Panel of lawyers dive into the web of laws affecting water in the Delta: The state and federal endangered species acts, water quality control planning, the Delta Reform Act, best available science, and more …
The Sacramento-San Joaquin Delta is a complex place on so many levels: physically, ecologically, hydrologically – and most especially legally. There is a complex web of state and federal laws that affect the waters that flow through the Delta and create the regulatory scheme that water users must navigate. These laws include the federal and state Endangered Species Act, the Clean Water Act, the Porter-Cologne Water Quality Control Act, principles of federalism, and others; they form the basis of many pending regulatory actions that affect water supplies throughout the State.
At the Association of California Water Agencies‘ spring conference, a panel of lawyers covered the basics of the legal framework for the Delta. The panel was billed as ‘All the Acronyms You Need to Know”, but no 1.5 hour panel discussion could possibly cover all that. However, the panel did a good job of hitting the main ones and highlighting current issues. Seated on the panel:
Meredith Nikkel, an partner with Downey Brand, has resolved a number of lawsuits with the Bureau of Reclamation, as well as prosecuted and defended groundwater claims in state court. She works on surface and groundwater issues, including Sustainable Groundwater Management Act, reclamation law, and compliance with environmental laws such as CEQA, NEPA, and the Endangered Species Act.
John Herrick is the manager and general counselor for the South Delta Water Agency, an agency created by the legislature in 1973 to take actions to ensure sufficient water supplies of suitable quality for use on the lands within the agency’s boundaries. He’s a longtime resident and defender of the Delta.
Bethany Pane was appointed chief counsel of the Delta Stewardship Council by Governor Brown in March of 2017. In that capacity, she advises the Council in the implementation of the Delta Plan, which is the state’s comprehensive long-term management plan for the Sacramento-San Joaquin River Delta. Before she began her work at the council, she practiced natural resources, land use, and real estate law at the Department of Housing and Community Development and the State Water Resources Control Board.
Michelle Banonis, the assistant chief deputy director of the California Department of Water Resources. Before she was appointed to the position, she was the manager for the Bay Delta Office at the US Bureau of Reclamation during which time, she went to law school at night and obtained her law degree. She also served in several other positions at Reclamation, including Special Assistant to the Regional Director, the Cal Water Fix Program Manager, and Restoration Goals Supervisor for the San Joaquin River Restoration Program. Before that, she had worked in several other positions, including environmental permitting supervisory, environmental biologist, and engineering technician.
Jennifer Buckman is chair of the Legal Affairs Committee at ACWA and a shareholder at Bartkiewicz, Kronick, and Shanahan. She has a lot of experience representing public agencies and private clients on water and land use issues, and she’s done a lot of Endangered Species Act, CEQA, and NEPA work. She’s been extensively involved in Bay Delta issues for more than 20 years.
Each of the panelists then gave a brief overview of an area of law related to the Bay Delta. Meredith Nikkel began with the federal Endangered Species Act; John Herrick discussed some of the Water Quality Control Plan laws, with a brief follow-up by Jennifer Buckman. Then Michelle Banonis talked about the California Endangered Species Act, and Bethany Pane closed with the Delta Stewardship Council and the Delta Reform Act of 2009. A lively discussion with the audience then ensued.
MEREDITH NIKKEL: Federal Endangered Species Act
Meredith Nikkel then began with the federal Endangered Species Act and how it relates to the Delta. The Central Valley Project was initially authorized and construction started in 1933; Shasta Dam, a component of the Central Valley Project, was constructed in 1945. At the time those projects were built, there was no Endangered Species Act, and in fact there were very few environmental laws throughout the country, state or federal, she noted.
The federal Endangered Species Act was enacted in 1973, nearly 40 years after the Central Valley Project started its construction and development. The purpose of the Endangered Species Act is to protect and recover imperiled species and their habitats. Ms. Nikkel noted that there are two components to the Endangered Species Act: it’s both focused on species themselves but also protecting the places where they live.
“At the time, I think Congress thought, ‘we’re going to do a good thing for the environment and protect species,’ but what’s become of the Endangered Species Act has really focused policy issues as between habitat and environmental values and concerns against the water users and human uses of water, and that’s really focused in the Delta and the way that the Delta operates,” she said. “In 1978, an important Supreme Court case interpreted the Endangered Species Act to halt and reverse the trend toward extinction, whatever the cost, and that has become an important pinnacle of the Endangered Species Act that many courts have grappled with since as they apply the law to balance and apply it to uses of water throughout the country.”
There are dozens of endangered species in the Delta, but for this presentation, Ms. Nikkel focused on winter-run Chinook salmon and Delta smelt, as those two species both have habitats that are important to the Delta. The Delta smelt habitat is primarily in the Bay Delta region. Habitat for winter-run Chinook habitat extends from the ocean through the Bay Delta, up the Sacramento to the Upper Sacramento River, so a much wider geographic area for the habitat of the winter-run Chinook salmon, but nonetheless is still important for how the Delta operates.
There are two important sections to the Endangered Species Act: Section 7, which applies to federal agencies and to discretionary actions that they take requiring them to ensure that their actions avoid jeopardizing listed species. In the interest of time, Ms. Nikkel did not go into detail about how a species gets listed. The second important section is Section 9, which applies to everybody and not just federal agencies. Section 9 requires folks to avoid ‘taking’ a listed species, which is defined to include things like harming, harassing endangered species, and also their habitats. The general prohibition against take in Section 9 is the backstop, and Section 7 works together with it as it applies directly federal actions, she explained.
Section 7 is the part of the law that applies to the operation of the Central Valley Project, throughout California as well as the Delta. Section 7 is a process that requires the Bureau of Reclamation, who operates the Central Valley Project, to ensure that its action is avoiding jeopardy. To do so, they analyze various impacts, and some of the impacts at issue in the Delta include things such as the entrainment of Delta smelt at the export pumps in the south Delta, so it’s a very specific impact to an endangered species that plays into Reclamation’s operations of the Central Valley Project, she noted.
