The Trump administration has launched a bold effort to up-end water policies in the Central Valley and the Sacramento-San Joaquin River Delta, calling for big changes that would favor farmers over endangered species in allocating water.

Helping craft the administration’s new approach: Deputy Interior Secretary David Bernhardt, a former lawyer and lobbyist for the Westlands Water District, which is the nation’s largest agricultural water district with 600,000 acres of farmland in Fresno and Kings counties.

As CalWatchdog reported in June 2017, the prospect of having Bernhardt overseeing the federal government’s California water policies was opposed by nearly all Democrats in Congress because of his history. Meanwhile, to GOP lawmakers from the Golden State, his nomination was seen as confirmation of Trump’s 2016 campaign promises to abandon the old status quo involving Central Valley agriculture.

The Oct. 19 memo signed by Trump reflected Bernhardt’s years of calling for lesser regulatory burdens, specifically including long-lived protections for endangered species. It underlined the determination of the Trump administration to make sure farmers got more water. The memo also ordered that major water projects receive faster environmental reviews.

Trump signed the memo before a campaign rally in Arizona while flanked by three California House members – Majority Leader Kevin McCarthy of Bakersfield, Jeff Denham of Turlock and Tom McClintock, who represents a wide swath of Central and Eastern California. All have denounced what they see as excessive federal deference to environmentalists – including by the George W. Bush administration, not just the Obama administration.

“This will move things along at a record clip, and you’ll have a lot of water,” Trump assured them.

But veterans of the water wars – including those who back Trump’s new policy – have warned farmers not to get their hopes up for the rapid changes the president predicted. More modest changes in policies by the last Bush administration were fought in both federal and state courts by well-funded environmental law firms. They won not just stays of federal orders but full victories from judges who agreed with their interpretation of Congress’ intent when it adopted far-reaching water laws last century.

Fight over economic impact of rules looms

Bernhardt’s remarks at a May 2017 Senate hearing point squarely to one coming fight with broad implications for all of the federal government. When asked whether the Interior Department would keep its commitment to “scientific integrity” in enforcing federal laws, Bernhardt said, “I will look at the science with all its significance and its warts. You look at that, you evaluate it and then you look at the legal decision you can make. In some instances the legal decision may allow you to consider other factors, such as jobs.”

The idea that governments can consider such economic factors when interpreting laws has been one of the favorite legal arguments of conservative and libertarian law professors since it was advanced in 1973 by Richard A. Posner, who went on to serve 36 years as a federal appellate judge and to emerge as one of the most important and provocative legal thinkers of the 20th century.

If there is any evidence this philosophy is leading to new Trump administration interpretations of federal laws, a strong legal challenge is certain – not just because of what it would mean for water policy but because it would give business interests a powerful new tool to challenge a wide range of laws that create economic burdens.

Posner’s most crucial, basic claim – that the “common law” that is the basis of the legal system holds efficiency as a value – is scoffed at by many legal academics. A Stanford law school analysis that was otherwise sympathetic to Posner’s theories says it is based on “ambiguous” precedents.

The fight over the Posner-Bernhardt view of the law is in some ways the reverse of normal fights over the extent of judicial authority. Democrats say the claim that “efficiency” is part of how laws should be interpreted was invented out of whole cloth, with no evidence it reflected the wishes of the nation’s founders. 

This is the line of argument often made by conservative strict constructionists, who reject the idea that the Constitution and other long-standing laws are “living documents” subject to new interpretations because of changing circumstances.

The funds come from California’s $7.5 billion Proposition 1 Water Bond, approved by the voters last year.

Although it is unlikely that all of the $287.5 million will be used for water purchases to benefit the environment, the Wildlife Conservation Board and the Department of Fish and Wildlife still have yet to determine what they will do with their respective $200 million and $87.5 million bond funding allocations.

The last time California tried a pilot program of purchases of environmental water, it didn’t work out so well.

Interest adds up

Starting in 2000, state and federal water agencies purchased farm water for fish and wildlife using bond funds under a now-defunct state-federal program called CALFED. The Environmental Water Account project was aimed at improving water supply reliability and protecting the Delta ecosystem.

The project followed a major allocation by Congress in 1991: a one-time allotment of 800,000 acre-feet for salmon runs plus another 400,000 acre-feet annually for wildlife refuges without payment for the water. (See page 15). An acre-foot of water – enough to cover one acre of land to a depth of one foot – can supply two to four urban households per year, depending on whether it is a normal or drought year. That same amount can support about one-third an acre of cropland per year.

