Californians rely on the state’s myriad of rivers and streams for things such as water supply, hydropower, recreation, fisheries, biodiversity, and more. These ecosystems and the benefits they provide are part of the state’s natural infrastructure. But these ecosystems are changing in undesirable ways in response to water and land use, pollution, non-native species, and a changing climate, and numerous species are now protected by state and federal endangered species acts with many times more species likely to need protection in future. To maintain the benefits that Californians derive from their freshwater ecosystems—and arrest the decline of native biodiversity—the authors of a new report by the Public Policy Institute of California (PPIC) say a new approach is needed, one that is based on the principles and practices of ecosystem-based management.
This post is based on two events: At a PPIC event held last December, Jeff Mount, senior fellow at the PPIC Water Center, gave a brief summary of the findings of the report, which was followed by a panel discussion on the concept of ecosystem-based management and how it would work. Also, in February, a panel at the California Water Law Symposium discussed the PPIC report. The California Water Law Symposium is put together by the students of six Northern California law schools; the PPIC panel was organized by students of McGeorge School of Law.
REPORT OVERVIEW: A PATH FORWARD FOR CALIFORNIA’S FRESHWATER ECOSYSTEMS
Dr. Jeff Mount began by noting that the PPIC has for some years been writing about the concept of ‘ecosystem-based management’. The last report in 2017 looked at lessons learned from the water and ecosystem management during the drought, and concluded that the state has to switch over to ecosystem-based management. Afterwards, some questioned what exactly was meant by that, so in this paper, the authors try to specifically define how it would work, how it would look in practice, whether or not we can do it, and if it is even legal under current laws and regulations.
“The current approach for ecosystem management is not working, so what we are proposing is an alternative path forward, and that is the concept of freshwater ecosystem-based management,” he said.
He noted the current fight between the Newsom Administration and the Trump Administration over the biological opinions in the Delta. “What they are fighting about is something that rightfully the Newsom Administration sees as a binary,” he said. “It’s is a trade-off between water supply and endangered species – and specifically two species, but they are missing the rest of the system. There are broad economic, social, and environmental benefits associated with healthy ecosystems.”
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Jeanette Howard from The Nature Conservancy led an interesting study a few years back which looked at the condition of native biodiversity in freshwater ecosystems and documented the long-term downward trend, said Dr. Mount. He noted that the number of species that would be considered vulnerable now, just ten years ago would not have been cause for concern, and there are significantly more species considered vulnerable than are currently listed under the federal Endangered Species Act and the California Endangered Species Act.
“What we’re seeing is a broad decline in ecosystem condition which is affecting native biodiversity,” said Dr. Mount. “We argue in this paper that is also affecting the multiple uses that we get from these ecosystems. That’s trouble on the horizon and something we need to think about.”
The over-reliance on the Endangered Species Acts as the prime lever for environmental management doesn’t consider any of that; the ESA doesn’t really consider climate change, changing conditions, anticipating future listings of species, and the decline of species, Dr. Mount said.
“It is reactive emergency room treatment of a narrow problem, but we continue to rely too heavily upon it, so we’re arguing we should not do that,” he said.
The alternative to that is what is called ‘ecosystem-based management,’ in which the primary objective is not listed species or water supply, but rather a broader set of objectives which manage towards ecosystem conditions, such as structure and function.
“You’re really managing toward an ecosystem condition,” he said. “So instead of species or an extractive use of that system, instead you’re managing to the ecosystem itself. This approach focuses on integrating human uses into the overall planning when setting ecosystem objectives and in doing so, emphasizes multiple benefits. The argument is made that your net benefits are larger.”
While some of the traditional uses may not have net benefits from this approach, the broader benefits to society are much larger, and where they do it well, it reduces water conflict, he said. The key is planning and governance. The PPIC has been pointing out for some time that plans matter.
“Eisenhower was right,” Dr. Mount said. “He said, ‘plans are nothing, planning is everything.’ It really matters, the planning part does.”
With this approach, first and foremost you have to bring all the beneficiaries who have a stake in the outcome into the room, and you have to define the desired ecosystem condition. Metrics and performance measures are important because they are the quantitative measure of what is desired from the ecosystem.
Dr. Mount said that in places where this is working well, there are robust collaborative scientific programs that help guide management. There is regulatory alignment the bring agency actions under a single umbrella, and within those are comprehensive agreements that are binding agreements amongst the water user community, stakeholder groups, and the agency. He also noted that the funding for this is extremely important, because without reliable funding, it doesn’t work.
With ecosystem-based management, there are a suite of actions available. The first is to establish an ecosystem water budget that is an allocation of water for the environment that functions much like a senior water right that can store, trade, and flexibly allocate that water to respond to changing conditions.
“It is central to ecosystem-based management to create that because it creates assurances, both for the stakeholders, the water user community, and the agencies themselves, saying this is your budget, this is what we’ve got, let’s do the best job we can,” he said. “The way to do the best job is to move away from our current approach which is to set minimum instream flow and water quality standards. That is the best way to flatline the environment that I can think of, and a flat-lined environment is not California’s environment. We are so variable in space and time and all biology is adapted to that variability; the only way you’re going to reintroduce variability is to do something that allows some flexibility, and that’s why we’re proposing this notion of functional flows.”
Dr. Mount explained that with functional flows, essentially you’re trying to strategically allocate ecosystem water budgets to create ecosystem function, and to do that well, the land must be reunited with the water, so there are structural habitat investments that have to be paired with the allocation of the ecosystem water budgets in order to get the highest return on investment. He said you have to pay attention to water quality as well as volume of water.
“As I have been explaining to people, we are now in the business of actively managing species for the rest of forever,” he said. “As long as we care about species, we will be actively managing them. Everything from the way we manage harvest, the way we manage hatcheries to the way we manage invasive non-native species, we are going to be involved in management for the rest of forever. Unless you’re going to take down the dams, it’s unlikely you’re going to get fully sustainable populations; in most cases, we will be involved in managing it.”
It’s also important to manage at the appropriate scale, he said. There are a lot of small projects being done, but they are not operating at the scale that ecosystems function at, so if we’re going to do ecosystem based management, we have to get to scale, and the most common scale is the watershed itself.
A question that comes up is, is ecosystem-based management legal? Are going to ignore the Endangered Species Act? Dr. Mount said the report is clear that the answer is no.
“What we’re trying to do is sweep these multiple and disparate regulatory objectives under one umbrella, and that’s what ecosystem-based management is doing,” he said. “Our report concludes that we already have the laws in place to do this and the dominant law is the Clean Water Act and the Porter Cologne Act. Those laws grant the State Water Board exceptional authorities, which includes the ability to actually take this approach. A point we make strongly in the paper is that these are abilities they have not taken advantage of and they are reluctant to for lots of reasons.”
“Between the Clean Water Act and the Porter Cologne Act and public trust and reasonable use, the authorities of the Board are so large,” he continued. “In fact, the mandates of those, both the Porter-Cologne Act and public trust and reasonable use, are for ecosystem-based management – that is the balancing of the use of water for the various uses, public trust, and reasonable use.”
Is an ecosystem-based management approach consistent with the ESA? Dr. Mount said the report authors believe it is. “If you’re involved in projects where you have listed species, we also argue that state and federal agencies that administer these acts administer them in a very narrow way, but there’s a lot of flexibility built into these acts so that you can take a broader approach and you can integrate human uses within your activities.”