At the other end of the system in the Upper Sacramento River, the endangered winter-run chinook salmon spawn and rear juveniles. Due to the construction of the dam, the fish are no longer able to go up past the dam and spawn in colder waters upstream as they historically did, and so there are temperature concerns downstream of the dam. Winter-run need a certain temperature of water to successfully hatch their eggs and allow those eggs to hatch and grow into juvenile salmon and swim downstream. So at the other end of the system is a dam that operates to protect the protected species that are directly downstream of the dam.
Those are just two examples from different ends of the system where operations are controlled by the Endangered Species Act; she acknowledged there are other laws, state and otherwise, that also govern these types of impacts.
There are two federal agencies that are charged with enforcing the Endangered Species Act: The National Marine Fisheries Service and the US Fish and Wildlife Service. The National Marine Fisheries Service has jurisdiction over anadromous fishes that live in the ocean; the National Marine Fisheries Service is under the Department of Commerce because salmon are in the ocean for a part of their life history. The US Fish and Wildlife Service is under the Department of the Interior, and it has jurisdiction over a variety of aquatic and terrestrial species. As applied to the Delta, the National Marine Fisheries Service has jurisdiction over the winter-run chinook salmon in the Sacramento River and the US Fish and Wildlife Service has jurisdiction over Delta smelt.
“What that means in practice is that the Bureau of Reclamation, in operating the Central Valley Project, has to consult with two separate federal agencies – not just separate agencies but agencies that live within two separate departments of the federal government,” said Ms. Nikkel.
The process for conducting consultation varies based on the type of project and type of action. In the context of the Central Valley Project, the Bureau of Reclamation prepares a biological assessment that analyzes the impacts of the operations of the Central Valley Project; Reclamation then engages in a consultation process with the two federal agencies, where those agencies review the biological assessment and prepare a biological opinion. So both the National Marine Fisheries Service and the United States Fish and Wildlife Service prepare biological opinions for those species that are within their jurisdiction, she pointed out.
The result is two biological opinions that inform Reclamation about whether or not the agencies believe that the operations of the Central Valley Project will jeopardize the species that are at issue. When the two federal agencies determine that the federal action will result in jeopardy, they come up with Reasonable Prudent Alternatives (or RPAs) which are actions that Reclamation can take or an alternative way the project can be operated to avoid jeopardy of listed species.
“So those RPAs become the hooks that require Reclamation to operate the project in a particular manner,” said Ms. Nikkel.
One flow specific RPA is the San Joaquin River inflow to export ratio that applies to the volume of water that flows into the Delta from the San Joaquin River and the amount of water exported; the RPA requires a certain ratio. (She acknowledged that certain flows are also required through other means but her focus is the ESA). Another type of RPA is the operation of the temperature control device that is installed at Shasta Dam; it is designed to allow Reclamation the flexibility to release waters of different temperature from the reservoir in order to provide the temperature of water needed for juvenile salmon rearing below the dam.
There are also different types of contracts with the Bureau of Reclamation that also trigger a type of endangered species act analysis. One is the Sacramento River Settlement Contracts, which is a group of water users that have senior water rights and have been utilizing those water rights since before the Central Valley Project and before Shasta Dam. Ms. Nikkel explained that when Shasta Dam was constructed, in order to resolve the disputes of those senior water rights, the Bureau of Reclamation entered into settlement contracts with these contractors that have certain terms for the amount of water that will be released for diversion by the water right holders as well as pricing and other terms that govern how Reclamation will govern Shasta in order to meet the water rights of those users.
The second type of contract is the export contract, water service contracts, such as the Delta-Mendota Canal Contracts, which are the water users south of the Delta that purchase water from the Central Valley Project and export it from the Delta.
“So not only do we have two species, two sections of the law, and two federal agencies – we now have two types of contracts,” said Ms. Nikkel. “The reason I bring up these two types of contracts is because the not only the long-term operations of the projects require Reclamation to ensure that the operations don’t result in jeopardy, but just entering in the contracts themselves trigger requirements under the Endangered Species Act, so that’s another element and its operations in the Delta have to comply with the Endangered Species Act.”
On top of all of that, there are two different branches of the federal government that come into play: The executive branch operating through the Endangered Species Act and the Section 7 consultation process, and the judiciary branch. There has been volumes of litigation regarding the Delta and under the Endangered Species Act. Ms. Nikkel noted that she and her co-counsel have been involved in some litigation that has been ongoing since 2005 involving the biological opinions that have issued for the Central Valley Project, as well as consultations conducted specific to the Sacramento River Settlement Contracts and the Delta-Mendota Canal Contracts.
“That involvement of the judiciary raises the prospect of court injunctions that also apply, in addition to RPAs and biological opinions,” she said. “It’s a complicated set of rules that are at play just for the protection of species. The Endangered Species Act where we started was for the protection of individual species and their habitats; meanwhile there are multiple different agencies, branches of the government, and various tools to try to protect those species.”
JOHN HERRICK, Water Quality Control Planning Laws in the South Delta
John Herrick is the counsel and general manager of the South Delta Water Agency, which he acknowledged means virtually nothing because there’s no staff, they don’t own any facilities, and they don’t deliver water.
“So the acronym that applies to me is SOB because the south Delta is very bitter about how the world works,” he said (audience chuckles).
For background, Mr. Herrick explained that the South Delta’s problems are that they are at the end of the system of the San Joaquin River, so when the state and federal export pumps are in operation, it lowers the water levels in the South Delta, sometimes to the point where the pumps won’t work which causes problems for farmers. The delivery of water to the south Valley also creates discharges into the San Joaquin River, both surface and subsurface, which are sometimes five or six times the standard; that high salinity water coming down the river has to then be diluted before it reaches the South Delta so it can be used, he said. And lastly, by building Friant Dam, that blocked off the San Joaquin River and the initial study shows that approximately 550,000 acre-feet of less flow goes down the river to reach the south Delta because of Friant Dam.
