Radio show transcript: Michael Jackson, water rights lawyer, on California’s water history, the twin tunnels, and how this affects Northern California groundwater

radio towerJim Brobeck, water policy analyst for AquAlliance, interviewed water rights attorney Michael Jackson for a radio show which broadcast on Chico’s KZFR radio on September 12. During the interview, they discussed the history of the Sacramento-San Joaquin Watersheds, the twin tunnels, the water bond, and how these far flung water schemes impact Northern Sacramento Valley groundwater.

Jim Brobeck: The twin tunnels are a proposal by the California governor, Jerry Brown, to build a gigantic water conveyance system around the Sacramento-San Joaquin Delta. The tunnels route Sacramento Valley away from the San Francisco Bay and into concrete canals that move water to San Joaquin Valley cash crops. Two tunnels, each 40 feet in diameter, 35 miles long, buried 150 feet beneath the heart of the Delta.

Michael Jackson is a California water rights lawyer who represents the California Sportfishing Protection Alliance and the California Water Impact Network. He serves on the steering committee of the California Environmental Water Caucus. Jackson’s past includes heading the water program for the Regional Council of Rural Counties, representing 30 or so California counties. His broad attorney duties place Michael Jackson in court cases concerning the Colorado River, the Santa Ynez River, the Carmel River, and many other cases in the Central Valley and the San Francisco Bay Delta.

Welcome to KCFR, Michael.

Michael Jackson: Thank you very much for the opportunity.

Describe how the Sacramento River and the San Joaquin River flowed through the Delta before California developed the dams, the pumping stations, and canals that now dominate the great Central Valley.

Before the dams, the precipitation in the Central Valley, which is about 29 MAF which is the measuring unit for water, was predominately flowing in the winter and the spring months. As the snow melts, the river got bigger. The Delta area is an area at or near sea level, and the water moved quickly down the Sacramento and the San Joaquin rivers, and out through the Delta, the San Francisco Bay and entered the ocean at about the point where we now have the Golden Gate Bridge.

Delta Map, 1869 From DWR's Delta Atlas

Delta Map, 1869
From DWR’s Delta Atlas

Those flows were different every year because some years were wet and some years were dry, just like now, but the water was not used for anything else, so there were tremendous areas of wetland that had on them native species and plants that used probably more water actually than the present farming in the Delta does. But it was a glorious ecosystem with four runs of salmon, the most of any salmon stream on the North American continent, and it was productive and supported a tremendous population of Native Americans. I hate to sound like somebody writing for Disney, but it was all very, very nice.

Then in 1849, things changed. People came for the gold, and they started in the mountains. The mountains were where the water law was developed in order to allow the miners to divert water from surface streams and run it through flumes into areas in which they used the water to wash the sediments in the river for gold, mostly. They were very industrious people and didn’t much care about Native American rights, and so they grabbed the water very early.

Even earlier than on the Sacramento River, the water rights claims that were made by individual water rights holders, one of which in the Sacramento Valley, claimed twice as much water as annually flows in the Sacramento River, so we’ve always had a problem with people believing they have more rights. Since they followed the law, then there is water available, and now, there are five times as many rights in the Sacramento Valley and elsewhere in the Central Valley then there is actually rainfall, even if you left no water in the rivers and streams, so we have a problem.

The Central Valley Project was constructed in the mid 20th century with Shasta Dam blocking the Sacramento River and the Trinity River being rerouted from the Klamath Basin into the Sacramento Valley. The State Water Project, a different project, blocked the Feather River in the 1960s with the tallest dam in the world. Giant pumping stations in the south Delta move water into canals that parallel I-5 through the San Joaquin-Tulare portions of the great Central Valley. 80% of the project’s water irrigates desert agriculture in the southern Central Valley. Less than 20% moves all the way to metropolitan Southern California.

As you were saying, the Delta has always been a critical habitat for fish such as the mighty Chinook salmon and the miniscule yet crucial smelt species. As the Central Valley and the State Water Projects developed, numerous agencies agreed on Delta water quality and fish habitat regulations. Michael, were these agreements honored with enforcement?

