Barry Nelson's Blog: U.S. Law and Policy

On Smelt and the Pacific Legal Foundation

2010-01-28T00:06:37Z

My post about opponents of protections for the Delta drew a response from the Pacific Legal Foundation, claiming that protections for the delta smelt are unconsitutional. My colleague Kate Poole has responded here with a short history of PLF's unsuccessful efforts to persuade federal courts to adopt their perspective on ESA protections.

Criticisms of the Water Package are Wide of the Mark

2009-12-22T23:09:10Z

A week ago, the Marin Independent Journal ran an opinion piece by Lynn Axelrod criticizing the package of water bills passed by the state legislature in November and criticizing Assemblyman Jared Huffman, a key leader in crafting that package. Yesterday, the IJ ran this piece in response, written by Gary Bobker, of the Bay Institute, and myself.

I certainly wish the final legislative package were stronger, as the piece that Gary and I wrote indicates. Criticism on this front is fair. But one can’t expect that a single package of state bills will solve all of our water problems. One’s perspective here is determined in large part by whether one sees this legislative glass as half empty or half full.

Two points in Ms. Axelrod’s piece, however, miss the mark. First, she claims that Assemblyman Huffman “advised waiting to assert the Public Trust doctrine,” which requires the protection of the state’s waters. The opposite is the case. This is the first successful bill to advance the Public Trust in the Bay-Delta in a quarter century.

Two decades ago, I was on the staff of Save The Bay when that group filed a critical amicus brief in state court on the Public Trust. That brief led to the famous Racanelli Decision, which found that the trust does, indeed, protect the Bay-Delta. For the past 23 years, environmentalists have tried to get the State Water Resources Control Board to determine what flows are required to fully protect the Delta’s Public Trust values. And for 23 years, the State Board has failed to do so. For the first time, this bill gives the Board a legislative deadline to complete this analysis. That’s long overdue and great news.

Second, Ms. Axelrod criticizes Huffman for failing to include stronger agricultural conservation requirements. I had the privilege of working closely with Assemblyman Huffman during the deliberations over this package. I feel confident saying that he too would have preferred stronger provisions in several areas. The problem, simply put, was that he couldn’t find the votes at this time to pass a stronger package. Indeed, last year, opposition from agricultural groups played a large part in defeating the conservation bill.

(On a related note, here’s a piece written by former State Senator Sheila Kuehl about the political dynamics that led to the weakening of another piece of this package – regarding efforts to strengthen the state’s weak program to take action against illegal water diverters.)

I believe that all urban legislators should join environmentalists in crafting stronger provisions to encourage more wide-spread agricultural conservation. That didn’t happen this time because of opposition from some to any ag. conservation provisions, and because some urban legislators (unlike Assemblyman Huffman) did not support ag. conservation provisions as forcefully as ag. legislators opposed them.

The important point here is that criticism of thoughtful legislators who support stronger agricultural conservation provisions will not help pass such a bill. What is required is a thoughtful analysis of why we fell short this time and creative thinking about how we can succeed in the future. After all, 80 percent of California’s water supply is consumed by agriculture. Some California farms use water highly efficiently, but across the state, there is enormous room for improvement.

A careful reading of this complex legislative package reveals major new protections for the Delta, a new direction in encouraging water conservation and other important provisions. The challenge now is to look at the unfinished business and develop the broad support needed to take the next step forward.

The Whole Enchilada - A Summary of the Water Bills

2009-11-06T23:37:06Z

Here is an excellent summary of the water reform package passed by the state legislature on Nov. 4, as well as a summary of the water bond – with links to the final language. My colleagues and I will be writing about each of the reform bills in the coming week. NRDC took no position on the bond.

The summary was prepared by the Conservation Strategy Group. Full disclosure – CSG ably assisted NRDC in passing the water conservation bill in this package, which we co-sponsored with the Metropolitan Water District of Southern California.