Mr. Herrick said the task that he was presented with for the panel was to talk about the water quality laws in the Delta that apply, and to answer the question as to why do those affect us and what are we looking for from them. “I’m trying to get you to think about the problems we’re facing because as you know, humans involved in anything means it’s all going to be screwed up and it’s not going to work. But there are efforts going on to improve things, and everybody has to participate in a manner that’s effective and not just advocating your own position. Now that’s difficult for lawyers because we’re paid to advocate.”
The federal Clean Water Act requires you to get a permit if you are going to discharge a pollutant into a water body. He said there are all sorts of definitions involved in that and people argue over them, but basically the federal Clean Water Act is trying to preserve water quality and improve it. It requires anybody who’s going to add something to the river which impairs drinking water quality or agricultural water quality to get a permit.
The State Water Resources Control Board implements the federal Clean Water Act, but it also implements the California’s Porter Cologne Act, which is a similar but more restrictive state law. The Porter-Cologne Act requires the State Water Board or the regional water boards to develop a water quality control plan for each basin that protect the beneficial uses of the water.
There are arguments over beneficial uses, he said. “We just went through that on the San Joaquin. There are certain areas where the water quality is poor but people say there are only a few people diverting for agriculture so there shouldn’t be any agriculture beneficial use designation. So there are all sorts of arguments about whether any particular beneficial use fits with that water body and thus has to be protected.”
Once the beneficial uses are identified, the water quality control plan statutes as listed in water code 13240 has the list of actions on how to proceed, which include identifying the factors that reasonably can be implemented to control the water quality to protect the beneficial uses. That sounds very simple, but in practice it gets very complicated, Mr. Herrick said. How much water do fish need in any particular stretch? What’s the water quality they need? What’s the water quality to protect agriculture?
“Once you get into the specifics, that’s when you get into the problems,” he said. “The problems I like to cover briefly are: best available science, which is the standard by which the regulators are supposed to develop and implement these water quality standards; how do you balance the various factors involved, and what are the factors to consider in developing a water quality control plan.”
Mr. Herrick first addressed best available science, acknowledging that this is where he gets ‘nasty and bitter’. “Some things can be a certainty. We can calculate speed, velocity, gravity – we can do physics. But when it’s a question of protecting ag or protecting fish, it may not be that specific. You can’t say if I say this, then this is the answer and that’s it. People disagree. People fight over that.”
“So what’s best available science?,” he continued. “In today’s day in age, we use models, and for those of you who haven’t heard me speak, I detest models and modelers. All models are wrong and all modelers are wrong. Why do I say that? Because a model is just a series of calculations that tells you one thing, once you put certain inputs in. If the inputs are speed or density – you can calculate physics, but you can’t calculate what’s the necessary protection of agricultural beneficial use through a model. But they try to do that.”
He went on to explain that they have models to predict the effects of putting salty water on the field and if the salt collected in the soil or not. He said that recently, the State Water Board ran such a model and concluded everything is fine in the South Delta. Mr. Herrick pointed out to them that they didn’t use the right inputs in the model and used the wrong data, but the State Board did not change the model.
“So what’s the best available science?,” Mr. Herrick said. “Is a model using the wrong inputs the best available science? Because that’s what been adopted by the State Water Resources Control Board to protect the agricultural beneficial use in the South Delta. The wrong data in a model. The South Delta Water Agency pointed these things out. … The State Board staff did not check to see if what I told them was true about the model data. So we put on presentation by farmers who said, we have adverse impacts to our agriculture due to the salty water. They listed the various things that occurred, and the State Board didn’t talk to those people separately … so what’s the best available science? According to the State Board, the best available science is the model using the wrong inputs without following up with people that say they are being damaged by the water use.”
“That’s why the courts become involved in everything. Water quality control plans are off-ramp to get to the courts to try to decide things. So now you have to have a judge to go through what’s the beneficial use and what’s protective of beneficial uses, so you have to kind of everything you just did in the regulatory agency that did a horrible job in front of the courts in order to get some sort of protection.”
The other part of the water quality control plans are the water quality objectives. “If you’re going to balance various factors to come up with a water quality objective, wouldn’t your first step be to check on who is dumping the billions of tons of arsenic in the water first? You wouldn’t set a regulatory plan and apply it to people if you know whose causing the problem, would you? If you’re in charge of somebody’s license, and that person is the polluter, wouldn’t you address that first? So why would you have a water quality control objective for salinity at various points in the south Delta, if you know where the salinity is coming from? Wouldn’t you stop the person who is putting the salt in the water?”
“But that’s not how it works,” said Mr. Herrick. “We do everything backwards. They come up with a goal, and then because they know who is responsible, the goal is then kind of massaged or not enforced. It’s not a question of getting the polluter; it’s a question of sharing the burden.”
He used the fishery issue on the San Joaquin as an example, acknowledging that he doesn’t represent fishery interests or argue fishery interest positions. The recent decision by the State Board on the basin plan changes in its water quality control plan update mandated increased flows in the tributaries of the San Joaquin River to improve fisheries.
“I don’t know what fish need, they probably need some more water, but I don’t know, it’s not my job,” he said. “So let’s take the Tuolumne River. ‘Tuolumne River, you have to provide x amount of water because fish are impaired.’ Wouldn’t you first ask why are fish impaired? Before you set a standard on a tributary that has 1 or 2 agencies controlling all the water? Because if they didn’t cause the problem to the fish, why would you put a water flow standard on that tributary? Why would you make them help fish when they didn’t cause the fish problem? That’s sharing the burden, that’s the approach here.”
“Who’s impaired the fish? We know some things. We know that various dams stop spawning routes. We know that the export projects have moved the rearing zone into the Delta rather than out in Suisun Bay. We know that the export pumps kill millions of endangered species every year. We know those things. So why would you set a standard on the Tuolumne River for a flow of water to protect fish if someone else is killing the fish? Does that make any sense? That does not make any sense for those of you who are confused. Trust me on this, I’m an attorney.” (audience chuckles)
Now, it gets even more ridiculous, Mr. Herrick said, because the fish leaving the tributaries of the San Joaquin are supposed to go downstream, enter the Delta, and head out to the Bay, but instead, they go downstream, turn left, and end up at the pumps. “If you’re trying to make a standard of water that gets the fish out of the tributaries so they can reach the Bay, then you’d try to protect that water to the Bay so the fish could go the Bay, wouldn’t you? But guess what happens to the water that’s been taken from the Tuolumne. It’s abandoned at Vernalis, which is where the Delta starts. So the flow standard to help those fish get out to the ocean and live stops before they get to the Delta. Now why do we do that? Again I apologize for this bitter presentation. Why do we do that?”
