CA WATER LAW SYMPOSIUM: Lawyers discuss the Cal Water Fix change petition process at the State Water Board

To implement the California Water Fix project, the Bureau of Reclamation and Department of Water Resources must obtain the State Water Board’s approval of petitions to change certain elements of the Central Valley Project (CVP) and State Water Project (SWP) water right permits and licenses, including most notably adding new points of diversion. The WaterFix hearing process is predicted to be the largest and most complex in State Water Board history, involving hundreds of water users, environmental interests, disadvantaged communities, and others.

At the California Water Law Symposium held in January of this year, a panel of lawyers discussed the process underway at the State Water Board.  On the panel were two attorneys involved in the proceedings who are opposed to the project: Kevin O’Brien with Downey Brand and Doug Obegi with the Natural Resources Defense Council; and two attorneys representing organizations who are in support of the project: Tripp Mizell with the Department of Water Resources and Stephanie Morris with the State Water Resources Control Board.  The panel was moderated by Stuart Somach with Somach Simmons & Dunn.

Moderator Stuart Somach began by outlining the project to set the stage for the forthcoming discussion.  The Water Fix project centers on the water conveyance portion of what was formerly known as the Bay Delta Conservation Plan.  It’s a $15 billion project that would build three 3,000 cfs intakes on the Sacramento River with the capacity to divert 9000 cfs; that water would be routed through two 40-foot diameter tunnels to the Clifton Court Forebay in the south Delta.

The articulable purpose is to better convey water through the Delta, addressing a number of deficiencies in terms of the way water is currently conveyed, both from a water supply perspective as well as an environmental perspective,” said Mr. Somach.

He explained that the Water Fix process itself has three phases.  There is a water rights phase, because there is a change in the points of diversion for the state and federal projects for the diversions in the North Delta.  There is a second phase which will involve water quality aspects of the project including the 401 Clean Water Act certification.  The final aspect runs parallel and is the environmental impact reports for both the federal NEPA and state CEQA processes.

There is currently an evidentiary hearing being held to determine whether or not the change petition should be approved, subject to terms and conditions,” Mr. Somach said.  “In that context, there are various standards that need to be adhered to, including demonstrate the change will not initiate a new water right or injure an existing legal user of water.  Those terms are defined terms.  Provide information how fish and wildlife would be affected by a change and identify proposed measures to protect them from any unreasonable impacts.”

The hearing is divided into two parts,” Mr. Somach continued. “The first part deals with the effects of the project on water right holders, agricultural and M&I water users.  It was subdivided into two parts, part 1A, part 1B.  1A is where the petitioners put on their case in chief and part 1B where other legal water users which are a considerable number of folks including consolidated groups will put on their case in chief.  That part concluded in December; part 2 will address the effects of Water Fix project on Fish and Wildlife, including Delta flow criteria that might be included.  Part 2 will also include a review of the final CEQA/NEPA documents.

The panelists then briefly introduced themselves and spoke about how they were involved in the process.

KEVIN O’BRIEN, Downey Brand

Kevin O’Brien with Downey Brand in Sacramento said he represents about 30 clients in the Water Fix hearing which are basically divided into two groups:  One is a group of Sacramento Valley agricultural water users, primarily districts, water companies, and some landowners; they are senior water right holders in the Sacramento Valley that are concerned about impacts on their water supplies that might result from the project.  The second group is a group of primarily agricultural interests in the North Delta, particularly the North Delta Water Agency, which is ground zero for this project; if the project is built, the intakes would be basically built right in the middle of the North Delta Water Agency near towns of Clarksburg and Courtland.

Obviously my clients, both the Sacramento Valley group and the North Delta group, are very interested in this project,” he said.  “They have filed protests, they have been actively engaged in the hearing process, and they frankly have some major concerns about the project.

DOUG OBEGI, Natural Resources Defense Council

Doug Obegi is a senior attorney with the Natural Resources Defense Council.  He noted that the NRDC is one of the organizations that along with some water users, proposed the portfolio alternative back in 2013 which was a single tunnel, 3000 cfs alternative, combined with investments in local and regional water supplies using the $5.9 reduction in cost from that single tunnel alternative.