The use of general obligation bonds to buy water for the environment is controversial because actual financing costs would typically be double the principal amount once interest is included.

Calwatchdog.com spoke with Wes Strickland, a water rights attorney in California and Austin, Texas, about the results of the EWA project. Strickland said EWA was a lose-lose-lose-lose deal for every group involved:

• For environmentalists it did not allocate enough water to alleviate ecosystem stress.
• For farmers it drove up spot market water prices because of reduced supply.
• Southern California cities were thwarted from buying water to bank for dry years.
• State and federal water agencies didn’t accomplish their environmental goals even as the state ran up its budget deficit and exhausted water reserves going into a 2007-2010 court-ordered limit on water pumping.

From this failed experiment, Strickland said California should have learned to make small, incremental water purchases during rainy years to support the environment during years of drought.

$193.4 million

The state and federal taxpayer bill came to $193.4 million for the EWA project, which lasted from 2000 to 2007. More than 2 million acre-feet of water were purchased for environmental uses. (See table below.) According to the California Department of Water Resources:

• $16.8 million came from Proposition 204, a 1996-voter approved state water bond.
• $101.2 million was from Proposition 50 voter-approved state water bond.
• $50.1 million was from the state general fund in 2001.
• $25.3 million came from federal coffers.

Under the program, the government came to dominate the spot market for water.

On average, water purchases under the program made up 43 percent of all spot-market purchases of water each year. By the final year of the program, the government’s purchases comprised 87 percent of all water bought on the spot market.

The average price of water purchased over the seven years was $96 per acre-foot, without bond interest, compared with the current going price of $700 per acre-foot for water transfers from farmers.

At the lower price, the $287.5 million under Prop. 1 would be enough to purchase about 3 million acre-feet of water. As the table below shows, in 2007 California bought 477,000 acre-feet of water for fish runs, and that was deemed insufficient to help migrating fish get to the ocean.

Will there be any water to buy?

Because Lake Oroville has been drawn down below 50 percent of its storage capacity, water cannot be sold by the farmers along the Feather River, which flows into the lake.

The EWA project ended just before the Natural Resources Defense Council filed suit to protect the Delta smelt, prompting court-ordered limits on the amount of water drawn from the fish’s habitat.

Environmental Water Account Purchases, 2001 to 2007

###

By Katy Grimes

A new survey of 500 small businesses claims that a majority of small business owners want high income earners to be taxed more. This is difficult to believe, and amazing timing with the election less than two weeks away.

I participated in an early morning conference call on Thursday with Small Business Majority. They just published the survey titled, “Scientific Opinion Poll Finds Majority of Small Businesses Support Letting Tax Cuts for High Income Earners Expire.”

But during the conference call, when I heard the CEO claim that the majority of entrepreneurs “see a productive role for government in helping small businesses achieve success,” I nearly flipped.

John Arensmeyer, the founder and CEO of Small Business Majority, also claimed nearly six in 10 small business owners “agree that government can play an effective role in helping small businesses thrive.”

The Small Business Majority is a liberal Democratic group based in San Francisco.  They backed Obamacare and AB 32, California’s Global Warming Solutions Act of 2006, and  enthusiastically support government subsidized green energy.

Putting an end to tax breaks

“Entrepreneurs agree no one likes to raise taxes, but because of the budget crisis, 52 percent believe we should let tax cuts for the wealthiest 2 percent expire at end of year,” the subtitle of the survey said, referring to President Bush’s national tax cuts.

The Small Business Majority CEO claimed numerous times throughout their press release that their survey was “scientific.”

Survey says…

The Small Business Majority website reports:

“The majority of small businesses support raising taxes on high-income earners; nearly 9 in 10 oppose raising taxes on the middle class: Small business owners recognize the gravity of our budget crisis: 52% agree that while no one likes to raise taxes, we should raise taxes on the wealthiest 2%, given the budget situation, and 4 in 10 strongly agree. Only a 39% minority believes raising taxes on the wealthy means raising taxes on job creators and small businesses. A sweeping 86% oppose raising tax rates on household income below $250,000, and 71% strongly oppose it.”

And they offered this graphic as an example:

“Figure 2: When probed about tax cuts, the majority believe tax cuts on the top 2% should expire because it’s the right thing to do given our budget crisis

“Despite rhetoric claiming otherwise, scientific opinion polling shows they simply don’t believe it’s in their best interest to extend tax cuts for high-income earners as a way to do it,” the survey reported.

Who is Small Business Majority?