“When you take a huge amount of water from the tributaries to protect fish and to protect the Delta, but then abandon it at Vernalis, it becomes available for export. So you took the water from the tributaries to mitigate the export’s impacts on the fisheries, and then gave part of that water to the exporters.”
“So the system doesn’t work in my view,” Mr. Herrick said. “I want you to understand that we have these overarching fairly specific methods of protecting water quality in the Delta. It’s not just ag; it’s fisheries, it’s recreation, it’s all sorts of things and we have these programs that do that. But over the last 40 years, they’ve failed miserably. Now they haven’t failed because the statute should have had a comma here or put the word ‘not’ there instead of never; that’s not why it failed. It failed because in the abstract, people are going through the process of implementing the water quality control mandates, objectives, but in practice, they are not doing it, and that’s where I’m going to leave you.”
JENNIFER BUCKMAN: Federal-state litigation over the Water Quality Control Plan
Jennifer Buckman then discussed some of the ongoing litigation over the Water Quality Control Plan. There was a controversial decision made by the State Board last December to update the Water Quality Control Plan for the San Joaquin side of the Bay Delta system. At last count, twelve different lawsuits had been filed; three of those filed by conservation groups and NGOs, two filed by the United States Government, and seven cases filed by various water users and water user groups. The decision in December was the first real update of the Water Quality Control Plan since 2006.
Ms. Buckman then gave some insight into the federal-state nature of the water projects. In 1929, the state developed the California Water Plan through the State Engineer’s Office and in 1933, the voters approved the California Water Plan which was the plan to build the Central Valley Project. However, the state couldn’t float the bonds for the project at the time because of the Depression, so they asked the feds to step in. The Central Valley Project was built under the Roosevelt Administration as part of its programs to give people work during the Depression. In the 1950s, the state picked up the remainder of the Central Valley Project that hadn’t been constructed and added some features, and so both federal and state projects that operate through the Delta.
“Because of the state and federal nature of the projects, there are particular aspects of the system that require coordination,” Ms. Buckman explained. “So when the San Luis Unit was proposed to be built by Westlands Water District in 1954, one of the things that came out of the act of Congress approving that facility was that it would be a joint facility subject to certain statutory restrictions and requiring what later became known as the Coordinated Operations Agreement. That agreement is not referred to by that name in the Act, but the genesis of it is the Act of June 1960 which approved the San Luis Unit, because it was recognized that with the federal project and the state project, the two systems would have to work together.”
This is important in the context of current water quality control planning because the Coordinated Operations Agreement in 1986 requires the projects to share the regulatory burden, so if there are regulations that are imposed for water quality or other reasons, then the projects have to figure out who is going to contribute what in order to make those standards between the two of them.
“For purposes of the water quality control plan litigation, what can be important is what came out of the Supreme Court in the California vs. the United States case where they were talking about water quality conditions to be imposed on the New Melones Project,” she explained. “The Supreme Court said that the State Board has the ability to add conditions to the project consistent with Section 8 of the Reclamation Law which allows the states to follow their substantive laws with respect to these projects.”
However, they also noted that those water quality regulations cannot be inconsistent with the Congressionally-authorized purposes of the project. “In the New Melones Project litigation that was resolved after the Supreme Court issued its decision in the Ninth Circuit where Justice Kennedy in a very thoughtful decision went through all the water quality standards that the state was trying to impose and said, these are all good, none of these interfere with the Congressionally-authorized purposes of the New Melones Project.”
Now the feds have filed two lawsuits against the water quality control plan that was adopted in December where the issues are going to come back up: Are these water quality regulations consistent with the Congressionally-authorized purposes of that project?
“That’s an open question,” Ms. Buckman said. “This is one of those really interesting questions for us water lawyers who really like this kind of stuff and it could lead to another 20 years of litigation which only we would find very exciting. But this gives you an idea why a lot of the parties to a lot of the water users are putting forth these voluntary agreements that you’ve heard some about. The Governor has talked directly about them, Secretary Crowfoot has talked about them, and there’s an alternative path that’s being offered up in the water quality control plan context where folks are thinking rather than 20 years of litigation about what the State Board can and can’t do to the feds in terms of the federal project, maybe we ought to look for this other path forward.”
“I represent parties that are actively negotiating a voluntary agreement, so I’m just going to leave you with that thought, that that’s kind of the context of the water quality control plan litigation as the backdrop, that’s where you’re seeing a big drive to try to resolve some of these issues through agreements.”
Michelle Banonis began with the disclaimer that while she does work for the Department of Water Resources and while she is an attorney, she does not represent DWR in a legal capacity.
The California Endangered Species Act (CESA) prohibits the take of any species designated by the California Fish and Game Commission as endangered, threatened, or is a candidate. The California Department of Fish and Wildlife has jurisdiction over CESA permits and may actually authorize the ‘take’ of species if certain conditions are met. ‘Take’ of CESA listed species under state law literally means ‘hunt, pursue, catch, capture, or kill or attempt to do such an action’ and that’s called out in the Fish and Game Code.
The CESA-listed species in the Delta are the winter-run chinook, spring-run chinook, Delta smelt, and longfin smelt. The two most common permits, at least for the State Water Project, are Incidental Take Permits and Consistency Determinations, Ms. Banonis said.