NRDC does oppose the proposal that is before the Water Board today, primarily for two reasons,” Mr. Obegi said.  “One, the best available science shows that it dramatically reduces salmon survival and worsens conditions in the Delta in terms of both harmful algal blooms, the abundance of Delta smelt, salmon, and other species.  Second, it takes the money that we could be investing in real water supply solutions: wastewater recycling, water conservation, stormwater capture in urban areas, and invests all of that in two tunnels in the Delta.  So we continue to believe that a single tunnel alternative does provide greater flexibility and could be part of a solution, but at this time, because this is a proposal before the board, we’re opposing it.  We have proposed conditions to alleviate our protest, which would include sizing it down and in particular, operating it in a way to take less water, because it’s clear that we need to take less water to save this estuary.”

TRIPP MIZELL, Department of Water Resources

Tripp Mizell is a senior attorney for the Department of Water Resources and the lead attorney for the water rights change petition process for the California Water Fix.  Mr. Mizell referred to the Director of the Department of Fish and Wildlife, Chuck Bonham’s keynote address to the conference, and noted that Mr. Bonham, along with the legislature, many different versions of the Governor’s office, the regulatory agencies and non-partisan groups all agree that something needs to be done.

In fact, in all of those cases, they would put in an alternative conveyance mechanism as part of the solution,” he said.  “With sort of that unity around that idea, we really now boil it down to what does alternative conveyance need to look like.  What the state has done is produced the California Water Fix proposal which is decades in coming, it’s a very well-considered and lengthy reviewed project at this point with what some would say a historically long EIR/EIS.   The state has done a considerable amount of outreach to people throughout the state and trying to balance the two key concepts of water supply reliability and ecosystem restoration.  And the degree to which those are satisfied is why you have four different personalities up here today.”

Mr. Mizell explained that the overarching plan is to have both a north Delta diversion of water and continue to have an existing southern Delta diversion of water; having two different diversion points would allow for flexibility in diverting water a location in the Delta that would be most protective of the fish species for the conditions that the Delta is facing at the time the diversion is needed to take place.

The Department of Water Resources filed a water rights change petition in the fall of 2015.  “What it proposed is the addition of three points of diversion in the north Delta off the Sacramento River,” Mr. Mizell said.  “What it did not do is change the timing of the diversions that are currently permitted, the amount of the diversions that are currently permitted, the rate of the diversions that are currently permitted, the source of the water, the purpose for which the water will be used, or the place in which the water will be used.  So when looking at a water rights permit, there are an awful lot of different conditions on that permit, and we are looking to change only one of many.  This would not result in the permitting of more diversions, this is simply allowing for better flexibility in maintaining diversions that are already permitted under the State Water Resources Control Board.

This is distinct from a number of other components of this project,” he continued.  “There is the EIR/EIS team and the document that they are working on.  There will undoubtedly be arguments over that document and its contents.  There are Clean Water Act permits, there are US Army Corps permits, there are a lot of regulatory processes that need to go on with this project.  This is but one of many.”

Mr. Mizell noted that there are other regulatory processes going on, such as the water quality control plan, which is a distinct process.  He acknowledged that they can be difficult to separate as the two processes deal with a lot of the same issues, the same stressors, and the same science.  “The distinction is that in the water quality control plan, they are looking for holistic solutions; they are looking at the entire watershed and all of the water users and beneficial uses,” he said.  “What the water rights hearing is meant to investigate is whether or not this particular proposal in and of itself does injury to legal users of water, or is reasonably protective of fish and wildlife, and therefore it’s sometimes difficult to step back from the real meaty issues of that comprehensive solution and focus on what’s narrowly before the Board at this point.  That’s the challenge we’re all facing in this hearing as it is ongoing.”

STEPHANIE MORRIS, State Water Contractors

Stephanie Morris, general counsel for the State Water Contractors, began by noting that she is speaking here on my own behalf.  The State Water Contractors are 27 of the 29 contractors who contract with the Department of Water Resources for water, and in general, they support the project.

There are a lot of issues going on in the Delta, and the Delta at large needs action, and I think there’s been a lot of kicking the can down the road,” she said.  “As I’ve been educating myself over the last several years, I’ve read documents from the 50s, the 60s, the 70s, and the 80s, and it’s the same issues.  It’s almost like you could plug in today and it’s really the same type of issues we’re facing.”

Ms. Morris acknowledged that when she first started working on Delta issues, she thought that the Delta probably did need an adjudication to gain certainty and to understand people’s water rights.  Her belief came from having spent the previous ten years doing groundwater adjudications, which were lengthy and complicated and involved maybe 50 active participants.  “In the Delta, it would be a completely different animal,” she said.

