Joint Informational Hearing: Natural Resources and Water and Select Committee on the Delta “The Bay Delta Conservation Plan: Perspectives on the Plan”
On May 14th, the Senate Natural Resources and Water Committee and the Senate Select Committee on the Delta held a second informational hearing on the Bay Delta Conservation Plan (BDCP) to gather different perspectives on the plan from water contractors, local government officials, and environmental groups.
Seated on the panel was Roger Patterson from Metropolitan Water District, David Guy from the Northern California Water Association, Greg Gartrell with Contra Costa Water District, Jason Peltier with Westlands Water District, Sacramento County Supervisor Don Nottoli, Doug Obegi with the NRDC, and Brent Walthall with the Kern County Water Agency.
Senator Fran Pavley began by laying out the format of the hearing, which would start with each panelist giving their perspective on what they liked and didn't like about the BDCP. The panelists will then get a chance to ask questions of each other, and afterwards members of the legislature will have an opportunity to ask questions. Following that will be public comments.
Senator Pavley noted that there will be additional hearings in the upcoming months: “This is not the end of the discussion. It's an informational hearing looking at the BDCP and alternatives. And we have a wide variety of perspectives represented, so it should be a very informational and important hearing to start addressing those issues.”
ROGER PATTERSON, METROPOLITAN WATER DISTRICT
Roger Patterson, assistant general manager of Metropolitan Water District, began by stating that he’s been involved with the BDCP on behalf of Metropolitan since about 2006. In his view, things are getting cued up so decisions can be made. “I think what the legislature did in 2009 was really put down the ground rules for moving forward on a number of issues in the Delta, including the criteria, the process and the standards that the BDCP was going to meet if in fact it was able to be permitted and moved ahead.”
“I think it’s important that we give the state and the federal agencies a chance to put the package out so we can work out way through that and make some decisions.” — Roger Patterson, MWD
Mr. Patterson continued: Consistent with the 2009 legislation, I know the state has looked at a number of alternatives; I think they’ve looked at 100+ different alternatives for the various pieces of the BDCP and they’ve narrowed that down to fifteen,” he said, noting that a tremendous amount of analysis has been done on habitat, stressors, and conveyance elements of the plan, and the state has taken over 3000 comments on an informal basis.
“We continue to support advancement of the plan; we believe that there is a real need to turn the direction; the status quo is not working,” he said, noting as an example the 800,000 acre-feet that was lost in December and January of this year due to restrictions placed on exports because Delta smelt were in the vicinity of the pumps.
“I think it’s important that we give the state and the federal agencies a chance to put the package out so we can work out way through that and make some decisions. Our view is that we have adequate information to be able to make these decisions so we can make the investments and move ahead with some of these long term solutions,” he said.
DAVID GUY, NORTHERN CALIFORNIA WATER ASSOCIATION
David Guy, president of the Northern California Water Association, began by recalling that back in the early 1980s, “it was 90+% of Northern Californians that were opposed to a Delta solution. We obviously would like to look at this differently today.”
Even though they consciously decidedly not to participate as a potentially regulated entity in the BDCP, “we have a policy that is very interested in water security in the Delta, restoring the ecosystem in the Delta, and supporting reliability of exports, and obviously that’s at heart now of the coequal goals. I think Northern California has always been interested in that.”
The Sacramento Valley has water supplies for various beneficial purposes, he said. “We have 2 million acres of farmland, six national wildlife refuges, fifty state wildlife areas, and of course the cities and communities that are sprinkled throughout the region. We have recreation and we have the half the endangered and threatened species in the state of California, the salmon being the glamour species that we spend a lot of time and effort on,” he said. “The folks in the region are managing the water for all of those beneficial purposes, and what I think is interesting is that the Sacramento Valley is in balance with respect to its water resources, and that includes both the surface and the groundwater resources. We’re regionally self sufficient and we obviously want to be a part of the Bay-Delta solution but we don’t want to be sacrificed for the Bay-Delta, and I think that’s how we come to the discussion.”
“It’s unfortunate that this discussion becomes about tunnels because to us, it’s about much broader water supply dynamics for both economic and environmental purposes. The questions we will keep asking is will this program benefit fish, and will it provide reliable export water supplies? It’s in all of our interests in the state of CA to do those, which are at the heart of the coequal goals.“ –Daivd Guy, NCWA
Although they are supportive of advancing the BDCP process and of having a robust discussion, Mr. Guy said “in our view, we need to be thinking broader as a state beyond the BDCP. It’s unfortunate that this discussion becomes about tunnels because to us, it’s about much broader water supply dynamics for both economic and environmental purposes. The questions we will keep asking is will this program benefit fish, and will it provide reliable export water supplies? It’s in all of our interests in the state of CA to do those, which are at the heart of the coequal goals.“
How the BDCP would be operated is a concern. “The cornerstones for the major projects, the CVP and the SWP, those reservoirs are in the Sacramento Valley so we will look at how those reservoirs are going to be operated because that will in part determine how the Sacramento Valley will be affected.”
At the heart of the issue is flows, said Mr. Guy: “What are the spring flows that are being proposed mean for this proposal? What do things like fall X2 mean for the operation of the projects and water from Northern California? Those are the things we are a little frustrated that we’re not getting answers to and we would like to engage a whole lot more.“
Mr. Guy then offered four thoughts for the legislators to consider. “First, we think the Governor should consider an executive order. The July 25 announcement that the Governor and Secretary came out with I think provided a road map forward, but I think its safe to say the discussion has become about the tunnels, and all those pieces that are in that July 25th announcement seem to get lost in the discussion … things like protecting upstream water supplies, restoring the Delta, all of those kinds of questions, so we think the Governor would be served by looking at an executive order that starts to memorialize that in more formal way.”