On Leadership and the Water Package

2009-11-06T18:18:52Z

A great deal has been written about the substance of the water reform bills that was passed by the legislature in the wee hours Wednesday. Here’s NRDC’s statement on the three key bills. And here’s a thoughtful editorial from the Los Angeles Times this morning. I’ll write more about the substance of these bills later. But the story the media has yet to cover is what it really takes to pass a package of bills like this.

The California legislature is a famously unruly institution and water is a famously thorny issue. Passing a single major water bill requires extraordinary amounts of hard work. Passing an entire package of water bills takes a herculean effort, and, in this case, the load was carried to a remarkable extent by just a few legislators who led this effort. Assemblyman Mike Feuer and Senators Fran Pavley and Joe Simitian were authors of bills that evolved dramatically after endless committee hearings and were swept into this final package. They’ve been working on these bills for two years or more. But the heaviest lifting in the legislature was done by Senate President pro Tempore Darrell Steinberg and Assemblyman Jared Huffman.

Speaker Karen Bass tapped Huffman to lead the Assembly effort because of his extensive background on water issues – a rarity among legislators in the era of term limits. (He worked for years for NRDC’s Water Program and sat for a decade on the Board of the Marin Municipal Water District.) Huffman worked tirelessly to recruit reluctant support from Republicans and members representing agricultural districts. He brokered endless agreements on amendments to turn opponents into supporters.

Nothing could be easier for an environmental legislator from Marin than to vote against bad bills and introduce a long series of modest green bills. But Huffman had the courage to tackle Delta water issues – among the toughest political and environmental issues in the state. The final package of three key reform bills represents a dramatic new direction for California water policy and had support from NRDC, the Environmental Defense Fund, The Bay Institute, The Nature Conservancy, The Audubon Society, Defenders of Wildlife, Trout Unlimited and CalTrout. Nevertheless, Huffman took harsh criticism from some environmental friends, some of whom criticized his efforts to attract broad enough support to pass the bills.

Senator Steinberg was the quarterback of the entire legislative effort. He led negotiations with key legislators, the Administration and stakeholders, and revived the package from several near-death situations. During the end of the legislative session, it was not uncommon for legislators to grab 2 or 3 hours of sleep before heading back to the Capitol to keep slogging through the arcane and labyrinthine legislative process. The toll this process takes on even the hardiest people was evident in the morning hours before passage. By 3 a.m. on Wednesday morning, Senator Steinberg looked less like a legislator than a boxer at the end of a championship bout. Despite suffering from sleep deprivation and a cold, Steinberg remained quick on his feet with his members and his frequently amended bills and worked tirelessly to respond to requests from around the state and concerns from his Sacramento district.

For many politicians, President pro Tempore of the Senate is a plum job – the second most powerful in the state. But I assure you, by 3 a.m. Wednesday morning, no one in the Capitol would have wanted Steinberg’s job.

Environmental issues are not unique. California is an enormous, diverse and hard-to-govern place. Not surprisingly, the legislature is a microcosm of that nation state. Change doesn’t come easily here on any tough political issue. But when it does come, often it is because of the leadership and personal sacrifice of just a few extraordinary people. We owe them our gratitude.

Why do some water users object to the state constitution?

2009-10-28T23:18:19Z

In general, the direction of the legislation currently under consideration in the state legislature is encouraging. However, in addition to the positive developments, a remarkable debate is taking place in the legislature today. Some water users and legislators have asked for an amendment to waive the state's constitutional "waste and unreasonable use" requirement with regard to the new water conservation program in the bill.

What gives? Why, in the middle of a water crisis and in a package of water reform legislation, are some arguing to limit the constitutional prohibition against wasting water? Good question.

For those of you not familiar with this provision, the state constitution requires the prevention of "the waste or unreasonable use or unreasonable method of use of water." CA Constitution, Article 10. Water has always been a precious resource in the Golden State and, since statehood, Californians have recognized that there's just not enough to waste. No one believes that a farmer should have the right to dump so much water on a field that it floods his neighbor's home. Or that a city dweller should be able to run their lawn sprinklers 24-7, turning the neighborhood into a swamp. That kind of waste doesn't happen every day, but it's important that the state has the tools to stop water wasters.