No, the laws have never been enforced against politically powerful people. After the mining industry lost a major water rights case in the late 1800s to the farmers – the case was on the Yuba River – it became clear that the idea of using the water to knock down mountains was going to silt in all agriculture in the Central Valley. So in a series of cases, one of which ended up at the California Supreme Court, the farmers won and mining essentially shut down.

So the mining rights were bought up by PG&E and in the southern Sierra by Southern California Edison Company. The basis of the hydroelectric system is from the old mining claims. But it shifted; the population moved out of mining and into farming and ranching, and for awhile, there was enough water.

Sacramento and Tulare Valleys, 1873, from WikiMedia

Sacramento and Tulare Valleys, 1873, from WikiMedia

The groundwater in California has always belonged to the people who overlie it. As we became more and more aware of the fact that the groundwater system replenished the surface water system and vice-versa in the winter, the surface water system replenishes the groundwater on the Sacramento and Feather Rivers. In the summer, the river flows and the stream flows that are tributary to river were increased by groundwater spilling out of the ground and into the surface water. It was a system that for many, many years was in relatively good balance.

In the San Joaquin, things were different much earlier. The San Joaquin agricultural folks were on desert land, essentially, and they needed the groundwater from the beginning because they were not close enough to the rivers to be able to afford to build surface diversions and canals such as you have in the Sacramento Valley. So the Sacramento Valley farmers mostly relied on themselves with a few exceptions and built their own systems. It was just too expensive for the people the number of people that were in the San Joaquin, and the distances that the canals had to travel, so they began ranching the federal government and the state government late in the 1800s and that has continued to this day.

The groundwater situation in the Sacramento Valley is still relatively healthy although there are problems in areas like Chico with cones of depression from groundwater pumping. In the San Joaquin Valley, it’s entirely different. The groundwater is mostly gone; so much of it is gone that the ground has sunk in certain areas more than 50, and in some areas as much as 90 feet. This is not the groundwater table dropping; this is the groundwater table being emptied, and the ground surface collapsing down to where the water used to be. So they need to keep Southern California agriculture working and they need massive amounts of water from somewhere, and the somewhere, over time, has been the San Francisco Bay Delta.

However, the Bay Delta’s ecosystem is collapsing, and is very late in the collapse. Now it’s the understanding of the agriculturalists mostly formed in large corporations, mostly held in investment trusts by people all over the world as kind of a hedge on economies collapsing, kind of like gold, but the gold is really the water, so the federal and state canal systems were mostly built to solve that problem. By taking Northern California’s surface water and distributing it from basically Tracy south to Tijuana, because a certain amount of San Diego’s claimed water which comes out of Lake Oroville is released to the Pacific Ocean now, not at the Golden Gate, but at the Tijuana sewage treatment plant.

You’ve talked a lot about where the water is going and where the water is coming from. The Bay Delta Conservation Plan, the mother of the tunnels, seem to be pretty focused on the Delta, although the other two sides of it are crucial factors, so what I’m interested in finding out is what the impacts in the Delta. I’ve heard about reverse flows in the Delta, I’ve heard that some of the fish were getting sucked into the pumps, and I’ve heard that the San Joaquin River itself runs dry before it’s refilled with agricultural runoff, which is polluted and is ending up in the Delta, polluting the Delta, and that those three factors amongst others are having a really severe impact on the Delta fishery . I was curious to know what role the government had in turning that around, and what role groups like the California Sportfishing Alliance had in holding these agencies accountable and for maintaining a modicum of biological viability in the Delta.

Before the early 1970s, there was really no environmental consciousness at all. Now the Native American tribes have always had an environmental conscience, and there were many, many people, individuals, who had grown up with a way of life that is changing in the Delta and changing in San Francisco Bay. They were the early actors in trying to do something to protect this area, but with the building of Lake Oroville, which turned out to be the straw the broke the camel’s back, the water source was not big enough for all of the claimed rights in the Sacramento Valley, the Bay Delta, and everything south of that.

