Mark Hitchcock is a Legal Fellow at 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:

1. Need to align with goal of reduced reliance on the Delta – the "Purpose and Needs" (PDF) statement for the environmental impact review of the BDCP states a purpose is to “restore and protect the ability of the State Water Project and the Central Valley Project to reliably divert and deliver water up to full contract amounts”. This statement should be revised to be consistent with the recent Delta legislation which mandates a reduced reliance on the Delta for water supply.

2. Need to incorporate demand management strategies - Given the mandate in the Delta legislation to reduce reliance on the Delta, the BDCP should consider demand management strategies (e.g., water use efficiency, conjunctive use, etc.) as a way to meet the water supply reliability goals of the plan. To date, the BDCP has focused on the quantity of exports (supply side) rather than reducing demand through conservation (demand side).

3. Need for a more realistic timeline- the BDCP must fully incorporate the new provisions in the legislation related to the State Boards’ instream flow recommendations (due in August) and Department of Fish and Game's development of biological performance objectives (due in November). The current BDCP schedule – which to many is overly ambitious – does not allow time to incorporate these provisions given that a draft plan is expected to be completed by September.

4. Need for transparent governance of water operations- the BDCP governance structure must be consistent with the legislative mandate that states that “transparent real-time decision-making of water operations that allows the fishery agencies to take protective actions in the Delta so that biological performance objectives are achieved”.

5. Need for local input – the BDCP must make a serious effort to engage and address the concerns of the five Delta counties in the development of the plan. Without their involvement and consideration it is unlikely the BDCP will be successful.

The legislature’s interest in the development of the BDCP should be seen as an encouraging sign. They have done a thorough job of identifying key areas where more progress must be made in order for the BDCP to move in a positive direction. As a member of the BDCP Steering Committee, EDF has raised many of these very same issues and we will continue to do so until they are fully resolved—the ultimate success of the BDCP hinges on this.

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. It is imperative that the NRC review panel not only get the science right, but also that it provides guidance to policymakers on the risks associated with the various courses of action on the table. The panel must also communicate its findings accurately, without bias. It is equally critical that policymakers interpret the NRC’s findings correctly, and resist the temptation to use the absence of certainty (which is inevitable) to justify the old ways of doing business or even worse.

The real world is not a laboratory
When scientists are working in the laboratory, they ask very precise, narrow questions and pose hypotheses – possible answers that they consider to be reasonable. They then test the hypotheses with experiments that are controlled – in other words, designed to eliminate other possible answers. Their results are held to a high standard, because the rigorous application of the scientific method allows strong inferences to be drawn from data. Even so, most scientific articles are full of qualifiers and never claim certainty.

In the world of environmental policymaking and natural resource management, scientists don’t get to ask precise narrow questions or conduct controlled experiments. Policymakers usually ask vague, broad questions like “how much flow do endangered fish need to recover” that are very difficult to answer. Moreover, policymakers often question science that points to actions that will result in short-term economic impact. This reflects in many cases a legitimate sensitivity to livelihoods and the health of economies.

Rigorous scrutiny of science that informs policy is a good thing. When the economic stakes are very high, however, policymakers often hold science to an impossible standard – absolute certainty – and then use the fact that science is uncertain to justify actions that serve their political interests or favor certain stakeholders. If policymakers believe that farm jobs and revenues are more important than fishing jobs, fishing revenues, preventing extinctions, and restoring the Delta ecosystem to health, they should just act on that belief and on those values. It is dishonest to use scientific uncertainty to justify their failure to protect natural resources.

We are dealing with a double standard here. NRC reviews of the science underlying economic development decisions – such as mining or dam projects – are almost unheard of. No one requires that these governmental decisions be supported by “certainty”. However, the scientific basis of actions aimed at protecting ecosystems and endangered species is often held to an unreasonable standard – the “certainty” that a specific amount of water will yield a specific ecosystem benefit. In fact, relatively high levels of uncertainty are inevitable regarding ecosystems like the Delta and that’s why we employ strategies like adaptive management.

This principle applies to many environmental issues and also to everyday problems. There is extraordinarily strong evidence, for example, that fossil fuel combustion has already led to major changes in the earth’s climate. Yet uncertainty remains, because it is not possible to conduct a controlled experiment using an identical earth with no fossil fuel combustion. The prudent action is of course to reduce fossil fuel use despite this uncertainty, because of the enormous risks associated with destabilizing our climate. However, opponents use scientific uncertainty to argue that we should delay action indefinitely.

People and societies routinely make decisions – some of which are extremely consequential – based on uncertain evidence, in order to reduce risk. Examples include buying insurance, going to war, and convicting people of crimes. We use various kinds of standards of evidence to make these decisions – but we never insist on certainty, because it is unobtainable in complex situations.

Klamath Basin: An emphasis on uncertainty contributes to environmental catastrophe
Unrealistic expectations of scientific certainty, combined with understandable caution on the part of scientists who wish to protect their credibility, can result in catastrophe. While many scientists view statements such as “the results of our review are inconclusive” as objective and prudent, policymakers often use such statements to justify the status quo (“we need more research before taking action”) or to favor a group of vocal stakeholders at the expense of environmental stewardship so that they can reduce conflict or win political points.