Arensmeyer is also an entrepreneur. “John Arensmeyer has used his long experience as a business owner to build Small Business Majority into a nationally recognized small business organization…,” according to his biography. “John was the founder and CEO of ACI Interactive, an award-winning international e-commerce company. Information Week named ACI’s signature product one of the nation’s top 100 e-business innovations, and the company was cited by the San Francisco Business Times as one of the top 100 fastest growing private companies in the Bay Area.”

Reading through the biographies of the staff, nearly every one of them is tied to liberal causes. The “strategic” partnerships with other non-profit organizations are also highly suspect.

Not everyone is buying these claims

“Arensmeyer sold ACI Interactive, a $3 million Sausalito (Calif.) online-financial-services company, in 1999,” according to a story about business buyouts from 2005.

The New York Times’ small business blog apparently had difficulty swallowing some of Small Business Majority’s unusual claims, particularly about small business support for Obamacare.

“As far as the we know, the Small Business Majority research is the only research that has found that small businesses buy in to pay-or-play,” NYT blogger Robb Mandelbaum wrote in a 2009 story. “All of the other small-business advocates claim the opposite, and by greater margins — even the National Small Business Association, whose moderate leanings seem practically radical, at least compared to those of its larger rivals, the U.S. Chamber of Commerce and the National Federation of Independent Business.”

“The group has gotten a lot of press this spring, first as one of two small-business invitees to the White House health care summit meeting in March,” Mandelbaum reported.

There’s nothing like being invited to the White House to solidify support for presidential policies.

Mandelbaum discovered Arensmeyer’s political bias for Democrats, and even questioned just how “scientific” the surveys are. “Informally, however, it is allied with the Democratic Party,” Mandelbaum wrote. “Mr. Arensmeyer serves as a board member of the Bay Area Democrats, which describes itself as ‘a network of private citizens active in national Democratic Politics.’ Since 2002, Mr. Arensmeyer has given generously, and exclusively, to Democratic candidates, according to F.E.C. records.”

“Small Business Majority is nonpartisan only in the most technical sense, in that it is not formally allied with any party,” Mandelbaum wrote. “Informally, however, it is allied with the Democratic Party. The whole project, frankly, seems fundamentally ideological, and clearly liberal. It’s received a leg up from Demos, the advocacy group that counts among its objectives ‘a more equitable economy with widely shared prosperity and opportunity’ — no initiatives to foster Ayn Rand-style self-reliance here. (Demos serves as a fiscal agent, which allows the group to raise money as a 501(c)(3) nonprofit.).”

Maybe I’m just a little too suspicious. But when a survey of small business owners finds that they support higher taxation on wealthier people, and policies which redistribute wealth, it doesn’t feel scientific, or even rooted in basic economic principles. Claims like this feel  very unscientific, and very partisan.

Read the survey HERE.

The Small Business Majority website is HERE.

And be sure to read Mandelbaum’s story HERE, on the NYT blog.

By WAYNE LUSVARDI

Ready for another phantom “drought”? The National Resources Defense Council is. The NRDC’s bogus Delta Smelt lawsuit brought the court-ordered “drought” from 2007 to 2010.

Now the NRDC is launching a disinformation campaign to divert the public’s attention from the bigger water issues of the Sacramento Delta. On Sept. 16, 2011, U.S. District Court Judge Oliver Wanger threw the case out of court as based on bogus science.

Gov. Jerry Brown declared the “drought” over in 2011. Yet water rates have risen anyway across the state as a result of the bogus “drought.”

In the Feb. 6 issue of the San Francisco Chronicle, NRDC attorney Doug Obegi  said there are three “facts” and three “myths” about the Sacramento Delta.  Like any slick attorney, he is working on you as if you were on a jury to make sure you are persuaded of his case.

The Delta is where most of the water runoff from the snowpack of the Sierra Nevada Mountain Range ends up.  California depends on the Delta for most of its water for farms and cites, as well as fishing and water recreation.

To understand the big issues with the upcoming Delta Plan of the State legislature’s Delta Stewardship Council and the proposed $11.1 billion Water Bond on the November ballot, it is important not to be distracted by small facts and alleged irrelevant myths.

The NRDC’s device for distracting you from the water issues of the Sacramento Delta is a purported checklist of so-called “facts” and “myths” about California’s water system.  Let’s look at them without being diverted from the larger issues.

Small Facts and Big Myths as Diversions

NRDC Diversion No. 1:  “Northern Californians don’t get their water from the delta, so we shouldn’t care what happens.”

Obegi wants Northern Californians to care about what happens with the water from the Delta.  Northern Californians should not think that they don’t get their water from the Delta.  Ok, being involved is a good thing.