Mom and apple pie, right? Apparently not.

Appropriately, Senator Steinberg's bill currently states that "the longstanding constitutional principle of reasonable use and the public trust doctrine shall be the foundation of state water management policy and are particularly important and applicable to the Delta." Why then, would some water users want to waive this requirement?

SB 1-7x would establish a voluntary program based on the Governor's goal of reducing California's per capita water use 20 percent by 2020. It seems that some water users believe that the State Water Resources Control Board, in any possible future case about waste and unreasonable use, should not be able to consider any failure to meet this conservation target - no matter how flagrant the waste of water might be. Although such charges of "waste and unreasonable use" are rare, the State Water Board does rely on this authority, as well as other legal authority, in making many key decisions. A waiver here could have far-reaching and unforeseen consequences. (As a non-lawyer, I won't offer any opinions about the legislature's authority to impose limits on this constitution requirement.)

This proposed amendment is quite remarkable. First, over the past two years, nothing in the conservation bill as originally drafted linked these targets to waste and unreasonable use. But more importantly, suggesting that water reform legislation should waive the constitutional prohibition against waste is like suggesting that a federal free speech bill should waive the First Amendment. These water users don't have a gripe with this bill. They seem to object to the state constitution.

Why the controversy? Some water users seem to believe that they should have the right to use as much water as they want and that no agency, no bill and no court should impose any constraints on that use, not matter how outrageous. The problem is simple - that's not how California's constitution was written. The state's water belongs to the public and state agencies have a constitutional responsibility to prevent waste.

Not surprisingly, this proposal has attracted opposition from legal scholars who understand that California's infrastructure of water laws is built on the foundation of the state's constitution. Everything water users do in California is done within the legal framework that flows from the state constitution, including the prohibition against waste and unreasonable use.

In a state with collapsing fisheries and water short farmers and cities, it's hard to believe that anyone could object to a constitutional prohibition against wasting water. It's also hard to believe that such an argument might hold up this landmark water reform legislation.

Responding to California’s Drought

2009-02-20T19:44:34Z

Today, the federal Bureau of Reclamation announced that the Central Valley Project's initial water supply delivery allocations would be extremely low.

When faced with a crisis, a community can pull together or pull apart. We believe that the water crisis we are now facing provides an opportunity for everyone in California to work together. We're all going to feel this drought, and we all need to be a part of the solution. Although today's announcement is unquestionably bad news for our water supply this year, there is a remarkable amount of agreement about the future and the solutions to our water woes.

California is facing a third consecutive dry year. This January was the driest in history. As a result, the state's reservoirs and rivers will be at near-record lows. Many urban residents will face mandatory rationing this year. Conditions for farmers will be even tougher. Some farmers, facing near total cut-offs of surface water, will pump more groundwater and try to buy water from neighbors with somewhat greater supplies. Commercial and recreational fishermen know that California's quarter-billion dollar salmon fishery is likely to be closed entirely again this year and that the few remaining spawning fish will face some of the worst habitat conditions ever in our rivers - which bodes ill for the future of salmon in California, and salmon fishing. California's public, its economy and its environment will all suffer this year. This brings us the first area of agreement - we must do a much better job of preparing for droughts and investing in a more reliable water supply.

We also know, as a result of an enormous amount of progress by the scientific community in the past decade, that global warming is likely to mean more dry years in the future. Scientists, water agencies, the state's Department of Water Resources and environmentalists all agree that a warming climate will put the squeeze on our water resources. Again, there is agreement that we must prepare for a dryer future.

This takes us to the most important area of consensus - we need to be far more ambitious in our investments in a new generation of reliable water supplies. Water agencies, business leaders and NRDC agree that four tools - water efficiency, wastewater recycling, urban stormwater management and improved groundwater management - what we call the Virtual River - offer the largest, greenest, fastest and most affordable opportunities for making California's water supply more drought resistant.

