Ann Hayden is a Senior Water Resource Analyst at EDF.

As our recent blog highlights , there are many reasons to be pleased about the recent passage of the water policy reform package[1].  As a member of the Bay-Delta Conservation Plan Steering Committee, I think it’s also worth enumerating how the legislation provides significant environmental safeguards for this process.  After all, the BDCP is where new conveyance around the Delta, (otherwise known as the peripheral canal) is being analyzed as part of a habitat conservation plan with the aim of ensuring both water supply reliability and ecosystem recovery.

 What does the legislation mean for the BDCP?

It doesn't authorize a canal.

Many are concerned that the legislation authorizes a peripheral canal.  This is simply not true.  In fact, the legislation includes an important new layer of oversight of the BDCP—the Delta Stewardship Council.  Before it can be implemented, the BDCP will need to demonstrate to the Council that it meets both the water supply reliability and ecosystem recovery goals it  set out to achieve, and will have to consider Council recommendations on both the design and implementation of the Plan (Sec 85320 (g)). In addition, the BDCP will have to show that it is consistent with the overall Delta plan and other existing environmental mandates. The legislation also requires the Department of Fish and Game to report regularly to the Council on results from monitoring and adaptive management to make sure BDCP implementation is moving in a positive direction (Sec 85320 (f)). 

It outlines a process to resolve the instream flow debate.

Another key provision related to the BDCP is the requirement for the State Water Resources Control Board to conduct a public trust needs assessment to determine instream flows for the Bay-Delta (Sec 85085 (c) 1) within nine months of the effective date of the bill.  The BDCP has grappled with this tough question for a few years and still has yet to provide an adequate answer.  These newly developed flow criteria will be informed by biological objectives developed by state and federal fish agencies and will specify the volume, quality and timing of water necessary for a healthy Delta ecosystem under different conditions.  Existing bond moneys will be allocated to strengthen the Board’s ability to make these flow determinations in a timely manner so that they can be incorporated into the development of the BDCP.

It establishes the highest environmental standards for the BDCP.

The legislation requires that the BDCP meet the high recovery standards of the Natural Communities Conservation Planning Act. If the plan doesn’t meet the NCCP standard, no public funding will be allocated to its implementation (Sec 85320 (e)). 

It improves the decision-making ability of the fishery agencies related to water operations

Historically, there has not been an understandable and transparent process that allows the fishery agencies to make necessary decisions to provide flows for fish without, at times, being overruled by the Department of Water Resources (DWR) and the Bureau of Reclamation (BOR). The legislation improves this by requiring that the BDCP include 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 (Sec 85321). More simply put, if it is determined that salmon need more water at a specific time within the prescribed range of flows, the fish agencies, after consultation with DWR and BOR, get to make the ultimate call on the action. I think his is a clear improvement on the way some decisions have been made in the past.

For all these reasons, it’s clear to me that the legislation sets out specific guidelines that hardly make the BDCP or the approval of a canal a slam dunk.  Indeed, the BDCP must complete many critical steps in order for the plan to be approved.  I, for one, think this is a huge step forward and provides necessary direction and oversight that is critically needed. 

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[1] All statutes cited in this document reference sections as created or amended by the November, 2009 legislation.

Laura Harnish is the California Regional Director.
Spreck Rosekrans is an Economic Analyst at EDF.

Environmental Defense Fund is delighted that the package of water policy reform bills has passed both houses of California’s legislature and will be sent to Governor Schwarzenegger for his signature. We believe this package provides a foundation that will guide environmental protection and sustainable water supply management for many years to come. And we expect that as a result, California’s farms and cities, as well as fisheries in the Bay Delta and Central Valley watershed, will be better off.

Most obviously the legislation establishes a framework for managing the Delta and the rivers that supply it with freshwater. It formally recognizes the importance of the Delta as an ecosystem while acknowledging its role in moving water from north to south. It empowers our Water Board to determine the inflows that are necessary to meet public trust requirements under California law. And the legislation establishes important oversight roles for both the legislature and a newly created Delta Stewardship Council to ensure that any changes to water infrastructure accommodate protection of the Delta and its fisheries.

It is important to realize that the legislation does not authorize a peripheral canal. It does assure, however, that a canal will only be built if important habitats are restored, water exports from the Delta are biologically sustainable, and the beneficiaries of those exports pay the full cost of construction, including environmental mitigation.

The legislation also takes important steps toward achieving our stated goal of reducing per capita water conservation in our cities 20% by 2020, thereby reducing the pressure to withdraw increasing amounts of water from the natural environment.

We are also pleased that the legislation includes provisions to identify and prevent illegal diversions of water, though we regret that the initial language was “watered down”. Similarly, we are pleased that the legislature has finally made progress in moving toward statewide management of groundwater (the source of up to 40% of our overall supply in the driest years), though there is still much work to be done in this area.