When the State Water Project was built at Oroville, the promises that were made would be that there would be no water taken out of the Sacramento Valley or the Delta unless it was surplus to the present and future needs of the people who lived within the drainage. There were laws written and put onto the books that have never been enforced. The way the export people got away with this in the Delta was that they had a right, according to one of the rights that’s overpromised, that they could take water out of the Delta channels if it was surplus. The goal was that there was always surplus water.

Delta by DWR

Sacramento-San Joaquin Delta, photo by DWR

The people who had no water right to protect were people who were dependent upon a clean environment, and those included the Pacific coast fishermen who have pretty much been decimated by the overpumping in the Delta. There are offshore fishermen all the way up to the state of Washington, because the salmon runs were actually bigger because there were more of them in the Sacramento drainage and in the San Joaquin drainage then there were on even the Columbia River. The first people who suffered were people who made their living in the ocean.

The second group who began to suffer were the people who were trying to make a living farming in the Delta itself and in the adjacent areas slightly upstream. But as long as the export contractors with the government paying for it could afford to build canal systems and dams that would take the water away south, basically the easiest target was the Bay Delta estuary itself.

One of the interesting facts to sort of focus on is that when Jerry Brown’s father, Pat Brown, built the State Water Project, there was a vote of the people and it was 51-49, narrowly won by the Southern California interests. One month later, the Department of Water Resources of the State of California, the owner of the Oroville Dam, issued what they called Bulletin 76, which was to lay out the operation of the projects that would be San Luis Reservoir, Oroville Reservoir, and the pumps in the south Delta. In that document, they said they would be out of water by 1981 and that the limit that they would be able to take from the Delta channels would be about 3 MAF. They are presently taking twice that. These tunnels are to increase that again.

In 1960, when they issued Bulletin 76, they knew they were going to need more water from somewhere, and so they had a plan, and the plan was, first we take the Trinity River and send it over the hills into Keswick Reservoir just below Shasta, and that will last us to maybe 1990. Then we need to take the Eel River and take it backwards into the Sacramento drainage and that will give us another million acre-feet, and then we will take the Mad and the Van Dusen and the rest of the water on the coast after 2012. Now none of that got built except a part of it on the Trinity River which is now Trinity Reservoir.

The great majority didn’t get built because obviously the people who lived on the coast needed water, too, and so they developed their own water systems. The hero in that story is Ronald Reagan, because at some point when they were considering taking the coastal streams, Ronald Reagan went up to take a look, and he was so appalled by that that he put those streams into the California Wild and Scenic River System because it was a way to keep them from being dammed and pulled back into the Sacramento Valley.

But he didn’t get there in time to save the Trinity, though.

He didn’t. The Trinity was given away by one of my heroes, John F. Kennedy, and that just goes to show you that this is not necessarily political. Ronald Reagan, a conservative Republican, took a look at the environmental damage that would be done on the coast, and acted to save the rivers of coastal California in the north. John F. Kennedy made a fly-by where he stopped twice, once at the San Luis Reservoir site south of the Delta, and once at Whiskeytown Reservoir, north of the Delta when I was in high school. We were given the day off to go to Whiskeytown. I grew up in Redding. To listen to John Kennedy talk about what he was doing was the wave of the future. He was killed a month later and never saw what ultimately happened.

I’m talking with Michael Jackson. Michael Jackson is a water attorney here in California and he has a special focus and a special interest in the Sacramento River watershed. Michael, the most recent environmental impact report studying the Bay Delta Conservation Plan tunnel project has been withdrawn. The next draft is due out early 2015. What role did public comment play in the decision to withdraw and I understand the EPA criticized the tunnel project. Did the EPAs comments carry as much or more weight than the others?

Well obviously the EPAs comments carried more weight than anyone else’s because the EPA has to approve the project. When the EPA pointed out that they couldn’t even look at the permit because there was 44,000 pages of stuff in that public release, none of the key items were dealt with adequately or in some cases, even at all. The EPAs comments pointed out things like you don’t have a project description, you don’t know where you’re going to put the tunnels, all you have is a concept; here you are, trying to take a concept through the environmental review process, and you may get away with it with the endangered species permit that it’s all built around, but you’ve got to come back and tell us why the greatest estuary on the west coast of the Americas can get by without half of the freshwater that presently comes into it.