“Second thing is we need to understand the operations of the program. The size of the tunnels, whether they are 3,000 cfs or 15,000 cfs, is almost secondary. I think what folks really want to see is how will this will be operated with respect to either. I think anybody jumping to a conclusion about what the size of these should be I think is not being intellectually honest. I think we need to look at the whole system and how its operated, and we’re committed to doing that,” he said, noting that they were definitely intrigued by Senator Steinberg’s idea of a constitutional amendment.
Third, we need to be prepared for the next drought, said Mr. Guy. “We were blessed this year with carryover storage in the state of California that is carrying us through this year, but as we are looking at reservoirs dropping down this summer, I think it’s safe to say that we’re heading into what could be a very ugly situation in California if we don’t have carryover storage next year and we go into another dry cycle. I think the state really needs to start laying the groundwork for how we’re going to manage through that.”
“The fourth question is, are the state agencies acting in a coordinated fashion? We’ve seen a lot of disparate actions between state agencies and that’s again where the Governor would be well-served by bringing the state agencies together in a more unified coordinated fashion.”
Greg Gartrell, special assistant to the general manager of Contra Costa Water District, said that he would focus his comments on the three issues of most importance to his agency: water quality, water supply and costs.
“The recently released administrative draft does admit that there are significant unavoidable impacts to water quality. We’ve looked at those data and we agree with that assessment,” he said. “While the average change is water quality is small, periodically it can be severe and that can have a big impact on our operations. We operate Los Vaqueros Reservoir primarily as a water quality project. We’re looking to put high quality water into the reservoir when we can, outside of the sensitive fish periods, then use that later to blend for a constant high quality supplies for our customers,” he said. “If those periods when we are limited to filling which are now high quality turn into poor quality water that we can’t put in the reservoir, then that means we can’t fill the reservoir and can’t meet our goals.”
“If we’re going to get through these dry years, we’re going to need more storage. We live in a state where we effectively have a drought every year. … And if it goes on for two or three years, it will become brutally clear to everyone in this state how badly we depend on storage and how we will need new storage to get through this kind of thing. — Greg Gartrell, CCWD
“However, Contra Costa Water District is very encouraged by the discussion of the environmental commitments in the admin draft that are directed mitigating those impacts, so we think that discussion is going in the right direction,” he said, adding that they were not looking for a betterment. “We are not asking that BDCP to provide us with high quality water to offset climate change, but simply for mitigation for those impacts attributable to BDCP actions, and in a way that would fairly account for those.”
The water supply impacts are much harder because the potential impacts specific to their agency are difficult to determine. Mr. Gartrell explained: “The BDCP shows substantially reduced dry year supplies for the exporters. Some of those are – a large portion of those are due to climate change. But some are due to BDCP operations that pushes the exports more into the wetter years and reduces them in the drier years, so if you’re an exporter, you know you’re coming up with a lot less water than you would be getting today under current conditions.”
The impacts depend on the operational parameters, and there are four scenarios in the draft EIR/EIS for both high and low outflows, he said. “What is not clear is how those scenarios spill over to other water users such as CCWD or upstream water users. … If they go to low outflow, well they get the benefit of that. If they go to a high outflow, they take the hit. But either way, that shouldn’t spillover to others. The problem is you can’t really tell from the modeling which way that is going because the computer modeler, whoever is programming the computer has to tell the computer and that‘s a policy decision that hasn’t been made or explained yet.,” he said. “If the CVP as a whole decides it a dry year and we they have to cutback and some of that cutback is due to BDCP outflow requirements, how do they make the adjustment for others who are not participants?”
There is the need for storage, he said. “If we’re going to get through these dry years, we’re going to need more storage. We live in a state where we effectively have a drought every year it starts usually in the spring and goes through the summer. This year it started in January and it could go until December next year when it starts raining. … And if it goes on for two or three years, it will become brutally clear to everyone in this state how badly we depend on storage and how we will need new storage to get through this kind of thing. It helps not just water supplies but the coequal goals, it allows us to get through these dry periods, provide water for fisheries and for human uses,” said Mr. Gartrell.
Another issue is cost. “We’re not a participant in this but we have seen that some are expected the CVP as a whole to pick up 25% of the costs to pay for refuge supplies or exchange contractor supplies, whether or not they are participating. … If refuge supplies which are now are pretty secure and only getting cutbacks in the most severe years are more likely to get cutbacks, we’re wondering how that benefits us or benefits the refuges and why we should be paying for those?”
“We’re not interested in paying for oversizing. We need a clear case to be made that this is the most cost-effective and efficient project if what is wanted to get an NCCP is more than is needed to come back to a situation where you are getting better supplies or better reliability.”
JASON PELTIER, WESTLANDS WATER DISTRICT
Jason Pelteir, Chief Deputy General Manager of the Westlands Water District, began by noting that about 30,000 pages of the BDCP and the EIR/EIS have been released and posted on the internet. It is a highly unusual step because these are administrative drafts, a first draft of sorts, and in a few months, the actual public will be released for comment, he said.
“I’d like to make three points … First, this is a massive body of work. It is the most comprehensive planning and analysis on the Delta ever produced. … Since it’s a draft, second point is that there will be mistakes, errors, and misstatements, and policy positions articulated that do not in fact represent the views of the applicants. That’s why we call it a draft. Things will change within the bounds of the scope of the analysis; maps will change, analysis will evolve, new information will be generated and it will be kind of a living document in many ways,” he said. “Most important point though is that this body of work reflects our best effort to use the science as we understand it.“
“What we do know is that the pump-centric policy and regulatory approaches to operating the Delta have failed. As a single species management approach, they’ve just simply not worked. We have 20 years of evidence to that end, and that has led us to why we want to take a comprehensive ecosystem wide approach looking at all the stressors all of the factors that may be affecting the fish” —Jason Pelteir
“Some will claim that the science is inadequate, and they will be right to the extent that we have holes in our understanding as to how this incredibly complex ecosystem works. They will be right to the extent that we have limited biological models that will allow us to predict the future. The body of Delta expert scientists often don’t understand what is going on in front of them. So without the tools to see into the future, we are limited.”
