Phil Isenberg updates the California Water Commission on the Delta Plan, and the role of the Council in regards to the BDCP

PhilIsenbergPhoto_touchupThe Delta Stewardship Council's role regarding the BDCP, as well as the multiple lawsuits filed over the Delta Plan were some of the topics discussed as Phil Isenberg, Chair of the Delta Stewardship Council, updated the California Water Commission on the status of the Delta Plan at their July 17 meeting.

Mr. Isenberg began by noting that the first Delta Plan was adopted in May of this year, and within thirty days, seven lawsuits were filed.  “It will come as no surprise to you that the parties wished us to do what they preferred as to opposed to what other parties preferred,” he said.

Mr. Isenberg then ran down the list of litigants:  Two lawsuits were filed by water contractors: agricultural water exporters, Westlands and Delta-Mendota, and the other by Metropolitan and some member agencies, urban southern California water users.  Two environmental collective organizations filed lawsuits: the North Coast Rivers Alliance, comprised of commercial and sports fishermen and tribal interests, and the California Water Impact Network along with an array of other organizations.  Three in-Delta interests: the City of Stockton primarily interested in land use issues, the Central and South Delta water agencies who have their own views on what should be done, and the Save the Delta Coalition, which is largely but not exclusively interested in recreational boating, related fisheries and water quality issues.

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Most of the lawsuits are fighting about the BDCP; we just happen to be the only moving target around through which that fight can currently be conducted, and a lot of the litigation is about why we did or didn’t do whatever we did or didn’t do on the BDCP,” said Mr. Isenberg.

Just on a personal level, an observation: it is reasonably clear to me from reading all the lawsuits now that everyone has a clear preference on the coequal goals.  They support one of them and wish one of them to be pursued to the exclusion of the other, or maybe to its exhaustion before you turn to the other,” Mr. Isenberg said.  “But of course, we are governed by state law and the state law is pretty clear.  The Legislature said, in statue, the coequal goals – reliable water supply for California and improved, protected, restored Delta ecosystem – are coequal.  The way that is to be achieved has to recognize the unique characteristics of the Delta as (I’m making up these words) a socio-economic place.”

The 2009 package of bills, the one that created us and gave us our charge and obligation, recognized the complexity of issues,” he said.  “There is no longer, if there ever was, a way of simply doing one thing and acting as if that will solve all the problems of the water or the environment or the local communities for all times, forever.”  …

Mr. Isenberg then read the first two sentences from the Delta Plan’s Executive Summary, which he noted sets the tone for both the Executive Summary and the Delta Plan:  “The Sacramento-San Joaquin River Delta is the grand confluence of California’s waters, the place where the state’s largest rivers merge into a web of channels and into a maze of controversy.  The Delta is the zone where the wants of a modern society come into collision with each other and with the stubborn limitations of the natural system.

I can’t think of a better shorthand summary for the dilemma that we have,” he said.  “Political debate in California, unfortunately, is pretty sterile on water, water use, and environmental issues.  We’ve been locked in the ways we talk to them for 60 or more years and nobody can figure a way out of it.

The 2009 Legislation charged the Council with developing a legally enforceable plan, told state and local agencies to be consistent with it, and gave the Council some limited regulatory authority to try and guarantee that, Mr. Isenberg said.

It’s pretty clear, it’s basic, and it tends to get lost in all the political discussions.  Everybody in California, everybody, North, South, middle of the state, everybody, has to use water prudently and that is not a choice,” said Mr. Isenberg.  “I know everybody says, ‘Well, I am, it’s somebody else who’s not’, but the fact of the matter is we are fortunate in California.  We have a lot of water – not endless water – but we have a lot of water.  The problem is moving that around.”

We’ve got to get miles better at capturing and storing water in periods of high water flows and using that water during dry periods, not simply increasing our use of water during average periods as well,” he said.  “There is no way the Delta can play a part of water reliability without acknowledging the damage that existing water conveyance and water use practices have done to the environment in the Delta.  We’ve got to provide some kind of adequate flows for the Delta.”

An important change in the science of water management is the concept of variable flows:  “The flows are fundamentally not about a absolute flow period at all times for all purposes forever; they are fundamentally shifting to the notion of timing, of pulsing, of temperature, of all of the ingredients that go into making this decision,” he said.  “One thing we have done in society, what human use has done, is to effectively alter the natural flows, not just in the amounts, but in timing and when they occur.  And so the scientific advisers that we rely on, the Delta Science Program, the Delta Independent Science Board and all the other folks have told us that we need to come closer to referencing the natural patterns of flows in the hopes that that will lead to positive results.”

Habitat restoration within the Delta and the Suisun Marsh is important for water quality and to improve conditions for endangered species, he said.  “You have to be honest about the fact that new urban growth in the statutory Delta or the Suisun Marsh is inconsistent with a reliable water supply and inconsistent with a protected or restored Delta ecosystem.  The pressures for urban growth are constantly present, and the flood threat in that area is all prevalent at all times.  And that’s really the last major thing,” he said.