Incidental Take Permits (ITPs) are covered under 2081 of the Fish and Game Code which allows the California Department of Fish and Wildlife to authorize take of species, if that take is incidental to otherwise lawful activities and certain conditions are met. A Consistency Determination happens if a species is listed by both the federal Endangered Species Act and the California Endangered Species Act. Fish and Game Code 2080.1 (not to be confused with a 2081, which is an ITP) allows an applicant who has obtained federal incidental take statement under federal authorization (generally Section 7 but could also be the much less common 10A-1B) to request that the California Department of Fish and Wildlife find the federal documents consistent with CESA.
As for the current status of coverage for the State Water Project, historically, DWR has received coverage for its State Water Project operations through consistency determinations. Currently DWR holds a consistency determination from CDFW that is based on the 2008 FWS and 2009 NMFS biological opinions. The State Water Project also holds an Incidental Take Permit for longfin smelt because it’s currently a CESA-only listed species. The ITP was set to expire at the end of last year; but DWR worked with CDFW to obtain an amendment to continue the longfin smelt take authorization through the end of 2019.
So in order to continue State Water Project operations that are covered under CESA, they are working with CDFW to develop a single permit that doesn’t tier off the federal process but instead authorizes State Water Project operations in a way that protects endangered species under both CESA and federal ESA.
Ms. Banonis said the reason DWR is seeking a separate ITP for CESA listed species, instead of pursuing a Consistency Determination as they historically have done, are the challenges over the past ten years with the literal interpretation of the CESA application to federal ESA and the black and white language, so this is something that has been considered for a long time.
She then discussed why from DWR’s standpoint, this is a rational decision. “First of all, the federal agencies involved in the reinitiation have been under a really aggressive deadline and everyone involved has really given it their all, but from the state’s side, we want to be sure that the analysis we do for CESA and for CEQA is independently formed and scientifically complete, so we want to consider the best available information to fully understand the benefits and the impacts of our actions.”
“Additionally, because the Consistency Determinations are based on the black and white language in the biops, it can actually limit our potential operational flexibility,” Ms. Banonis continued. “For example, if a proposal comes up that could be allowed under federal legislation and the biops are not literally amended accordingly to include that like clarifying language, then it’s really difficult for state regulators like CDFW to find that that action is consistent with CESA. So a stand-alone authorization allows CDFW to consider potential new proposals or revisions to their ITP and make changes, provided they are in compliance with CESA.”
“So we do believe that a CESA permit that is closely coordinated with the federal Endangered Species Act but stands on its own regulatory and scientific merits is the most effective way to attain a viable outcome for State Water Project operations for the next decade, and it also allows the most operational flexibility based on specific circumstances,” Ms. Banonis concluded.
BETHANY PANE: The Delta Reform Act and the role of the Delta Stewardship Council
The Delta Stewardship Council is a seven member, statewide public agency created in 2009 with Governor Schwarzenegger’s signing of the Delta Reform Act. Bethany Pane said that perhaps the most important language in the whole act is the creation of the coequal goals for the Delta.
“With the coequal goals, we’re obligated to work towards improving water supply reliability and ecosystem protection and enhancement while respecting Delta communities, and that is our northstar for all the work that we do,” she said.
With the passage of the Delta Reform Act, the Council also assumed CalFed program responsibilities, including the Delta Science Program and the Delta Independent Science Board. The Council also assumed the coordinating functions of CalFed for all the state and federal agencies that work in the Delta, a responsibility pursued in large part through the Delta Plan Interagency Implementation Committee, which is a committee of all state and federal leaders that meet semiannually to set goals for their agencies’ work in the Delta.
In recent months, the Delta Plan Interagency Implementation Committee has announced a coordinated One Delta One Science effort that targets specific scientific research in the Delta, with $15 million in funding provided by the California Department of Fish and Wildlife, the Delta Stewardship Council, and the Bureau of Reclamation. The Council also coordinates ecosystem restoration projects among agencies, and since the Council’s existence, ten projects have finished construction or are currently underway in the Delta with two more are scheduled to start construction this year.
The Delta Stewardship Council is charged with adopting and enforcing a legally-enforceable Delta Plan. The first Delta Plan was adopted by the Council in 2013; it has 14 regulations, a multitude of recommendations, and performance measures. The Reform Act requires that the plan cover certain topics such as flood risk, conveyance and storage, reduced reliance, and ecosystem protection measures. The Council recently launched a performance measures dashboard where staff are tracking in real-time the data for the successes of the Delta Plan and achievements to the coequal goals. The Reform Act requires the Delta Plan be reviewed and updated if necessary every five years. The Council is currently in the process of reviewing the plan adopted in 2013.
“Perhaps most importantly, our work is guided by the requirement that the Delta Plan be informed by best available science, so all of our recommendations and policies in the Delta Plan are informed by that,” said Ms. Pane. “We pursue that with our scientific research through the science program and we require that of the regulated entities that come and certify their covered actions before the Council. We require all of their projects to demonstrate best available science as well, so that’s a very key cornerstone of the Reform Act and the Delta Plan.”
In terms of the Council’s jurisdiction, they inherited CalFed’s coordinating responsibilities, but the Reform Act gave the Council additional regulatory authority and appellate authority over the Delta because of the guiding principles of the coequal goals and because they are the only agency that has that broad responsibility, she said.
State and local agency CEQA projects that could have a significant impact on the coequal goals are defined in the Reform Act as covered actions. Council staff track CEQA projects and reach out to the state and local public agencies early in the CEQA process through a process called early consultation, which is also set forth in the Reform Act.
“We use early consultation to reach out to these agencies, let them know what Delta Plan policies may apply to their projects, and help them get through the certification process while they are also trying to get their other environmental permits,” Ms. Pane said. “When all of that is in shape and their EIR has been certified, the agency will then decide to certify its project with us as consistent with the Delta Plan. That certification submittal kicks off a 30-day window within which anybody, including the Council if it wanted to, could appeal that determination of consistency with the Delta Plan. If that 30 day window passes without an appeal, than the project as far as the Council is concerned may proceed.”
