News from Restore the Delta: September 9, 2014

“In the discovery of secret things and in the investigation of hidden causes, stronger reasons are obtained from sure experiments and demonstrated arguments than from probably conjectures and the opinions of philosophical speculators of the common sort.”
– William Gilbert

EPA re BDCP: The short version
Worrisome language in the Water Bond
“At the table” about habitat
Revisiting the Delta Plan’s House of Mirrors

EPA re BDCP: The short version

People who follow Delta issues know by now that the California Natural Resource Agency will be recirculating the BDCP Draft and environmental documents early next year. This may be largely in response to a letter they received from the U.S. Environmental Protection Agency giving a long list of problems with the Draft Environmental Impact Study (Draft EIS). Among the weaknesses EPA identified in its comment letter:

• Operating the tunnels “would contribute to increased and persistent violation of water quality standards in the Delta, in violation of the Clean Water Act.”
• The Draft EIS doesn’t show that suitable acreage is available for restoration or that it would actually be sufficient to recover fish populations. “We are concerned over the sole reliance on habitat restoration for ecosystem recovery, recognizing that existing freshwater diversions and significantly diminished seaward flows have played a significant role in precluding the recovery of Bay Delta ecosystem process and declining fish populations.”
• The Draft EIS doesn’t adequately analyze alternatives to the tunnels.
• The Draft EIS doesn’t adequately address impacts upstream and downstream of the Delta.
• The Draft EIS doesn’t include enough detail about adaptive management.

We have more to say below on the subject of habitat.

Worrisome language in the Water Bond

The EPA’s comments are encouraging, but it isn’t time to celebrate yet. For one thing, Governor Brown and legislators have produced a water bond that they insist is “BDCP neutral,” but it isn’t.

Bond supporters insist that they’ve built in enough protections to ensure that any habitat restoration in the Delta must occur at the direction of those who live in the Delta and with their support. But earlier bond language that would have required the Department of Fish and Wildlife to “coordinate, consult, and cooperate” with a Delta city or county on acquiring real property for habitat restoration ended up without the “cooperate.” Similarly, the Delta Conservancy, which will handle land acquisition and management, only has to “coordinate and consult.” Also, bond authors inserted language that voluntary landowner participation in habitat easements would occur “to the extent feasible.” Those are weasel words.

“At the table” about habitat

On August 29, the Delta Conservancy held a special joint session for Delta Dialogues and the Land Management Working Group. We care about the kinds of initiatives the Delta Conservancy engages in because under the Water Bond, that is the group that will get $50 million “that may be used, in consultation with the Department of Fish and Wildlife, for payments to landowners for the creation of measurable habitat improvements or other improvements to the condition of endangered or threatened species.” Voluntary, of course; from willing sellers only. (If you were/are a Delta landowner, what would it take to persuade you to sell?)

Awhile back, the Delta Conservancy established a Restoration Network “for information sharing and coordination to ensure an integrated and accountable restoration program in the Delta.” You can see a graphic of the Network here. It included a Land Management Working Group. The trouble is that originally, it didn’t include the Delta public. However, a separate process, Delta Dialogues, was going forward that did involve Delta landowners. Eventually, someone at the Conservancy realized that the objectives of the two groups overlapped.

The August 29 meeting was still heavily-weighted with agency people – Department of Water Resources (DWR), Department of Fish and Wildlife (DFW), Delta Conservancy, Delta Stewardship Council. One of the handouts was a BDCP map showing Regional Conservation Planning Efforts. But as Delta landowner Russell van Loben Sels observed, “If this map represents an apple, the people who ARE the apple, who will feel the chew bites, are not here today.” Conservancy Executive Officer Campbell Ingram asked for information about whom to include in future meetings.

A DWR intern who had compiled data on public ownership of land in the Delta made a PowerPoint presentation. Discussions followed on the subject of which publicly-owned lands might be good for habitat. There are optimum target elevations for the kind of tidal habitat and floodplains that habitat proponents want for fish, and much of the land in public ownership and/or convenient locations is too subsided.