Our largest concern is that the legislature passed an 11 billion dollar bond measure along with the policy reform bills. It is important to note that the bond measure does not become effective but will be on the ballot as an initiative in 2010. At that time California’s voters will have the opportunity to decide if we can afford it given our fiscal problems and other competing needs. Moreover, California’s electorate will be asked whether it is good public policy to make these investments as a State or if at least some of the investment decisions should be made with local funds. If approved by the voters, the funds would be used to pay for a variety of environmental, water quality and water supply programs, potentially including controversial dams in the Central Valley. In its place we would have preferred a beneficiary pays fee structure to fund the Council and needed ecosystem restoration efforts in the Delta and left the big dams and water projects to be funded directly by the users.

It would be nice to celebrate – get a six-pack, stroll down the river bank and watch restoration magically take place. But of course the ultimate outcome of this far-reaching legislation will not be known for many years and will depend considerably on how well its provisions are implemented. All stakeholders, including those who opposed the legislation, will need to work together to ensure as it is adopted that our public resources will indeed be protected as intended. The environment that Californians care so deeply about and the legacy we want to leave for our children depend on it.

Cynthia Koehler is Senior Consulting Attorney for EDF.

The California Legislature is on the cusp of voting for an historic water deal. The Senate could vote within the next few days. And as the famous saying goes, there are two things that you don’t want to watch: sausage making and the legislative process. The latest attempted additive to the sausage: an amendment that would jeopardize the long-standing and foundational water law premise that requires that all water use in California be “reasonable” and not wasteful.

For the better part of a century, California–like most of the Western U.S.– has followed the law of “reasonable use,” that requires all water use in the state must be “reasonable” and not wasteful. Conservation of water is at the very heart of any reasonableness determination: “[W]hat is a reasonable use of water depends on the circumstance of each case, [and] such an inquiry cannot be resolved in vacuo isolated from statewide considerations of transcendent importance. Paramount among these we see the ever increasing need for the conservation of water in this state, an inescapable reality of life quite apart from its express recognition in [Art. 10, Sec. 2].” Joslin v MMWD, 67 Cal. 2d 132, 140 (1967).

The water bill under consideration in the California Legislature establishes water conservation targets for urban areas and provides a number of pathways to get there. The Republican alternative bill would provide that the failure to meet those targets could not be used as evidence of waste or unreasonable use of water–forever. In other words, “here’s a conservation target, but don’t worry too much about meeting it, we won’t use it against you…”

Do we truly want to set California on a course for smarter water use, efficiency and conservation or just give it lip service?

Why are some lawmakers trying to prevent the new conservation standards from applying to the long-standing reasonable use and anti-waste rules? The claim is that the conservation targets could lead to a “floodgate of litigation.” But this is not compelling. Water agencies are already required to use water reasonably and to conserve. The State Water Resources Control Board has confirmed that cases challenging water use are extremely rare. Nothing in the proposed bill establishes a new cause of action for lawsuits.

Professors Joe Sax and John Leshy, among the country’s most prominent water law professors have weighed in (PDF) on the waste and reasonable use language. In their view: "Properly, nothing in the bill before you suggests that the mere failure to meet the targets is per se evidence of waste. Similarly nothing should mandate that such failure is per se reasonable"

We hope the Legislature takes heed. There is nothing to gain, and much to lose, from tampering with California’s entirely appropriate reasonable use laws. This amendment is one tainted ingredient in the sausage that we can do without. For more on the unreasonable use and water conservation issue, please read Bettina Boxall’s recent article in the Los Angeles Times.

Spreck Rosekrans is an Economic Analyst at EDF.

Groundwater is one of the more contentious aspects of the water reform legislation currently under consideration in Sacramento. Some legislators have indicated that they would not sign the bill if it contains even modest language requiring that groundwater levels be monitored.

This makes no sense to us. Reasonable people may differ on how much groundwater should be pumped in any particular region under certain conditions. But to have no limits at all assures a “race to the bottom”, akin to two hungry kids, each with a straw, sharing a single milkshake. Moreover, where is the incentive for a landowner to replenish groundwater supplies in wet years, if neighbors can extract it with impunity?

As Legislative Analyst Catherine Freeman pointed out at yesterday’s hearing, California is the only state that does not monitor groundwater. The other 49 states understand that good water policy demands some public involvement in groundwater. Given the need to stretch limited supplies among California’s farms, families and fish, and that as much as 40% of statewide supply comes from groundwater in drought years, it is embarrassing that we have no statewide policy for managing groundwater. (Click here for a copy of the LAO's 2008 report on groundwater.)

In much of the State, the groundwater situation is not so dire. Urban districts throughout the State currently “bank” water underground with the Semitropic Water Storage District in Kern County. And landowners and local agencies throughout much of the urban southland have cleaned up groundwater supplies and are working together to manage aquifers sustainably.

