PPIC Panel: Permitting a Solution: Regulatory Oversight in the Delta

Photo by Department of Water Resources

Photo by Department of Water Resources

In April of 2013, the Public Policy Institute of California released the report, Stress Relief: Prescriptions for  Healthier Delta Ecosystem, which noted that the state is at a critical juncture with adoption and forthcoming implementation of the first “Delta Plan” and a decision on the BDCP possible by early next year.  “But California still faces an uphill battle to incorporate science effectively in decision making and make judicious management choices with a highly fragmented and adversarial institutional structure involving dozens of federal, state, and local entities,” states the report’s summary.

The report emphasizes a ‘reconciliation ecology’ approach to managing the Delta, an approach that would restore natural processes wherever possible and use infrastructure and technology to support native species.  However, this reconciliation process needs to be guided by science and broadly supported by Californians.  Better outcomes that control costs can be achieved with just a modest set of changes to existing institutional structures, says the report, such as consistent planning, integrated and accountable management, more comprehensive and integrated regulation, and creating a JPA for doing science in the Delta.

In May of 2013, the PPIC held an event that featured a series of panel discussions with officials and scientists to talk about their views of the report and the findings.  The final panel of the day focused on strengthening and streamlining regulatory oversight. Seated on the panel was Felicia Marcus, a member of the State Water Resources Control Board; Greg Gartrell, assistant general manager of the Contra Costa Water District; Chuck Bonham, director of the Department of Fish and Wildlife; and Tim Quinn, executive director of the Association of California Water Agencies. The panel was moderated by Buzz Thompson from Stanford Law School.

This is a report on multiple stressors, and today we’ve been talking about integration of the management of those multiple stressors,” began Buzz Thompson, “but of course, integrating the management suggests that we’re actually addressing all of the major stressors today. We’ve spent a lot of time over the last several decades focused on water exports, and through both the federal and the state water quality programs, we’ve spent a lot of time focused on point sources of pollution. But if you look at the various things that scientists tell us in the report we need to be addressing, there are also various stressors that we have spent less time or have a less effective means of addressing, and that includes things such as upstream diversions, agricultural and urban runoff, habitat loss and disruption.”

Turning to Felicia Marcus, Mr. Thompson asked, “Is there a reason to believe that we are going to be doing more and a more effective job of regulating that full panoply of stressors in the future? Where are the areas where you see weakness going forward that we need to focus even more attention on?”

One of the interesting questions implicit in this is that we haven’t gotten to all of the multiple stressors in some way for some reason that’s not obvious,” answered Felicia Marcus. “Part of it is that dealing with a lot of these stressors is that it’s hard – that’s the short answer. It’s hard and we were focused, as you said, on other things. It’s a question of priorities so people deal with the things that are more obvious.

FeliciaFrom the contaminant side of the world, we’ve spent a lot of time dealing with point sources, whether its sewage treatment plants or industrial facilities and the like, and we’re just getting to some of the harder issues,” she said. “It’s not just ‘pick a particular facility that happens to be belching out a lot of something into a waterbody,’ but dealing with diffuse sources that are the result of people doing things in manners that were appropriate at the time, but now it’s contaminating our waterways – two examples are urban stormwater and irrigated agriculture, and we are definitely engaged at the moment.

I think the trick isn’t whether there is one that’s going to be left out; it’s just that we have harder choices to make in trying to figure out how to work with the affected public and how to really come up with the right public policy levers,” added Ms. Marcus.  “One of the interesting things in listening to the panelists today talk about some of the efforts going on is that no one really talked about the water quality control plans and program of implementation, but there is a history of water quality planning and programs of implementation that does talk about multiple stressors. They haven’t necessarily been effective or implemented, and I think that’s the challenge that we’re going to have to deal with,” she said, noting that some things are in other agency’s realms of responsibility.