At the top of the list are Habitat Conservation Plans and the Natural Communities Conservation Program, which allows ecosystem approach – not ecosystem-based as that approach fully integrates human needs into the planning, but they are broad, said Dr. Mount. He did acknowledge that National Communities Conservation Program plans aren’t used often because they are too hard and suggested reforms might be needed to make them easier to do.
“There are also a broad array of other laws that apply to this, but the conclusion of our legal team is that not only this is permissible within the existing laws, it’s actually encouraged by existing laws,” said Dr. Mount. “We’re not inventing something new. We’re already doing it in many areas. In the report, we’ve profiled 12 different programs. We’re already taking on aspects of this where it’s multi-benefit management, multi-species management. It’s just all over the map and invented every time on its own. It comes up, usually driven by either lawsuits or trying to meet regulatory requirements.”
Dr. Mount said there are two notable exceptions of state plans that do include ecosystem-based management, and those are the Delta Plan and the Central Valley Flood Protection Plan, both of which have strong elements of ecosystem-based management.
The report makes two proposals:
Incentivize watershed management plans: Plans are necessary, but they just don’t come up from nothing. There needs to be a carrot and stick approach and you need somebody in charge of it, he said. The State Water Board has much broader authorities than they currently take advantage of, and they should establish the criteria and be very clear up front what the plans would look like and what the narrative objectives are. They should encourage comprehensive binding agreements.
“They are going to produce plans that are messy and wildly imperfect, so they have to build in the ability to adjust course as they go because they are ultimately a compromise in the process,” said Dr. Mount. “It’s the most efficient way to get there quicker, instead of spending all your time in court fighting over these things. But to make this successful, the State Water Board has to put some regulatory backstop. To stiffen everybody, they have to be tough, and that toughness is that if y’all don’t do this, and you don’t do it on time, here is what the consequences are. The only way to make this work is there has to be a regulatory backstop. And then the goal is to adopt these as water quality control plans so they have the force of law and regulation in California.”
Mandate watershed management plans: The other way is to make them do it, Dr. Mount said. We have the for better or for worse, the model of the Sustainable Groundwater Management Act, which may be successful, we don’t know yet. “You could do the same thing they did with SGMA and do it with watersheds, and you can define what the critical watersheds are and give the State Board the authority that if people don’t self-organize and produce a sustainable watershed plan, the backstop is the State Board imposes one on them. That’s the other option, and we know that for some people, that is the least popular option of all, but you may have to do it in some critical watersheds.”
IN SUMMARY …
Dr. Mount summed it up by saying he thinks this is a better approach. “Right now, relying on the Endangered Species Act as your primary environmental lever is not going to work,” he said. “I do want to tell you there is an ever-growing body of research which is starting to say that the narrow focus on critical habitat for example isn’t working well and you need diverse, complex, varying ecosystems to actually recover these species. The old approach may not be working.”
“This is the only way that I can think of for us to anticipate and reduce new listings and future disruptions,” he continued. “For instance, we’re in a rapidly changing climate and we need a better way to integrate human uses of the ecosystem into our thinking and planning, and to get away from this binary fish versus farms kind of an approach. Finally, the most important thing is we need something for the agencies to align under. We’re inventing policy on an ad hoc basis in every watershed. We should have a way to align agency actions.”
At the California Water Law Symposium, Jennifer Harder, Professor at McGeorge School of Law, outlined the ways in which the PPIC’s ecosystem-based management proposal is in fact consistent, supported by and encouraged by California law and federal law.
Essentially, it’s about preventative measures as opposed to emergency room measures, Ms. Harder said. The Endangered Species Act is often likened to a patient in a hospital where if steps had been taken ahead of time, perhaps that emergency could have been avoided, so it’s ultimately looking at more effective species protection, she said.
The legal framework is that State Water Board would adopt water quality control plans under the Porter Cologne Water Quality Control Act (as it does now), but would take the broader ecosystem-based management approach, integrating habitat metrics that support ecosystem based management into its water quality and water right permitting, and to integrate those sustainable watershed management plans which align local input with a state regulatory backstop. The PPIC proposal retains the protections of federal species law but shifts the focal point of regulatory energy to the state of California, seeking to ensure the adoption of measures that would enhance food production and otherwise support a dynamic ecosystem in ways that would ultimately result in better outcomes for species.
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Is an ecosystem-based management approach consistent with existing state law?
Ms. Harder began with state law, the Porter-Cologne Water Quality Control Act. “Can we even do this under Porter Cologne? The answer is clearly yes,” she said. “Porter-Cologne has been acknowledged as affording the Board the broadest authorities to protect water quality. The idea is that the Board is supposed to obtain the highest water quality reasonable by identifying beneficial uses, considering all demands and values ,and then adopting water quality objectives that protect those beneficial uses. This is a multi-benefit, multi-factor analysis. The Board looks at everything that’s beneficial, detrimental, economic, social, environmental, tangible, intangible – it’s very broad. Porter Cologne clearly supports an ecosystem-based management approach.”
Ms. Harder next reviewed other provisions of California law that might be relevant to implementation of the ecosystem based management proposal.
Article 10, Section 2
Article 10 Section 2 of the California Constitution says that all uses of water must be reasonable and beneficial; those uses include non-consumptive uses like environmental protection. The maximum use clause says that because of the state’s variable climate and frequent dry conditions, water must be used to the fullest extent possible. This is even more important in a time of climate change.
“This means that we have to be very efficient in how we use water, both for consumptive and non-consumptive purposes,” she said. “We want the best outcome possible in the interest of everybody in the state, and this is ecosystem-based management in a nutshell.”
The key to Article 10 Section 2 is ‘balancing’: the State Water Board (or a court) is supposed to look at the statewide framework and consider what’s good for the state as a whole, taking all facts and circumstances into account.
“In this regard, the seminal case on the question of the Board’s authority under Article 10 Section 2 is the Racanelli decision from 1986,” she said. “That particular case said that reasonable use under the constitution is essentially a policy judgement; it’s a balancing by the State Water Board which the Board is uniquely qualified to implement. This really supports PPIC’s vision of the Board being the most appropriate agency to protect species, and it can do so effectively, using ecosystem-based management in the context of water quality control plans.”
Public trust doctrine
California’s public trust doctrine is a common law doctrine that is also recognized in the California water code as being a part of the basis of state water policy. The public trust doctrine establishes that the state has obligations with respect to navigable river systems and tidally influenced systems as well as the water systems that support those systems; those resources are held in trust by the State of California for the public statewide. Originally, the public trust doctrine only applied to the protection of fishing, navigation, and commerce on waterways, but has since expanded in scope to include recreational and environmental benefits.
“From the National Audubon case from 1983, the legal standard is one of feasibility,” she said. “A feasibility analysis is used to determine to what extent the Board will impose conditions to protect trust resources; the State Water Board balances all factors involved, looking always at whether it’s feasible to protect the common natural resources of the state.”
The public trust doctrine allows the State Water Board to impose standards that affect use and management approaches. “In that seminal National Audubon case, the State Water Board imposed particularized conditions in order to protect that resource, and if you read the technical appendix of the PPIC Report in which the analysis is laid out, we explain that the Mono Basin case itself is a quintessential example of the Board could adopt an ecosystem-based framework for managing aquatic resources. The public trust doctrine is entirely consistent with ecosystem-based management.”
