The Delta Independent Science Board (or Delta ISB) is a 10-member board comprised of prominent scientists from different disciplines across the nation.  As mandated by the 2009 Delta Reform Act, the Delta ISB plays an important role by providing oversight of the scientific research, monitoring, and assessment programs that support adaptive management of the Delta and by providing independent advice to the Delta Stewardship Council on scientific issues related to implementing or amending the Delta Plan.

The Delta ISB was created by the 2009 Delta Reform Act, with the first Delta ISB meeting in September of 2010.  Delta ISB members serve 5 year terms and can serve two terms.  In June of 2020, the Delta Stewardship Council appointed six new members, five of which are replacing original Delta ISB members.  It was also the last meeting for outgoing Delta Lead Scientist Dr. John Callaway, who will be returning to his position at the University of San Francisco.  Dr. Laurel Larsen has been appointed as the new Delta Lead Scientist and will begin her position in September.

At the August meeting of the Delta ISB, the new members joined with the outgoing members for reflections and discussion to bring the new members up to speed on the Delta ISB’s ongoing work.  The meeting also included a presentation given by Alf Brandt, who is currently the general counsel to the speaker of the California State Assembly, and who was deeply involved with the drafting of the 2009 Delta Reform Act.  He gave a brief overview of the Act, insights about the formation of the Delta Science Program, and his perspectives on the legislation’s intent and the reasons behind why the Delta ISB was created.

Alf Brandt began by noting that science and particularly Delta science has been a big part of the Delta.  “I published on the Delta and the law in 1987, and since then, I’ve served in federal, state, and regional agencies, and I’m often connected to the Delta at the frontier of science and the law – or science and policy,” said Mr. Brandt.  “Today I want to give you a historical perspective that led to the act and the creation of the Science Program and how we decided to frame the program and the kinds of things that the new members will do in the years ahead because a Delta science program is critical to how we manage the Delta.”

Delta science really started from the time California became a state.  Two weeks after statehood, Congress gave the Delta to the state of California in with the Swamp Land Act of 1850 which essentially provided a mechanism for handing the federally-owned swampland to states which would agree to drain the land and turn it to productive, agricultural use.  At that point, many of the early maps had just a blank spot for the Delta because very little was known about it.

There are stories about the boats from San Francisco to Sacramento getting lost in the sloughs, but for the next 60 years, Delta science focused on land and building levees and creating the islands and getting rid of the dendritic channels, so the first 60 years was about land,” said Mr. Brandt.

The next 60 years was about water, up until the 1970s, he said.  The focus was on the Delta and salinity intrusion.  He said there were even silent movies about it, dubbed ‘the scourge of Delta salinity incursion.’  In the 1930s, dam building began, and subsequently, the state and federal projects that moved water across the Delta.  Salinity in the Delta was dealt with by building the Delta Cross Channel.  This was up until the 1970s.

In the 1970s, there was the passage of the federal and state endangered species and clean water legislation, which started a focus on other parts of Delta science, which were largely fisheries.  In 1977 the Interagency Ecological Program was created as part of the first Bay Delta Water Quality Control Plan from the State Water Board, Decision 1485.

That was the creation of the federal and state agencies collaborating and working together to figure out things, but it was mostly a monitoring program, more than a science program,” said Mr. Brandt.  “It was focused on reporting and following what was happening to fish, to water quality, to flows – all those things were part of the Delta Interagency Ecological Program.”

In  1986, there was a major court decision about the Delta in the case, the United States v. State Water Resources Control Board, which is often referred to as the Raccanneli decision.  The dispute was about the effect on fishery resources and what was the responsibility of the state water projects for fishery resources.  This was prior to the listings under Endangered Species Act.

The Court said that we’re not doing enough for fishery resources in this permit, so then in the years that followed, we went through a series of the first set of Delta water rights hearings about how do you protect fish and what are the standards that are going to be needed,” said Mr. Brandt.

That then led to the conflict in 1992-1994 between Governor Wilson and Secretary Babbitt about who controls the Delta and whose scientists had the best information.  It was all about fisheries at that point, and the conflict was very public and very heated; it led to the Bay Delta Accord which was about water quality for fish.

There were compromises,” he said.  “I was actually on the MWD board at that point and we were arguing for certain aspects, but it was a lot about pushing the scientists together in some ways and coming up with a compromise that would work for all the parties.”

The federal EPA ultimately withdrew approval of the plan, so a new plan had to be developed; that led to the Bay Delta Accord in 1995 – and more water rights hearings.

I was part of those water rights hearings for a large part leading up to the CalFed Record of Decision,” he said.  “That was how I was brought into Interior as a water lawyer.  I put on a whole lot of scientists.  At that point, the fight had long been about combat science, but in these Delta water rights hearings, it was kind of an in between.  The agencies had come to agreement in a San Joaquin River agreement, so the parties were not at odds as much over the science.  The in-Delta people were still challenging that agreement and what their rights were so they challenged it, but largely the resources that went to science were not about conflict at that point.  I put on several biologists and engineers as well to talk about how this would work and it was all about the Vernalis Adaptive Management Plan and implementing that for the next ten years.  And we got approval for that in 2000.”