Mr. Pelteir than read a comment from NMFS comments on the project: “[quoting NMFS] The effects analysis should examine synergistic and cumulative ecological impacts associated with reducing inflows to an estuary that is already severely degraded and discuss the importance of water quality and the natural hydrograph have to the ecosystem as well as the direct impacts on native fish species. So far the impacts to fish have mostly been examined on a piecemeal basis.”
“My translation of that is really a question,” he continued. “Tell us, how has it, how is it, and how will it function in the future, this Delta ecosystem? When you consider that question, you have to ask the collective scientific community working on the Delta if that is at all possible for us to understand how this ecosystem works. They’ve been trying for sure for decades, it’s been their responsibility for decades for the fishery agencies to understand and protect this ecosystem.”
“We’ve been spending some $30 million a year on the Interagency Ecological Program, gathering data and running experiments. We spent tens of millions of dollars trying to understand the causes of the Pelagic Organism Decline that started about 10 years ago. We came up with an answer on the fish decline that I read as saying, it’s kind of a combination of everything. Translation, we don’t have an answer, we don’t’ know what caused the problem so that was another tens of millions of dollars. We’ve seen the agencies produce a series of biological opinions that have been thrown out by the federal courts as arbitrary and capricious; we’ve seen the ESA recovery plan struggle with this question of how does the Delta function, how does this ecosystem operate, we’ve seen the Ecosystem Restoration Program and the anadramous doubling program struggle with this, all to no avail.“
“What we do know is that the pump-centric policy and regulatory approaches to operating the Delta have failed. As a single species management approach, they’ve just simply not worked. We have 20 years of evidence to that end, and that has led us to why we want to take a comprehensive ecosystem wide approach looking at all the stressors all of the factors that may be affecting the fish. Maybe we have set our own trap by getting so big and so complex in trying to deal with this ecosystem, but simplistic approaches simply have not produced results to date.”
SUPERVISOR DON NOTTOLI
Sacramento County Supervisor Don Nottoli began by noting that his comments would be offered on behalf of both Sacramento County and the Delta Counties Coalition.
“The 2009 Delta Reform Act called upon leaders at all levels to work to achieve the coequal goals, he said. “But some folks are portraying such a grim picture of the Delta, saying that if the floods and sea level rise don’t get you, the earthquakes will. In our view, it exploits the implied demise to benefit the advancement of the BDCP. This is not only objectionable, but inaccurate.”
“We recognize that the Delta region is key to addressing the coequal goals, but believe it is imperative for others to have a clear understanding of what is at stake for those who live, work, and enjoy the Delta. To us, the Delta is a place of majesty and wonder comprised of some of the most fertile soil and set amongst a fragile and uniquely special ecosystem. It is an environmental treasure in need of care and nurturing. It is a place with a rich history and tremendous cultural diversity. It is a place where people make their homes, raise their family and grow food and crops, which helps sustain a regional economy and contributes to our state, national, and global economies. It is a popular recreational destination dependent upon a healthy and fresh water supply and on the 1100 miles of levees which protect it,” said Mr. Nottoli.
“It is a place worth saving and protecting now and for generations to come. For these and other reasons, the suggestion of building massive water conveyance facilities ironically detailed in the BDCP as Conservation Measure 1, without the impacts being fully known and addressed is in our view unacceptable. Figuring out the details such as operational impacts and how much water is really available to export are not things to be figured out later; neither is ignoring science, nor is leaving out those whose communities would be most affected.”
“The Delta is worth protecting and saving. That is what the BDCP should be about. Meeting the coequal goals and preserving, protecting and enhancing the Delta. The Delta counties remain ready and willing to work with those who will take our concerns seriously and are prepared to work with others who want to get this right for all of California without sacrificing one region of the state for another.” –Don Nottoli
“Finally, we strongly disagree with statements that the Delta cannot be saved, whether in the context of BDCP or otherwise,” said Mr. Nottoli. “Imagine this just for a moment. From Freeport to Walnut Grove. A beautiful and tranquil 10 mile stretch along the east side of the Sacramento River. But under the preferred project, it would become ground zero for accommodating twin 40 foot tunnels beginning at a proposed 1000 acre reservoir just south of Hood. Three giant pumping plants encompassing as much as 60 acres each, including 6 story structures, with the ability to pull up a combined 9000 cfs from the river. A landscape transformed from historic river towns, family farms, an agricultural quilt of orchards, vineyards and row crops, to an industrial complex littered with 1600 acres of muck ponds, borrow pits, and a web of power lines and realigned roadways. And all of this proposed to be accomplished at a cost of billions of dollars over an estimated 9 to 10 years of never ceasing construction activity, 24 hours a day, 7 days a week.”
“When considering all of the infrastructure needed to support this large scale conveyance facility, as much as 18,000 acres in the Delta could be permanently removed from agricultural production. But that’s only the beginning. As part of the BDCP habitat and restoration project, some 145,000 acres of additional land in the counties would be impacted, much of it prime farmland. Up to 65,000 acres would devoted to tidal habitat and thousands of acres could be dedicated to other habitat types,” said Mr. Nottoli.
“On the issue of governance and local participation, we want to express grave concerns regarding the project construction discussions between the Department of Water Resources and the water contractors revealed in the April 22, 2013 Sacramento Bee article. With the assertion of potentially “having positive outcomes”, with all due respect, having the water contractors and exporters in charge of building this unwanted massive project in our communities only adds insult to injury,” said Mr. Nottoli.