Ms. Morris said she had recently read the book by John Fleck titled, Water is for Fighting Over and Other Myths about Water in the West, and it made her feel optimistic about the Delta.  “I think a key point that he was raising was that there were conflicts and there are conflicts, but it was this idea of what he informally called the network, and the idea of trust, and I think that’s important,” she said.

I used to think John Herrick [South Delta lawyer] was crazy, but in listening to what he has to say, and in learning and looking at the Delta and the hydrology, there’s sense there,” she acknowledged.  “The things he is saying are from his perspective, but there are things there that are supported.  I think by stepping back and putting your views aside and listening and learning that we can come to some common agreement and make a better choice, better than getting regulated, that the interested parties could come together and do more for the Delta, for the species, for water supply, for land users than just getting regulated, so I think that there’s hope.”

The reason I bring this up in this discussion is that Water Fix is one of many things that I know my member agencies are interested in,” Ms. Morris said.  “It’s a piece; it’s not the be-all and end-all; we need to do it all.  We need conservation, we need local projects, we need recycled water projects, we need a solution in the Delta, so this is just one piece of a very complicated puzzle.”

DISCUSSION PERIOD

Let me bring it back down to some digestible bite,” said moderator Stuart Somach.  “Keep in mind that the Water Fix process that we’re talking about here is a State Water Resources Control Board process and it’s focused on a water rights concept and that is a change in point of diversion.  The key legal issues that are articulated in some form or another are whether or not the granting of the petition will cause unreasonable impact to fish and wildlife, whether granting the petition is in the public interest, and whether or not granting the petition will reasonably protect fish and wildlife.  Those are, in most general terms, the actual issues that are before the State Water Resources Control Board in this initial phase of the litigation.”
Let me ask an initial question,” said Mr. Somach.  “At its heart, what the Water Fix is dealing with is a water conveyance system to supplant the existing mechanism for conveying water from north to south, that’s what Tripp said.  We ought to keep that in mind, with all of the brouhaha here, that’s what it is, and I wonder if there’s consensus on the panel number one that that’s true, and number two, whether there’s consensus on the panel that improved conveyance is necessary.  I’m not focusing on Water Fix that is being evaluated, just the broader concept of this is a conveyance facility intended to supplant something.  Is that a good thing or a bad thing, and then test my assumption that that it’s heart, that is what this is.  It’s just a water conveyance project that needs a change in point of diversion.”
DOUG OBEGI

I guess I would slightly disagree with your characterization of it as a conveyance project to supplant the existing conveyance because it actually is dual conveyance, and the proposal would still rely on the existing pumping plants for about half of the water supply and in dry years, two-thirds of the water supply, so it is more than just a simple conveyance project,” said Doug Obegi.

Secondly, the water quality standards in the Bay Delta haven’t been meaningfully updated since 1996,” he continued.  “The projects under California’s water quality standards are still meeting standards that we know are wholly inadequate to protect the environment and fishing jobs and everyone who depends on it.  So part of why when we negotiated the Delta Reform Act was that any change of point of diversion also has to be accompanied by appropriate flow criteria, so you can’t really look at this conveyance proposal in isolation.  The Water Board’s own order shows that when the Board looks at a change petition, it actually has to consider the totality of the project.  It can’t just look at that change in isolation, but has to exercise its public trust authority to look at those effects.”

The NRDC did propose a new conveyance alternative and the state rejected it out of hand which we thought was unfortunate,” Mr. Obegi said.  “They refused to analyze a single tunnel alternative with more protective pumping regulations in the final EIR/EIS.  We believe that new conveyance could be part of a solution if properly operated and properly designed, but we haven’t ever seen one analyzed.  At NRDC, we don’t believe in making decisions based on dogma or unfounded belief, but I’d like to see the data, so I would want to see what kind of operations would be proposed and how you would assure that those operations would actually come into fruition.”

One of the big things that you’ve heard today from many panelists is that there’s a real lack of trust,” said Mr. Obegi.  “We have things that are put in plans, put in laws, put in regulations and then they don’t happen.  I think part of what we’re suffering from in the Delta is a problem of unmanaged expectations and that probably applies to me as well as everyone else, but when you say this is what’s supposed to happen and then it doesn’t happen, that undermines the trust so that something new conveyance could actually be accepted by a broader community.”