California Endangered Species Act
The California Endangered Species Act (CESA) plays an important role in water allocation. CESA prohibits take of listed species, which is interpreted more narrowly than under the federal act. “It generally means direct mortality; it doesn’t include habitat impacts the same way the federal system does,” Ms. Harder said. “That said, it does have a broader scope with respect to some resources such as plants.”
CESA authorizes incidental take where the incidental take is otherwise lawful activity and would not jeopardize the continued existence of the species. The impacts of take must be fully minimized and fully mitigated.
“That’s a pretty strong standard that has been interpreted to require permanent mitigation under CESA, which is stronger in practice than the federal act,” she said.
She said that in regard to implementing CESA, there are a few things to note. “First, the metrics that are used for evaluating incidental take can be established consistently with ecosystem-based management.” In fact, the Fish and Game code directs the Department of Fish and Wildlife to use ecosystem-based management. There’s a 2013 provision of the Fish and Game Code, Section 703.3 which says that the Department should use ecosystem-based management informed by credible science in all resource management decisions to the extent feasible.”
“Ecosystem-based management is defined by the code as an environmental management approach relying on credible science that recognizes the full array of interactions within an ecosystem, including humans, rather than considering single issue species or ecosystem services in isolation,” she said. “This is exactly what we’re talking about in the PPIC report. So CESA and Fish and Game code clearly give DFW and the other agencies broad power to decide how best to restore and protect fish species, and they can use multi-benefit analysis to make those determinations.”
Natural Communities Conservation Plans
The Natural Community Conservation Planning (NCCP) program takes a broad-based ecosystem approach to planning for the protection and perpetuation of biological diversity. An NCCP provides for the regional protection of plants, animals, and their habitats, while allowing compatible and appropriate economic activity.
Ms. Harder said NCCPs are essentially blueprints for ecosystem-based management that provide for comprehensive management and conservation while allowing compatible economic development. “NCCPs look at multi-species conservation early in the process, focusing on multiple benefits, focusing on specialized habitat management, focusing on things like large habitat blocks, and adaptive management while taking into account the dynamic nature of the ecosystems. So NCCPs are an excellent vehicle for ecosystem based management.”
Is an ecosystem-based management approach consistent with federal law?
State law not only accommodates but encourages ecosystem-based management, so what about federal laws? Ms. Harder focused her comments on the federal Endangered Species Act.
“The key to understanding the PPIC recommendation is that the recommendation is grounded in compliance with the Endangered Species Act,” Ms. Harder said. “Nobody is saying that we need to amend the ESA and certainly nobody is saying it’s ok to violate the ESA – you absolutely must comply with the ESA and that was the assumption going into the legal analysis from the beginning. The key is that the way the Endangered Species Act is currently implemented on the ground does not incorporate ecosystem-based management, but the statute allows to the agencies to integrate ecosystem-based management, and in many places encourages them to do so.”
Section 9 of the federal Endangered Species Act prohibits take of listed species, which includes killing, harming, and harassing listed species, or affecting habitat in a way that results in take. She noted that the ESA’s extension of protection to habitat is really important.
Incidental take authorization can be acquired through one of two methods: non-federal parties can prepare a Habitat Conservation Plan (HCP) under Section 10; federal agencies undergo a Section 7 consultation.
Under Section 10, a Habitat Conservation Plan is prepared which is similar to the state’s Natural Communities Conservation Plan. An HCP has all of the tools needed to encourage ecosystem- based management. HCPs can apply to both listed and non-listed species, and the emphasis is on conserving species before they are in danger of listing.
“You can bring in candidate species, you can bring in other species, and we want to bring those benefits early and prevent the need for listing,” she said. “HCPs, like NCCPs, if they are implemented properly, could be an excellent method for achieving ecosystem-based management.”
With a Section 7 consultation process, if a federal agency is going to take an action, permit, approve, or fund an action that may affect a listed species, they have to consult with one of two fishery agencies, NOAA Fisheries or the USFWS, in order to ensure that that action will not jeopardize the continued existence of the species or adversely modify its critical habitat.
Through the Section 7 consultation process, a federal agency can receive incidental take authorization. The process involves the production of a biological opinion which includes mitigation measures designed to reduce or minimize take and to otherwise protect the species, and may require alternatives to the action to avoid jeopardy. Biological opinions may impose numeric limits on take and mitigation measures that will minimize take.
“The PPIC analysis concludes that the section 7 of the ESA actually incorporates ecosystem-based management, and consistent with that the courts have recognized that the fisheries agencies can use habitat as a factor in managing species condition,” said Ms. Harder. “So if the Section 7 consultation is focused on ecosystem-based management, the agencies can look at the habitat metrics that PPIC identifies, instead of focusing narrowly on one or two stressors.”
She reminded the audience that the ultimate purpose of the federal Endangered Species Act is to get the species off the endangered species list. She noted that the agencies are doing more recovery planning lately, and the recovery planning under Section 4 of the act should be complementing and integrated with all of the efforts related to incidental take.
“The idea is that we’re going to take this broader view and not focus on just a couple of stressors, with the goal of trying to actually recover the species, or to prevent their listing in the first place,” she said. “And the recovery planning section contains the same sorts of ideas about ecosystem protection that would facilitate this proposal.”
Ms. Harder concluded by pointing out that the federal Endangered Species Act, in multiple places admonishes the agencies to use the best available science.
“If in fact, as some of the smartest scientists I know tell me, the best science is not focusing on individual stressors but is focusing on the broader ecosystem metrics and you really get a better result that way, then I submit that not only does the federal ESA accommodate ecosystem-based management, it actually requires ecosystem-based management.”
JULIE RENTNER: Ecosystem-based Management Case Studies
Julie Rentner is President of River Partners, a non-profit whose mission is to bring life back to rivers by creating wildlife habitat for the benefit of people and the environment.
“Almost all of what we do is freshwater ecosystem conservation project delivery,” she said. “All we do is design, find the funding for, get the permits for, and install large scale habitat restoration projects. The stories I am bringing you today are from our work in the San Joaquin and Southern Delta area, but we work statewide in 17 different watersheds and we’ve been around for 21 years.”
Constructing freshwater ecosystem projects in California entails working with local, state, and federal agencies, from the county board of supervisors to the Bureau of Reclamation; they have to work through have to work through the bureaucracy of every single one of those agencies to get the work done on the ground.
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A lot of the work River Partners does is focused on restoring floodplains which look like terrestrial environments most of the year. At least three or four months out of the year in the San Joaquin Valley every two to three years, it is a fully aquatic ecosystem with water from levee to levee.
“What we’ve learned in 21 years of implementing projects to benefit the whole suite of species that rely upon this ecosystem is that it’s a complicated environment,” she said. “Because we’re an organization dedicated to wildlife, we start at the federal Endangered Species Act, the California Endangered Species Act, and habitat protections like lake and streambed and wetlands. We soon realized that anything we do that touches floodplains is also related to aquatic habitats and aquatic regulations. Because we work in an agricultural area, there is an overlay of different regulatory constraints and opportunities with working next to productive agricultural lands. How much water comes out of the system and what the water looks like when it goes back in becomes critically important in the design and the success of any project. Then we have levees bordering our work and special agencies dedicated to just talking about the hydrograph when it’s high, not when it’s low, which is the more interesting one that we’re all talking about today.”