But NRDC’s emotional appeal is to your intelligence.  If you were smart and knew that Northern California relied on water from the Delta you would be politically alert and active.  People want to brag about being smart about the car they bought, about their “Smart Phone,” or the politician or ballot measure they voted for.

It is important for Northern Californians to be educated about the upcoming Delta water issues. But the above so-called myth is just used as a subtle set-up to make you believe that Southern California is about to steal more water again from Northern California. As will be explained below, this is the opposite of what has happened and is likely to happen.

Water is a socialized commodity in California. It does not belong to Northern Californians or Southern Californians.  There is no water to “steal.”  Long ago Californians agreed to a social contract for water: Southern California got water and Northern California got flood protection from the occasional destructive rising of the inland sea of the Sacramento Delta. (Think Hurricane Katrina.) By subtly entering emotionalism into the issue, Obegi diverts you from the bigger facts that will be explained below.

NRDC Diversion No. 2: “Even with stronger restrictions on pumping to protect salmon and other native fish, the state and federal water projects divert as much water from the delta as they did from 1980 to 2000. As much water is diverted from the delta on average today as before the historically high pumping levels of the 2000s devastated the delta ecosystem, according to the state Department of Water Resources and the Public Policy Institute of California.”

What the NRDC has done is slipped what is called a non sequitur into the above fact.  What a non sequitur does is claim to make a cause and effect relationship when, in fact, there is no logical connection. In street language, it is a “disconnect.”

It is true that state and federal water projects are pumping no more water from the Delta on average than they did from 1980 to 2000 (with the exception of the 3 years of the above-described court ordered “drought” from 2007 to 2010).  But that does not mean that “high pumping levels of the 2000’s devastated the Delta ecosystem.”

Salmon and even the Delta Smelt are currently thriving after the high rainfall and snowpack of 2010 and the resumption of pumping from the Delta.

There are other reasons for a long-term threat to the Delta ecosystem.  But high pumping levels typically also mean high water levels in storage reservoirs. They also mean abundant fresh water levels in the Delta that boost the population of desirable species of fish, fishing and recreation.

Huge pumps on the Delta that send water to Southern California are not the only threats to the Delta ecology. The Delta ecology is more threatened by local urban runoff than from pumping water out of the Delta. One of the major sources of pollution of the Delta is local government wastewater treatment plants in Northern California.   But the NRDC wants Northern Californians to believe that high water pumping to Southern California is the only culprit. The NRDC can manufacture an unnecessary water war just as it manufactured a phony drought.

NRDC Diversion No. 3: “As many jobs were lost from closing California’s salmon fishery in 2009 as were lost in farming communities from restricting pumping to protect fish. True. Despite wildly inflated myths, studies by economists from the state, UC Davis and University of the Pacific show that California’s fishing industry lost about as many jobs as did the farming industry when pumping was restricted during the 2009 drought to protect fish.”

This may be true. But unlike fishing, farmers can shift their workers to fallow fields and alternative crops in other locations that are not dependent on Delta water.  Farmers typically rely on groundwater supplies when there is a dry year and the Delta cannot meet all its contractual obligations to farmers.

Once again, what the NRDC is trying to do is cover up its own blame for causing job losses due to the Delta Smelt case they filed to stop pumping of water to farms in Central California and cities in the southern half of the state. The NRDC should be blamed for job losses to both farming and the fishing industries.

The NRDC once again is trying to politically play fishermen against farmers, while shifting blame away from themselves for job losses during the phony drought of 2007 to 2010.  Nice try. But it won’t work.

NRDC Diversion No. 4: “Fact: 4. Despite increasing flows to protect fish over the past two decades, delta fish populations continue to decline. False. Since pumping has been reduced, populations of delta smelt have rebounded dramatically, and salmon populations have also increased after the rainy season of 2010.

Contrary to the NRDC, the Federal judge in the Delta Smelt case ruled that the science presented by the NRDC and other government agency in the case was “false testimony.” It was never proven that Delta Smelt fish populations declined during the pumping of water out of the Delta.

NRDC Divsersion No. 5: “Most of the water pumped from the delta goes to Southern California lawns and swimming pools. False. Nearly half of the water exported from the delta is for agribusiness. Thanks to improved efficiency, Los Angeles uses as much water today as it did 25 years ago, despite adding 1 million residents, and Orange County has one of the largest water recycling plants in the nation. Even so, improved water-use efficiency could create trillions of gallons of new water each year for cities and agriculture.”

The above is true.  Southern California lawns and swimming pools do not get half of the Delta water exports.  But what the NRDC omits is that the “environment” gets 64 percent of all distributed water in a wet year; and 35 percent even in a dry year.

