The Governance Reform Bill - Stronger Protections for the Delta

Over the coming week, my colleagues and I will write about some of the major provisions in the ambitious package of water reform legislation passed on November 4.  The many provisions in this complex package will require some time for the water stakeholder community to grasp and for agencies to implement. 

SB 7x 1 (Simitian, Palo Alto), which is known in water circles as the "Delta governance" bill has many important provisions.  It creates a new Delta Stewardship Council, with the responsibility to coordinate existing agency efforts into a comprehensive plan.  Such a coordinated approach has long been recognized as essential - and has long eluded water reformers.  For example: future land use decisions in the Delta should incorporate flood risks; ecosystem restoration should be coordinated with expanded floodways and strengthened levees; and water supply planning should provide the water needed by the Delta ecosystem. 

The bill creates a new Delta Conservancy to work with local landowners to restore Delta habitat and a reformed Delta Protection Commission to help regulate Delta land use and advocate for Delta communities.  All of these programs are important.  A coordinated approach will give us a fighting chance to plan for the Delta's future.  Without such an approach, we would simply be leaving the Delta to be shaped by rising sea levels, subsiding Delta soils and earthquake faults. 

However, from our perspective, the most important provisions in the governance bill are a number of stronger legal protections for the Delta ecosystem. Here's a run down of the most significant new protections in the legislation.

Establishing Firm Requirements for Providing the Water the Delta Needs

This bill accomplishes something that environmentalists have sought for decades. It requires the State Water Resources Control Board to do a public trust analysis of how much water is required to restore the Delta.

Back in 1986, a state judge ordered the board to determine the Delta's flow needs pursuant to the state public trust.--a longstanding legal requirement for protecting California's water resources.  The public trust dates back to British common law, and even Roman law.  It reflects the fact that California's water resources are owned by the public, and held in trust by the state government. But even with the court order, the State Board failed to make this determination. They have tried and failed, mostly because of opposition from water users and governors who pulled the plug.

The new legislation mandates that the State Board do this analysis--a legislative command it has never had before. It also sets a firm nine month deadline for the Board to complete this fact finding process.  Once completed, this finding will guide the work of the Bay Delta Conservation Plan (BDCP) process.   The alternative to this approach was for the BDCP process itself to suggest how much water is required to meet the Delta's needs.  We strongly believe that this determination should be done by the State Board, rather than the water users and water projects that run the BDCP process. 

This law also requires that the State Board impose the new flow standards that will result from this process on any new Delta water conveyance facility, as a part of what is known as a "change in point of diversion" authorization. 

Meeting the State's Highest Standards for Restoration

Over the past few years, NRDC has criticized the BDCP process for not committing to meet the state's highest standard for restoration in the Delta. After all, if the state is going to write a formal restoration plan for the Delta, it should meet its own top benchmarks -- those set by the Natural Communities Conservation Planning Act. These standards call not just for preventing extinction, but for helping wildlife species to recover and restoring the ecosystems they depend on. This new law requires that the BDCP meet these NCCPA standards.

Reducing Our Reliance on the Delta

For the past 40 years, the state's unwritten policy has been, "Let's pump more water from the Delta next year." With few exceptions, largely driven by droughts, past decades have seen a steady increase in diversions and a steady decline in the health of the Delta ecosystem.

Federal courts have ordered California to decrease its reliance on the Delta. Federal agencies have ordered that too in the Biological Opinions to protect Delta fish species. But now, with this legislation, the state itself has proclaimed a new policy of reducing reliance on the Delta. The reform package includes measures to achieve that, including increased conservation.  (My colleague Doug Obegi will discuss the conservation bill in a future post.)

Requiring Water Users to Pay for any Future Conveyance Project

The new legislation says that if any new Delta conveyance facilities are built, they won't be paid for by the taxpayers. Rather, they will be paid for by those who would receive the exported water. We have long supported this "beneficiary pays" approach to water projects.  This approach provides a welcome measure of fiscal discipline. When you have to bear the costs yourself, you have a strong incentive to build the smartest, smallest, most efficient system possible. But when you expect the general public to up the tab -- well, that's where water boondoggles start.

Calling for the Analysis of a Range of Conveyance Alternatives and Operations

The bill requires the BDCP to evaluate a full range of alternatives to a peripheral canal.  It also requires the analysis of a full range of facility operations.  Some water users have suggested that the BDCP should analyze only alternatives that would dramatically increase diversion, excluding alternatives that would maintain or increase current protections. 

Creating a Delta Watermaster

The bill creates a new Delta Watermaster at the State Water Board, with the responsibility to ensure that legal requirements regarding the Delta are fully enforced.  There is a long history of failure of agencies to comply with requirements in the Delta.  The Watermaster provides a new focus on enforcement. 

Additional Requirements

For committed water wonks, here is a list of some of the legislation's additional Delta protection measures. 

• The bill does not authorize a peripheral canal, or authorize the new Delta Council to authorize a canal or other Delta conveyance facility.
• The Council and a new Delta Science Program must be involved in the development of the BDCP.
• The Department of Fish and Game, rather than the BDCP, is required to develop biological performance measures to track progress in restoring the health of the Delta ecosystem.
• The BDCP is required to include an adaptive management program to ensure that biological performance measures are achieved and that measures required under the Endangered Species Act are implemented. 
• The co-equal goals do not "assure" more water supply from the Delta.  Rather, the focus is on the "reliability", not the volume, of supplies. 
• The bill carefully states that its provisions do not undermine or weaken existing legal protections for the Delta.  In particular, the new Delta Council will not have the authority to overrule decisions made by regulatory agencies such as the State Board, the Department of Fish and Game, the Fish and Wildlife Service and the National Marine Fisheries Service.

Some have suggested that the governance bill somehow greases the skids for a peripheral canal and an increase in diversions from the Delta.  The provisions above, however, represent a comprehensive set of new legislative requirements designed to protect the Delta, while encouraging the development of a plan to provide increased water supply reliability for the state. 

 

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