So can we do ecosystem-based management in this complex environment? Absolutely, she said. “River Partners has worked on 13,000 acres of floodplains in the Central Valley and we found that regulatory alignment across not just ESA, CESA, or state and federal agencies, but everybody. The key to finding that alignment is describing ecosystem improvements that benefit people and finding that nexus where you’re actually providing flood safety improvement and water quality improvement in ways that people want to invest in.”
Example 1: Least Bell’s Vireo
Least Bell’s Vireo is a neotropical migratory bird that is federally-listed species that were once common but now locally extirpated in the Central Valley They also represent the habitat characteristics that are needed by a number of common species that are declining and likely to be listed in the next decade, she said. The birds migrate from Mexico, arriving in April, looking for places to build nests and rear their young.
The species is declining due to loss of habitat and parasitism by other birds. Structural habitat improvements that are needed are known, such as growing trees that the birds can nest in, but the problem is that the systems aren’t in place to create the insects that the birds need to eat.
“We have a lot of insecticide, pesticide, and fungicide use in the Central Valley that is driving insect populations down and we don’t have a good way to control those,” she said. “The habitat itself is groundwater dependent and needs to be resilient to flooding, so when we think about how policy decisions affect the ground, we’re out here trying to do the work that will keep these critters from going extinct in a completely unpredictable hydrograph.”
“Is the San Joaquin River Restoration Program going to deliver flows that are going to increase the base flow or increase groundwater elevations supporting these environments in the next ten years? I don’t know. Maybe. It’s being thought about. Are the voluntary agreements going to come into play? And then when flooding comes through here, is it going to be completely destructive to what we’ve created?”
These birds are clinging to the edge of existence to survival on this planet, so much so that they are turning to nesting invasive species when they can’t find the willow thickets that they need, she said. “Water management decisions are actually driving our river courses being invaded by things like salt cedar and Arundo or giant reed, things that aren’t great for nesting birds and certainly don’t support insect populations that make them successful in their nesting attempts,” Ms. Rentner said. “Large tracts of invasive species driven by water management decisions are degrading the environment, but actually holding us back from improving the environment because the birds happen to be nesting there. The single species focus of ESA protections means there’s bird nesting there, you may not touch it.”
Then there are the cow birds, another reason why the Least Bell’s Vireo is near extinction. The cow birds are nest parasites, so they lay eggs in the nests of other birds and kick out the eggs of the native birds that are nesting.
“Currently, the way the system works is that if you’re going to try to have nesting habitat for the neotropical migratory songbirds like Least Bell’s Vireo, it’s up to the project proponent to figure out how to keep cow birds out,” she said.
In terms of the framework in the paper, as to the desired ecosystem conditions, metrics and beneficiaries, the recovery of the species and water management in the river corridors to benefit species and habitat is well defined:
Early-seral riparian forest of suitable size and configuration to support migration and nesting
>80% cover willows and cottonwoods, dense understory, low to no cowbirds
Benefits more than 220 species of birds and 40 T&E species… multiplier effects for people
The metrics and performance measures for habitat diversity, quality and connectivity, food web productivity, biodiversity, flow/flood regime, and disturbance – these are likewise well defined, she said. As for scientific support, Ms. Rentner said they have excellent working groups and excellent staff at the wildlife agencies who know the details about what these species need to recover, but what is lacking is the connection to the physical processes and the larger ecosystem functions.
“We need to find ways to pair our species experts with the folks who are the experts in how water moves through the system, invasive species, and flood management to really develop that scientific support in the way that supports ecosystem-based management,” she said.
Where more support is needed to do ecosystem-based management is with regulatory alignment with transparent oversight and governance.
Example #2: The Riparian Brush Rabbit
The riparian rush rabbit was common in the south Delta and San Joaquin River which is a really localized habitat area. The one in the picture has an earring and a radio collar because he was bred in a captive breeding program, and then released and his movements across the floodplain tracked. The rabbit is a prey species which makes recovery challenging because the more rabbits there are, the more hawks there are, and then the rabbits go away.
The rabbit is both federally and state listed, and it is reliant on late seral forests with a dense mid-story which has different physical processes and water management regimes that support it. This makes ecosystem-based management and thinking about how you move through water through the system to benefit this species really challenging, she said.
This species is declining due to loss of habitat and the modified flood regime in the Central Valley. “We need land that is elevated above the current flood surface elevations so that when water rushes through the system in massive ways, the bunny has somewhere to go to get out of harm’s way, and it has to be vegetated so the hawks that are circling overhead at that time, don’t find all the bunnies and eat them up,” Ms. Rentner said. “We’ve done a lot of that, and what we’ve learned that it’s just not enough.”
“We need to have more coordinated flood management or at least warning so we can understand when a giant flood is going to come through,” she continued. “This is on the San Joaquin River, there are bunnies living on this floodplain, when the water broke through this levee, it took about six hours to flood this 500 acre tract. Bunnies just don’t have the energy to run that fast to escape the water. Even if they did, they would find themselves on the edge of the floodplain where there’s no cover from predation at all.”
Ms. Rentner said that in the last ten years, the Department of Water Resources has invested heavily in flood planning, and there is now a conservation strategy written for the entire Central Valley that tries to link the flood engineers and the flood management industry in the Central Valley and all the levee districts, with conservation values and protection of species.
“That’s kind of getting towards ecosystem-based management in this one venue, but there’s tons of work to be done to figure out how that works,” she said.
So in terms of the framework, she said they are pretty strong on the desired ecosystem conditions, metrics and performance measures, the first two on the list. Even identifying the beneficiaries is pretty simple to do, and the scientific work for the species focus is pretty strong.
“We have really good flood engineers and tons of really good flood planning documents, but the integration between those two hasn’t really happened,” she said. “We’re working hard on that to get that alignment. We’re working on the regulatory alignment with transparent oversight and guidance, making some good progress but we’ve got a long way to go, and then reliable funding, of course … “
WHAT ABOUT IMPLEMENTATION?
Ms. Harder then posed a question to the other two panelists. “We’ve heard that from the PPIC Report’s perspective, the law accommodates and in many cases, encourages, supports, and may require ecosystem-based management, but of course the law isn’t the end of the story. There’s a whole process that goes on with respect to how the law is implemented. Regulatory permitting, how that works, and what matters in that process is the institutions and the culture at those institutions – those can make a difference. Considering the culture of the various agencies engaged in species protection, what challenges and what solutions might arise with respect to implementing ecosystem-based management?”
“Let me pick on a couple of agencies and in the nicest way,” said Jeff Mount. “Let’s take the State Water Resources Control Board. Our argument in the paper is they have very broad powers and they are very reluctant to use them. That’s as much political and cultural as anything else. Based on the history of actions by the Board, they can get at the question of setting up ecosystem-based approaches to this. One of the key things we get concerned about is the flows only approach to solving aquatic ecosystems problems, and it’s not. And there isn’t a scientist that will tell you that is the solution; what you’re trying to do is improve habitat conditions and reduce multiple stressors to create broad improvements in ecosystem conditions.”
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“So the agencies themselves, not just the Board, but Fish and Wildlife, and the federal agencies as well, they tend to default to a flows only approach without really focusing on what the broader problem is in how to actually manage ecosystems and that’s to manage an ecosystem. Just managing flow is not managing an ecosystem,” continued Dr. Mount. “So there is this reluctance, and I think that comes partly institutional inertia, this is the way they’ve done it and they focused on it, and it’s the part of the equation people fight about most. So they tend to focus on the flows only approach to these problems. But it’s so much more than that.”