Southern California water agencies are entitled to a maximum of 62 percent of the water deliveries from the State Water Project through the Delta in a wet year. But that only represents 2.6 percent of all the distributed water in California in a wet year.  And agriculture uses only 28 percent of distributed water in a wet year and 42 percent on average, according to the State Department of Water Resources.

The NRDC touts water recycling as a resource for Southern California. But California’s new Green Chemistry Law threatens water recycling. The Green Chemistry Law may not allow hard to dissolve chemicals from drinking water in tiny amounts.

NRDC Diversion No. 6: “California can divert less water from the delta and still meet its water needs by investing in water efficiency, water recycling and improved groundwater and storm water management.  True. Modeling by the state Department of Water Resources shows that the new water sources available by investing in water efficiency and recycling is more water than California has ever exported from the delta. Urban water managers know this; the City of Los Angeles plans to meet its water needs by investing in these tools, while simultaneously cutting its use of delta water in half.”

What the NRDC does not tell you in the above statement is that Southern California has already reduced water use by 1 million acre feet — enough water for up to 6 million people — from the 1980s to the present.  The new Delta Plan proposes to cut water another 20 percent.  But this will not replace the necessity for a water conveyance system around the Delta that would provide a more stable ecology.

Lost Legitimacy

As in court cases, diversionary tactics can be useful when arguments fail you, when you are backed into a corner, when you feel you are about the lose or when you are uncomfortable with the direction of the conversation.  The NRDC is signaling that they only have diversionary tactics to persuade you to shift local cleanup of the Delta mainly onto Southern Californians.  The NRDC’s arguments have been made to look like they have captured the high ground with facts and that others positions are mere myths.

After the infamous Delta Smelt court case, the NRDC has lost legitimacy in California. Their current disinformation campaign on the Delta is just a continuation of their divisive water wars.  The NRDC should not be listened to any longer on the issue of the Delta.

By WAYNE LUSVARDI

If a Catch-22 is a choice between two equally undesirable alternatives, California’s mandate to purchase green power must be one more than a Catch-22 – it must be a Catch-23.

This is because California’s new green-power law, mandating 33 percent renewable electricity generation by 2020, will soon present a situation of a choice between three undesirable alternatives:

1) Having to buy more expensive wind power as required by law;

2) Having to give away cheap and clean hydropower from overflowing reservoirs this year;

3) Having to avoid spilling water from overcapacity dams in order not to harm fish by putting too much dissolved gas into downstream rivers.

Willis Eschenbach, a climate law-watcher, calls this situation being “between wind and water,” a variation of the phrase, “between a rock and a hard place.”

But in reality the choices being presented to hydropower managers and California’s Independent System Operator, which runs the power grid, are threefold: among wind, water and fish.

The irony is that hydropower is as clean, and green, as wind or solar power. But in California, hydropower does not count as renewable power under the new green-power law that begins in 2012.

Bonneville May Cut Switch on Wind Power

The Bonneville Power Administration (BPA), a federal government agency in the Pacific Northwest, apparently doesn’t have California’s Catch-23 dilemma.  Because the BPA is a federal entity, it is immune to the policies of state green-power laws. Unlike California, the BPA has told wind-farm operators that they may have to shut down periodically to free up capacity in the electrical grid for hydropower generated by the large snowpack and full reservoirs this year.

Most of the wind power being generated in other states is shipped to California to meet its new increased 33 percent energy portfolio standard for renewable power.  So if Bonneville has to cut off wind power from the grid in the Pacific Northwest from being transmitted to California, will taxpayers be stuck with the bill anyway?

In other words, will California electricity ratepayers end up having to pay more than double the price for electricity from both hydroelectric plants and wind farms?  If so, look for another energy crisis, as a pricing bubble may appear seemingly out of nowhere in California as a result of the state’s green power policies. Only this time, there won’t be an Enron around to blame.

Has CA’s Drought Been Wind Driven?

Environmentalists lost their effort to get a federal court to block water shipments through the State Water Project and Federal Central Valley Project purportedly to protect the smelt fish. After that, is it any wonder that the Obama Administration, operating through the U.S. Fish and Wildlife Service (USFWLS), has proposed to list the longfin smelt fish as endangered?

Strangely, the U.S. Fish and Wildlife Service denied federal protection for the longfin smelt in April 2009. Have all the efforts to block water shipments to farms and cities in California, creating an “adjudicated drought,” been motivated by trying to curtail hydropower from competing with wind and solar power?