The State Water Board’s process involves very complex water rights, Ms. Marcus explained. “We can come up with a perfect plan, but in order to implement it, we have to apply water rights law, which is very complicated and can take many years,” she said, noting that in the past groups have offered a settlement that the Board has been able to approve. “This time, we’re going to really need to be thinking about it because fish obviously do need things on the upper tributaries … we are fully enmeshed in a process that is very robust and will be very robust over the next couple of years. It has involved days and days of sessions on science, and we’ll have more sessions on science to figure out what are the most important things to do. It is hard but we’re engaged, which I think is great.”

Ms. Marcus’ history includes being at the EPA, after which she left the regulatory world for 10 years, before returning with her appointment to the Delta Stewardship Council. “I’m amazed at how much has happened on the contaminant side and how much is in process,” she said. “Obviously as an old EPA-er, I always bristle that no one mentions the Iron Mountain Mine cleanup that removed 98% of the acute toxicity going into the Upper Sacramento – that was huge. The more recent big one is the Sac Regional Treatment Plant orders that the regional board issued and we confirmed; that is an enormous removal of contaminants.”

Whether it’s the work that the Department of Pesticide Regulation has been doing on pesticides, or the work the regional boards have been doing on irrigated lands, or the state board and regional boards work on urban stormwater, they are in process,” she said. “There will be appeals; it’s a process, but you will see over the course of the next decade, a tremendous reduction in contaminants from those challenging sources. Are they perfect? No, but very much in process.”

Physical habitat disturbance is particularly challenging for the State Water Board, Ms. Marcus noted. “The attempt in the BDCP to vastly expand the amount of habitat which fish also need – we’re watching that with bated breath as we look at the things under our control, and flow, which is also incredibly important both in and of itself and in relationship to the stressors,” she said. “I’m optimistic because of the work that has happened on using flood bypasses for habitat and the like, so there is a whole suite of things happening.”

There’s more going on than that – I don’t know that anyone here wants to hear about our aquatic pesticide permit, but I’m happy to talk about it if people do want to talk about it, or our issuing a rule on emerging contaminants of concern in aquatic environments that deals with endocrine disruptors, caffeine and the like. We are in process on that, too,” said Ms. Marcus. “I’m optimistic in part because when I left, I was so discouraged that I left and it’s been nice to come back into the water world and see maybe perhaps from a perspective of having been gone and coming back, that things are actually in motion, and no one is more delighted than I.”

“Take those three stressors plus invasives,how would you grade the current oversight of those four stressors, combining state and federal efforts?” asked Moderator Buzz Thompson.

I think it’s hard because so much of it is in process rather than done, so if I’m giving a mid-term grade, I’m going to give it a B,” she responded. “But it’s all about expectations. I think it’s going to be even better, but it’s going to take years to work its way through the system.”

Turning to the other panelists, Buzz Thompson asks, “Would you agree it’s a B in the way the state is dealing with these other stressors?”

Buzz, I think we can do better,” replied Chuck Bonham. “To me the question can be approached with a focus on invasives, but it could also be flipped to an area where I can think we can do dramatically better, and in my mind, salmon are a good surrogate for what I want to say.”

Chuck #2I don’t think a successful Bay Delta Conservation Plan alone will recover or conserve salmon species in the Central Valley, just like I don’t think a Delta Plan alone or a water board proceeding alone will achieve it,” he explained. “We need each of those to go well, but frankly I’ve got to go into the Upper Sacramento River valley and have a productive, collaborative conversation with water users. I think we need to do the same thing with water managers for the tributaries of the San Joaquin; we need to restore the San Joaquin River; it’s likely we’ll need to put some fish above mainstem dams, but only after a lot more thought and testing.”

It’s the combination of all of those factors that get us to healthy populations; and the rub is none of that necessary comprehensiveness is found in any one venue, proceeding or department,” continued Mr. Bonham. “That’s where we can take a B, redouble our effort and shoot for an “A” on the overarching strategy within our administration, and then piece together that tapestry that Felicia was talking about.

I would agree,” said Greg Gartrell. “I think the B is a result of grade inflation.”

“I basically agree with what I’ve heard, although the water community has been pleading for 20 years to get to an integrated approach because we felt like our stressor had much too much stress on it, so we’ve been pleased to see the progress that’s happening,” said Tim Quinn.

