Research and Outreach Associate

Tomorrow morning,March 19th, we expect to start our day with the release the National Academy of Science report on Delta Fisheries Protection. As we've blogged before  the nation's highly reputable scientific panel will analyze the science behind plans (otherwise known as the Biological Opinions) that outline among other actions, the timing and volume of water that can safely be pumped out of the Delta for cities and farms while preventing the extinction of endangered species, such as salmon.

We continue to be cautiously optimistic that science will win out over the politics in the Delta. The results of this report will be critical to our work on the Bay-Delta Conservation Plan which is using the Biological Opinions as a foundation of protections to build off of for the long-term protection of species.

As this report is reviewed and analyzed by stakeholders and policymakers, it will be critical that the science is interpreted and communicated appropriately. For an important look into the role of communicating science and its role in policymaking in the context of this study, read a blog post by our resident expert Rod Fujita.

We'll keep you posted on tomorrow's report release.

Mark Hitchcock Legal Fellow, EDF

EDF supported the 2009 water policy reform package passed by the California legislature, but we have always maintained that the true test of the legislation will be how effectively its provisions are implemented. An early test of the legislation begins on March 22-24, when the State Water Resources Control Board (“SWRCB”) will hold a public hearing to develop flow criteria for the Sacramento – San Joaquin Delta. The hearing is an immensely important opportunity for the SWRCB to determine how much water is needed in the Delta to restore and protect its natural resources.

The Legislation
The hearing is a central part of the Sacramento-San Joaquin Delta Reform Act of 2009 (“Reform Act’), one piece of the five water reform bills passed in November, 2009. The Reform Act established a new governance structure for state agencies responsible for the Delta with the goal of managing the Delta in sustainable way. The bill created a new Water Code §85086 that directs the SWRCB to, “pursuant to its public trust obligations, develop new flow criteria for the Delta ecosystem necessary to protect public trust resources.” Under the public trust doctrine, the SWRCB is entrusted with protecting the Delta’s aquatic resources for the benefit of the people of California. The doctrine protects a wide-range of Delta uses, including “navigation, fishing, recreation, ecology and aesthetics.” Thus, the Reform Act charges the SWRCB with developing flow levels that will ensure the biological health of the Delta estuary.

Keys to Success:
• Public Participation: The legislation requires that “[t]he flow criteria shall be developed in a public process” and that the hearing “shall provide an opportunity for all interested persons to participate.” Twenty-four parties submitted testimony to the SWRCB and will participate in the hearing, including state and federal agencies, cities, water districts and environmental groups.
• Use of the Best Available Scientific Data: The legislation requires the SWRCB to use the “best available scientific information” in its assessment of the Delta’s needs. This means that the SWRCB should rely on the most recent and rigorously peer-reviewed studies relevant to the Delta ecosystem. It does not mean that the SWRCB should adopt “certainty” as its evidentiary standard.
• Focus on the Specific Needs of the Delta: The legislation requires the SWRCB to focus on the basic flow requirements needed for a healthy Bay-Delta ecosystem without considering, at this point, how such flows would be implemented or the potential water supply impacts of such implementation. Indeed, the legislation is explicit that no water rights can be affected by the Board’s public trust flow determination unless and until a full adjudicatory water right proceeding is held at a later date

Links to a Successful Bay Delta Conservation Plan
A key benefit to having the State Board address public trust flow needs at this point is to allow the timely incorporation of its recommendations into the Bay-Delta Conservation Plan (“BDCP”). As my colleague Ann Hayden noted, the BDCP Steering Committee has struggled to determine the instream flows needed to protect and recover the ecosystem, and this flows determination will be important information that must be incorporated into the BDCP before the plan is finalized later this year. As the BDCP Steering Committee analyzes the biological effects of a new conveyance, it is essential that the needs of the Delta ecosystem be fully taken into account.

It’s Time to Get These Flows Right
With falling fish populations and the viability of the Delta ecosystem increasingly in question, the time is overdue to establish policies that guarantee a healthy and sustainable Delta ecosystem. That was one of the fundamental goals of 2009 water reform legislation, and now it is up to the SWRCB to restore the public’s trust and show that the legislation will truly be implemented in a manner that sets California on a path to long-term water solutions.

Cynthia Koehler is Senior Attorney and California Water Legislative Director for EDF.

Ann Hayden is a Senior Water Resource Analyst at EDF.