We have to floodproof elements of the Delta as far as we can practically, he said, because there are the interests of life, property, and State, but the State has other interests as well:  “The reliability of the water system and the Delta ecosystem; but the state of California is not interested in unlimited financial liability for this configuration of land which is so magnificent but also carries its physical problems of subsidence and flood threat with it.”

[pullquote align=”left|center|right” textalign=”left|center|right” width=”30%”]“Fundamentally the question at heart is how are we going to get people to think about the larger issues of water supply and ecosystem rather than simply fighting about a Bay Delta Conservation Plan that is not yet complete? How do we acknowledge the fact that the law now requires coequal goals be pursued?  It’s not discretionary, it’s mandatory; how do you move California into the future?  We think we made a shot.”  –Phil Isenberg[/pullquote]

The Administration supported adoption of the Delta Plan, and agencies gave many comments, and we worked out a lot of the problems, he said.  “Fundamentally the question at heart is how are we going to get people to think about the larger issues of water supply and ecosystem rather than simply fighting about a Bay Delta Conservation Plan that is not yet complete?,” he said.  “How do we acknowledge the fact that the law now requires coequal goals be pursued?  It’s not discretionary, it’s mandatory; how do you move California into the future?  We think we made a shot.

By the way, I think you and the Department of Water Resources have had amazing success in nudging the Governor to increase some salaries and do some hiring actions for the State Water Project which are heart and soul of what you can do immediately in terms of water reliability,” he said.  “But it doesn’t end there.  You know the politics of the situation.  Everybody’s for building new things, nobody’s for maintaining the things you’ve got.  But we have to maintain in the most efficient fashion the water system we have.  Even if we don’t like it, it ought to be efficient, and then change it as needed to meet demands,” he said.  “I would urge your continued attention to the operations and maintenance of the State Water Project at the highest possible level of efficiency, because all of these big projects, such as the BDCP, increased storage, or raising Shasta – those are ten to fifteen years out before construction starts.  What do you do in the meantime to protect the system you’ve got?

Mr. Isenberg noted that Randy Fiorini, vice-chair of the Council, will be chairing the Delta Plan Interagency Implementation Committee, and said, “We were directed by statute to form an implementation committee of state and local agencies; that’s the only group that the state legislature can control, but urged federal agencies to come in as well to try and do this together.  The problem with governance in and around the Delta is the same problem that we’ve had forever in America – we’re in favor of everyone being involved and no one being in charge.   We’re inching toward a little coherence in this area but we’re not there yet.

The Delta Plan is, I think, a reasonable step ahead, and despite the histrionics, it’s not at all that dramatic, but things change slowly in the water world, at least in public positions of individuals and organizations.”

Mr. Isenberg then took questions from Commission members.

Commissioner Anthony Saracino:  “First of all, congratulations on getting sued by all the major stakeholders.  I think if anything speaks to the fact that it’s a balanced plan, that probably does it better than anything else.  I’ve read the plan, I like the plan, I think under the circumstances, it’s really well done.  I’m a little confused about the regulatory nature or the enforceable aspect of that.  What do you see as the mechanism for enforcement of some of the provisions?

Mr. Isenberg replied that the legislature said state and local agency plans and efforts must be consistent with the Delta Plan, and gave the Council regulatory authority over ‘covered actions’, which are defined by the statute as something that ‘will occur in whole or in part within the boundaries of the Delta or the Suisun Marsh, will be carried out, approved or funded by a state or local public agency, is covered by one or more provisions of the Delta Plan, and will have a significant impact on the achievement of one or both of the coequal goals, or the implementation of government-sponsored flood control programs to reduce risk to people, property, and State interests in the Delta,’ he said, noting that there are specific exclusions as well.

I think the real controversy on covered actions here is that we believe that water that is moved to the Detla, through the Delta and around it is potentially a covered action,” he said.  “Now it must meet all four of those tests, but if it does meet that test …

Mr. Isenberg noted that the Council doesn’t determine if the action is a covered action; the agency itself proposing the action must make the determination, and any party or any person can appeal a covered action determination to the Council.  “That’s the only way it gets to us,” said Mr. Isenberg. “But even at the end of that process, we’re not a permitting authority comparable to the California Coastal Commission or the Bay Conservation and Development Commission.  They do not need a permit from us to proceed, but they have to answer and respond to questions that are asked.  If they choose to proceed even if we make a finding of inconsistency, they may, but of course they run the risk of being sued on the grounds of inconsistency.”

[pullquote align=”left|center|right” textalign=”left|center|right” width=”30%”]“I think the real controversy on covered actions here is that we believe that water that is moved to the Detla, through the Delta and around it is potentially a covered action,” he said.  “Now it must meet all four of those tests, but if it does meet that test … “  –Phil Isenberg[/pullquote]

We spent a great deal of time explaining that the Delta Plan encourages growth in communities within existing boundaries and spheres of influence,” Mr. Isenberg said.  “That’s particularly important in some counties in California where the development pressures are moving toward the center of the Delta, and they’re all in floodplain areas.”