“The diversity of groups that you have to work with to really do a good job on ecosystem based management is broad, and each of those groups represents a cultural history that got that group to where it is, its existing authorities as well as its internal bureaucracies,” said Ms. Rentner. “All of them are complex. We like to budget in between 24 and 36 months to get all the approvals for a project, from the moment we design it and have funding for it, to the moment we’re going to install it. So the cultures inside the various agencies are the primary driver of how quickly we can deliver ecosystem improvements.”
“We have some agencies that have an infrastructure-oriented culture; they are used to getting stuff done,” Ms. Rentner said. “DWR comes to mind – used to getting stuff done, can spend money, have structures in place to do it well, and can work across several agencies to try and get good work done. Our friends at Cal Fish and Wildlife really have a culture of managing hunting and regulatory. That’s where they’ve come from, that’s where they stand right now, and it is very challenging for that agency to move its staff into a creative place where they are envisioning what might look better on the landscape and then putting resources and structures in place to support it. With the recent infusions from the propositions of cash into DFW and some work that the leadership of DFW has been doing around budgeting and reorganizing, I see some positive movement there, but it’s a long road and it’s taken a decade just to get to this point. Then Reclamation walks into the room and everybody else clams up, because we’ve got this behemoth in the room that manages water in the west and they are in charge of it all. That culture really changes the conversation around ecosystem-based management in many ways.”
“That’s my perspective in trying to make these projects work,” continued Ms. Rentner. “What we do to try to promote projects on the ground to get that alignment that we need to do things with all of those parties is a really complicated dance of who you talk with and who do you meet with and who do you invite into the room next. Really what it is, you need those soft skills to bring folks into alignment and it’s a long process, being cognizant of the different cultural baggage of the agencies participating there.”
“The central notion that we put in this paper was that … there isn’t except in a handful of places, a broader vision of where we should go with these existing ecosystems, and that includes the Delta, the most studied estuary on the planet,” added Dr. Mount. “There’s nothing that comes close to it in terms of investments we’ve made in studying it. There isn’t a single vision there, and when we interviewed federal agencies for this project and we talked to state agencies as well, they kept saying, ‘we don’t have anything to align our work; we could make some prioritizations if we had something to align toward.’ That’s where I think we could make some progress.”
At the PPIC event, A Path Forward for California’s Freshwater Ecosystems, a panel discussed approaches to implementing anm ecosystem-based approach. The panel discussion was moderated by Letitia Grenier, co-director of the San Francisco Estuary Institute’s Resilient Landscapes Program and one of the authors on the report.
On the panel:
Heather Dyer, water resources project manager, San Bernardino Valley Municipal Water District: She has a background in biology and an Executive MBA, and she is working in the Upper Santa Ana River Habitat Conservation Plan, which is a real world example of a plan trying to balance multiple needs to come up with a solution for managing the ecosystem.
Lester Snow, president of the Klamath River Renewal Corporation: He has had many different roles in governing water: local, state, and federal, including serving as the California Secretary of Natural Resources. Today, he’s representing the Klamath River Renewal Corporation, the entity working to decommission and remove the Klamath Dams.
Ali Forsythe, environmental planning and permitting manager, Sites Reservoir Project: She used to run the San Joaquin River Restoration Project, which was the largest federal river restoration in our country. Currently, she’s working on the Sites Reservoir project which is a reservoir that includes ecosystem needs for water from the beginning planning stages.
Letita Grenier then gave some opening remarks. The way we’ve all been trained to work in silos is frustrating because we’re working on really big, complex watershed systems and the freshwater ecosystems that reside within them, and they all have multiple inputs and outputs, she said. “I feel that the way we’re running our freshwater ecosystems in California is like we have different groups and we’re all trying to design the same car, and my team is making the car really fast, another team on the other side of the room wants it to be super-efficient, and yet another team wants to have low emissions. So I designed a sports car, you designed a diesel, and they designed a hybrid, and the car does not run. A car does not work like that. We all have to see the whole car to be able to design it. We all have to see the whole freshwater ecosystem to be able to maximize those benefits or functions or services that come out of the system.”
“If our freshwater ecosystems were really healthy, they’d be doing all things we want,” Ms. Grenier continued. “They’d be delivering reliable water, we’d have flourishing species and lots of native biodiversity and people would be recreating in them and it would be wonderful. Maybe we could get closer to that if we could think about running these systems as systems, because they are all highly managing and pretty much always will be. So let’s acknowledge that and start to work together in a different way.”
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Ms. Grenier directed the first question to Ali Forsythe. Thinking back to the San Joaquin River Restoration, how did that inform your view of ecosystem-based management? If that was approach taken, how would it have changed management or improved outcomes?
Ali began with some background on the San Joaquin River Restoration Program which was the result of 18 years of litigation. The program works to restore and maintain naturally reproducing self-sustaining populations of salmon and other fish in 153 miles of the San Joaquin River, from Fresno down to the Merced River confluence. The goal of the program was fish-based and focused on spring-run chinook, so the program was given an allocation of water which was just shy of 20% of the Friant supplies, which the Friant water users agreed to give up in the settlement. Each year, the program had an allocation of water that was allocated first to the program based on inflow into the watershed, and whatever is left after that is then allocated to the water users.
The water allocation for the restoration program could be scheduled throughout the year. “When we really talk about a dedicated amount of water for the environment, the restoration program has that,” Ms. Forsythe said. “It allows for carryover of that water within the year, from season to season, and scheduling of that water. We set up quite an elaborate structure to schedule that water for the year but then we could also change that schedule on a monthly, weekly, and even daily basis so that we were working to meet the ecosystem needs in the San Joaquin River as those arose. So, for example, if temperatures spiked down river, we tried to release water from Millerton quickly to get that water to move downriver just as soon as possible to help with spring-run chinook in-migration or out-migration.”
Although the program was fish-focused, rewetting a river that was dry for over 60 years had a lot of broad ecosystem benefits to the aquatic and riparian ecosystems. Once they started sending the initial flows down the river, there was a rebound of riparian vegetation along the river. There was a lot of structural work to prepare the river channel that hadn’t had water in it for 60 years, so there was reshaping the river channel, adding setback levees, fish screens, fish ladders and bypasses to allow fish to navigate through the system. There was also a robust science program. It was a struggle to get the science in timely enough to make management decisions, so they started holding an annual science workshop to get that science in quickly so it could inform management and flow decisions.
One of the challenges of ecosystem based management is that there were a number of agencies involved and they all had different missions, so bringing them all together was complicated and challenging, Ms. Fosythe said. “I recognize that restoration of the San Joaquin River had broad social changes in the San Joaquin Valley and how the people viewed the river system, going from a nuisance to really a resource for the local communities, especially some of the low income populations in the San Joaquin Valley. Having water back in the river provided a great opportunity to connect the population back with the river.”
In terms of how the program could have been different if ecosystem based management had been incorporated from the start, Ms. Forsythe acknowledged the program was tightly focused on the spring-run chinook based program, but there were broad benefits to the ecosystem that were just ancillary to that.