STEPHANIE MORRIS

I agree with Doug that it doesn’t supplant,” said Stephanie Morris.  “I do think it is dual conveyance; in fact, if we were to shift all the pumping to the north, then the projects couldn’t meet the water quality control plans and the ag salinity standards in the south Delta would not be met, so I think what it does do is give flexibility.  It allows you to move water out of the north when you have fish sensitivities in the south Delta largely associated with Delta smelt.  Generally those restrictions that are coming from the 2009 biological opinions are related to Old and Middle River flows and reverse flows, and they are tied to turbidity and smelt moving into those sensitive areas where the pumping is because of turbidity.  Those times are generally happening in the spring and the winter when we’re having bigger storm events and so there is no pumping.”

Ms. Morris said that if the Water Fix had been in place in 2015, it would have allowed more water to be captured for the state and federal contractors while still allowing three times that amount to flow out to the ocean to meet the water quality control plan requirements.

With respect to Mr. Somach’s comment about the pages for the environmental documents numbering in the tens of thousands of pages, Ms. Morris pointed out that the Department of Water Resources and the Bureau of Reclamation have to comply with the law.  “You have to analyze things,” she said.  “It’s a big project and there’s a lot of impact and it just takes a lot of pages; it takes a lot of science, there’s a lot of hydrology, and there’s a lot of modeling.  I think that the Department and the Bureau have done a good job putting together websites, trying to put together information that would be helpful to the public and having open houses and being able to answer questions.  I agree it’s not ideal, but it’s the law and we have to comply with it.

KEVIN O’BRIEN

From Northern California’s perspective, there is general acknowledgment that the Delta is broken in its current state,” said Mr. O’Brien.  “If you look at the regulatory constraints on the ability to use those export pumps because of fisheries issues; they are quite dramatic.  A good example was in 2016, there were a number of parties in Northern California that would have been interested in transferring some water from north to south through the Delta in part because commodity prices are down and in part for other reasons, but even though it was a relatively normal water year, there was absolutely no conveyance capacity to move water through the Delta because of the restrictions placed on pumping due to fisheries issues.”

From my perspective, there isn’t disagreement that something needs to happen,” he said.  “The question is whether this is the right project.  From our perspective, part of what’s happening here is a not very transparent effort to basically transfer water supply impacts from the export water users to users in Northern California.  The concern is that if this project gets built, and $15 billion is spent on new intakes and new tunnels, that those tunnels will get used.  The modeling that’s been done to assess the impacts of this project, simply in our view, don’t adequately make that assumption.  In wet years when there’s lots of water in Northern California, we think a lot of water is going to move from north to south, and we don’t think the modeling that was done for this hearing discloses that, frankly, and it’s a problem.”

The concern in Northern California is that the net effect is going to be when you have a dry year following wet years, you’re going to have a situation where reservoir levels are drawn down, and senior water right holders in the north are not going to have enough water in storage to meet their water supply needs plus the temperature needs of the fish in the river, so the issue is this project and the impacts of this project and whether they’ve been adequate analyzed and adequately disclosed, and we don’t think they have been.

Mr. O’Brien said he doesn’t often agree with the NRDC on anything, “but I actually think the idea of scaled down version of this project is something that merits public discussion.  I think part of the problem with this project is it’s just too big and the impacts are just too great, not only Northern California but in the north Delta.  So I think that idea deserves some discussion.”

TRIPP MIZELL

Tripp Mizell began by agreeing that the California Water Fix project doesn’t supplant the existing plumbing.  “It is a supplement in order to provide flexibility such that we can either divert from the north or from the south and this is to minimize the impacts to fish species, so that if fish presence occurs in the north, we can divert from the south, and if it occurs in the south, we can divert from the north,” he said.

He reminded that the water quality control plan criteria and the regulatory constraints on the Department aren’t being changed, and in order to meet the Southern Delta water quality criteria that are currently a condition of the state’s water rights permits, they will have to maintain some pumping from the south Delta, because it’s that pumping from the south Delta that artificially draws fresh water into the south Delta and helps to provide for protection of agriculture in that region.  “So to say that the southern pumps should be completely taken off line would be to abandon the southern Delta agricultural water quality standards, and that’s not what we’re proposing,” he said.  “We’re proposing to maintain those.”