Commissioner Kimberley Delfino asked,  “You noted that at the heart of all of this seems to be revolving around this issue of the BDCP, and I just thought if you were prepared, you could give us an update on the comments you submitted on the admin draft of the BDCP?”

Phil Isenberg replied that the Council has a potential appellate role with regard to a portion of the BDCP.  The 2009 Delta Reform Act and Water Code Section 85320 set some terms and conditions upon the BDCP.  He read from the water code:  “It says as follows:  the BDCP shall be considered for inclusion in the Delta Plan in accord with this section (section b): ‘the BDCP shall not be incorporated in the Delta Plan and the public benefits associated with BDCP shall not be eligible for state funding unless BDCP does all of the following: a) complies with the NCCP law, b) complies with CEQA, 3) complies with a series of requirements for studies and alternatives – a reasonable range of flow criteria, operational requirements and flows necessary for recovering the Delta ecosystem, a reasonable range of Delta conveyance alternatives including thru-Delta and dual conveyance, sea level rise and the potential impact of a 55” sea level rise, and on and on,” he said.  “The statute also makes us a responsible agency under the law, and we have now sent our sixth responsible agency comment to the BDCP.”

The last step in the process established by law is that the Department of Fish and Wildlife has to make a determination under state law that BDCP has complied with all this, and any person may appeal that decision to the Council,” he said.  “We have been very clear.  We do not have the authority to change the BDCP.  We can say ‘yes it is consistent with law’ or ‘no it isn’t’ or we can ask questions.”

Part of this responsible agency role is to ask questions, he said, so the Council has submitted comments along with other state and federal agencies and NGOs.  “We asked a lot of questions about science activities, and I would recommend that you take a look at the letters that the DISB has been sending to BDCP.  They have a statutory duty to do this as well,” he said.

My personal reflection is I want to see an actual planning process completed so I have a target of interest I can identify as opposed to the fairly abstract political ruminations that I’ve gone through all of my adult life,” he said.  He noted that the BDCP is significantly smaller than the peripheral canal proposed in 1982.  “I understand nothing about the size will remove the political controversy.  You could promise to build nothing and people would say ‘oh, what’s going on here, that’s a trick!’ So let’s have something proposed in detail that we can look at to figure out what’s going on.”

[pullquote align=”left|center|right” textalign=”left|center|right” width=”30%”]” … it’s fairly focused: we cannot amend the [Bay Delta Conservation] Plan; it’s not our position to take it and change it.  That’s not what we do.  We are looking to comply with law and determine if it meets the legal requirements established by statute.” — Phil Isenberg[/pullquote]

Commissioner Saracino asked in regards to the NCCP, “It sounds like the Department of Fish and Wildlife makes that initial determination, and then someone appeals to you, do you then decide whether or not it actually met the definition or needs of NCCP?

Phil Isenberg said, “I’ll read you the statute: ‘if the DFG approves the BDCP as an NCCP and determines that the BDCP meets the requirements of this section – that’s all the stuff I talked about earlier – and the BDCP has been approved as an HCP consistent with the federal Endangered Species Act, then the Council shall incorporate the BDCP into the Delta Plan.’  Here’s the last sentence: ‘The Department of Fish and Game’s Determination that the BDCP has met the requirements of this section may be appealed to the Council.’”

Commsioner Saracino: “And if it is, then what?  Is it a hearing in front of the Council and then you make the second determination as to whether or not BDCP has met the requirements of a NCCP?”

Phil Isenberg said “Met the requirements of this section which includes NCCP but is not limited to NCCP, and we can say yes it did, no it didn’t, and to ask questions.  The law requires us to a hold a minimum of one hearing before we act and all the stuff that goes with it, but the operative section and the interesting thing is at least it’s clear if it’s not incorporated in the Delta Plan, it’s not eligible for public benefits from state financial sources.

Are all questions easily understood and can they be answered? No, of course not,” he said.  “But it’s fairly focused: we cannot amend the [Bay Delta Conservation] Plan; it’s not our position to take it and change it.  That’s not what we do.  We are looking to comply with law and determine if it meets the legal requirements established by statute.”


Carl Torgersen, Deputy Director of the State Water Project returned to update the Commission on the project’s labor and recruitment engineers. “The State Water Project and the International Union of Operating Engineers have reached an agreement on compensation that we feel will significantly improve our ability to recruit and retain the trades and crafts, and also reduce the declining trend in our operational metrics,” he said.

I did want to thank the Commission for your support,” he said, noting that a lot of people put a lot of hours into getting it done.  “This is a big step forward for us, but there are still significant issues remaining that need to be addressed to ensure the reliability and sustainability of the project.  There are processes and constraints under our current system of governance that limit our ability to operate efficiently and effectively.  I think the fact that it took 10 years to get this recruitment and retention issue fixed is a good example of those constraints.  We will continue to work on solutions and I hope we can count on the Commission to stay engaged and continue to provide the greatly appreciated support.”


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