So far, the Delta Stewardship Council has had 25 covered actions certified as consistent with the Delta Plan, 23 of which proceeded without appeals. Once an appeal is filed, the Council has 120 days to reach a decision on that appeal; the Council holds a public hearing so project proponents and appellants can state their case before the Council as well as members of the public. The Delta Protection Commission has a special role to comment as well. Depending upon the complexity or how many appeals have been received, they may hold a public workshop after releasing a staff draft determination to hear the parties’ responses to that proposed determination as well as public. Because appeals are a quasi-judicial proceeding, at that point, Council members and staff are under the ex parte communication prohibition, and Council members cannot talk to each other outside of Bagley-Keene compliant briefings, or certainly not in closed session, so there are public meetings so the Council can deliberate among themselves publicly and transparently.
The process ends with a hearing within that 120 day window; the Council has two options to make findings: They can either agree with the appeal and remand the project back to the project proponent to consider how it can better come into compliance with the Delta Plan, or deny the appeals and allowing the project to proceed.
The two appeals were filed in 2018 and occurred back to back. The first was the California Water Fix consistency determination and the second was the Smith Canal gate, a smaller flood control project outside of Stockton. With the Water Fix appeal, the Council got to the workshop proceedings and then the project proponent withdrew its certification of consistency after the fact; the Council did not get to the final determination hearing on that appeal. With the Smith Canal Gate, the parties saw that all the way through; the Council denied the appeal and the project proceeded to construction.
“Folks in this room might disagree. but I think those appeals went extraordinarily well and expeditiously, particularly in light of the speed with which you’re talking about how other state agencies work in the Delta,” said Ms. Panel. “So having gone through those appeals processes and now in the midst of our five year review, it feels like we’re getting out of the new kid on the block stage and with maturing into this coordinating role that the legislature created for us. I am really looking forward to what the next five years and beyond have to bring. The Governor’s issuance of his Executive Order a couple of weeks ago, calling for an all-of-the-above water portfolio approach, including new conveyance and storage infrastructure for the Delta, which is philosophically right in line with the Delta Plan, so it’s going to be an exciting time working with our sister agencies and our federal partners on all these tough questions facing the Delta.”
BEST AVAILABLE SCIENCE
Comment from an audience member: Best available science is merely a set of procedures. Usually we go to the National Science Foundation for the definition. The courts have been pretty harsh when agencies have not used the most up to date and more relevant science. … this is litigated sometimes, the analysis is all model assumptions have to have a prima facie plausibility. It requires where you have your answer, but running the model and then seeing what it says, and then if you have testimony that that just doesn’t occur anywhere in the world with what it says, then you probably are not going to meet the prima facie plausibility test.
“I didn’t mention the best available science under the Endangered Species Act but it certainly exists and the Section 7 process that I talked about includes the use of best available science and commercial information,” said Meredith Nikkel. “The cases have found that best available science doesn’t mean the best ‘possible’ science; it means the best ‘available' science. The best available science standard generally, although there are some exceptions, is something that is held within the sound discretion of the decision maker; whether that be a federal agency or a state agency that’s operating under state law, the agency is charged with identifying what the best available science is. Once that determination is made, the courts, if they are asked to review that decision, generally will defer to the agencies determination, and so the agencies are thought to have the expertise and the background to make that determination.”
“The distinction I wanted to draw under the Endangered Species Act is that under Section 7, that’s the standard and there is the concept of deference,” Ms. Nikkel continued. “However, the Section 9 prohibition on take also triggers the availability of a direct claim in court called a citizen suit. Anybody can bring a claim against somebody saying they violated the Endangered Species Act, and in that context, it’s not a best available science standard. In that context, it’s the rules of evidence that apply to a criminal case or any other case that has a trial. And there, it’s not about best available science; it’s about reliability, it’s about whether or not the science is relevant and so I think it’s important to draw that distinction because it operates in different ways as these laws play out.”
Audience questioner follow up: “Everything you said is correct, and the whole system is in deferral to science and not getting the courts involved, but I do want to say that with facie plausibility, the federal courts have reviewed it as due process law and they will not defer to the agencies on that, so it doesn’t go away quite as fast as you described. The whole purpose of best available science is to make decisions in the face of uncertainty and not get the courts involved in second guessing science.”
Jennifer Buckman recalled how back in in 1997, there was a case they took up to the Supreme Court. “When we took that case, we went on summary judgment after it was remanded from the Supreme Court and the whole question was, what is the best available science in the record. We were the first case in the United States to overturn a biological opinion, and the reason was because in all the other cases, they found there was some evidence in the record to support what the agency did.”
“In the Bennett case on remand, we had all this evidence that in fact the two species that they were issuing the biological opinion for in Clear Lake and Berber Reservoir actually benefitted from lower lake levels,” continued Ms. Buckman. “The evidence in the record said that, but the biological opinion was written with precautionary principle to apply a higher lake level in case the science was wrong. So that was how hard it was to get the case overturned because we had to have all of the evidence in the record against the regulation that was put in place. It was a really tough standard; I think it’s gotten a little bit better now, but it still is a very deferential standard, as anyone who survived the OCAP cases knows.”
“If you’ve dealt with the Delta (and this is not meant to be mean or snide), you know there’s no such thing as best available science,” said Mr. Herrick. “There’s the science that the regulator decides to use, and you’ve got scores of other views of what’s the correct science. My point that I was trying to make was not that we can’t define best available science but that it’s applied as the regulators want it to be. They are not trying to seek truth.”
“The example I gave was about my situation where the best available science used is a model using the wrong inputs,” continued Mr. Herrick. “Now, whether I can win some day on that is another issue. What do the courts believe and how much deference do they give somebody who did the wrong thing. But I was trying to highlight the problem that, because everybody keeps saying best available science, we keep assuming we’re doing the right thing. We’ve been doing the best available science on biological opinions and take since 1992, and the fisheries are crashing. Now I’m not here to defend the fisheries, but it’s not working, so if somebody thinks the best available science standard is the way to go, that’s up to them, but it’s not helping the situation.”