Mr. Mizell said he disagreed with the statement that the state is reacting to dogma.  “Dogma to me means that it’s something that you don’t investigate; it’s a statement taken on belief that you hold on to regardless of what the analysis would tell you, but alternative conveyance is something that was adopted as part of the solution in the 1992 Delta Protection Act, in the 1996 Safe Clean Reliable Water Supply Act, and the Governor’s Delta Vision Blue Ribbon Task Force in 2006.  The 2006 Water Quality Control Plan itself indicated that alternative conveyance was part of the solution.  In the 2009 Delta Reform Act which established the coequal goals mentioned that alternative conveyance was necessary.  2009, a NMFS biop, this is a federal fish agency, indicated that alternative conveyance was something that should be pursued.  The California Water Action Plan promotes it, and in fact, the sort of non-partisan PPIC produced not one but four reports indicating that alternative conveyance was a solution that should be investigated by the state, so I would not call that much thinking on the matter dogmatic.  And I certainly wouldn’t call a 90,000 page EIR/EIS dogmatic, either.

We’ve done a tremendous amount of investigation into all sorts of alternatives, some were screened out earlier on and some were provided with more thorough analysis, but when it boils right down to it, there have been decades of thought put into this process,” Mr. Mizell continued.  “The project that’s being proposed as the preferred alternative and the one that I’m presenting in front of the State Water Board is the best solution in the state’s mind to protecting the fish species, providing protection under the water quality control plan, the existing as well as the future water quality control plans, and stabilizing the water supplies for 28 million Californians, both in the Bay Area, Central Coast, and Southern California.  And it’s the idea of we need to move the system forward … and that we need to think of solutions rather than simply relying on the power of no as we go forward.”

Stuart Somach then turned to Kevin O’Brien and noted that one of his criticisms was the adequacy of the petition itself.  “You said that there is little in the way of definition of how this project is going to be operated.  Can you expand on that critique?”
KEVIN O’BRIEN

This goes to the heart of the issue in this hearing, which is the question of whether this project will ultimately cause injury to either other water right holders, or fish and wildlife resources,” said Kevin O’Brien.  “Our view is that under existing law, the petitioners have the burden in this proceeding of demonstrating such injury would not occur.  The way that they’ve attempted to do that is through some extensive modeling work that has been presented in the hearing process through a number of their modeling witnesses.”

We essentially hired our own modelers to review what was done and they have presented their testimony in response to the petitioner’s evidence,” he said.  “The bottom line from my standpoint is that the assumptions that are made that feed into the modeling that was done by the petitioners assume a certain operational scenario for this project.  They assume this project will be operated in a certain way and those operations obviously dictate what the hydrologic effects of this project are going to be.  So the question is whether those assumptions about how this project is going to be operated are realistic.   Our modelers, as they dug into this process of the last year, became convinced that the modeling for this project is not realistic.  It was essentially artificially constrained for reasons that aren’t completely clear, in terms of how much water would actually be moved through these new facilities.”

Our view, to just put it simply, is if you spend $15 billion on a project, and you’ve got the ability to use it, and there’s water available and there’s no legal constraints, by god, you’re going to use your $15 billion project to move water,” Mr. O’Brien said.  “The modeling that’s been done does not reflect that fact, the export of water that’s assumed in the modeling has been constrained, and therefore from our standpoint, the impact analysis is constrained and invalid.  If you look at some of the testimony presented by our engineers on this issue, they remodeled the project using what we think is a more realistic set of assumptions about how the project will be operated, and it shows that in certain years, not every year, but in certain years, there are water supply impacts in Northern California because basically you move a lot of water through the Delta and into storage south in the Delta, and then if you have a dry year that follows, you’re in a situation where reservoir levels are drawn down and you have injury.  That’s one of the big issues in this proceeding is how will this project be operated and there’s a lot of disagreement about that in the hearing process.”

DOUG OBEGI

Mr. Obegi noted that the NRDC hasn’t really been a party to the proceedings so far as they have no water rights, so they are focused primarily on the injuries to the environment.  “One thing that was really disturbing in reviewing the documents was this notion buried towards the end of the document that during dry years, they actually weren’t going to operate in the way they’ve proposed in the rest of the document,” he said.  “During critically dry years and droughts, they would seek to waive the rules as they did in 2014 and 2015.  … Water Fix proposes it’s going to operate a certain way, and yet in the drought years, it says we’re not going to operate the way that we said we would and we’re not going to tell you how we’re going to operate.  And even the way that they say it’s going to operate, according to the draft biological opinions that have been posted by the expert agencies, worsen conditions compared to the status quo for winter run chinook salmon and Delta smelt.  So things are bad now; this actually is worse.”