But in some areas, groundwater is often described as the “wild west” – i.e. lawless.

The proposed legislation takes only baby steps. It does not regulate groundwater. It seeks only to monitor its use to enable better management and decision-making. To ensure realiable water supply in California, the groundwater element of the legislative package must be retained.

Spreck Rosekrans is an Economic Analyst at EDF.

Our water system isn't working for anyone – not for cities, not for farms, and certainly not for fish. For the first time in over a decade, the California legislature has a chance to address our outdated water system and our broken Bay-Delta ecosystem. At the end of the last legislative session, a water policy package was put forward that proposed critical steps needed to provide a resilient water supply for all Californians and badly needed environmental protections as well.

Like others in the environmental community, EDF stretched to come to agreement in Senate Bill 68 as introduced, as it already includes a substantial set of compromises that would not be our first policy choice.

We, nevertheless, supported the package as introduced on September 11th because we believe strongly that its provisions have the potential to break the cycle of conflict and environmental damage that have plagued California’s water management system for decades.

We are pleased to see that the Governor has called for a special legislative session dedicated to passing strong water policy. Our support for a final package is dependent on retention of the following critical elements:

1. Getting enough water into the Bay-Delta – Sets a clear course of action to determine and provide critical water flows for the health and long-term sustainability of the Delta ecosystem.

2. Reducing reliance on the Bay-Delta – A landmark change in policy that shifts from an emphasis on Delta water supply to improving conservation, recycling, and other local sources of water.

3. Tools for halting illegal diversions – Expands the State Water Resources Control Board's authority to halt illegal diversions ensuring fair, smart water use throughout the state

4. Moving the Bay Delta Conservation Plan to environmental success – Details a framework for the BDCP that will help result in stronger protections for the Bay-Delta ecosystem in a timely manner.

5. Ensuring smart groundwater use – Substantially expands groundwater management and monitoring efforts to ensure long-term sustainability.

Cynthia Koehler is Senior Consulting Attorney for EDF.

The demise of a package of five water policy bills in the state legislature late Friday night, while predictable given end-of-session deadlines, had this sliver of surprise buried in it: the 5 policy bills taken together were pretty good. By “pretty good,” I mean good in the sense of “an important and meaningful advance over the water policy status quo for the environment” as opposed to “guaranteeing the water policy outcomes that would be ideal” from an environmental perspective.

How can the policy package possibly be construed as good, when it was linked to a water bond that included billions for construction of new dams under a poorly-defined assumption that they would provide public benefits?

Let’s stipulate that the longstanding practice in California of holding solid water policy reform hostage to a massive public spending commitment is of questionable wisdom at best. Read more »

Spreck Rosekrans is an Economic Analyst at EDF.

Yesterday’s mega-hearing in the California Legislature included mostly productive discussion about how best to manage water in our state, especially that which flows through the Sacramento-San Joaquin Delta. The Delta gets so much focus as the hub of our water system, it is sometimes hard to remember that exports from the Delta account for less than 15% of the water we use on our farms and in our cities statewide.

Understandably, today’s press coverage focused on Governor Schwarzenegger’s proclamation that he “will not sign anything that does not have above-the-ground, below-the-ground water storage”. The administration is especially keen on spending billions of dollars on reservoirs at Temperance Flat on the San Joaquin River and at Sites in the Sacramento Valley.

The focus on dams, and the billions of dollars they would cost, is an unfortunate distraction from the range of important legislative proposals put forth by the lawmakers, including Delta governance (Simitian and Huffman), a Delta Conservancy (Wolk), water conservation (Feuer/Huffman) and water use reporting (Pavley). There were not too many surprises, but the hearing was a very useful forum on the seriousness of our water issues that are all too often ignored.

This is not to say that water storage is not important. But it makes no sense to obstruct important policy reforms, which if done right would benefit cities, farms and the natural environment, by including a commitment to spend billions of dollars on storage projects. As we all know, the State is broke. And it is not clear how the benefits of the new storage would be distributed. Whatever happened to the “Beneficiary Pays” principle to which CALFED, the Delta Vision Task Force and even the administration’s Delta Vision Committee all agreed?

By the way, we often hear that no one has been developing storage in California. Not so. As identified in a recent blog, we have developed almost 6,000,000 acre-feet of storage at six sites alone over the last twenty years. These projects were all financed largely by their beneficiaries – just as it should be.

While we at the Environmental Defense Fund are pleased that the legislature is considering the suite of bills discussed yesterday, we do have substantial concerns with many of the various provisions. But we are committed to working with all parties to develop legislation for the benefit of all Californians. Insisting on dams being part of a legislative package, however, may well doom it to failure.