“Now is there some ultimate edict from God that tells us what is correct? No, so that’s where we stand,” said Mr. Herrick. “My point again was just to show that the regulators, in their decision making process, honest or not, do the best they can to list what they did as the best available science, and then they get deferential treatment, even though they treat me badly.”
FEDERAL LAWSUITS AGAINST THE STATE WATER BOARD
Question for Jennifer Buckman: You talked about the potential for a federal preemption claim to defeat the water quality control plan and the two cases brought by the federal government. If I recall correctly, one in state court, one in federal court, but the whole claim was that the State Water Resources Control Board had failed its California Environmental Quality Act responsibilities and they really didn’t nail the federal preemption. Do you see that coming up in the context of the resolution of those suits?
“The complaints are duplicate CEQA claims filed in federal court and state court because of the jurisdictional issues that are challenging when you have a federal agency and a state agency in litigation,” said Ms. Buckman. “What you said is absolutely true; it is currently a CEQA only claim. Subsequent to that, the United States Department of Justice attorneys have represented to the court as recently as Monday when we had the petition for coordination hearing, and in papers filed prior to that, that they intend to enlarge the scope of the federal court claims and they intend to pursue the claim in federal court if necessary. If that is the case, then they are asking for a stay of the state court case, which of course makes the procedural coordination of the other eleven cases somewhat more complicated.”
“It’s still a live issue and they have definitely sabre-rattled on enlarging scope of their complaint,” Ms. Buckman continued. “They filed their complaint within the CEQA Statute of Limitations which we all know is a very short 30 to 35 days statute of limitations depending on the type of action you are challenging, so they had to file that claim first. I think they are still kicking around through the upper halls of the Department of Interior what other claims they might ultimately bring if the voluntary agreements efforts falls flat.”
FLOWS IN THE DELTA
Question for John Herrick: You were saying the water released by the tributaries under phase one is abandoned at Vernalis, but isn’t it true that the State Board is going to pick that water up in phase two and deal with it then?
“Yeah, that’s possible, and unicorns might fly into the room here in a few minutes,” said Mr. Herrick. “The Water Quality Control Plan that we’re dealing with, D-1641 which goes all the way back to 2000, that actually has a provision in it that says no net loss to exports, so in order to make sure we protect the water quality and fisheries from the system of exports, we have to make sure we don’t hurt exports. So anybody that could adopt a nonsensical principle like that as part of a Water Quality Control Plan is not going to somehow preserve that water until it gets out to the Bay.”
“They could do various things, but it’s still a zero sum game,” Mr. Herrick continued. “That water, when that enters the Delta, it’s then part of net Delta outflow if it’s not exported, and if it’s not exported, that saves upstream storage on the Sacramento system. If it is exported, then again, same stuff, but once you say its abandoned at one place rather than taking the water and the fish to move out to the Bay, you’ve just eviscerated the intent of the water, so as it stands now, the that water flows from the tributaries of the San Joaquin are to transport smolts to Vernalis and then we wish them luck. That doesn’t make any sense to me, and I’m not a fish guy.”
DELTA AND SEA LEVEL RISE
Based on the conversation on the water quality control plan, considering sea level rise, can you speak to the state’s obligation if it exists to maintain water quality for agriculture in the Delta?
“I’m a bitter guy as a person, so I think the plan is to set a standard or a goal that can’t be met,” said Mr. Herrick. “The most recent statements by the Governor about what we’re going to proceed to do with this group of things, it mentions ten foot sea level rise. That’s a pretty big number, and so what I’ll say is there was a statute or something that set it at 45” and now it’s ten feet or something. So I don’t know what the answer is for protecting the Delta but that raises the issue for policy makers to say, okay, these statutes obligate us to do these certain things which I’ll say include protecting the Delta. If we now conclude that conditions in the not too distant future make that a $2 trillion proposition or it doesn’t work then that will be the incentive to change those rules and those laws.”
“I don’t know if you could protect against 10 feet of sea level rise in 50 years or 100 years,” continued Mr. Herrick. “We think we can do the 48” over 50 years … I apologize for being so childish but 10 feet is not something that somebody calculated from the rotation of the earth and the distance from the moon; 10 feet is something somebody came up with to make an argument later as to why you can’t do something.”
Follow up question: The physical integrity of the Delta is one thing, but the water quality issues, salinity intrusion issues …
“A few years ago and this is like ten now, the DWR was involved in efforts to calculate the additional water needed for each increment of sea level rise,” said Mr. Herrick. “That was a public process until it came out with a low number, and then all of a sudden I couldn’t find the process anymore to read it, so I don’t know what that is, but somebody can calculate that with some level of certainty and find out. I would assume that it’s a substantial like millions of acre-feet of additional outflow in order to prevent that huge tidal influx, if you have that sort of sea level rise, that’s true.”
“The bottom line is, although I represent the people of the south Delta, I don’t know, the Delta may be doomed someday,” said Mr. Herrick. “But right now, the laws don’t say, if you think it’s going to be doomed then don’t apply the law.”
Question: As I understand it, there are two different biological opinions right now, one from the National Marine Fisheries Service, one from Fish and Wildlife Service. I believe they are currently working on a joint biological opinion to be released later this year. Have they done that before in the Delta, and what might be improved or changed with a joint biological opinion?
“During the drought, there was new information about how the projects were impacting species and that triggered reinitiation of consultation, so the 2009 and 2008 biological opinions have now been sort of opened up,” said Ms. Nikkel. “I think you are referring to a memorandum issued by President Trump last fall in which he directed the two departments to work together in a coordinated fashion on a pretty tight timeline to review the biological assessment and conduct the consultation. They are not expected to issue a joint biological opinion, but they are coordinating in the effort of preparing biological opinions. The presidential memorandum also appointed a single federal official, that’s Paul Souza with the Fish and Wildlife Service in the Department of the Interior to serve as sort of the lead in the process as a way of streamlining the process and coordinating it.”
“Reclamation is still working on its National Environmental Policy Act process and I do not believe they are anticipated to have a Record of Decision until the end of the year,” said Michelle Banonis. “I think that means from a legal perspective, that there probably wouldn’t be actual implementation of the biops until that Record of Decision is out, so end of the year or early next year would be my understanding.”