If nothing else, Tuesday’s joint oversight hearing before the Assembly Water Parks and Wildlife and the Senate Resources and Water Committees made clear that while the Delta package was enacted last year, the Legislature remains keenly focused on how that package will be implemented.

Assemblymember Jared Huffman honed in on the composition of the Delta Stewardship Council. He also raised a number of concerns regarding the role of the Department of Water Resources in getting out in front with a “Request for Qualifications” for consultants to craft the Delta Plan before the Council that is responsible for that Plan has even been selected. “We seem to be having an Al Haig moment – DWR is in charge,” he observed. Natural Resources Secretary Lester Snow offered that it was not the Administration’s intent to preempt the Council’s authority, but rather to ensure that things get moving so that when the Council is up and running it will have the option of moving forward more expeditiously, but of course it could start over if it chooses to do so.

In addition to the general concerns related to the Stewardship Council, the legislature provided specific concerns about the substance and schedule of the Bay-Delta Conservation Plan. As we highlighted before, there are specific provisions in the recent Delta legislation that are specific to the development of the BDCP. Many members expressed issues about how well the BDCP is adhering to the legislation. Below is a sampling of some of the key issues raised by members: Read more »

Rod Fujita is Senior Scientist and Director, Ocean Innovations, for EDF.

The National Research Council Reviews Biological Opinions Designed to Protect Endangered Fish Species
On March 15th, the National Research Council (NRC) of the National Academy of Sciences will issue an important report. It will detail the NRC’s evaluation of the science that has been used to determine how much water can safely be pumped out of the Delta for cities and farms while preventing the extinction of endangered salmon and other fish.

This science forms the basis of the Biological Opinions at the heart of a very contentious debate over the role of science in policymaking. If science is to serve policy well here, expectations need to be realistic and the results of the NRC review must be accurately communicated. Otherwise, we may see political mischief – the science may be misinterpreted in ways that justify old ways of doing business in the Delta and serve special interests at the expense of salmon, the fishing community, the natural ecosystem, and the public trust.

Politics spurred a review of the science
The science underlying the Biological Opinions has already been subject to rigorous scientific peer-review, the gold standard of scientific credibility. The science-and common sense-supports the notion that salmon (and other important fisheries) require more protective flows to recover. The tricky part is to figure out how much flow will be needed. At this point, it is impossible to tell whether the recommended flows will prevent extinction of endangered fish species; we are only into the second year of implementation, so they haven’t yet had a chance to work. Hence, it seems clear that this new scientific review by the NRC was not triggered by performance issues. Instead, it is being undertaken at the request of Senator Diane Feinstein following appeals from agricultural interests squeezed by a 3 year drought.

The credibility of the National Academy of Sciences and its National Research Council is on the line. Read more »

Spreck Rosekrans is an Economic Analyst at EDF.

Supporters of the Endangered Species Act breathed a sigh of relief last week when California’s senior Senator, Dianne Feinstein, withdrew her proposed amendment to suspend protections for salmon, smelt, sturgeon and other fish in the Sacramento-San Joaquin Bay-Delta. But the attack on the ESA is not going away anytime soon.

We are pleased that California’s three-year drought may end this year and that our fisheries, farms and cities will all be better off. But we are disappointed that the Endangered Species Act was granted a reprieve only because we've had more precipitation. The ESA, as the law designed to prevent extinction, cannot be implemented only when convenient. Read more »

Spreck Rosekrans is an Economic Analyst at EDF.

In perhaps what will be the most anticipated water supply forecast in California history, the Department of the Interior Bureau of Reclamation today released its preliminary water supply forecast for 2010. The Bureau projects that it will be able to deliver full contract amounts to most of its contractors, including senior agricultural users in both the Sacramento and San Joaquin Valleys, as well as contractors along the Stanislaus River and in the Friant Division. Municipal contractors north-of-Delta are also expected to receive 100% while those south-of Delta are forecast to receive a 75% allocation.

Everybody’s attention however, is on the lowest number. Read more »

Mark Hitchcock is a Legal Fellow at EDF.