For many people arguing for Delta restoration, it is an article of faith that what the Delta needs is more habitat. We heard that from Richard Stapler of the California Natural Resources Agency when he announced that the BDCP and its environmental documents would be recirculated:

“In regard to the EPA letter, their findings particularly as it relates to habitat restoration seem to contradict what appears to be a rare point of scientific consensus on actions to take in the Delta – that habitat restoration is vital. An independent report from the Public Policy Institute of California entitled Stress Relief: Prescriptions for a Healthier Delta Ecosystem made that very clear.”

Scientists may (or may not) agree that habitat restoration sounds like a good idea, but there’s no evidence that habitat restoration of the kind proposed actually benefits fish. The California Sportfishing Protection Alliance, in comments on BDCP (“An Overview of Habitat Restoration Successes and Failures in the Sacramento-San Joaquin Delta”), noted that habitat restoration efforts have consistently failed to meet the habitat requirements of the fish themselves, particularly with regard to adequate flows and adequate water quality.

DFW representatives at the Conservancy meeting agreed that not much has actually been done to meet recovery objectives and that there is no ongoing monitoring. Most of the publicly-owned land isn’t managed for ecosystem purposes. As landowner Tom Zuckerman observed, there have been few land use changes in the last 100 years, and there is little to show for conservation efforts that have been undertaken. So it is hard to prove that there is any value to moving forward with acquiring more land for habitat. Erik Ringelberg, representing Local Agencies of the North Delta, said that we need fundamental metrics – things to measure to tell us if we are actually meeting any habitat objectives.

DWR’s Paul Helliker, Deputy Director for Delta and Statewide Water Management, agreed to take the lead in compiling a map that would include information like conservation easements and other existing conservation activities on private land. Look for future meetings to include more of “the people who ARE the apple.”

Revisiting the Delta Plan’s House of Mirrors

Meanwhile, other processes for land management in the Delta grind relentlessly on. On August 26, Delta Stewardship Council (DSC) staff presented a public workshop in Clarksburg, “Your Role in Implementing the Delta Plan.” As if everyone in the Delta is eager to implement the Delta Plan.

The topic here was “covered actions”: those activities that Delta landowners, cities, counties, or other entities might want to undertake for which the DSC has the authority to say “No.” “Covered actions” must be consistent with the Delta Plan, which means they must be consistent with the coequal goals (ecosystem restoration and water supply reliability).

The discussion veered fairly quickly into one particular kind of covered action: water transfers. The Delta Plan contains some extraordinarily confusing language about which policy covers which kind of transfer by which kind of water supplier. Also, what kinds of changes could Delta farmers make in how much water they use without having an unacceptable effect on statewide water supply reliability? For Delta water users, it sounded like everything would be OK as long as no one did anything different, ever.

People who have been following DSC and Delta Plan developments for several years will remember that by statute (in other words, by law) the Delta Plan must be made consistent with the BDCP. (Not the other way around; the BDCP is supposed to trump all other planning efforts.) If BDCP is successful (that is, if the fisheries agencies issue “take” permits), it will be incorporated into the Delta Plan.

No one can appeal the BDCP to the Delta Stewardship Council as being inconsistent with the Delta Plan.

However, someone could appeal the determination by the Department of Fish and Wildlife that BDCP met statutory requirements. We’ll save you the trouble of looking up those requirements (which are in Section 85320 of the California Water Code) and just say that if the California Department of Fish and Wildlife approved BDCP for permitting without BDCP fixing the problems identified by the US Environmental Protection Agency (and other problems), the whole thing could be appealed.

AND if the BDCP didn’t survive the appeal, it couldn’t be funded.

So the DSC could, theoretically, find itself hearing an appeal of the BDCP after it has already, by law, incorporated it into the Delta Plan.

Staff thought there would need to be more public meetings to explain what’s in the Delta Plan. Audience members asked for meetings later in the day, when more people might be able to attend. We would add that references to the Water Code and to Delta Plan policy language almost always seem to obscure rather than clarify. They all need translation.

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