California now has a perverse incentive system to embargo the cheapest, cleanest source of energy — hydropower — so that wind developers can reap “windfalls” in over-market priced wind power.

California’s energy system is getting so Byzantine that it may be creating unintended opportunities to game the system dressed up as a Hollywood environmental lawsuit, a la Erin Brockovich.

Will Southern California sell its maximum annual entitlement of 2 million acre feet of water from the State Water Project for a bundle of small water projects of uncertain yield, plus $2 billion of political pork barrel projects, if voters approve the proposed $11.1 billion Comprehensive Water Package, a bond proposal known as the “Safe, Clean, Reliable Drinking Water Supply Act of 2010”?

That is a key question for statewide voters to answer by the November 2010 election. And to do this they need to understand the package of water bills (SB1, SB 2, SB6, SB7 and SB8 from 2009) that have been cobbled together before they vote out of panic given the dire curtailment of water to Central Valley farmers and Southern California cities.

Forgetting for the moment that the state is broke, the entire approach of the $11.1 billion package of legislation is to first allocate money and then find projects to fit its major co-equal goals of Delta restoration and water supply reliability. This process is backwards from that of the Gov. Edmund “Pat” Brown era where alternative water projects were first evaluated by engineers for physical and economic feasibility, quantified for water yield, and then the best project was specifically selected and the public was asked to fund it with a bond issue.

‘Ready, shoot, aim’

We have no idea today how many, if any, of the myriad of proposed statewide water projects in the Comprehensive Water Package have any physical or economic feasibility. Rather, they are like former Gov. Jerry Brown’s failed geothermal “ghost” plants built in the mid-1980s, where the funding and political approvals preceded any idea of whether they were feasible in the first place. “Ready, shoot, aim” seems to be the panicky approach of the Comprehensive Water Package.

For example, the notion that urban Southern California wastes water by letting rainfall flow out to the ocean sounds good, but proposals to capture this water are misguided. Sure, large amounts of urban rainwater flow to the ocean. The drainage plans of most coastal cities in California were originally designed to divert rainwater to the ocean via flood control channels mostly built as jobs programs during the crisis of the Great Depression. Water and power during that era were to be supplied from far away by huge Works Progress Administration dam and hydro-power projects – not from local reservoirs and canals to capture urban runoff.

But urban runoff can’t be physically and economically captured. Where would one build the reservoirs – where houses exist today? There no longer is land available in urban cities to build another Santa Fe Dam such as currently exists in Irwindale or Prado Dam near the Corona in Southern California. Neither are there any new foothill dams that could be built like Morris Dam that is upstream from the San Gabriel River in Los Angeles County.

These are pipe dream projects that can’t possibly meet the needs of a growing population state. But such projects are apparently being considered for funding by the Comprehensive Water Package under the line-item designated for “Coastal Counties and Watersheds,” as well as other line items.

The Delta Master Veto Agency

A triangular-shaped island at the ocean mouth of many rivers is named after a similar shaped letter from the Greek alphabet – “delta.” Incremental sedimentary river deposits create a delta island or alluvial fan. The word “delta” also means the amount of change from deposits of a financial investment. But the new Comprehensive Water Package will not be incremental or gradual with respect to the change it will bring to the structure of California’s water system.

The Comprehensive Water Package creates a Delta Stewardship Council that will effectively abrogate Southern California’s existing maximum annual entitlement of two million acre feet of water from the State Water Project. It would have veto powers over the Metropolitan Water District of Southern California (MWD), the State Department of Water Resources (DWR), Westland Water District, the Sacramento Municipal Utility District (SMUD) and other water districts as to building any future reservoirs and canals. All future water infrastructure projects statewide would have to be vetted through the Delta Stewardship Council and its tentacle entities.

The package would create a seven-member Sacramento Delta Stewardship Council that would have quasi-judicial powers to balance the “co-equal” goals of “Delta restoration and water supply reliability.” The Delta Stewardship Council would consolidate the current patchwork of agencies and cities that have jurisdiction over the Delta.

A whole new state entity, the Sacramento-San Joaquin Delta Conservancy would also be created under the Natural Resources Agency, to implement ecosystem restoration of the Delta. A Delta Independent Science Board would additionally be created to advise the Conservancy and Stewardship Council. And a Delta Watermaster’s office would be created and funded to assure water quality enforcement. All these new entities would be linked with a larger web of existing committees and state agencies.