Stuart Somach then turned to Stephanie Morris and asked if the NEPA/CEQA documents explain project operations, and is it appropriate to look to those documents to understand the deficits the other panelists are talking about?
STEPHANIE MORRIS

Stephanie Morris noted that the modeling for the California Water Fix was done using two models, CalSIM for upstream, and the DSM II for the Delta.  “So what Kevin is talking about is Cal SIM modeling, and what the Cal SIM modeling looks at is when are we going to release water from storage in these reservoirs.  So the water that we’ve captured in peak times that is not needed for downstream purposes, that we’ve captured and stored for how many ever years the case might be, when are we going to release that water … we look at Cal SIM to model those.”

So what does injury mean in this instance?  “I think what some people may be advocating for is carryover storage targets in reservoirs,” she said.  “That means at the end of this water year I’m going to have x amount of water in storage in that reservoir.  Is that a legal injury?  Who is entitled to that stored water?  A lot of the protestants who have presented evidence on this issue, they have either settlement contracts with the Bureau or with DWR on the Feather River, and none of those contracts entitle them to carryover storage; they are entitled to get certain amounts of water pursuant to certain rules.  There’s nothing in those contracts that say we’re going to leave x amount of water in the reservoir at this point in time.  In fact, I think by doing that you take away flexibility.”

I do think trust is important,” Ms. Morris continued.  “But I think we need again to go back to the facts.  In 2014, when we went to TUCPs, temporary urgency change petitions to modify the operations of the water quality control plan for the year, what was happening.  Let’s talk about allocations.  Because there’s a lot of misinformation out there that we did the TUCPs to move more water south of Delta.  That’s wrong.  That is not factually correct.  In 2014, the SWP had a 5% allocation.  Started with a 0%.  Never happened before.  Moved to 5%, that’s because there were a couple storms when we were meeting standards that we were allowed to export some of amount of water, and then we went back to the TUCPs, so there’s that.”

The Central Valley Project, south of Delta ag, 0% allocation,” Ms. Morris said.  “Why did the Department and the Bureau ask for those changes?  They asked for those changes in consultation with the fishery agencies with the State Water Resources Control Board, and largely that water was being held back in the reservoirs for public trust purposes mainly cold water pool management and to not deplete that resource.  This is a species tradeoff.  Are we going to release that water now which some people thought we needed for Delta smelt to push the salinity out to a certain location, or are we going to hold it back and keep it for salmon?

So I think that the reason that the document doesn’t tell you how we’re going to operate in these critical years is for that purpose.  We need flexibility, and we need to understand what the issues are, and that was again done in consultation,” Ms. Morris said.  “By the way, much, much to the disappointment of several parties including all of my member agencies, we had no input into that.  Delta water users had no input into that.  That was the RTDOT, all the state agencies working with the federal fish agencies.”

Going back to the modeling and the idea that the Department is hiding something or didn’t show it in the modeling, it really comes down to a disagreement between several folks, Ms. Morris said.  “What we heard from the modeler representing Mr. O’Brien’s clients was, he used modeling, he ran it, then he optimized it, and then he went in every year and he looked and he changed the allocations which means more water was being released from the reservoirs based on a three step process; the Department of Water Resource operators don’t have that information at that time.  We don’t operate that aggressively again sometimes much to the disappointment of my clients.  So that operation, well yes technically could it happen?  It probably could happen but it’s not likely to happen nor do I think it would happen because the Department and the Bureau don’t want to take those risks because they have contractual obligations that they have to meet in the following years and more importantly, they have water quality control plan requirements that they have to meet in the following years, so they are much more conservative then Kevin’s modeler would be and frankly, probably my modelers.

“The concept embedded in these materials include realtime operations and adaptive management as part of this, but the question, isn’t there a ‘trust me’ quality to that?” asked Stuart Somach, directing the question to Tripp Mizell.
TRIPP MIZELL

The modeling that we used for this project is state of the art and in fact it’s used by nearly all the major projects that are proposed for the Delta.  You look at the Sacramento Freeport diversion, if you look at the Woodland Davis project diversion, it uses the same models.  Pretty much anybody who proposes a project in the Delta uses the models we use for this project,” said Mr. Mizell.  “So it’s not necessarily models, it’s more about the assumptions that you put into those models.  As any good modeler or computer person would say garbage in, garbage out, and that’s the complaint that’s being leveled at the modeling.”