“Further, in proceeding without the involvement of the very people who are at the center of the storm, while relegating local governments and Delta communities to the sidelines is disturbing to say the least. I want to acknowledge that Dr. Meral and folks on the federal side have met with DC representatives and other Northern California interests several times,” he said. “However, unless those representing the Delta in the room are part of the decision making process, the meetings become somewhat meaningless. Having participated in these meetings over the past three plus years, it unfortunately seems more like a check-the-box exercise rather than a meaningful engagement on substantive issues.”
“The Delta Counties Coalition has long advocated for full, fair and effective participation of Delta counties in the BDCP development and implementation process. This includes decision making roles and voting membership in the governance body. Developing both and improving the BDCP. Not just a token role as a member of an advisory stakeholder council, as described in Chapter 7 of the BDCP draft,” said Mr. Nottoli.
“The suggestion by BDCP proponents that building a massive water transfer facility without the impacts being fully known and addressed hoping to figure out the details later is truly unacceptable. Enforceable assurances and protections such as those proposed by Senator Wolk’s SB200 in 2011 would significantly help in addressing both the project related concerns and more overarching issues pertaining to water rights, cost and other BDCP-associated impacts. We believe any proposed solution, BDCP or otherwise, must be comprehensive, and the solution protect Delta communities, the local and regional economies, existing water rights, and important habitat.”
“I want to echo Congresswoman Matsui’s comments from the April 30th hearing before this committee when she stated “ moving forward we have a real opportunity to get this right. Unfortunately, the current plan falls significantly short. In my view, we owe it to the people in the Delta region and all of California and to generations that will follow us to get this right,” said Mr. Nottoli.
“Finally, please make no mistake. The Delta is worth protecting and saving. That is what the BDCP should be about. Meeting the coequal goals and preserving, protecting and enhancing the Delta. The Delta counties remain ready and willing to work with those who will take our concerns seriously and are prepared to work with others who want to get this right for all of California without sacrificing one region of the state for another.”
DOUG OBEGI, NRDC
Doug Obegi, staff attorney at the Natural Resources Defense Council (NRDC), began by saying the NRDC supported the 2009 legislative package, and that it does provide the benchmarks for measuring whether BDCP will be successful or not. “We want BDCP to succeed … Unfortunately, we fear right now that the path that it’s on is towards failure and not meeting requirements of the act and state and federal law, but we have time to make a course correction.”
“The federal and state red flag comments in 2012 and 2013 highlight some of the major scientific problems that have still been bedeviling the BDCP process. And unfortunately we’ve been unable to resolve a lot of those problems because the state has been so focused on maximizing water supply from the Delta that they have been unwilling at times to accept that the best available science shows that we are almost certainly going to have to reduce exports from the Delta.”
“The Delta Reform Act acknowledged that we needed to reduce reliance on the Delta and invest in alternatives, and that the current status quo was unsustainable,” said Mr. Obegi. “As the state water board found in 2010, the best available science showed that current flows are inadequate to protect the public trust, and we’ve seen time and again that we do need to improve flows both into and out of the Delta. In order to meet the coequal goals, we need to reduce reliance on the Delta and invest in alternatives. And unfortunately, right now, as currently crafted, none of the alternatives in the BDCP include any investments in local supplies. They don’t include any investments in local storage or south of Delta storage so that we can save water from wet years for dry years. They don’t include any investments in levee improvements because nearly all of the alternatives will continue to rely on the south Delta pumps for at least 50% of their water supply and much more than that in dry years.”
“Does size matter? … I would strongly agree with Mr. Guy that it’s been a distraction, because really it is operations and not size that determines how much water will be exported by a project, and what the effects will be on the environment. Size really does matter from cost perspectives and it matters from a trust perspective,” he said, adding “we’ve seen some of the project proponents of BDCP supporting legislation in Congress that would preempt state law and eviscerate endangered species act protections in the Delta and I think that it’s very difficult for the environmental community to support a BDCP project when there are these major threats to the fundamental underpinnings that would control operations.”
Mr. Obegi said that he didn’t believe that the BDCP meets the coequal goal of ecosystem restoration as currently crafter. “The NCCPA requires that BDCP achieve conservation of species in the plan area. That means for Delta smelt and longfin smelt, we’re achieving recovery. And nothing in the effects analysis suggests that’s the case.”
There are really three main problems, he said. “One is that we’re still dealing with inadequate flows into and out of the Delta. Flows are one of the primary stressors for fish; they are not the only ones by any stretch and no one ever advocates that, but we need to make meaningful improvements for flows for fisheries.”
” The BDCP and climate change have the potential to make these worse for salmon and actually make some of our salmon runs go extinct. Any realistic plan for the Delta needs to recognize that our upstream reservoir operations are inexorably linked to what we do in the Delta, and we need to adjust to climate change. We can preserve salmon and restore them, but it is going to mean that we have to change how we operate, both in the Delta and upstream.” –Doug Obegi, NRDC
“Second, the effects of habitat restoration and particularly tidal marsh restoration are highly uncertain and much more uncertain than some of the project proponents have argued in the past. Floodplain restoration is very well understood from a scientific perspective and it is very beneficial, but it’s also required under the status quo. We believe we should be making improvements in habitat restoration but ultimately we need to make sure that is actually going to benefit the species when we are taking farmland and other land out of production,” said Mr. Obegi.
“Finally, … BDCP and climate change have the potential to make these worse for salmon and actually make some of our salmon runs go extinct. Any realistic plan for the Delta needs to recognize that our upstream reservoir operations are inexorably linked to what we do in the Delta, and we need to adjust to climate change. We can preserve salmon and restore them, but it is going to mean that we have to change how we operate, both in the Delta and upstream.”