“It’s my understanding from the Bay Delta Office is that they intend to continue to operate to the existing biological opinions until the Record of Decision is issued,” said Jennifer Buckman. “Then the interesting the question for those of us who are involved in the voluntary agreement process and the water quality control plan update with the State Board undertaking its environmental review is, so what’s the existing conditions baseline, come June.”
THE NCCP ACT
Question: Part of the problem is an endangered species straightjacket, Around the time of the CalFed process, the state developed the Natural Communities Conservation Planning Act (NCCP) to deal with that. I notice your outline says, ‘rarely used, too complex’, but the whole purpose was to take it up and start the planning at an ecosystem level and be able to make, for lack of a better word, tradeoffs. So tell me what practical and legal hurdles are there? Why is the NCCP Act never used anymore?
“After Senator Sher amended it in 2003 to incorporate the recovery standard, the standard basically holds the project applicants responsible for whatever the state of the species is, so it gets to the point that John made,” said Jennifer Buckman. “You have to look at what’s causing the problem, and if you require the applicant to take care of every single cause regardless or not of whether they have anything do with that – it’s not a very useful Act since it was amended in 2003, in my opinion. The NGOs object to anything that they consider to be a rollback of the standards, so I don’t have a lot of hope for amending it. Even the procedural amendments that have been put forth on the federal ESA in recent years have all died on the vine because of coordinated NGO opposition and procedural amendments, things like clarifying who can sue and who gets attorney’s fees.”
“On the federal side, there has been some progress in trying to coordinate not only the presidential memorandum but also the federal agencies issued new regulations that were intended to streamline the processing of certain ESA consultations and coordinate the two agencies,” said Meredith Nikkel. “I’m not going to comment on the law, but I wanted to offer that as an example of ways that the politics are working to try to coordinate the different laws.”
Jennifer Buckman added, “On the federal side, Section 6, the state cooperative agency agreements is an underutilized provision that we might be able to put creative minds to in the future, so there is an existing section on the book that no one ever uses other than for grant funding that could potentially be used, if we got a big agreement together, we could potentially use Section 6 to cover it.”
MOVING FORWARD IN THE DELTA
Question for John Herrick: In view of the new administration and the new executive orders that have come down, do you find more encouragement in the Delta to achieve what you’re looking to achieve?
“I’ll give you my common answer which is no,” answered Mr. Herrick. “We’ve gone through this before – changes in administration, middle of the road or more left or more right administrations – I haven’t personally seen any change in the Delta. There have been things along the edges where somebody will get a statute passed or to try to get this done where it wouldn’t pass in the previous administration, but the net result doesn’t change the fight and it doesn’t change the incentives for people fighting, so I don’t expect the new stuff to be good.”
“I’m not trying to be the horrible negative person I am, but we’re talking about biological opinions,” said Mr. Herrick. “Those are to protect the fisheries, and during all the time of the biological opinions, the fisheries keep going down. There are only a limited number of reasons for that. One, somebody doesn’t know what they are doing; two, we’re focusing on the wrong things; or three, both of the above. I’m not encouraged by the future because it’s a zero sum game. There are large areas of the state that don’t have enough water, and they put it to beneficial use and they become very beneficial economic engines of the state, but there’s not enough water, and so that’s why the fish are all dying.”
Followup question: But John, other things change. The only thing that doesn’t change is the Delta. So where does the fault lie? Where does the energy lie to make things happen?
“What she is saying is you’ve always been in the Delta … “ interjects panel member. (laughter)
“I have been told before that I am the problem … and that’s just in my marriage (more laughter) … I don’t know what the answer to that is. Our position is the Delta was pretty healthy during the hundred years that we were farming there, and then other things changed. Now that doesn’t make the people who did the other changes evil but there are other changes … I spend all my time trying to stop the state and federal government from injuring my clients every year. That’s my job. I’m not working on how much water or where we get water to LA, although that’s a good thing to work on. My whole professional life is to stop people from harming my clients and that sounds pretty sad. I don’t know what the answer is, I’m not trying to be overly negative, but things don’t look good. It looks like we’re going to continue to fight forever because in my view because nobody is solving the problem.”
“I disagree with John,” said Michelle Banonis. “I would just say that I do think there is a dynamic that is shifting, and I see it not just through the executive order, but through the voluntary agreements. I think this is the first non-litigated opportunity where folks are actually coming together to try to develop solutions, not just in the Delta as an isolated unit, but upstream tributaries, other tributaries have come out of the woodwork that aren’t actually even part of the phase one or two proceedings that want to participate. I think this is a changing dynamic, I think it’s positive, and I think we need to get out of the dogma of just fighting and we need to get together and cooperate and try to find solutions. I think we’re headed there. This is the first time at least in folks I’ve chatted to that have worked in the Delta and upstream tribs for thirty or forty years that they’ve seen something like this, so I think we need to keep that momentum going. Whether voluntary agreements work or don’t work, I think that sort of cooperation needs to continue into the future.”
“That’s the right attitude, and I encourage everyone to move forward,” said Mr. Herrick. “But since I’m a foul old man, this is the third time that we’ve all worked together to work things out to preserve the system and stop fighting, and so I can go pull out 20 year old files and it’s the exact same considerations and proposals while the laws are not enforced. But yes, I believe that the optimism of people like the Watermaster who I disagree with all the time are necessary to move us forward and hopefully solve some of these problems.”
FOR MORE INFORMATION …
- Take a photo tour of the Delta here: Understanding California’s Bay Delta in 63 Photos
- Learn more about the Delta here: A Beginner’s Guide to the Sacramento-San Joaquin Delta
- Learn more about California's extensive water infrastructure here: California’s Water Systems
- Learn more about the federal Endangered Species Act here: USFWS page on Endangered Species Act
- Learn more about the California Endangered Species Act here: CA Department of Fish and Wildlife Page
Explore the wealth of documents on the Delta at the California Water Library …
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