One word of caution, though: I don’t think you solve this problem by extending regulatory authority to areas where they don’t exist today. The problem we’ve got today is that we try to solve the problem too much with our existing regulatory authority, and it’s not the right tool,” said Mr. Quinn. “You have the power not to solve the problem, but the power to generate a lot of economic harm, and that power can leverage everybody to come to that collaborative table.”

But these things are going to happen through a business relationship, a collaborative relationship. It’s too complex, it’s too comprehensive, there are too many moving parts, you can’t regulate it. You’ve got to find a way to change the relative cultures, and I see that happening every day,” said Mr. Quinn. “Not fast enough, but it’s happening every day, where people buy into each other’s success instead of trying to figure out how to game the situation so you win and the other guy winds up with less marbles than he started the game with.”

I think is real important. We’re not making enough progress now. I am encouraged at the direction that things are going in, but you’re not going to get there with anybody’s regulatory clout,” said Mr. Quinn. “You’re going to have to do what Phil argued was the impossible and get people to actually collaborate in ways they haven’t in the past. Mom raised me to be an optimist and I believe we can do that.”

Felicia Marcus agreed that it isn’t all about regulation. “It requires people rising to the occasion and again, just from having been gone and coming back, I see people all over the place rising to an occasion of trying to figure out how to look at multiple benefits with scarce water resources that cuts across the water itself and includes habitat or green space in the urban context; flood control, water quality, water supply … I feel like there’s an imperative where there are a lot of people both in and out of government who actually want to see things solved and are trying to help solve a problem.”

I’m not a die-hard regulator, but I do think there’s a role for regulation and government entities because it does sharpen the mind and it does bring people to the table,” said Ms. Marcus. “It’s an interesting role being a state regulator which is the role to be an 800 lb. gorilla to encourage people to come together and give us a better thing, or … should we lay out what we think the right answer is and hope people will come to the table and say yeah that’s good and be more willing to sit down? I’m not sure what the answer is; I’m just more comfortable with trying to figure it out in a way that people can look at and see, and it makes it much easier to do and encouraging to do it in the context of a myriad of state activities that are all focused on trying to improve this situation.”

It’s all of the above, not picking winners and losers,” said Ms. Marcus. “It’s that we have to deal with all of the multiple beneficial users of water in the Delta, fish and wildlife being a key one that we have to focus on because it’s the one we haven’t done well enough on and we’ve triaged in a way that’s just terrible. And we need to figure out how to do it while also not destroying the other beneficial uses of ag, urban, recreation, and hydro, things that are important. It’s an incredibly complex puzzle.”

“When we were doing research for the PPIC report, one of the things we frequently heard from water users and other stakeholders was the problem of conflicting and duplicative mandates,” said Buzz Thompson, turning to Greg Gartrell. “As the assistant general manager of Contra Costa Water District, could you give us a few examples from your perspective where you actually see some conflicting mandates, and also whether or not we have a process in place right now to identify and eliminate those conflicts?”

The answer to the second part is no, but I can give you a couple of horror stories,” replied Greg Gartrell, recalling a project involving a pipeline that was constructed on a right of way owned by the Bureau of Reclamation about 40 or 50 years ago. “It goes through an area that goes through an area that is subject to subsidence, and we need to do some seismic work. It’s about a $1.8 million construction project to put in some valves and do some inspections. Because of the area it was constructed in, there are wetlands over the pipe and we need to mitigate for the work we’re going to do for that.”

GregThe pipeline serves two refineries in the City of Martinez, so it’s kind of vital both for the economy of the Bay Area and for the people of Martinez,” continued Mr. Gartrell. “It’s located in an area that is just barely in the jurisdiction of the San Francisco Regional Water Quality Control Board and the San Francisco Area for the Corps of Engineers. Mitigation can not take any place in any area except within their jurisdiction, but there are no areas immediately adjacent to it. There are some areas that are very close to it that could be quite easily used for mitigation, but they are outside of their jurisdictions and they won’t allow it. We can’t get them to agree on the location, we can’t get them to agree on the amount, whether it’s 1:1 or 2:1, and so far it’s delayed us about a year and a half. The mitigation, although they haven’t agreed to it, appears to cost about $1.3 million for a $1.8 million construction project. It’s getting a little bit ridiculous.”