“Ultimately this is not a question of things that are not known. The fisheries agency in 2012 spent more than a year developing an operation scenario that they believed would meet the ESA requirements and help restore fish but it’s not part of any of the alternatives that are being studied in BDCP. We’ve included it as part of our portfolio alternative which was included in last week’s hearing package because we believe it deserves study,” said Mr. Obegi.
“On the water supply side, I am concerned the BDCP also is running the risk of not meeting the contractors and the requirements of the Delta Reform Act. A more reliable water supply seems to mean everything to different people. It’s got that water steward definition embedded in it. Does it mean more water from the Delta? I think the science is clear that that can’t be the case. Does it mean physical reliability? We believe that it does and that is part of the reason why we are so interested in looking at new conveyance, but ultimately, in order for the supply to be reliable we also need to make the existing pumps more reliable, which is why we looked at levee improvements.”
“Can we ever get more certainty on deliveries year after year? Unless we’re going to control the weather, I think that’s impossible,” said Mr. Obegi. “In order to make things more reliable, we need to invest in alternatives. And most of the alternatives that are being analyzed in BDCP have reductions in dry year deliveries as Mr. Gartrell talked about, continued reliance on south Delta pumping, and make assumptions in the case of a complete catastrophe in the Delta, all of our water supply needs would be met through a new intake, but that only occurs if we are waiving all of the protections for fisheries in the Delta. Otherwise, even the largest facility in the north Delta wouldn’t be able to divert as much water as today if we have operational rules in place.”
“NRDC worked with a coalition of water districts, other conservation groups and business interests to develop our portfolio alternative because we saw an opportunity to get us on a better path, a path that does meaningfully reduce reliance on the Delta and invests in alternatives. It will result in reduced exports but it does include new storage, it includes new conveyance, but we don’t know what the perfect size is. We’ve asked for analysis of 3, 4, 5, an d 6,000 cfs that would be operated responsibly and in a manner that we believe could meet the coequal goals.”
“Ultimately we live in an era of limited budgets, and we need to make sure that we can make these investments in local supplies that are key to Southern California’s water future,” he said. “There are real concerns that have been expressed by USC, the PPIC and by many others that massive investments in the Delta could constrain the ability of local ratepayers to fund conservation and recycling in their districts.”
“We need to find a solution that is cost-effective and environmentally effective. We believe the portfolio alternative is the right approach, the broader approach that David and others have talked about. We don’t know that it’s the right solution, but we believe that looking at those kinds of tools are critical to California’s future. And ultimately as long as the water bond is going to fund part of the habitat restoration in BDCP, they are linked. And we believe that the legislature has a strong role to play, both in terms of oversight of BDCP as well as making sure there is a water bond that helps California reduce reliance on the Delta and achieve the coequal goals.”
BRENT WALTHALL, KERN COUNTY WATER AGENCY
Brent Walthall, assistant General Manager for the Kern County Water Agency (KCWA) began by noting that the Agency has been a participant since the BDCP’s inception in 2006. He recalled how the project began: “In waning days of Calfed, one of the projects that water agencies were pushing forward was a project known as Banks 8500, which was an effort to increase pumping in the South Delta to 8500 cfs, a relatively modest increase but one that Calfed thought was appropriate balanced against all of its ecosystem investments,” he said.
There was a lot of pushback on the project, and Steve Thompson, head of the Fish and Wildlife Service suggested a different approach. “He said the species by species approach under ESA is not working and we need to find a different approach to handle this. You might want to consider a different section of the ESA, the habitat planning conservation planning section of the ESA, which could be a better tool to proceed in the Delta,” he said. “At the same time, John McCamman, then Director of DFW, suggested that we could use the NCCPA as a state parallel to section 10 of the ESA. … So we proceeded to go down that path with the strong support of the regulatory agencies in both the state and federal camps.”
This allowed us to make a change to how we approach the Delta, Mr. Walthall said. “It was no longer a species by species approach, but this could be truly comprehensive. Both Section 10 and the NCCPA … allowed us to look at opportunities that had never been looked at before, actions now known as other stressors that we think have significant benefit for the ecosystem as a whole.”
“Regulatory agencies are attracted to HCPs and NCCPs because they provide a greater level of environmental protection. The BDCP is not a jeopardy based standard, it is a recovery-based standard, so our goal with the BDCP is to, as the lawyers tell us, ‘contribute to the recovery of’ the species that we’re trying to protect. That’s a better level for the Delta because it’s a much higher level than would otherwise be available under biological opinions,” said Mr. Walthall.
“It’s attractive to us as water agencies because it’s greater certainty. What comes along with an HCP or an NCCPA are commonly referred to as ‘no surprises’ alternatives, which mean if you are performing under your permits … you will not be asked to contribute more money, land or water. That’s a very valuable certainty tool for water agencies who look out into the future and want to be sure they can plan all of their other supplies around what they know will be a greater certainty for the Delta supplies.”
Mr. Walthall said that KCWA will look at three elements to determine if the BDCP is successful and whether or not they want to proceed: yield, cost, and assurances. “With respect to assurances, the increased certainty I talked about under those state and federal statutes is our primary goal, and that increased certainty only comes with the regulatory agencies agreement and issuance of permits that the actions under the BDCP do contribute to the recovery of the species. That’s our goal is contribution to the recovery of the species because it results in additional regulatory certainty for water agencies.”
“We want to make sure we are able to pay what the costs of the BDCP are … at this point, they are not too high. They are higher than we are comfortable with, but at present, our growers are still willing to stay in at the prices that we’ve seen.” –Brent Walthall, KCWA
“We want to make sure the costs are something we can afford – we’re an agricultural water district and it’s no mystery that agricultural water districts generally have lower ability to pay than municipal water districts,” he said, noting that on the State Water Project, agricultural water districts pay the same amount as the urban water districts. “We want to make sure we are able to pay what the costs of the BDCP are … at this point, they are not too high. They are higher than we are comfortable with, but at present, our growers are still willing to stay in at the prices that we’ve seen.”