“With the program being born out of 18 years of litigation, there were many times when I wasn’t sure we were going to be able to hold it together, just as it was, so trying to incorporate much broader goals into it – I’m not sure the parties had the capacity and the trust to be able to do that early on,” she said. “Although the opportunity is there today because the Friant Water Authority and the Natural Resources Defense Council (who was the lead for the NGO community along with the Bay Institute) have really built a tremendous trust and relationship between them. I think it is possible to take the program now and really incorporate in ecosystem-based management components that are missing from it, and take it further than what it would do otherwise.”
Ms. Grenier pointed out that Ms. Forsythe’s comment that the opportunity is there today is interesting. “I think that’s a key idea that once you’ve built these foundations cooperatively working together and the relationships, that is something that you can then push forward into flushing out the other parts of ecosystem-based management that you might want.”
Question: Ms. Grenier asked Lester Snow, dam removal seems like it should be a great thing for the ecosystem. How does that fit in with ecosystem-based management? Does that create greater net gains in terms of services and desired functions?
Lester Snow began by giving a bit of history of the Klamath Dam removal project. There’s really no question looking at the Klamath Basin that an ecosystem-based approach is what is needed as it’s a large basin with a lot of issues. However, the current effort with the non-profit Klamath River Renewal Corporation doesn’t involve the whole ecosystem; their narrow job is to remove four dams and restore the footprint under the existing reservoirs.
In 2010, the Klamath Basin Restoration Agreement was signed, the results of negotiations that started in 2006 over relicensing. The agreement dealt with issues in the upper basin, tribal land issues including returning land to the tribes, water quality issues both above Klamath Lake as well as in the river, and water supply reliability for the irrigators.
“It was a very broad plan,” said Mr. Snow. “Unfortunately, it needed Congress to weigh in, and there was a deadline in KBRA of 2015 for Congress to act. They did not. So what happened is that many of the original signatories regrouped and resurrected the Klamath Hydropower Settlement Agreement which dealt with dam removal. But it left behind all of those other issues that any of us would include in an ecosystem-based management approach to the Klamath.”
There are reasons to be optimistic, Mr. Snow said. Alan Mikkelsen, a senior advisor at the Department of the Interior has been working in a painfully slow process to try and address the other issues. “Having said that, we think an anchor to anything else that you would do would be a healthy river, and we do not have a healthy river at the moment,” he said. “Removing the dams deals with water quality, endangered species habitat and non-endangered species habitat, and it opens up 400 miles of additional spawning habitat. Also, it deals with what I consider to be social obligations to the tribes that were deprived of cultural resources for over 100 years because of this, so there’s a lot of benefit that comes through it. But there has to be another step to deal with the broader issues in the basin.”
We’re 13 years into discussion, and if we hit our target with breaching the dams, we’ll be 16 years or longer, so it’s the lead times that are killing us, Mr. Snow said. “I continue to believe that climate change and the change of our natural resource system is moving faster than we are responding, and that applies to water supply reliability and it applies to ecosystem health. We have to move faster. We cannot have two decades of litigation and negotiation to address a problem that’s critical today. And that leads to looking at how we implement the essence of this report.”
“In health care, we spend 30% of our health care costs in the last year of our lives, and numbers vary a little bit, but it’s something like 90% in the last 10% of our lives,” Mr. Snow continued. “Sometimes, that’s what the ESA looks like to me, especially in the aquatic environment. We’re spending massive amounts of money to barely keep a species alive versus in the health care business, a lot of interest in functional medicine, which is focused on preventive care, eating better, nutrition, and avoiding some of these catastrophic things later in life. I think what we’re talking about here is preventative ecosystem management. But we’ve got to get out in front of these issues.”
Ms. Grenier appreciated the analogy about health care. “My pet peeve about the ESA is it’s focused on that small population paradigm, so let’s squeeze things down to the minimum and then barely keep them going,” she said. “That is it is not how biology works. Obviously there are ups and downs and you need to have bigger buffers around those population sizes, but the ESA doesn’t say we can’t do it that way. So we can focus on having thriving wildlife populations, we don’t have to manage towards the small population paradigm.”
Question: Ms. Grenier asked Heather Dyer, in the urban setting where she is working, are there examples of better synergies or outcomes that have come out of your quasi-ecosystem based management approach?
Heather Dyer began by noting that she is a former federal regulator for the US Fish and Wildlife Service, and with respect to the Endangered Species Act, a lot of people don’t realize that almost all of the workload planning and budget for the US Fish and Wildlife Service is driven by litigation.
“That’s how they distribute their funds and their staff time, and very little is left over to write recovery plans or implement any of the actions that do make it into a recovery plan. So I look at the ESA as a fundamental part of this equation; it’s the purse strings, the wallet for recovery,” she said. “As a tool in the toolbox, if we can come up with these watershed plans that say, if we’re going to restore watershed or species and we’re going to figure out the plan, then we go to the permittees with in a HCP or even Section 7 consultations, and we start drawing from that plan in order to implement recovery actions. I think it’s a fundamental part of the equation that if we can get this planning started, then the ESA can become a real driver for recovery, which on their own, the US FWS will never have enough money to recover species. They are in reaction. We need other partners to be proactive in recovering species.”
The Santa Ana River is highly urbanized, with seemingly millions of miles of concrete-lined channels, freeway overpasses, and storm drains that one of the only sources of water for the of our species. The other source is treated wastewater that’s discharged to the river.
“There’s barely anything natural about the Santa Ana River anymore, with the exception that the entire river is not concrete like the LA River,” she said. “We have healthy, functioning riparian systems, so our plan was also driven out of litigation. My general manager talks about going through several phases; the first was denial, then it was anger. The ESA is hard to understand for a lot of public agencies and so we tried to fight it in court over one particular species, and went all the way to the Supreme Court and lost. At that time, I was the regulator for this group, and I’m sitting across the table and telling the group, ‘even if you win this critical habitat lawsuit, you didn’t solve your problem. You still do not have enough fish in order to get an incidental take permit.’”
“That was a really big wake-up call,” Ms. Dyer said. “Luckily my general manager at the time was very proactive in trying to come up with a parallel path that we could take to help recover the species, which then turned in to 22 different species in the watershed, but it was a way to work as a partner with the Fish and Wildlife Service in order to get the permits needed for our water supply projects.”
There are a lot of hurdles in this highly urbanized system, one of them being not enough water. So they started with what are the habitat criteria that they are trying to build, where will they get enough water to do that, and how are the 11 partners that cofund this plan going to make each other whole?
“Our plan is actually based on a what I think is a groundbreaking paradigm,” said Ms. Dyer. “Of the eleven agencies that work on this plan, we all come to the table with something. Some of us have water, some of us have money, some of us have land, and we tried to take the jurisdictional boundaries, geographic boundaries, or whatever it might be that usually dictates why people can’t – we took that all away.”
We would say to our partners, we need this amount of water in this location for these fish; who can put it there? One of our partners could put it there, and then all the other partners make that partner whole, Ms. Dyer said. “Through these partnerships, we were able to reroute water through a pipe. There’s nothing natural about this, I fully admit. We put water through a pipe, we discharged it into these streams we were restoring. The public utility that supplied that water, it is part of their water supply program, so they want to be compensated so the other partners got together and put the water above their municipal wells where that public utility needed it, and that’s what I mean by make each other whole.”