In the Klamath Basin, science supporting higher lake levels and more freshwater flows had been sufficient to justify higher flows for salmon in 2001. But a drought that year meant that these flows would result in reduced water diversions, angering some farmers. Suddenly, that same science was not good enough.

A National Research Council panel was convened to review the science. While the panel’s interim report concluded that most of the science behind the original flow recommendations was strong, it found the evidence used to justify higher lake levels and more flows to reduce temperatures “inconclusive.” The interim report itself was even-handed, but unfortunately press releases about the report emphasized the lack of scientific support for higher lake levels and more flows to reduce temperatures. The interim report also found that there was no scientific support for the lower flow levels proposed by the Bureau of Reclamation, but this finding was largely ignored. Politicians and policymakers interpreted the report as justification for keeping flows and lake levels at low levels.

In September 2002, following this decision, more than 33,000 salmon died in the Klamath Basin. An entire economic sector – sport and commercial fisheries – was completely shut down. The region is still recovering from this disaster ecologically, economically, and culturally. The misuse of scientific uncertainty to justify lower flows was a likely cause of this tragic die-off of salmon, whose populations could hardly afford the loss: they were already stressed by habitat loss and reductions in water flows.

Bay Delta: An opportunity for clearly communicated science to guide policy
We are now experiencing déjà vu all over again and this time, the stakes are even higher. Since the listing of salmon, smelt and other fish as endangered species over the last twenty years in the San Francisco Bay Delta, many management actions have been taken, including large habitat restoration projects and the removal of some dams to open up salmon spawning habitat. More natural patterns of flows are of course essential if such actions are to actually benefit fish and ecosystem health.

But instead of increasing flows and making them more natural, state agencies have instead relented to pressure from water users and increased water diversions. The drought resulted in less water for both people and fish, triggering reductions in these record high diversions. As a result, once again Biological Opinions are under political attack, and once again we face the possibility that influential people will play politics with the science and use the inevitable scientific uncertainty to justify the old ways of doing business and favor certain stakeholders, while risking the extinction of species and depriving others of their livelihoods, recreational opportunities, and their right to a healthy Bay-Delta ecosystem.

A lot of effort has gone into restoring habitats and improving water operations in the Bay Delta over the years. But improving habitats and tweaking water operations without restoring more natural flow patterns is like trying to resuscitate a patient by patching up the wounds but failing to re-start the heart. Water is the lifeblood of the Delta ecosystem and the species that depend on it, and the natural flow pattern is its pulse.

What’s certain: Salmon are at Risk
The irony in the current debate about the need for certainty before taking action to save our salmon, other fishes, and the fishing industry is that we are certain about the most critical issue. There is no doubt that these species are declining at an alarming rate and that absent protective actions they will disappear along with the commercial fishing industries and sport fisheries that depend on them.

Let’s hope that the NRC upholds its credibility and integrity in reviewing and communicating the science behind the Bay Delta Biological Opinions; and let’s hope that all stakeholders and policymakers will have the honesty and integrity to interpret the science as it is, not as they wish it to be.

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.

Feinstein decided to withdraw her amendment, only after learning that Central Valley Project “Agricultural Service” contractors are likely to receive at least 40% of their maximum contractual allocations this year. Had she introduced her amendment, it certainly would have set off a contentious discussion in Congress. Ultimately we do not believe it would have survived, in part due to strong opposition from other legislators, state (PDF) and  federal (PDF), as well as newspapers in Los Angeles, Sacramento, San Francisco and San Jose. But it is hard to be sure, in part since it may have been linked to the President’s “Jobs” bill which contains provisions critical to many parts of the country.

The ESA as the bull's eye.
Westlands Water District has made it clear that they will pursue any and all opportunities to increase water exports by relaxing current rules that limit the extent to which the San Joaquin River is allowed to flow backward within the Delta for the first half of the year. There seems to be no end to new legal theories challenging the ESA, by Westlands and other water agencies, which are continually brought before our courts. And 2010 is an election year in which we have already seen the effects of the ESA on parts of the Central Valley brought up in campaigns for Governor, the Senate and the House of Representatives. We expect these campaigns to heat up along with the weather in coming months.

Though these attacks are testing our patience, we continue to work cooperatively with these same water agencies to develop a long-term Bay-Delta Conservation Plan – intended to protect and restore the Delta while ensuring reliable water supplies. And, of course, we still support an expanded market for much of the water already extracted from the environment throughout California. Markets can incentivize more efficient water use in our cities and on our farms and provide additional supplies to those who need water most, including farms on the west side of the San Joaquin Valley.

Regrettably, however, we firmly believe the San Francisco Chronicle was overly optimistic when it opined that Senator Feinstein’s dropping her amendment (for now) represents a “Truce in the Water Wars”. If history is our guide, we fear there is much more to come.

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

Spreck Rosekrans is an Economic Analyst at EDF.

CBS’ 60 Minutes began last night’s show with a piece titled “California: Running Dry”. It was perhaps too much to expect comprehensive coverage of our complex water issues within a 13 minute segment. The show began quoting the adage, sometimes ascribed to Mark Twain, that “whiskey is for drinking and water is for fighting” and offered only the opportunity to spend up to $40 Billion as a way to solve our problems.

As a result, 60 Minutes missed the opportunity to tell its viewers how we can be smarter, and must be smarter, about using water in places like California if we are to support our farms, cities and fisheries in the 21st century. Read more »