Since the Delta is collapsing under the old system, the solution to the people south of the Delta is to run tunnels from the Sacramento River underneath the Delta so that freshwater will no longer be in the Delta. What you’re going to end up with is a project that cannot meet Clean Water Act standards. That immediately put the proponents of the project into a deep box.

Part of my job is to go through everybody’s comments for the next round. We became aware of the Army Corps of Engineer report which basically said this document is useless to us; this document does not meet any federal standard that we deal with protection of wetlands or ecosystems; this document is so vague that it is not a legitimate project description. When we found the Corps comment letter, it basically said you’ll have to do a complete new EIS, environmental review under the federal law, before we can even consider this project.

The tunnels project is only one of many effort by major power brokers to squeeze more water out of the Sacramento River watershed for use south of the Delta. You mentioned that the original plans called for diverting all the coastal rivers, they are not longer part of it, so they are obviously looking for another source of water.

Sure and there’s only one.

Well the north Valley has a robust aquifer system and a lot of people think that is the target for exploitation to that end. These complex aquifer systems are the foundation of the health of the region. The aquifer holds upstreams and sustains native trees during drought. Who is working to defend the Tuscan Aquifer and the other aquifer systems in the Sacramento Valley from these water bankers?

Well, the indefatigable one, the person who never worries about anything but doing the right thing, and that’s Barbara Vlamis at AquAlliance. She’s an inspiration to the rest of us around the state, and she’s also developed very good technical relationship with groundwater farmers who have done a wonderful job of keeping farming going with groundwater and yet not knocking down the groundwater table. Also, the Butte Environmental Council, the Sacramento River Preservation Trust, and many people who are working hard because they understand that in order to make any of these things work, you need another 3 MAF of water, and this is no other water source, other than taking it out of the Sacramento Valley.

NorCal RiceGravity, of course, wins. It has to be somewhere upstream of where they are building the new pumps. They are moving the new tunnels to the Sacramento River for a reason. It’s the only one that can carry the water to them to start their journey under the Delta to the Tijuana outfall.

There are only two sources of water; to take away the surface water of the farmers there, or to take the groundwater, and the farmers in the big irrigation districts are much better prepared to protect their settlement contracts, their area of origin water, then the people who live over the groundwater basin. There are so many more people who are dependent on groundwater than there are who are dependent on surface water in the Sacramento Valley, so the easy shot is to change the groundwater law, which just happened, to enable people better manage the groundwater.

This is only a personal opinion, based upon reading for 25 years everything I can find about California water, the way it’s presently designed, the goal of the tunnels is to move the groundwater from the Sacramento Valley through the tunnels into groundwater storage in the areas where folks have emptied their groundwater in the San Joaquin Valley. What I believe the project is about is to fill these tunnels avoiding the problems with the present export system in the Delta in order to put water in groundwater banks south of the Delta. They will buy it at $200 an acre-foot and they will sell it at $2000 an acre-foot to the growing cities in Southern California. That’s what this plan looks like to me.

Michael Jackson is a California water rights lawyer, giving his well seasoned analysis of what the Bay Delta Conservation Plan twin tunnels is all about. Michael, thanks a lot for giving us your time today. I really appreciate you taking the time to talk to us.

Thank you very much. I’d like to add just one thing in summation; vote no on Proposition 1. No matter what they say, this is the first step of what I just described.

Michael’s talking about the water bond. Vote no on Prop 1, that’s the recommendation from Mike Jackson, California water rights lawyer. Thanks again, Michael.

2 Responses

  1. Jim Borchers

    Michael,
    Just a note to let you know about an error in your land subsidence numbers. No where in the San Joaquin Valley has the ‘…ground sunk in certain areas more than 50, and in some areas as much as 90 feet.’ Maximum subsidence of the land is about 30 feet at Panoche Road, 1 mile northeast of the California aqueduct, southwest of Mendota, California.

    If groundwater levels had remained at the historic low levels of the mid 1960s we eventually might have had 60 feet of subsidence in that location as slowly draining clayey layers compacted. But, groundwater levels recovered and for the most part subsidence halted.

    Reply

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