As a first-year attorney, my understanding of the intricacies of California water law is limited. Still, I am always bothered by the fact that the battles over Central Valley Project (“CVP”) exports regularly allude to the idea that water users have seen their contractual rights to Bay-Delta water decreased by environmental protection laws. In her recent op-ed proposing an Endangered Species Act rider, Senator Feinstein wrote about the percentage of a “contractual allocation” available to Central Valley users. The New York Times referenced percentages of “normal allocations,” and the Fresno Bee used that same term. Even the rebuttal letter questioning the wisdom of Senator Feinstein’s proposed rider sent by Representative George Miller and ten other members of Congress referred to water users receiving percentages of their “contract supply.”

In fact, there is no contractual right to any set or “normal” amount of CVP water. Exporters do not receive varying percentages of a set amount of water that they have continuing contractual rights to; it is the amount of water that they are contractually entitled to that varies from year to year. Read more »

Ashley Rood is a Research & Outreach Associate with EDF.

Beginning this past Sunday with an address by Congressman Costa, the National Research Council (NRC) of the National Academy of Sciences (NAS) started its review of water management in the Bay Delta. The nation's elite scientific panel will analyze and either support or refute the science (otherwise known as the Biological Opinions) behind how much water can be pumped out of the Delta for cities and farms while preventing the extinction of endangered species.

I was at UC Davis this week, along with my colleagues Ann Hayden and Spreck Rosekrans, to watch the public workshops unfold. Although we were  skeptical when this additional review was initially announced—we're cautiously optimistic that science will rule the day and this will rise above the sticky politics of the Bay Delta.  Below, find out more about what the NRC will deliver and what we're looking for in this review. Read more »

Laura Harnish is the California Regional Director.

We here at EDF are saddened by the catastrophe that has struck Haiti and the stark realization that things will continue to get worse as the shortage of freshwater begins to claim even more lives. Read Peter Gleick’s blog about how the need for freshwater is critical in Haiti.

Although we are consumed in our daily lives with California's "water crisis" this is an excruciating reminder that many other areas of the world are much more vulnerable to water shortages, especially in a disaster.

Give what you can to support Haiti in this time of crisis. Two good organizations to donate to are: the Red Cross  or Doctors Without Borders.

And don’t forget to have an emergency preparedness kit to deal with an earthquake or other natural disaster in California. For more information go to 72 Hours.

Cynthia Koehler is Senior Attorney and California Water Legislative Director for EDF.

This weekend’s Celebration of the Life of Tom Graff at the Scottish Rite Temple in Oakland was all that one might imagine. Hundreds of Tom’s friends, family, fans, colleagues old and new came together to share favorite stories, fond memories, laughs and of course a tear or two, or more, for California’s foremost eco-Godfather (or Delta Force, as a legal rag once notably labeled Tom). Looking out over the standing-room only crowd filled with public officials, water agency folk, enviros and so many friends, it was impossible not to be struck by Tom’s extraordinary reach and breadth.

Speaker after speaker noted not only Tom’s braininess, strategic acumen, and analytical skill but also and more critically, the man’s fundamental humanity, his graciousness, kindness, unfailing humor, love of life, family and his fundamental regard for people of all stripes. Not merely an ardent and effective “lawyer for fish,” Tom was a listener, a teacher, the one in the room who could find the way to ‘yes’ without compromising integrity or principle.

My own association with Tom began more than 20 years ago in a courtroom presided over by a massive pink plastic salmon hung on the wall by a judge determined to keep the lawyers’ collective eyes on the prize. That trial resulted in the famous Hodge flows to protect salmon on the Lower American River, and marked a turning point in California’s water history. The recent Delta legislation may well prove to be another such turning point, and was an effort that Tom followed with intense interest.

In our conversations about the bill’s progress over the course of the summer and fall, Tom’s focus – just like all those years ago on the American River — was on the public trust flows, the eco-requirements of the natural world and how to most effectively assure them over time. Certainly Tom did not support the water bond, and was disappointed (as were we all) when the beneficiary pays and fee provisions were excised from the package. But he was quite pleased that through all of the negotiations the bill retained the provision directing the SWRCB to determine the Delta’s public trust needs, and he exhorted us to retain the primacy of the public trust, something the bill does explicitly.

Tom passed the morning that the Delta legislation was signed, and standing on the levee listening to the Governor give the first of what would be many tributes, it struck me that Tom’s reaction to the final product most likely would have been to grin and say, with his trademark twinkle, “Good job, but let’s get more next time.” Absolutely. Ensuring that the environmental promise of the Delta legislation becomes a reality is perhaps one of best legacies we can strive for in the wake of this extraordinary man