Trust not enough to solve CA water problems

April 18, 2013

By Wayne Lusvardi

Those who want to settle the water wars over the Sacramento Delta by first restoring “trust” rather than implementing the adopted law of the Bay-Delta Conservation Plan should take the advice of comedian W.C. Fields: “You can’t trust water. Even a straight stick turns crooked in it.”

University of Pacific law professor Gregory S. Weber just wrote an article,“The Big Divide Over Water: Mistrust is Top Obstacle to Repairing the Delta.” He contended that the main problem impeding the proposed Sacramento Bay Delta Conservation Plan is “gut level mistrust among the stakeholders.”

However, this is an odd statement from a law professor because the social function of the law is to not rely on trust. If the historical water wars in California have proven anything, it is that law has been a better vehicle, although sometimes flawed, than trust to settle water disputes.

Secondly, Weber calls Northern Californians “stakeholders” even though they may have not established any legal rights over water in the State Water Project.  A “stakeholder” is typically defined as someone who has deposited money depending on the outcome of an unsettled matter. Northern Californians are no more stakeholders in California’s socialized water system than Central Valley farmers or Southern California cities, and vice versa.

Law mandates co-equal goals

As currently put into law, the Bay Delta Plan calls for co-equal goals: 1) repair the Delta ecosystem mainly for fish and 2) improve water supply reliability.  That’s the law, not some nebulous trust.  However, different “stakeholders” likely will fund each of those two goals.

What the “Water Reliability” half of the Delta Plan would do is build tunnels to take water through and under the Delta “lake-bed” to Central Valley farmers and Southern California cities. The purpose of the tunnels would be to backfill some of the water lost to Southern California due to the State of Arizona deciding to finally take their full allocation of Colorado River water, rather than letting it flow to California.  The only replacement water source is the Delta.

The Water Reliability half of the Delta Plan would be 100 percent funded by the state and federal governments, Central Valley farmers, and Southern California water districts.  Northern Californians are not “stakeholders” in this part of the Delta Plan because they haven’t ponied up any funds for it. But Weber erroneously says they are “stakeholders” in the tunnels.

The “Repair the Delta Eco-system” half of the Delta Plan involves re-routing flows of fresh cold water over the top of the tunnels. This would rehabilitate the Delta eco-system for freshwater fish.  A tentative $9 billion general obligation bond to be put to the voters in 2014 likely would fund this second half of the Delta Plan. Thus, all water ratepayers in the State Water Project are potential “stakeholders” in the Eco-system Restoration part of the Delta plan.

Consensus failed

Weber is correct that, for over a decade, California sought a misguided “consensus” on a solution to the Delta under the Cal-Fed Bay Delta Program. But that plan, based on “trust” of the parties, failed miserably.  A mix of fraud, force, and consent of the governed — not consensus or trust — have held California’s historic water social contract together.  The elements of this contract entail Northern California giving up water to Central Valley farmers and Southern California cities in exchange for Delta flood protection, cheap hydropower and thermal power, and some potable water for themselves.

Incredibly, Weber now wants to unwind the adopted Delta Plan law first to establish “trust” by offering to serve as “mediator.”  Trust — or consensus — never  has worked to resolve the Delta water wars. Undoing the Delta Plan law now would be improbable.  Nonetheless, Weber suggests that Delta Plan should be reversed with a ballot initiative. This would just re-ignite the water wars, resulting in a greater deterioration of trust.

Better feared than loved if that is only choice that works

I agree that both Northern and Southern Californians will have to trust that co-equal goals of the Bay Delta Plan don’t “cut the baby in half.”  But for decades, California water policy makers tried “trust” and “love” and it didn’t work.

To paraphrase Machiavelli, it would be ideal if the Delta Plan could be both loved (trusted) and feared, but if a choice must be made, then fear is best.  But because circumstances have forced a choice, it is better to be feared even though this breeds mistrust with the outcome by both sides.  It will be up to the Delta Stewardship Council to navigate a course based on the rule of law that avoids hatred on the one hand and mistrust and contempt on the other.