Sometimes the delays are costly, but there is another issue that’s harder to solve, said Mr. Gartrell. “There’s a lack of resources. It is true at DFW, USFWS, NMFS, all these agencies; people in these departments are just overwhelmed … We’ve been working with great people there, working as hard as they can, but one of them got promoted, and now she’s doing her old job and her new job and she’s overwhelmed. We understand that and we see that all the time. It’s not something that is fixable without more funding, and that funding is just not forthcoming from the legislature.”

Buzz Thompson then turned to Chuck Bonham and asked if, when he was in his previous position at Trout Unlimited, did he run into the same sort of problems that Greg Gartrell has talked about?

Yes, in my prior life, I went through experiences the proved that credo, No good deed goes unpunished,” answered Chuck Bonham. “I’ll give you an example. In my last life at Trout Unlimited, a lot of work with timber companies could produce better complex habitat for salmon in coastal streams. A way to do that is to drop trees into a river. Well, I’m also an attorney, and understand that you could argue each time you drop a tree on a mile stretch of river is a CEQA project, or the miles worth of tree dropping is a project, and depending on the answer, you’re looking at different permitting approaches.”

There is a way to solve this stuff and it’s not unlike Albert Einstein reminded us with his comment that ‘imagination is more important than knowledge, because knowledge tells you all there is to know and understand in the world, whereas imagination allows you to think about everything that might be in the future,’” continued Mr. Bonham. “Just last session, working with the Legislature and the Governor’s office, AB 1961 was passed, so now for that timber company that wants to do restoration projects in Coho country, if the project is compliant with the recovery plans that Mr. Stelles NMFS has and we have, when they submit the application to us, which would be typically an application for multiple permits, we now have a statutory responsibility to respond within 60 days with a yes or no. If we provide the permit, it is in lieu of any other permit that would be required by our department. The purpose is to expedite restoration projects.”

This is my first time ever in government, so the number of “what the heck” moments is really large,” said Mr. Bonham. “I’ll give you a different example in my current role. We have two different responsibilities: under the CESA, I think I’ve got a legal and frankly a moral responsibility to conserve meaning recover populations of our endangered species. Ok, well y’all know that sometimes when you do a recovery project, you may harm one for the benefit of 99. Well, we have another law which is called the Fully Protected Species Law, and if it’s designated on that list, you can’t even look at the species for fear of harming it. It’s fully protected. So lo and behold, we have some species that are on both lists. And in one body of law I’m supposed to recover it, which means harm one for the benefit of 99, and that other law tells me I can’t harm one.”

“So what do you do?,” prompted Buzz Thompson.

I start a conversation about how we can smarter, faster, stronger at these things, and see where the conservation or the debate goes,” said Mr. Bonham. “Sometimes we’ll need legislative solutions; sometimes we have the authority within our own administrative abilities, but we just haven’t gotten there or refuse to get there. I think the idea of refusing to be better if you are in an agency is passé, and it’s just going to pass the problems on to our children, so now is the time.”

Let me underscore the importance of solving the problem,” said Tim Quinn. “If we want to live the world of expanding and comprehensive approaches that have a better than a snowball’s chance of being successful, we’re going to have to spend lots of money. All of these conflicting regulations are part of the risk management problem that Mark was alluding to in the previous panel. Right now if you spend billions to solve problem A with regulatory Agency A, and then Agency B can come up and later on and undo it all, which is the world we’re living in today, that has a real chilling effect on necessary investments to create a better system that creates possibilities for coequal goals. As difficult as the problem is, it’s a problem that needs to rise to the top of the list and we need to figure out how we’re going to deal with it.”