“We recognize the future yield from the Delta will be less. The 2009 legislation made that very clear. And we also recognize that things like climate change will have a continuing effect on the ability of the Delta to provide water to California and its citizens. We want to make sure that this project improves the reliability of the Delta for the Californians that use it.”
He said that in his agency’s perspective, the process is going slow, even though it’s portrayed in the press and in the blogosphere as being on a fast track. “It certainly doesn’t feel fast to those of us that have been doing it for seven years now.” Originally estimated at $139 million, the planning process has cost $240 million so far, and their growers are not insensitive to that increase in cost, he noted.
“They do want to see a good project, they want to make sure its legally defensible and that it produces the environmental benefits that are necessary and a water supply yield that we expect, but they recognize that $240 million is an expensive project,” Mr. Walthall said, noting the letter that his agency sent to DWR and DOI stating that once they have completed their commitment to provide their share of that $240 million, they will not be able to afford additional funding until such time as the public draft is out. They are encouraged by agreement of the state and federal administrations to the October 1st deadline for production of the public draft.
As for assurances, he stated that they just didn’t know yet. “We hear folks tell us there are guarantees of a certain amount of water supply and we wish that were true, but it’s really not. The assurances won’t be known until the public draft comes out. They will be limited to what the regulatory agencies are allowed to provide under the state and federal statues, we recognize that, but we would like to know that they are of equal value to the investment that we will be expecting. So we will compare those assurances in the public draft to the costs and make a business case decision at that time.”
“From Kern County’s perspective, we remain optimistic, but we are cautiously so.” The commitment to the October 1st deadline and comments from the new Secretary of Interior who is aware of the project and seems supportive is encouraging, he said.
“We recognize that the status quo as is often repeated is unsustainable, and that’s convenient moniker or handle to put on this but it is the alternative that no one wants. I don’t think anyone thinks that the species are doing well and that water supply is doing well. It motivated the legislature to act in 2009 and it motivates us to continue working on the BDCP,” said Mr. Walthall.
The panel members were then allowed to respond to what other panel members said, or to pose questions to them. The only one who took the opportunity was Jason Pelteir.
“My question for Doug is that you and other environmental organizations repeatedly advocate we need to reduce the amount of water we get from the Delta,” said Mr. Pelteir. “In the context of Westland’s world, we have had 20 years of 40-60-90% cutbacks. So, is your vision of the future for Westlands that we have our future is, not 40-60-90 but 50-70-100% cutbacks in the future. Is that success for you?”
“I don’t measure success based on water supply export from the Delta,” answered Doug Obegi. “I measure success based on how we are investing in conservation and recycling as well as water from the Delta and other sources. I think the reality is that even as Westlands has been cutback since the passage of the CVPIA in 1992, the state basically exported all that water that was supposed to go to the environment. Westlands got cutback and the SWP contractors went up. Metropolitan increased its demand from the Delta as soon as the QSA went into effect and they build Diamond Valley.”
Mr. Obegi continued: “The environment kind of got screwed and you guys kind of got screwed. If I was in your shoes, I’d be trying to renegotiate the coordinated operating agreement every day of the week. Ultimately, I think Westlands is in a tough spot. And part of the reason why we included south of Delta storage was that we looked at 2011 when Kern got several hundred thousand acre-feet of surplus water and Met got several hundred thousand acre-feet of surplus water and because Westlands doesn’t have storage, you guys didn’t get any of it. And because it’s not included as part of the allocation and because we can’t plan around it, it makes it difficult for growers to plant around it. Having more south of Delta storage enables us to do that and capture more in the wet years and save it for the dry years. You guys do a really good job of trying to carryover water from year to year; if you had more south of Delta storage you’d be able to do even more of that, I think.”
LEGISLATORS DISCUSSION WITH PANEL MEMBERS
With no other questions from other panel members, the hearing was then opened up for legislator’s questions. Senator Wolk mentioned how Senator Steinberg had provocatively raised the issue about constitutional guarantees and assurances, and then asked the panelists what assurances or guarantees would they either support or need?
Roger Patterson answers: “If we can get to the point where the three fishery agencies believe that the plan that includes everything, all of the conservation measures, the estimated costs of that, the operating criteria, at least the range of operating criteria … what we would like to have in assurances is that if we make that kind of investment, that the plan will be executed as it is laid out … we’re not going to change 5 or 10 years midstream. It will have a substantial adaptive management program and that’s fine. The flexibility and ability to move around within the plan will be part of it, but what we’re looking for, what we would support or need as assurances is that if that’s the plan, we’re going to execute it as it has been laid out.”
“Our hope is that if the BDCP comes to fruition and we are implementing as the fishery agencies prescribe, that the operations of the project will remain unchanged, based on whatever those permits describe. Our decision to go forward will depend on the long term certainty of those regulatory controls.” –Brent Walthall
Brent Walthall said that KCWA’s view is similar to that. “Our hope is that if the BDCP comes to fruition and we are implementing as the fishery agencies prescribe, that the operations of the project will remain unchanged, based on whatever those permits describe. Our decision to go forward will depend on the long term certainty of those regulatory controls.”
“I have to reject the notion of any guarantees in this process,” said Jason Pelteir. “I don’t think that’s realistic that anything is going to be that certain in the future. … All interests have their assurances they are looking for … we’re all charged caring and protecting our communities and our plans and the interests from which we come … An important question on assurances is, can we be big enough people, all of us together, to recognize the needs and interests and assurances that others need, and if we can, that will be a great day and that can convert to a broader, bigger deal about how this all comes together.”