The assumptions produced for the inputs to the modeling were done based on thorough consultation with the guys who actually run the state and federal water projects, the operators,” Mr. Mizell said.  “These are the guys with decades worth of experience knowing what knobs they turn under what conditions, and what sort of combinations of hydrologies would result in a decision making of any sort.  What we have are a bunch of modelers on the opposition’s panels such as Kevin’s who are very good  modelers, but they are not operators.  They may have intuition as to what they think might be an operators decision making process, but they’ve never operated a water project.”

Our operators have a conservative risk tolerance.  We operate the State Water Project for a number of beneficial uses, not just for exports, and therefore there’s an inherent tension between exporting the maximum amount of water possible and reserving a sufficient amount of water to cover all of those other beneficial uses,” said Mr. Mizell.  “Maybe what’s most instructive is you look at what past practice has been, and that can inform you as to what the future practice will be.  If you look at what the capacity of the existing facilities is and how often we’ve utilized when given the opportunity, you will see a gap between what is possible and what is actually used, and that gap represents that conservative decision making process that allows the state to then meet all of its obligations, including the upstream contracts, including the public trust resource needs, including all of our regulatory constraints, and then also provide reliable water supply.  We would expect that decision making is going to continue into the future and we would not be faced with this idea of we have a new shiny toy so we’re going to take it out and floor it and drive it as fast as we can; that’s not how the state operates.”

The assumptions that were made for the opposition modeling were with perfect foresight, but unfortunately, that’s not reality, said Mr. Mizell.  “Reality doesn’t give you a playbook as to what tomorrow’s rainfall is going to be.  What we have to do is use the best information we have available and make informed decisions because we don’t have perfect foresight, and that’s what our modeling operators did in crafting the assumptions for the modeling.”

The complaints about injury are really premised upon who has the rights to the stored water, said Mr. Mizell.  He pointed out that the Department stores it waters behind Lake Oroville, and nobody has a right to that storage besides the Department.  “We have contracts for deliveries, and those contracts delineate what the rights are of those contract holders, and not one of those contracts provides for rights to storage.  They are due deliveries, but they have no claim on storage.  I think that’s one of the fundamental disagreements that I and Kevin presented in front of the State Water Board.”

Mr. Mizell then turned to the temporary urgency change petitions, noting that they are a provision of the water code, and not something special made up during the drought.  He pointed out that it is an option available to any water rights holder, and it was used by others during the drought, besides the Department and the Bureau of Reclamation as there just wasn’t enough water to go around.

What spurred the Department into producing those TUCPs was a species conflict.  “We were not exporting water any larger than what it took to provide people with health and safety water, and that was largely going to the Bay Area.  What we were faced with was a choice between salmon and smelt, and when faced with a decision between two endangered species, you have a very difficult situation,” Mr. Mizell said.  “The RTDOT meetings took place with the federal fish agencies, the state regulatory agencies, the Department and the Bureau, in order to figure out how do we meet basic human health and safety needs for water supplies …  you’re not going go out and tell a community that’s it, the fish need the water, you’re done.  So there’s a fundamental baseline of water that we were trying to supply under the health and safety needs for communities.  Then you had a tension between how much water we reserve behind a reservoir in order to provide cold water pool, and how much flow we send out in order to put the smelt into the habitat regions of the Delta where they were going to thrive.

During the period of time when the TUCPs were in place and we were not meeting all of our regulatory standards as originally crafted, exports were limited by those orders to be no more than health and safety, so the concept that we did it in order to increase exports is actually a legal fallacy, because there was a condition prohibiting us doing any larger exports than what was necessary for human health and safety during that time,” Mr. Mizell said.  “There were storms where we were once again able to meet the original regulatory standards, and that’s when we were able to increase exports.

Stuart Somach then turned to Doug Obegi and asked him how the Delta tunnels would affect fish and wildlife resources, and is it appropriate to move forward with the change petition in the context of current water quality standards versus future water quality standards, particularly when there are proposals by the State Board staff to increase unimpaired flow substantially?
DOUG OBEGI

Back in 2009, it was a broad coalition that supported the Delta Reform Act,” said Mr. Obegi.  “One of the things it also did in the Delta Reform Act was to say it’s state policy to reduce reliance on the Delta and to direct the State Water Board to establish a public trust flow proceeding to say, how much water is necessary to protect the Delta, not considering balancing, because what we know of the water board’s job is that they have to balance the interests of all these different interests – water users, the environment, recreation, etc.  So in 2010, there was a 9 month fact finding mission, all the agencies participated, and the Board concluded, based on that evidence, that we needed to substantially increase how much water flows through the Delta and in to San Francisco Bay in order to protect the environment, fishing jobs, and communities.  And that’s obviously going to come at a water supply cost.