Where I see the problem sometimes is where there is the individual track silo to solve the problem because of a way a law is written or the way that regulations proceed which can be in conflict,” said Felicia Marcus. “You have this incredible movement to deal with flood control, water quality, water supply and greenspace at the same time, while we are working on the water quality side, so we put in an out that says if you are working on one of these multi-benefit plans which is going to take longer and requires a little more time – you have to acquire land, find the right places to do it – we’ll cut you some slack. That’s the kind of regulatory response and reaction to people coming together that I hope we’ll find enough flexibility to do without rendering the objective meaningless.”

You don’t want to create a loophole where nobody has to do anything but I do think we have to adjust to the changing times where people are actually being very creative and coming up with a better answer,” continued Ms. Marcus.  “Just as I think in the case of permitting … we need to figure out how to move faster on things that have obvious benefits for the environment.”

I want to comment on the nightmare with the Corps and the Regional Water Quality Control Board; it was quite the opposite when we worked with USFWS and DFW in terms of our terrestrial permits,” said Greg Gartrell. “We have been successful in getting them very-well coordinated. The main difficulty in doing that, though, is again the staffing a problem. Trying to get a meeting where they can both supply the staff at the same time is usually about a month to a month and a half in the future, subject to cancellation … that is strictly a funding problem for these organizations.”

I’m told our department might be the second largest licensing and permitting entity in this state behind DMV,” said Chuck Bonham. “So you really can’t do much somehow without needing to submit an application and get a permit from our department. The fact of the matter is … in most of those application sectors, we subsidize the applicant process. And in the last year, because of a couple of things in the legislature, and the Governor and Administration commitment, we’re moving a couple of programs to fee-for-service. We issue up to 1500 scientific collection permits per year; we also are involved in timber harvest program review, and we do conservation banking mitigation, which is an application. What we’ve spent the last year in each of those sectors discussing with the industry is, would you be willing to pay in more if we could show you our work plan and our capacity need and that we’ll build up the capacity need to shorten the five year review timeline into a 50-day, whatever, and make some sort of exchange of consideration to address this kind of core problem. It appears to have worked last year, and so we are now busy prudently building that capacity.”

We tried that, too,” said Greg Gartrell. “I’m glad to hear that you’re having some success on that … we went through a process where we tried to get a contract with DFG where we would pay them to hire staff. It was a nightmare. We got the contract finally out of the legal department; we signed it, we sent it back, we went to another attorney who started changing the contract that had come initially from fish and game even though we had already signed it … when it finally got through and everybody had signed it, it had the nightmare of going through the legislative process to get the staff and get the funding and the approvals for that. If you can streamline that or set that up as a program and get the management from the top down, that can be successful. In our case, we ended up getting our permit before the thing was finalized and in the end, didn’t need to do that. But having a regular process where you are getting fees for the work … and paying the department for the work that they are doing for you is a good way to go, provided that it goes into a fund that funds you and not into the general fund where it funds Lord knows what, and you get the staff out of the legislature that you need.”

“One of the things that the report recommends is the creation of a new entity called the Delta Ecosystem Regulatory Coordinator or DERC, who would sit presumably in the office of the Governor and would help to facilitate and coordinate efforts to obtain permits for Delta actions designed to improve the operation of the Delta,” said Buzz Thompson. “I’m curious Chuck as to your reaction … is that something that would be beneficial or would it be just another layer of bureaucracy?”

I have two reactions,” said Chuck Bonham. “The first is reluctance to miss the opportunity to point out the irony that for quite some time, all of us acknowledging part of the problem is the multiplicity of bureaucracy and entities, and an idea of creating another one … That said, I like the idea. I have no comment as to name, acronym, or location, but I like the idea. … if you think about some of the necessary commitments to store the Delta ecosystem, we’re going to need to do restoration and we will need to do it faster, better, stronger, smarter, but I’ll tell you at the end of the day, we can talk about law and policy a lot, but in my experience this stuff comes down to sociology, interpersonal dynamics, group dynamics, relationships really matter. … And what I find in a lot of our natural resource disputes is when our energy gets moved towards arguing about what’s happened in our rear view mirror, it gets moved towards ad hominem attacks, and all of that takes us away from the energy necessary to be creative and solve problems.”

