by Sheila Kuehl
November 23, 2009

This is the second in what was going to be a series of three essays, but will now be four (could have been fifty, given the complexity of water politics in California), describing the five separate pieces of water legislation recently passed by the California legislature and signed by the Governor.  In total, the legislation amended the oversight structure of the Sacramento/San Joaquin Delta, extended water conservation mandates, set up some groundwater measurement procedures, authorized the use of funds from a past water bond and set up a new bond for voter approval next year.

In the first essay, I provided an overview of some of the problems created by the legislation, and described the bill affecting the monitoring of groundwater.  In this essay, I describe the central role of the Delta and the bill that crafted a new governance and oversight structure.  In the next essay, I will talk about the urban conservation bill and the bill dealing with water rights and expenditures authorized from an existing bond.  In the fourth, and last, essay, I will present and analyze the proposed 11.14 billion dollar bond to be placed on the November 2, 2010 ballot.

What Is The Delta and Why Is It Important?

If you roll out your big map of the rivers, watersheds and estuaries of California (what? you don't have one?), you will see that most of the water originating north of Sacramento and the Bay Area flows into and through the Sacramento-San Joaquin Delta.  The official boundaries of the Delta run from Sacramento in the north, to Tracy in the south, and from Hwy 5 on the east, halfway into Contra Costa County in the west.  More than half of California's snow and rainfall drains into the Delta, mostly through the Sacramento River, and the runoff navigates over a thousand miles of sloughs feeding habitat and agriculture.

At the southern end of the Delta primary zone, huge pumps export drinking and farm water to 2/3 of the state's population and 3 million acres of farmland. Northern agriculture and some northern water districts (especially rice farmers) draw water out before it hits the Delta.  For the rest of us, this one triangle shaped area holds the all-important key to water, one of the most basic needs of human life and work.

Over time, with so many straws stuck into the Delta, it has become more and more fragile, its species more and more threatened.  The huge pumps are deadly to fish and have altered the natural flows of the rivers.  The islands in the Delta are submerged or deeply threatened.  Ocean levels are rising and could push back from the Bay.  Many have opined that policy makers must find a way to separate the issue of water supply to the state from the environmental issues in the Delta.  Solutions have been elusive.

How do you Govern a Delta?

One reason it has been difficult to find a solution is that there are hundreds of disparate interests affected by the Delta--water districts, special districts, cities, counties, water purveyors, farmers, and many many others.  Multiple efforts over decades to bring them together, since they have never been mandatory, have not been successful.  In part, this is because none of the disparate interests is called upon to think globally about water supply or the protection of eco-systems.  Each is constituted to think about itself and its ratepayers or communities or crops.

For years, a combined federal and state entity called Cal-Fed tried to work out possible agreements, but was hamstrung by lack of funds and lack of authority to enforce agreements. A Delta Protection Commission, made up of more than twenty members, has struggled to put together a protection plan.  A Delta Blue Ribbon Commission and the Public Policy Institute of California have both created extensive recommendations.

Before the New Bills: The Bay Delta Conservation Plan, and the Alternative/Peripheral/Coveyance/Canal

Before the enactment of the recent new bill on Delta governance, there was already a process under way to develop a Bay Delta Conservation Plan.  The plan was supposed to meet certain requirements: to identify conservation strategies, to improve the ecological health of the Delta and to move fresh water in ecologically friendly ways either through or around the Delta.

Under this Plan, some of the large contractors for the state water project---the Westlands Water District, which covers 600,000 acres of agriculture for 600 San Joaquin Valley farmers, growing one billion dollars of crops per year, the Metropolitan Water District, which brings water to most of southern California's counties and cities and the state Department of Water Resources---began moving, albeit slowly, toward finding a way to overcome the barriers of the Endangered Species Act and to convey water around the Delta. 