Also at the time, California and federal government were working together on the CalFed Bay Delta Program, working on science and building on the collaboration.  Prior to CalFed, RFPs would be issued for whatever science people thought was important, but the CalFed Record of Decision established a Lead Scientist as well as provisions to allow for direction of science efforts to areas of conflicts.

The position of Lead Scientist was the decision of Secretary Bruce Babbitt. Mr. Brandt shared how it came about:  “I was there one night when there was a proposal to create a science program that had a manager of science, and Secretary Babbitt said, ‘No! That’s not going to be what we want.  I want to see it have somebody who is a leading nationally known scientist being the scientist leading this – not a manager, not a bureaucrat that’s going to manage science.  I want the Lead Scientist to be leading.”

For the next five years, CalFed Bay Delta Program was implemented.  There was a lot of federal, state, and local agency collaboration on science, he said.

The turning point came in 2005 with the collapse of Delta fisheries.  There was an emergency hearing at the Assembly Water, Parks and Wildlife Committee on August 18 with the Department of Fish and Game.  “It was the first time we saw that Cal Fed was not working,” said Mr. Brandt.  “They didn’t have answers about the science of why it was collapsing; they just reported that it was collapsing.”

At the same time, Hurricane Katrina had occurred, putting attention on Delta levees like never before.  “There was a scenario that DWR showed us of what might happen if there was an earthquake near the Delta and levees collapse. A few levees collapse and then there’s wind fetch and then more levees collapse and the Delta collapses and all the salinity intrusion comes rushing in from the San Francisco Bay.  So that was more about engineers.”

So for the next two years, there were scientists looking at why the fisheries were collapsing, which came to be known as the Pelagic Organism Decline.  The Public Policy Institute of California published several reports on the Delta for the legislature explaining things, which was helpful.  During this time, reporting on exports showed very high exports in the years right after the CalFed Record of Decision.

A study was done that looked back at what the Delta might have looked like pre-development, showing visual re-creations of dendritic channels.  “That was a new concept and for the first time we were starting to look at and remember that the Delta was an estuary,” said Mr. Brandt.  “That was the biggest piece that we needed to understand.  We had managed it so much in the last 150 years that we needed to be reminded that it started as this mix of dendritic channels.

In 2008, the Delta Vision Blue Ribbon Task Force was created to come up with a new vision for what the Delta should be.  The science and reporting were feeding into the discussions in Delta Vision about how the Delta operated and the possibility of an earthquake causing a sudden rush of saltwater into the Delta as levees collapse.

This was the state of Delta science from 2005 to 2010.  A lot of science was being produced, and each stakeholder group had their own idea of what the problem was with the Delta.  “In those years, people would walk up to me after conferences after I spoke about the Delta and say, ‘I know what the scientific answer is to the Delta; it’s their fault!,’” said Mr. Brandt.  “It was the other guy’s fault.  This was the kind of thing you would see.  ‘This is the problem, this is where the legislature should focus.’”

Delta Reform Act

The foundation of the development of the Delta Reform Act legislation was the Delta Vision Blue Ribbon Task Force report that was received by the legislature on January 9, 2009 with the emphasis on the coequal goals.  There was also the Bay Delta Conservation Plan which was a plan to combine Delta tunnels with ecosystem restoration and developing a habitat conservation plan under the federal endangered species act law.  And people from Southern California were starting to talk to their legislators about the Delta and asking if their water supply was threatened.

That led to something that’s never happened before and probably never will happen again,” said Mr. Brandt.  “That was 6 weeks of private legislator discussions.  We would meet on Monday and Wednesday nights, 6:30 to 8:30, with whoever legislator wanted to come.  They were private meetings so they could talk to the experts, some of them scientists, and ask those stupid questions they would never ask in public of an expert, what does that mean?  How does that work? Trying to help the legislators understand the science to be able to make policy decisions was a huge challenge.”

There was a debate on the Delta’s future, but a lot was about Delta science, so the Delta Science Program was built into law in chapter 5.  “We started with the CalFed science program and we learned from that, but we also used that as a model in some ways to create the Independent Science Board and the Delta Science Program that you now lead.  The difference was, it was beyond the agencies.  We wanted more than just a lead scientist to lead all the agency scientists, so we created the Independent Science Board which brought more than just what the agency scientists brought and with the Lead Scientist working in concert.

Another important piece of the legislation was the requirement that the State Water Board to recommend what the ideal instream flow requirements would be for the Delta, if they were managing it only for fisheries, so as they developed the Bay Delta Conservation Plan, they would have to consider what would be ideal and understand the trade-offs.