The Water Package is no less than a new reorganization of state water politics and implementation with the Delta getting first dibs at water and everyone else queuing up afterward. The long-proposed Peripheral Canal to divert water around the Delta is expressly forbidden under the water bill package. Cities and farmers are hoping that by passing the water bill package that the roadblock of fixing the Delta will surmounted and the Peripheral Canal can ultimately be built. But when would that be – 2050, if ever?

And what about the problem of bait and switch? The last time Southern California got a bundle of state water projects in return for building levees in the Delta it made sure to enshrine the projects in the state Constitution so that they could not be unwound at the next session of the state Legislature. There is no such guarantee in the water bill package. The hope that the package is a prerequisite for the Peripheral Canal, Auburn Dam or other water projects is an exercise in faith.

Even if Southern California water leaders are appointed as members of the Delta Stewardship Council they effectively will end up representing the Delta, not their water ratepayers. Who would end up advocates for Southern California cities, Central Valley farmers or even the urban ecosystem? Presumably, everyone outside the Delta would end up being represented by state bureaucratic officials. The Legislature would only have authority over water projects outside the Delta that the Delta Stewardship Council did not veto.

The Stewardship Council would additionally delegate to the State Department of Fish and Game and the Water Quality Control Board the responsibility to “identify the water supply needs of the Delta Estuary.” The water supply needs of urban or agricultural users would not be on their radar screen.

Of likely concern to cities surrounding the Bay Delta is that each city would have to certify to the council that development and land use decisions are compatible with the Delta Plan, subject to an appeal process. This would usurp “home rule” for many Bay Area cities and counties. Imagine something like the Coastal Commission suddenly having jurisdiction over your city, leading many observers to believe that the package is a simple power grab.

Water officials contacted in the process of writing this article anonymously stated that their educated guess as to how much of its water entitlement might flow to Southern California after the Delta gets to trump all water needs in the state is about 25 percent (500,000 acre-feet, or enough for about 2.5 million people). On a wet year, Southern California typically draws down about 500,000 to 1 million acre-feet of water from the State Water Project. The last time the MWD drew close to its maximum entitlement was 2001, when it drew about 1.7 million acre feet of water during the California Electricity Crisis. However, Southern California’s cities could lose their potential entitlement to water for 7.5 million people overnight on the November 2010 election.

The Delta Stewardship Council would theoretically offer a fix to the political fragmentation and dysfunctional log jamming that characterizes about every issue in the state. But even though the council would have broad powers to fix the Delta, it would also have the power to veto other water projects statewide, leaving only the Delta immune from the political dysfunction that exists in California government.

The Comprehensive Water Package would not be incremental but revolutionary. In concept it would save the Delta, but it would be “every man for himself” for the rest of California, albeit with the aid of some subsidies for local water projects and $2 billion in pork barrel projects for key politicians.

20 by 2020

This package of bills calls for a 20 percent reduction in baseline daily per capita water use by the year 2020.  It also calls for the volume of agricultural water to be measured for the first time.

Perhaps of most interest to the average person, it establishes a target of 55 gallons per capita daily for residential indoor water use. Taking a shower can use 25 gallons alone.

The water bill package gives water agencies four options for complying with conservation goals: (1) 20 percent reduction in daily use; (2) 20 percent reduction in regional imports; (3) utilize performance standards for commercial, industrial and institutional users; and (4) a method to be developed by DWR by 2010.

Processed water from recycling would not be subject to conservation mandates. The problem with conservation is that it works on the state level by eliminating the need for new costly and environmentally damaging dams and canals. But on the local level conservation only depletes local groundwater basins resulting in more reliance on imported water supplies.

Delta Council as Climate Change Talisman

The rationales for saving the Delta from environmental crisis are often depicted in quasi-religious apocalyptic terms: rising sea levels that would flood the fresh water Delta with seawater; warming temperatures would mean more rain and less snow pack in the Sierras, resulting in more floods; catastrophic earthquakes could breach Delta levees resulting in seawater intrusion that would end shipments of imported water to Southern California; global warming and pollution are killing off salmon and smelt fish populations. Realistically, the water bill package would prevent none of these scenarios.

The Delta Stewardship Council would be empowered to review transportation and land- use plans for impacts on climate change. This would include compliance with California Senate Bill 375, the “anti-sprawl bill,” that diverts new growth and development away from suburbs and edge cities and toward coastal cities.

An obvious problem with all this anti-global-warming and anti-sprawl legislation is that the most abundant groundwater resources in California are located inland and not toward the coast. So reducing auto pollution by shortening auto commutes or shifting to light rail would in turn result in more dependence on imported water supplies. Life is full of trade-offs and ironies never acknowledged by environmentalists or politicians. It is nonetheless strange that such a highly touted package of water bills would result in more dependence on imported water all in the name of combating global warming.