Mr. Obegi noted that the Water Board has not updated the water quality control plan meaningfully since 1996, and since then, there have been rapid declines in most of our native species and significant increases in water diversions; ultimately both the federal courts through litigation from NRDC as well as federal agencies had to step in, using the authority of the Endangered Species Act under federal law and the California Endangered Species Act under state law.

The California Water Fix proposal has really three main problems from a biological perspective, said Mr. Obegi:  “The first is that it reduces flows in the Sacramento River and into the Delta and so for salmon that are migrating downstream, you actually substantially reduce survival going through the Delta, and salmon is already at very low levels.  The second is that overall this project proposes to reduce how much water is flowing through the Delta and into the Bay, even though the State Water Board is saying we need to increase flows.  Many water users in California see this as a way to try to immunize the exporters from having to contribute less towards the inevitable increase in Delta outflow that we need, and that’s true, not just in the winter spring months but the proposal actually before the Board reduces outflow in the summer which harms not just water users but also the environment.”

The third big problem is that is actually reduces turbidity in the Delta by taking out about 10% of the sediment that would otherwise flow into the Delta and into San Francisco Bay, so you end up actually reducing turbidity which is critically important for Delta smelt and other native species to hide from predators,” Mr. Obegi said.  “It also adversely impacts wetlands because as sea levels rise, if you don’t get more sediment coming in, you’re actually going to see our wetlands around the Bay losing that battle to sea level rise.”

The temporary urgency change petitions were something that we strongly opposed ultimately because while they were done under the guise of pitting one species against the next, they actually screwed both of them,” he said.  “When we look at the water projects, we believe that there’s an obligation for them to actually maintain a healthy environment, and that’s not something they can just waive away in the drought years. …  ultimately we think that this proposal is not the right one because it actually worsens conditions compared to the status quo.”

Then panelists were each given one minute for their closing thoughts.
KEVIN O’BRIEN

I think I’m going to agree with NRDC for the second time in my life here,” said Mr. O’Brien.  “A lot of what Doug says is true, and without conceding anything in the litigation he mentioned, which involves a claim of Section 9 take of winter run chinook salmon as a result of operations on the upper Sacramento, that is part of the reason my clients are so concerned about this project.  Because if the net effect is to siphon off more water out of the Sacramento River system, particularly cold water stored in Shasta, it’s going to raise those types of issues even more in the future, and that’s a big deal to the Sacramento Valley, so I think we share some of the concerns about the fisheries impacts.”

STEPHANIE MORRIS

I’m going to agree with Kevin in that we all share the same concerns about species,” said Stephanie Morris.  “I do think that this project does have benefits because if operated as modeled, it is going to take some flow off high flows during times when we won’t be able to capture it, it’s going to help create not a new water supply, but help make a reliable water supply and hopefully leave more water in the reservoirs to help with species management in meeting water quality control plans. I think we all envisioned in 2009 that we would have a new water quality control plan which would define what appropriate flow criterias were using appropriate balancing, not just the 2010 flow criteria report before this project, we don’t.  I think it’s a conundrum, and it makes this hearing very difficult.”

TRIPP MIZELL

I’m going to spend my last 60 seconds talking about … the real time operations and the adaptive management plan,” said Mr. Mizell.  “The project proposes to use adaptive management which is to say that if the science indicates that there’s a change that needs to be made to the regulatory construct governing the operations of this project, that will be taken into account, and I think that that adaptive management is the way we can address lingering concerns whether or not the ones that Doug’s brought up today are found to be true or not, those can be addressed in the adaptive management process.  It’s robust, it includes a lot of stakeholders and it can move this project in a direction that it might be found necessary to do in the future.  To the last question, to the NEPA CEQA document and whether it was informative, I think if you wanted to read more about the adaptive management plan, look to the submitted biological assessment that was done in December and look to chapter 3, and it has a very detailed explanation of all of the stakeholders involved in that process.

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