I’ve been that person trying to expedite permitting of really hundreds of bond projects down in LA in the early 90s,” said Felicia Marcus, “and there is something important about having somebody tasked or some group tasked who is keeping focused on a given series of projects … in doing so, they can illuminate what the more systemic problems and fixes are far more effectively than every task force that gets put together to look more generally at permitting or an issue. … There’s no difference between theory and practice, but in practice, there is. And so having someone figure it out in practice illuminates what issues are important rather than having methodical minds try to envision every possible thing and then trying to reform everything.”

Chuck is right on one thing,” said Greg Gartrell. “It does take development of relationships. We got our permits, and the ones that went the fastest were the ones through the State Water Board where they’ve focused a lot on administrative permitting rather than getting down to a hearing at the Board and that very much helps. Working collaborative with the staffs really clears a lot of the issues; when you’re not arguing over what needs to be done but rather how best to do it and helping them to the extent that you can.”

Turning to Tim Quinn, moderator Buzz Thompson asked, “Whenever you start talking about multiple stressors, one of the things that occurs to people is the possibility of managing them jointly, so that you might, for example, encourage people to address one stressor by promising a little more slack on another side if they are willing to focus on the first area. For example, you might tell people that if we do more to restore the Delta, then maybe in return for that, we might be able to permit greater exports from the Delta. My question for you is, first, is this a good policy direction for us to be thinking, and second of all, either now or in the future, are we going to have the science that is necessary to permit that kind of trade-off?

Panel 3The audience needs to know that there’s a certain professional bias to this question,” answered Tim Quinn. “You are an economist in your past and in your training; I’m an economist; shouldn’t there be trade-offs? One economist sends that question to another, you say, ‘duh, of course there should trade-offs.’ If you’re getting more productivity out of investing in Activity A then you are out of Activity B, then shift your resources and move resources into Activity A. That’s common sense to someone who was trained in economics or who has managed water in this state for the last thirty years.”

Guess what, though – it doesn’t come naturally to the regulatory process,” Mr. Quinn continued. “The regulatory process is not trained to think that way. Your specific example is hugely controversial right now, although the whole premise of BDCP is that you’re not getting much out of your investments in lost water supplies other than economic damage and if you leverage that into things that will have more productivity, then we’ll have more productivity, we’ll have water supply, we’ll have better ecosystem outcomes, we’ll have more coequal goals. That’s the whole premise, hugely controversial.”

To get where we need to go, the regulatory community needs to go through something like the water community has gone through in the last twenty years. I’m hugely encouraged by the regulatory leadership,” said Mr. Quinn, saying that he thought maybe there was potential for someone to be like Carl Boronkay. “Most of you in the audience don’t know who Carl Boronkay is, but let me tell you a quick story to drive a point home. The peripheral canal went down in 1982. One of the few people who understood the importance and what that meant was Carl. He became the general manager of the MWD in 1984. One of the first things he did was to push aside a man named Don Brooks. Don was a wonderful man, but he was a registered engineer, heart and soul State Water Project; he had been part of that community that had built the vision of complete the SWP. That was the water plan for SoCal, and here is this very revered engineer being removed from the center, and he retired shortly thereafter. And who did Boronkay bring in? He brought in a man named Wiley Horn to be the chief of planning … Wiley was not a registered engineer. Wiley had a PhD in water resources modeling of some sort from North Carolina state. He wasn’t an import water guy. He worked for the LA County public works, and his specialty was recycled water and local resource development. Here was a dramatic change in leadership accompanied by a dramatic change in direction from the top. Boronkay was a visionary and he meant it – you were going in a different direction. It took ten years to stop giving the ‘complete the State Water Project’ speech, but in the regulatory community, there’s still a version of that complete the something that you were thinking of 25 years ago.”