Commissioner Nottoli said that constitutional protections would be generally preferable. “I do think the counties have made very clear, not only in communication but in the principles that we’ve aligned on that having enforceable assurances and protections is very critical. … I think it’s critical for upstream users as well as those who will be receivers of the water throughout California to have a clear understanding of what those assurances would be and how not only the system would operate but what protections would be into it, whether in statute or in constitutional framework.”
“First, we need immediate actions,” Greg Gartrell said, listing needed near-term actions such as emergency preparedness, levee improvements, decisions on storage and others. “Second, legislative and contractual arrangements to assure mitigation, and the respect of water rights and area of origin issues, and the third … to stage this properly. … I understand the assurances they need, and those should come with triggers. Sea level gets to this level, you go ahead with a larger facility, or your ability to pump in the So Delta gets reduced, you go ahead with another intake. Those are the kind of things that we’ve thought from the beginning was the way to get through this. Provide the assurances and provide the trust-building that’s needed but to do it in a reasonable fashion that gets something immediately that’s needed.”
For the environmental community, it’s ensuring that those biological goals and objectives are permit conditions, and it’s ensuring that the governance mechanism really does ensure sound scientific decision making and doesn’t get paralyzed by too many decision makers or a really complex and convoluted procedure to change the plan if we’re not meeting objectives. And ultimately that the fish agencies are the ones making the final call. — Doug Obegi, NRDC
“The BDCP has developed a broad set of biological goals and objectives for species to meet the requirements of the act, and we’ve really seen that as our environmental assurance in a legal enforceable way is that these are permit conditions and if we’re not meeting these objectives then we’re going to have to use adaptive management to revise the plan,” said Doug Obegi. “I think for the environmental community, it’s ensuring that those biological goals and objectives are permit conditions, and it’s ensuring that the governance mechanism really does ensure sound scientific decision making and doesn’t get paralyzed by too many decision makers or a really complex and convoluted procedure to change the plan if we’re not meeting objectives. And ultimately that the fish agencies are the ones making the final call. … whether that should be part of a constitutional amendment or statutory changes, either assurances, some limits on operations, or some definition of reduced reliance I think is very much a good question for the legislature to be debating.”
“Important is the notion of operational assurances and of course we all know this is the hardest piece,” David Guy said, noting that there are two elements to this which seem like they are in conflict. In regards to upstream reservoirs, “it’s important to look at the context of those reservoirs. In a managed system, those reservoirs are providing the cold water pool for the salmon, they are providing the water supply for the refuges and the ricelands so that’s the Pacific Flyway water supply, they are providing the water for the cities and the municipalities during the dry years and they are providing the water for the farms so it is that increment of water that is really critical to make sure that we have that as far into the dry cycle as humanly possible, and I think some operational assurances would be helpful. The flipside is that you have this Delta concept and in our view, one of the operational assurances would be that the projects would continue to meet those obligations through their water supplies from the various reservoirs into the future, much like they are today, and that’s one of the commitments that’s been made by the Governor as part of BDCP and one that we would like to explore further on how we can embolden that.”
Senator Pavley then asks why, seven years, $240 million and 30,000 pages later, is there still such a difference in the scientific community of determination of how much water is needed for the Delta?
Greg Gartrell said that one of the reasons it is difficult it because it’s a moving target. Different conditions exist in the Delta, so “the data you had ten years ago is not really relevant to what’s going on today.”
“I think there are legitimate uncertainties in the science and we’re constantly learning more. But this is the best studied estuary in the world and we know a tremendous amount, and I think the real challenge has been that the biological science is less hard than the political science,” said Doug Obegi. “Ultimately there’s questions of whose responsible, there’s questions of how much we need, but there is a great amount of certainty about what we need; it’s very difficult to make that happen.”
“I disagree with Doug in the notion that the scientists know what we need in terms of flow,” said Jason Peltier. “I hear a lot of simplistic “more flow means more fish”, I see a history of 20+ years of trying to increase flows in a meaningful way to help fish and none of that has worked so we’re not going to come across a silver bullet here.”
Senator Pavley said, “I get it that it’s a complex issue. I was struck by the editorial that PPIC had done a survey of 120 top scientists who supposedly have expertise in Delta-related issues and 80 percent of them felt that flows were a major objective … they also said the exporters in general were mostly looking at invasive species or ammonia or some other reasons why the flow didn’t need to be the primary objective. There seems some objective analysis to the best extent possible. Obviously we can’t get this completely right but it seems too many red flags are going up around this particular issue because it’s demanded in the coequal goals.”
“It could be problematic in 2014 if people think they are voting up or down on the canal.” –Senator Pavley
“I just wanted to put a little kernel of hope out here on this,” said Roger Patterson. “I talked about what we went through when it turned dry and we had some turbidity and smelt in the south Delta and we lost 800,000 acre-feet. And yet, none of us trotted off to the federal court to try to stop that in the middle of that. We had for the first time in a long time really a shared discussion about what was going on every day and what decisions were made. … Recently the parties went in front of the federal judge and suggested that we need a different approach on some of these science issues that we’re battling on, and created a collaborative adaptive management science effort, and that will include NRDC, the agencies, and a couple of the water contractors. I don’t know whether it’s going to work or not, but it’s a way to have people lay out their scientific hypothesis and then test them together, and maybe that will close the gap a little bit. We’re hoping that it will.”
Senator Pavley questionned whether the water bond was linked to the BDCP, and stated that she thinks it is linked, but not necessarily so.