“By using that collaborative approach to solving problems, we’ve really been able to make a difference in coming up with a holistic watershed-based strategy that covers all the different life history stages and the whole geographic range of within our watershed of this one species, the Santa Ana sucker, and we tried to capture every element of what it means to try to reach recovery,” she said. “It would not be possible without the partnerships. There’s no doubt about it. It’s too big, too expensive, and too complex for one agency to do it on its own. But if you work together and you have this relationship, these relationships based on mutual trust and respect for everyone’s mission, it is possible, and we’ve made a lot of progress in a short amount of time in very challenging circumstances.”
Question: You all have a lot of experience at this. How would you do it now? How would you bring that experience to bear on actually implementing some ecosystem-based management? How could other people do this in other urban settings? Urban places are some of our most challenging places in terms of having an ecosystem that provides that people want it to provide. How would you approve on the HCP approach or recommend for other areas?
“I do recommend the HCP approach, primarily because it is the way that you get many partners to the table,” said Ms. Dyer. “In most instances, one agency will not be able to make meaningful recovery actions for a species. It is that piecemeal. If it’s through one biological opinion or ten biological opinions, it usually is not planned out in a way that it can make a very robust conservation strategy. So I really think that regional habitat conservation plans are the way to go.”
“Even if you have the ability to go through the Section 7 process of the ESA, almost every single one of our 74 covered activities needs a Corps permit,” she continued. “We could have done it on a project by project basis; legally the tool is there. However, those 74 projects would not have been working off of the same conservation plan so it wouldn’t have had the same meaning to the species and to basically reach that threshold that we needed to avoid a jeopardy biological opinion for any one of those projects.”
Ms. Dyer said one important part of the plan is that it is permitting approximately 80,000 acre-feet per year of new local water supply over 50 years. As a state water contractor, they bring about 100,000 acre-feet per year from Northern California, so by adding this to their water portfolio, they are a lot more resilient and able to cope with climate change impacts.
“It was really important for us to be able to build these water supply projects, but if we would have done it on a project by project basis, with everyone racing to be the one non-jeopardy biological opinion that’s going to get issued on these species – sometimes your back is up against the wall and you have to come up with something. It is really challenging and it does seem insurmountable at times, but if you get all of the right people around the table, from all perspectives, you can create these synergies and really build off of what everyone has to offer.”
Ms. Dyer advised that if you are thinking of implementing this on a watershed or river system or in a region, bring the regulators from all the agencies into the room, all the water agencies, cities, even NGOs, and find out what the objective is and what they need out of the process.
“I have the Center for Biological Diversity and Endangered Habitat League at almost every single one of my meetings,” she said. “So by having that open dialog, it’s really helpful to get a process started that you work through over the years of planning, so in the end, everyone knows what they are getting out of it.”
Ms. Grenier noted the key points. “It has to be a large enough scale. You have to have the full system there, but you’re not just saying the full environmental system, but also the full people system. You have to get everybody at the table, include the regulators, bring people along and build that trust.”
“You want to be planning on a landscape level – not just geographic landscape scale, but the full regulatory landscape that you are going to have to move through,” said Ms. Dyer.
Question to Ali Forsythe: You’re planning the Sites Reservoir project right now, which is intended to balance multiple objectives from the start, including the ecosystem water budgets. Is that a good currency for ecosystem based management?
“I really think it is,” said Ali Forsythe. “We need to start thinking about our ecosystems differently. My eyes were really opened to this on the San Joaquin River when we were able to actually have an allocation of water to manage for the environment and could schedule that water when the environment needed it and could carry it from season to season. We had a great amount of flexibility and opportunity to really target that water for very specific environmental needs in the river.”
“I think we need to start thinking about our freshwater ecosystems in that way,” Ms. Forsythe continued. “How do we dedicate water to our freshwater ecosystems and create a toolbox of assets that allow storage and carryover of ecosystem water that allows for exchanges, transfers, and releases of that water into very pointed areas that provide ecosystem benefits as they are actually occurring? So instead of just having opportunistic releases when Mother Nature provides for extra water in the system, how do we control and manage that water and release it for very specific purposes.”
The Sites Reservoir project does present that opportunity, Ms. Forsythe said. “Something that’s been very important to the Sites Board of Directors and the member agencies are the environmental and ecosystem benefits for the project. Up to half of the water out of Sites could go for environmental benefits subject to Water Storage Investment Program (WSIP) and what the federal government would be interested in buying in for. We’re looking at trading the environmental water no different than how we would manage that for our partners. The state would control the WSIP water and essentially Reclamation would control the federal component, but they would be able to schedule their water just as a water user would. They could change their schedule on a monthly, weekly, or daily basis and be able to carry over water in Sites from season to season, year to year and so it’s providing both a water asset and a storage asset. How do we get storage for the environment so we can take some of that wet year that’s plentiful and hold it for the 2014-2015 years when the species really critically need it.”
“The interesting part about Sites and being able to allow the environment to manage the water in this way is the asset can also be (and I know this is a bad word for a lot of folks) monetized,” Ms. Forsythe said. “The environment needs funds to make water release out of Folsom, so we could potentially sell water out of Sites and generate those dollars to release water out of Folsom. You could also do a trade or exchange, so say for example, the environment account hasn’t been full at Sites and there’s still storage left. You could lease that storage to another water user within the Sites framework – you could lease it for money or for water, so ‘I’ll lease you 10,000 acre-feet of storage if two years from now, you give me 2,000 acre-feet of water back.’ It puts the environment on an equal playing field with our water users and they are able to play in the water market and be able to move water around in a way that is very flexible, opportunistic, and targeted for those environmental needs. So we’re really looking at Sites and how do we create a structure that would allow for tremendous flexibility for the environment to be very focused and very strategic in helping the environment for now and definitely for into the future.”
“I want to comment about having the environmental water be an equal partner,” said Heather Dyer. “In order to make this possible, there needs to be kind of an eye-opening for our regulatory agencies. If you’re a US FWS biologist and you’re writing biological opinions, you are regulating to prevent extinction and the balance you’re trying to find is a jeopardy or non-jeopardy. By having this environmental water there available for the regulating agencies to use as needed to promote recovery of their species, they need to understand what that means. They need to figure out how should the water be released for environmental benefits, when is the best time, and where are the locations that we need to release it from for different life stages or whatever that species might need? That’s a fundamental shift in regulatory thinking at the fisheries agencies, especially.”
“We’ve been doing it in Southern California. When I first started talking about moving water around for fisheries, they said, ‘you can do that?’ and we were like yes, there’s a million miles of pipeline, so we can just put pipes places,” continued. Ms. Dyer. “Sites Reservoir is a perfect example of, if we take those false boundaries off of maps and we say, in these four locations, we need water of this temperature or this turbidity, who can get it there? Then all the other agencies say, ok well we’ll replace your water in lieu that you release for the fish, we’ll replace it through these other dams or holdings or whatever it might be. We’re all in the same community, so we all have the ability to make these deals and fit the puzzle pieces together so that it benefits the environment and the fish, which then benefits the water agencies because the more fish we have, the easier our job is to get permits and do our job of supplying water to the public.”
“Seeing that the environment has a seat at the table equal to the other water users is this really powerful tool in the toolbox and then that can get us out of the small population paradigm into a different kind of regulatory thinking about how do I actually get this population to thrive,” added Moderator Letitia Grenier.
Question for Lester: Given all your different angles of experience on this, understanding state, local, and federal management and regulation, is there an institutional structure or approach to collaboration that you would recommend to actually implement ecosystem based management?