Another problem is that during a prolonged drought existing environmental laws make urban, agricultural and recreational users curtail water usage to great hardship. But the sacrosanct natural environment cannot even be stressed or have any species of fish decline in population due to natural causes without some lawsuit alleging harm from cities or farms.

The Environmental Defense Fund’s Center for Rivers and Deltas, flush with a $100,000 blind donation in 2007 from Meg Whitman, won a court injunction against transporting water through the California Aqueduct alleging that pumps at the Harvey O. Banks Pumping Plant on the California Aqueduct were the cause of the disappearance of the Smelt. But the Smelt don’t find their habitat only near the pumps, nor do they affect them. Today, Whitman ironically is probably the only candidate for governor likely to veto the water bill package if it came across her desk on her watch.

There are other plausible reasons for the smelt’s decline, including pollution and invasive species. Prior water quality improvements in the Delta have increased the population of natural smelt predators. The Smelt, like the famous Spine Stickleback fish, could have gone into hiding to protect themselves. Cleaner Delta water could also have reduced food sources the Smelt forage on such as Krill.

The courts have never addressed the favorable treatment under California environmental laws of the natural environment to the detriment of the urban eco-system. When a dam and reservoir is built, the natural eco-system that once depended on that water is transferred downstream to an environment of urban forests, gardens and wildlife. Urban lawns, rose bushes, tree squirrels and Koi fish ponds are not valued in our culture or laws as is the Delta smelt fish, coastal sage brush and kangaroo rats. “Save the Delta” – to hell with the cities and farms seems to be the mantra.

The California Environmental Quality Act (CEQA), measures gross, not net, impacts on the environment. For example, CEQA only measures upstream gross impacts of a dam without considering any offset for the downstream transfer of vegetation and wildlife from the wilderness to cities and farms. Are commercial poppy fields or urban arboretums any less of the environment? The poppies don’t know the difference whether grown in the wild or on a horticultural operation. Once commercialized, poppies (the official state flower) will be sustainable and protected forever.

The Delta Scientific “Certainty Wallahs”

The presumption for the creation of the Delta Stewardship Council and Delta Independent Science Board is that it knows or will know what is best for the Delta environment. This is a dubious presumption, even from a scientific standpoint. No one knows, nor can they know, what the ramifications of tinkering with the Delta ecosystem would be. Moreover, scientists are being asked to make cultural and political values judgments not dispassionate science

For example, say that sending more water to cities in the southern half of the state results in more seawater intrusion to the Delta. So instead of fresh water fish and plant species we get saltwater fish and vegetation. The freshwater species don’t necessarily die off as much as their population is reduced. They are merely replaced by a different type of ecosystem. Scientists can’t tell us which ecosystem is preferable; only cultural and commercial values enshrined in law can. The public can be sold on aesthetic values of species based on visualized depictions of their plight. But what about ugly species or vegetation that sucks up too much water from its “neighbors?” Those are often dubiously labeled “invasive” or “non-native” species.

After spending billions of dollars under the water bill package on cleaning up the Delta purportedly to make it a natural aquarium we can’t be assured that the unintended consequences of the cleanup won’t alter the ecosystem deleteriously. Sociologically speaking, the ideology behind saving the Delta is more anti-business and anti-urban than it is truly scientific.

In any case there is no new cheap water.

According to water officials this writer spoke with, the water bill package and Delta Stewardship Council and Delta Plan won’t make much of a difference because there is no new cheap water that can be created, at least quickly, without a return of the monsoons that periodically fill our statewide reservoirs. If so, California might do just as well or better if it just waited for rain relief rather than rush the water bill package.

Many contend that more water has been over committed from the Bay Delta. Southern California is entitled to a maximum of 2 million of the 4 million acre-feet annually of the State Water Project (WSP) that is routed through the Delta. Four million acre-feet of water sounds like an over-commitment during a drought. But in a drought the state has the right to reduce a water agency’s allocation.  So the argument of over committal of water is specious and often used for propaganda.

As radical as the water bill package is, it cannot change our meteorological fortune or misfortune. The ancients believed that gods controlled the world. In modern-day society we believe we can magically control nature with legislation, with the same result.

A three-year drought is normal by conventional water planning standards. However, if the drought persists to, say, an eight-year cycle as it has in the past, California will be in even more of a crisis.

Fixing the Bay Delta at the cost of farms and cities may ring a death knell for California. The solution lies not in affluence removal or perhaps not even in effluence removal. The environment has always improved with affluence, not the other way around.