We needed the Board to independently set instream flows, so we set a process that was unlike the previous hearings,” said Mr. Brandt.  “I personally structured this.  It was an amazing science task and the lawyers were there and all the parties put on their scientists.  The third day was an impressive part of having all the scientists but without lawyers to cross examination and tear each other apart.  I’ll tell you, in the earlier versions of the science, it was about lawyers and in fact, even in the 1980s, Interior had two lawyers, one from Fish and Wildlife Service and one from the Bureau of Reclamation and they attacked each other’s scientist constantly.  We wanted to avoid that kind of attack.

So on that last day, the scientists talked to each other, and there were questions about, well you said this and you said that, and why is that?  That kind of science process was a part of what we tried to do, to help scientists be independent and move away from combat science.”

Key provisions

Mr. Brandt then went through some of the key provisions:

Identity: “Notice that the ISB is an entity in state government.  It’s not identified as with Resources or with Cal EPA because actually their agencies had sued each other in the years leading up to this Act.  DWR sued the State Water Board on Delta requirements.”

Qualifications. “Scientists were to be of national or international prominence.  Not just who we could get from agencies.  That’s what we were looking for and I thank you all for stepping up.”

Oversight of research, monitoring, and assessments:  “You’re doing all of those things but it’s the research.  In the early days of the Interagency Ecological Program, the research of what does this monitoring mean had the funding cut, so that’s why we were saying, let’s go back to using that monitoring assessment that we had.”

Lead scientist:Qualifications, research, and publications and experience in adaptive management.”

Delta Science Program responsibilities:  “The best possible unbiased scientific information.  You are informing decision making.  You do those reviews that are critical to decision making, but you’re not the actual decision makers.  I’ll never forget Richard Norgaard’s comments and back and forth with the Delta Stewardship Council, who in 2011-2012 when he was chair of the ISB, and he was asked, can’t you just tell us what the priorities for where we need to focus on doing the biggest problems?  He really pushed back and said, ‘that’s not our role.’  That was a critical early thing about the ISB.  ‘That’s a policy a judgment about what the most important ones are.  We give you the information.  We inform you about what these are and the depth of the problems, but it’s your choice about what you choose.’”

Coordinating with the scientists and the agencies and with Delta scientists generally.  “I think that kind of leadership is critical.”

In conclusion …

I think that’s the challenge you have,” said Mr. Brandt.  “You’re where I’ve been for many years serving at the frontier of science and the law and you’re on the science side of that.  But sometimes you’re going to need to push back and say, this is what I can give you, this is the science, but you need to make the decisions, and I think that’s an important part.

I also have run a program at the National Judicial College on water and often it’s about helping judges under the stand the science but also understand that they have a role, too,” he continued.  “You’re in a similar place.  Good luck.  Thank you for stepping up.  We need you at the frontier.”

QUESTIONS & ANSWERS

Question:  Whenever I’ve mentioned the Delta Reform Act, the question that I’ve gotten particularly from non-scientists is the origin of the term coequal.  They usually say, if it’s equal, why do you call it coequal?  Could you tell us how that term came into the legislation?

Alf Brandt:That term came from the Delta Vision Task Force because there had been a fight for decades about were we managing the Delta for the fish or for water supply?  Each of the agencies and stakeholders would fight over it, and so the Delta Vision Task Force is the one who came up with it.  We had discussions about whether we should call it coequal … I and even some legislators thought that it emphasizes that you have to work together, it’s the collaboration of those two.  You’re not going down parallel paths and keeping each other informed, you’re working together on coequal goals.  They are “co”.  I understand why equal but it was the emphasis on collaboration.  Scientists, biologists, and engineers, I have to admit when I was at Interior, that was my challenge.   Having them talk to each other.  They need to work together.”

Question:  Alf, can you explain how it was coequal but in the context of sustaining and enhancing the unique values of the Delta as an evolving place?

Alf Brandt:  “That was a compromise, and it still didn’t get the Delta people to support the bill.  It was something Senator Wolk brought up.  It was emphasized that we have to protect the Delta, and the thing I had learned … so it was a compromise to say, these are the main goals but we need to do that in that context.  Those were the key words that Senator Steinberg who was the lead in a lot of this used: ‘evolving place.’”

The thing I learned and in some ways my failure in CalFed was that we were so focused on protecting the Delta, but we were protecting the Delta as it was.  And then, guess what, Delta changed and then we had the 2005 fisheries collapse, and everything changed, and we realized that Delta is all about change, so we can’t just try and protect it exactly as it is.  That’s why the words evolving place were critical to the support of Senator Steinberg, because he said, it’s going to be changing because the in-Delta folks are so committed to the status quo, they want to keep it as is, so they are just about fighting the projects and fighting restoration, they don’t want that because it takes farmland out of production, so in the light of the Delta as an evolving place, that’s what was critical.  It was a compromise to try and get the people to accept that we going to respect them, basically.”

 

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