“The concept of building some creativity into what is otherwise a regulatory process – and too often, the regulatory process doesn’t have room for exploration of is there a better way to do this, which I think that’s essential, so one of the questions is, can you do that without some statutory or financial arrangements, and I doubt that,” said Mr. Snow.
“With respect to my experience on what can be done, I go back to the 2006 floods,” continued Mr. Snow. “That was before we used atmospheric rivers as a phrase and we called them a Pineapple Express. It started at the end of December and then several more runs at it in January – just massive flooding all through the Central Valley, and a lot of flood fights. But one of the bigger issues that came out of it, there was massive erosion of levees that did not fail, and there was great concern that if we didn’t fix those levees, the next season if there was even modest flooding, there would be large scale flooding and property damage. So as a result of that, there actually was a regulatory permit coordination effort because there were multiple endangered species that they were dealing with … There was an effort, weekly meetings with NMFS, US FWS, Fish and Game at the time, and other parties. It worked very well to try to deal with both the vegetation issue and the windows of construction issues and move very quickly, not sequentially from one agency to another but as a team review of it.”
“One of the things that made it work is you had very high level commitment from all of those agencies, and then over time, as the pressure came off, that kind of coordination moved down in the organization and people less able to make commitments in the meeting,” Mr. Snow said. “So you saw a flash when it was needed of that kind of one stop shopping as it were to approve projects, and then we moved back to an older system, although probably improved.”
Mr. Snow then turned to regulatory silos and management silos, noting there’s a couple of ways to approach it. “One is an administrative approach where you’re not really dealing with the organic legislation but some discussion of having a coordination office where you actually have an office of ecosystem-based management and you have the State Board, you have Fish & Wildlife, you have DWR – you have different entities whose job it is to make it happen. Not to review until you can’t do it, but to make it happen and to be able to do the planning and permitting as the state supporting those kinds of activities.”
“This other is a cultural issue,” continued Mr. Snow. “I go back to when Secretary Babbitt really tried to push Section 10, because in Congress there was some assault on ESA, ‘it doesn’t work, it’s stopping too many economic projects,’ and so they really started to push that. Within the Fish and Wildlife Service, there was real pushback; there were people that didn’t believe that Section 10 was to be used. You go after that species and you do everything to protect it. That has changed; it’s really changed on the terrestrial front. Stephen’s kangaroo rat … least bells vireo in Southern California, big terrestrial approaches that were quite successful.”
“Statutorily, I happen to think that ultimately to increase the speed and get out in front of climate change, we need changes in authorities and requirements,” he said. “A Habitat Conservation Plan should not be an option; it should be how we approach these different issues.”
“I am not one to believe that 46 years ago, we had divine guidance that gave us the best law that could ever be written to protect species – that doesn’t happen, but that’s the way we act right now out of political fear. And in this current political environment, I’m not proposing anybody move forward with an ESA amendment any time soon, but I think we have to take a critical look at what can be done by rational people to improve implementing the ESA but on a broader scale – not chasing the last species that you may not be able to save but rather chase the ecosystem that will keep other species from falling into that category. And within that, a better way to allow trade-offs, and to allow investments, not just to go to that incidental take permit but to go to the ecosystem. I’m not sure you can do that effectively without some statutory support.”
“Our environment is changing rapidly because of climate change,” Mr. Snow said. “And you can’t have these decades of litigation that finally lead you to a table where you then have a decade to start implementing the comprehensive program. We’ve got to figure out how we move to scale more quickly. Part of moving to scale for me is considering legislation about authorities and how do you make certain difficult decisions, but it’s also about money. A lot of your ESA implementers have no money to get out in front an issue. I can remember at the Bureau working with Fish and Wildlife Service … just the tension between the hatchery folks, the refuge folks, and the ESA folks and even with ESA, some dispute on how you’d take limited dollars and what do you do with them. We’ve got to have more money involved in that.”
“Too often, to fix our ecosystem, we’re dependent on somebody who has a project they want to do,” said Mr. Snow. “How does that work? There’s clearly benefits that will happen with the Sites Reservoir and the ecosystem will be healthier because of that. What happens if the proponents pull the plug on it? Then we’re just out those things. We have to do a better job of funding those kinds of activities, and granted there are some public funds that are geared to public benefits in that, but not in other cases. So we’ve got to get out in front of this and we have to pay and that’s one of the problems.”
“We want a better world, we just don’t to pay for it, and we’ve got to get past that and invest in these things and take a deep breath and look at statutory changes that we might need,” Mr. Snow concluded.
Question: The report mentions two approaches to implement ecosystem-based management systems. A hands off approach where the water board incentivizes folks; the other option is for the legislature to come in with a hammer and pass a huge law. What do you think is more likely or more feasible approach to those recommendations?
“I don’t think it’s either-or; I think you have to do both,” said Mr. Snow. “The only modification I would make is it can’t be hammer; maybe it’s a rubber mallet. It can’t be the heavy handed approach, but maybe a little SGMA-esque. Here’s what you need to do and if you don’t, we’ll probably do it, but there has to be incentives. There has to be regulatory timeline, reducing transaction costs, go to the front of the permitting line – and ideally funding. There has to be incentives but there also has to be a very clearly articulated reason to do it.”
“The incentives have to be both financial in terms of planning money and also regulatory streamlining,” added Ms. Dyer. “They could say,’ if you are part of an approved habitat conservation plan, then you get streamlined expediting permitting for all the other permits that you need to get that’s included in that plan.’ The other thing is the planning process on these is really difficult and expensive; we spent about $5 million on planning so far in order to implement approximately $50 million worth of conservation activities. That’s a huge benefit on the tail end, but it’s getting that momentum to do all the science, to do all of the detailed GIS mapping and other things, but the benefit for the public is there. You just have to get it started, so I think for the incentives, those two things would be really helpful.”
Question: I wanted to ask about the performance measures and the metrics. It seems like definitely all of us are interested in ecosystem approach and not a single species approach, but how do we set up metrics that drive us in that direction? It seems like we always fall back on metrics that are species based and the metrics really need to push us to do ecosystem-based efforts.”
“It does get complicated, but in my mind, I think you get all of the interests in the room together including the NGO community, bring in a lot of the human environment, so the business community into the room, and have a robust dialog to figure out what are those metrics,” said Ms. Dyer. “I think for a lot of us, our metrics are based around species because for whatever reason, we’re kind of species driven, but something like the work that’s going on in the Klamath Basin is really bringing in a lot of the human component, both the business community and the tribes.”
“We’re trying to focus on healthy functioning native communities so for instance, historically Santa Ana sucker, Santa Ana speckled dace, the arroyo chub, and probably mountain yellow-legged frog would have all co-occurred in certain streams, and so rather than just focusing on reestablishing and reintroducing Santa Ana sucker populations into these upper watershed streams, we’re looking at how do we bring back speckled dace and mountain yellow-legged frog and reestablish the community that would have been there,” continued Ms. Dyer. “But then we also are taking into account water quality, high flushing flows, base flow, riparian vegetation, bird communities, all those kinds of things so that when we present our objectives and our criteria for success, it will be based on an ecological community, rather than we need 100 Santa Ana sucker in this particular reach.”
“I think functional flows are a good example of process based metric that’s going to do a lot of good across other aspects of the ecosystem: moving sediment, water temperature, water quality, as well as supporting fish that require certain cues,” said Moderator Letitia Grenier.