If that sounds familiar, it's because it used to be called the Peripheral Canal.  When the development of a Peripheral Canal was shot down by the voters some years ago, supporters began referring to the building of an around-the-Delta infrastructure as Alternative Conveyance.  Obviously, water that bypasses the Delta is removed from the Bay-Delta ecosystem, and some are worried about worsening the fragile ecosystem of the Delta, itself.  On the other hand, others are concerned that continuing to send all the water through the Delta will result in a threat to the delivery of water as well as to the ecosystem, itself.  There is little agreement.

So: What's in the new Delta Governance Bill?

As you will see below, the provisions of this bill (SBX7 1) (Steinberg), work together to set up a new, and slightly more authoritative, way of controlling decision-making affecting the Delta.  Generally, it is an improvement over the current structure but fell short of the hopes of Northern California legislators, as well as some progressive legislators from the south.

One: The bill creates a new Sacramento-San Joaquin Delta Conservancy, structured like other conservancies in the state, to try to bring in money and spend it to advance environmental protection of the Delta as well as the economic well-being of Delta Residents.

Two: The Delta Protection Commission (DPC) continues, but with fewer members, fewer agency representatives, and no public members.  It has land use authority and can refuse permits for projects green lighted by local governments if there are objections and a finding that the project does not meet the goals of Delta Protection.  The DPC is required to produce an economic sustainability plan.

Three: A new entity, the Delta Stewardship Council (DSC), is created, having broader governance authority than the DPC, though it is required to consider recommendations from the DPC and adopt them if they are consistent with the objectives of the Delta Plan.  The Council is required to develop a Delta Plan by 2012, which can be a regional plan or can incorporate plans from each of the five affected counties.

The design of the Plan must reflect fundamental tenets:  reducing reliance on the Delta eco-system; investing in other ways to stretch the water supply; requiring that any canal around the Delta meet California's highest standards for eco-system protection; and requiring that those benefiting from the canal must pay for its construction, operation and any necessary mitigation. That would be water contractors (and their ratepayers), not the taxpayers.

After the adoption of the Plan, much as with the General Plans of cities, the DSC is given authority to approve or disapprove projects based on whether they are consistent with the Plan.

There are seven members on the Council, four appointed by the Governor, two by the Legislature and one is the chair of the DPC.  They are not allowed to serve two consecutive terms (a weakness, in my opinion).

The Delta Stewardship Council is really a planning agency, but it has more muscle than the old governance structures.  It can promulgate regulations and impose penalties for violations.  It has authority even over other state agencies to decide whether their actions are consistent with the Plan.  It can appoint a Water Master and has authority to order an ongoing project to cease and desist.


Problem: the Peripheral Canal by another name

As with the other water legislation, there are problems with this bill.  As regards the Alternative Conveyance, probably the most contentious piece of this bill, the legislature is taken out of the decision-making loop.  You may think this is a good thing or a bad thing, but it leaves the decision with the Council, which must make the decision after determining that the proposed canal meets certain requirements.

Not only must the canal be shown to meet stringent ecosystem protection standards, both state and federal, it must also be found to be compatible with minimal in-stream flow requirements, set by the State Water Board, and the Department of Fish and Game, sufficient for restoring the Delta and its fisheries to health.  There was stronger language in earlier bills about guaranteed flow.  Two university professors have opined that the language in the final bill about measuring flow is unenforcable.

In addition, an earlier version of the bill stated that nothing in the bill would "preauthorize" an alternative conveyance.  At the end, this language disappeared and was replaced by intent language for "new conveyance".

Problem: Money

As with every other aspect of state funding this year, the lack of funding for the entities created by this bill are troubling.  The Conservancy has to find its own money.  The Stewardship Council is only funded for a year.  The Council has no fee authority and no power to require water users to pay for any of the improvements in the Delta.  Time will tell if this has the same weakening effect that such a lack of funding had on all previous Delta governance entities.

Next:  Water Rights, Sweeping Monies out of an old bond for projects identified in the legislation, Conservation Mandates