We haven’t had that change in culture – that change in leadership,” continued Mr. Quinn. “I think it’s essential to get us the kind of trade-offs you’re talking about. If we don’t start trading off between our investments in the stressors, we’re going to end up with economic mush and very high costs for very little gain, and it will be impossible to put the relationships together. So I have a recommendation for Chuck and Felicia: be a little bit like Carl. Despite what others might think of that man, he taught a lot of us a lesson about how you induce dramatic change, and we’re certainly at another time when we need that kind of dramatic change.”

Moderator Buzz Thomson then said to Felicia Marcus, “One of the most famous things the State Water Resources Control Board had done in recent years is Appendix K to the San Joaquin River decision. Is that an example of something that we could be using more broadly to enable these types of trade-offs? You may need to explain what Appendix K is.”

Appendix K is a restatement,” said Ms. Marcus. “If you look at earlier water quality control plans, it’s not novel. … The program of implementation in our water quality control plans frequently does talk about other stressors. I think what we’re committed to doing this time, we haven’t yet in Appendix K but we’re having conversations with our fellow agencies about predation and other things, is to figure out how to do in some ways some of the things that you’re talking about … Some people have come to us and suggested we use a provision of the Porter Cologne Act … section 13247 … which has people shuddering because in theory it says we can put whatever we want in a water quality control plan and other agencies have to abide by it. This is different from the consistency provision; they have to tell us why that they don’t have to – not just they don’t want to, but why they don’t have to. There are mechanisms there, but what we’re trying to do is to take what have been paragraphs in our programs of implementation in the past and add more substance to them. How do we make that more robust so it’s more real?

We have to figure out how to have robust enough science and how to figure out how to do adaptive management in a changing world so we can see if one of those things is actually making a difference where we can do a trade-off,” continued Ms. Marcus. “It’s been faith-based in the past; that’s where a lot of the rhetoric is, and we can’t do that. There’s too much at stake. That said, there is an incredible amount of work going on to figure out how do we make adaptive management work in a way that has credibility and integrity so that we can make those tradeoffs legitimately, and make the smartest most cost effective decisions work. I’m agreeing with Tim here; we can’t do everything, and we have to figure out how to be smarter about how we do things, but that requires science data and delivery, whether it’s more fish or whatever your indicator is.”

One of the phrases that struck me in the PPIC report that talked about the importance of science broadly accepted,” said Tim Quinn. “That’s important – not just science but science that people are willing to buy into and make decisions on. We don’t have that today, we have too much combat science. We’re all contaminated by years of adversarial relationships with each other. I think we should seriously explore this idea of a JPA for science where the scientists don’t work for any of the combatants, including the regulatory agencies; they work for a commonality that would separate them from the adversarial process. That or something like that is an idea well worth exploring.”

In the spirit of a healthy debate, Tim, I would reject the premise that the regulatory structure doesn’t allow for creativity or flexibility or trade-offs,” responded Chuck Bonham. “I actually think the regulatory structure is just a thing; it is the people who are trying to figure out how to shape the permitting and the decision making within the regulatory structure which may be the issue.”

Second, I would encourage us to take the concept of trade-off and turn it into a different concept which I’m personally very interested in exploring,” continued Mr. Bonham. “Let’s figure out how to do performance-based permitting. Over a defined time frame, based on specific metrics which are actionable, relevant to the problem, and measurable – we’re either achieving it or not; the achievement or not is what triggers flexibility in the tradeoffs. And that’s what those of us who have been in the private sector go through when you do a work plan; you do performance reviews, you figure out what your performance based outcomes are, and you judge against them.”

Another thing I think that would be helpful is permitting by regulation to the extent you can,” said Mr. Gartrell. “Every project is treated as unique and requires a thorough analysis, but not all of them are. A lot of them are very similar. For example, if you can take a class of NPDES permits and stick them aside and say you’re in that class, you do these things and you’re done, here’s your permit, you can get 401 permits very quickly through the regional board because they do that. The ones that are complex, then the staff has time to learn about them and figure out what needs to be done.”

That’s the holy grail,” said Chuck Bonham.  “That’s the right combination of standardization and flexibility.”

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