The Delta is not involved. You will never solve this problem without them being at the table. There’s just no history of that on any restoration project of this magnitude. … If you proceed along this vein, October 1st will come and go and there will be the same lack of resolution of the fundamental issues.” –Senator Lois Wolk
“If BDCP does not rely on bond money for implementation, then I don’t think they are linked,” said Doug Obegi. “But as it’s been currently been developed, they are relying on several billion dollars for habitat restoration, and at that point, it’s very hard for there not to be a linkage. … Recycling, conservation, groundwater cleanup, safe drinking water, there are huge unmet needs, and a bond could, when paired with local investments, make a real measurable improvement.”
Senator Pavley said, “It’s an interesting way to frame it, but it could be problematic in 2014 if people think they are voting up or down on the canal.”
Senator Jackson asks if there is end date to this, and if not, would it helpful if you were given one?
Brent Walthall notes that there should be a ROD and a Notice of Determination in March of 2014, and “if you hit that date, it means we’ve come up with something the fish agencies support biologically, and water agencies support water supply wise. If you don’t hit that date, that means that the process is dead, so you already have your date.”
“Except the Delta is not involved,” said Senator Wolk. “You will never solve this problem without them being at the table. There’s just no history of that on any restoration project of this magnitude. The papers, not only the Bee, the Fresno Bee and others have mentioned this … you need the Delta at the table to solve this problem. If you proceed along this vein, October 1st will come and go and there will be the same lack of resolution of the fundamental issues.”
Supervisor Don Nottoli said, “I can understand the reluctance of those who are paying for this and want to have some say-so in what goes forward or not, but we have not been there. … There have been overtures, but frankly, people are very courteous, we have conversations with folks … but I didn’t exaggerate this morning … they relegate us to a role on an advisory council. Even if this thing came to pass, we’re on a stakeholder council down about three levels. … I think Senator Wolk is very correct.”
“If that’s the problem, let’s fix the problem,” said Senator Hannah-Beth Jackson. “It makes sense to me that we figure out how we get the Delta to the table. Am I missing something here?”
SNIPPETS OF CLOSING COMMENTS:
“I’m not saying everybody’s going to agree,” said Roger Patterson. “This is so complicated and controversial, you’re never going to get agreement of everybody that this is the right solution, but I think we all owe it to each other to make sure we are hearing each other and talking it through.”
“I’ve come to the conclusion that of all the challenges we face, be they legal, political, institutional, our long history of conflict, all of those challenges are nothing compared to the human side of the equation and the human challenges that we face in trying to bridge the communication and find that common interest.” –-Jason Pelteir
Jason Peltier said, “On the question of Delta involvement, I’ve spent a lot of time thinking and working on that and I’ve come to the conclusion that of all the challenges we face, be they legal, political, institutional, our long history of conflict, all of those challenges are nothing compared to the human side of the equation and the human challenges that we face in trying to bridge the communication and find that common interest. I think you’re correct in saying that it is essential, but is resolution possible in the face of conflict? Yes, it is. It’s essential for a better deal, a better agreement, better mutually beneficial approach. I just don’t know how the human side can be worked, given our history and given our narrow need to protect what we are working for.”
“But you’re willing to continue working on trying to achieve that … ?” said Senator Pavley. “I know it’s a challenge.”
‘”This isn’t one of those things that is all Even-Steven,” said Mr. Peltier. “We’ve given an awful lot of money and water to the environment over the last 20 years and are we willing to give more? No.”
“There’s an opportunity here,” said David Guy. “There’s a lot of leadership that’s being exerted in this room … let’s make that an opportunity to get beyond the ideology and work towards some operational scenarios that can benefit California and I’m as optimistic as we can be.”
“I think the key to getting it right is a meaningful and substantive role for the Delta and I think certainly Jason’s comments are recognition of some of the things I pointed out,” said Don Nottoli. “The people who live and work there, make their lives there, with this process that has many different elements and many different facets and is certainly important to all Californians that kinda swirls around them … if you’re on the menu to be eaten, you’re pretty worried about what is going to happen and who is deciding your fate, and I think that’s a lot of what you get from people in the Delta. It’s not just about trust but it’s about what tomorrow’s going to bring … If you keep driving towards twin tunnels as the solution set, then the wall is there and you’re going to run up against it. … There is a willingness, and representing a lot of those folks in the Delta, they are good people and they are certainly open to try to find solutions but they also stand with firm resolve if they are backed into a corner.”
“We want to see it succeed,” said Doug Obegi. “We really do believe while we want to make progress. It’s not guaranteed that something is better than nothing. A bad BDCP plan could be worse for the environment and could be worse of all of us in terms of our water supply and costs. So we’re looking forward to rolling up our sleeves and trying to get it right in the next 6 months. I fear that October 1st deadline will slip some but from our perspective, it’s much more important to get it right then to rush quickly for an artificial timeline.”
VIEW PUBLIC COMMENTS:
View comments by Sacramento City Councilman Dennis Fong, Barbara Barrigan-Parilla, Melinda Terry, Osha Meserve and others here:
FOR MORE INFORMATION:
- Click here to view the video for the entire hearing. (Note: This is a fairly complete rundown of what happened, but it isn't absolutely everything. Some portions of the discussion were not covered.)
- Click here for meeting materials.
WANT TO LEARN MORE ABOUT THE BDCP, BUT DON’T KNOW WHERE TO START?
Have you been meaning to read those Bay Delta Conservation Plan documents, but just haven't gotten around to it yet? Do you want to have a look at a particular table or drawing but can't find it? Do you want to read just the sections on the water facilities but don't know where to look? Maven has you covered!
The BDCP Road Map has it arranged for you by topic, making it easy for you to find those sections of the Plan you're looking for or to print out just the diagram you want.
Even if you've looked before, there's more to see now that the draft environmental documents have been posted. While it's going to take some time to slice, dice and integrate 20,000+ pages into the Road Map, a lot of the work has already been done. So are you ready to go? Take me to the BDCP Road Map!