s a long history of successful water and park bonds, so the permit agencies would have to decide if that is enough assurance to grant a permit.  That’s a tough question because we can’t say that we can guarantee there will be a water bond in 2026.  …  They will have to look at the history and decide if it is a reasonable expectation or not?  That’s ultimately their call.”

Mr. Meral continued: “What they can rely on more is the contractor’s part of the funding for mitigation and bi-op compliance funding, which is very substantial and that they’ve already committed to it. … What we are not planning on showing is any general fund appropriations because that’s the least reliable source of money.  There are some other federal and state funding sources that are possible, but they are pretty small, compared to either state bonds or contractor funding.  There are federal appropriations that have been historic for a long time such as the CalFED appropriations; maybe we could count on some of that, maybe it will increase a bit, but we’re not going to go overboard …

Mr. Isenberg replied that the more possible funding for activities that can be identified for the first 20 to 30 years of activity, the more defensible the argument will be that in the long range the bases will be covered; the less that short term or most immediate action funding is identified, the more hostile the reactions.

Mr. Fiorini said that there are many that believe that conveyance is just part of the solution to water supply reliability, and that storage plays an important role.  “How do we achieve the storage capacity in the right places and in the right forms to enhance an improved conveyance system?

Mr. Meral replied that we won’t even have the storage that we have today, explaining that the Corps of Engineers has rules of operations for flood control and hydropower generation, but since there will less snow in the future, those rules and the storage they govern will not be as effective.  At the same time, there will be large flood events, and likely enormous pressure to change the operating rules for health and safety which is the number one priority, “so there will be pressure building up through the century to increase flood control space in our existing reservoirs. That’s just going to happen, and that’s going to eat into all the other benefits we want – recreation, water supply, power, everything else, even habitat, cold water pool, so it worries me that we won’t even have what we have today in terms of storage.”

So it’s hard to imagine a scenario that doesn’t have some major investment in storage – groundwater storage or surface storage.  The question is, of course, who is going to pay for that – so far, the local water agencies have paid for the vast majority of it, but on the other hand, they aren’t currently showing any signs of doing more of that. …   The state and federal water contractors see the need, but I think their view is without doing something in the Delta, the value of new storage is very limited.  We could not fill San Luis this year even though there was plenty of water to fill it.  And so their attitude is understandably let’s not increase the size of San Luis until we’re sure we have a way to put water into it.  I think if the Delta problem were solved, the willingness to invest in new storage from the locals and from the state and federal government would go up dramatically.”

He added that the NRDC and their allies have included storage in their program.  “There’s not much of a debate anymore as to whether we need it; the only question is can we use it effectively.  It’s an indispensible part of the program, not a permit condition … but to make this program work really effectively, it would be the best thing we could do.”

FOR MORE INFORMATION:

  • Click here to watch the webcast.  Jerry Meral’s update is Agenda Item 7, which is covered on segments 7 through 9.
  • Click here for the Delta Stewardship Council’s agenda and links to meeting materials.
  • Click here for staff report on the Bay Delta Conservation Plan’s governance structure.
  • Click here for Jerry Meral’s blog post referred to in the meeting, BDCP: Based on Science, Environmental Research, and Economic Realities
  • Click here for the article referred to in Jerry Meral’s testimony from Scientific American: California Megaflood: Lessons from a Forgotten Catastrophe

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