There is also agreement about where the funding can come from to begin these investments immediately. The new federal stimulus package contains $126 million for wastewater recycling projects and a total of six billion dollars for wastewater and drinking water projects, of which California's share can be invested to help us prepare for the future. Now that the California legislature has passed a budget, the state can tap into existing bond funds, already approved by the public and available today. Most of the needed funding, however, will be made at the local level, by communities investing in their future.

There has been a Catch 22 in California's drought planning - or the lack thereof. During droughts, we are too narrowly focused on what we can do in a single year. The truth is, in a single year, our options are limited to strategies like water conservation and water transfers. After a drought ends, however, decision-makers tend to forget about water and turn to other pressing problems. What we need to do is to launch an ambitious effort to prepare for droughts and a drier future. Even in this crisis, perhaps because of this crisis, there is a great deal of agreement about the path ahead of us.

There is another, sober, final area of agreement - There's no guarantee that this will be the last dry year in this drought. So more than ever, we all need to come together and use water wisely. There simply isn't a drop to waste this year.

Stimulus for the Virtual River

2009-02-17T17:48:17Z

Today, President Obama signed a $787 billion economic stimulus package. NRDC staff worked hard to ensure that the final package includes funding for cutting edge water solutions to help California meet its needs during the current drought and prepare for the future. These solutions, including water use efficiency, wastewater recycling, urban stormwater management and improved groundwater management (which, together, we call the virtual river), can provide California with additional water supply, safe drinking water, clean beaches and healthier ecosystems.

For example, the final stimulus bill includes $126 million for wastewater recycling projects, most of which will likely be in California - the national leader in wastewater recycling. It also includes $6 billion for wastewater and drinking water programs. At least 20 percent of these funds are intended for efficiency and green infrastructure projects that can provide broad and rapid benefits in California. These funds can also help rural water systems with contaminated groundwater sources, including several in California's Southern Central Valley.

If properly spent, these stimulus funds can help revive our economy, respond to the drought and start building a smarter, greener water future for California.

Duct Tape, Baling Wire and Adaptive Management

2009-02-14T19:36:14Z

Adaptive management – it has become a popular term among those of us who debate the future of the complex San Francisco Bay-Delta ecosystem.   This flexible approach to resource management allows for the testing of hypotheses in complex systems and, through to a feedback loop involving careful monitoring and measurement of progress toward management goals, is designed to lead, in an iterative manner, to better decision-making over time.

In the Bay-Delta, adaptive management is essential, if we are to improve the health of this complex and dynamic ecosystem.   We will never fully understand the complex natural mechanisms in the Delta. That realization is inevitable, given that we now know that the Delta is subject to powerful forces, such as invasive species, climate change, earthquakes and subsidence that will shape the Delta over time. This means that, when it comes to our regulatory system in the Delta, we can never (as a famous TV pitch man says) “Set it and forget it.”

Today, the Bay-Delta is subject to a patchwork of adaptive management and old-school regulatory approaches. If we are to succeed in managing the Bay-Delta for the co-equal goals of ecosystem health and water supply, we must reform our institutions so that they are capable of fully integrated adaptive management. The Delta Vision Task Force strongly supported an adaptive management approach to the Delta. (See page 131 of the Strategic Plan)

The old approach to regulation – establishing relatively fixed environmental standards and simply monitoring implementation – is still seen at the State Water Resources Control Board. The bulk of the State Board’s water quality standards for the Delta were negotiated and put in place 15 years ago. State law calls for a triennial review of these standards, to respond to on-the-ground developments and improved scientific understanding. However, the State Board has been remarkably slow in updating those standards and in responding to the ongoing collapse of the Delta ecosystem. This is a far cry from the agile, science-driven approach that is the goal of adaptive management. The existing SWRCB standards are widely recognized as inadequate to protect the beneficial uses of the Delta. These standards must be improved. Indeed, Delta Vision specifically called for stronger State Board standards to provide greater outflow at critical times. But it’s not just the standards that must be improved; the old, rigid approach to regulation must adapt as well.

There is one place where real adaptive management is occurring today – in the implementation of the new Fish and Wildlife Service Biological Opinion on delta smelt. The new BO creates a mechanism that uses the results of ongoing monitoring and the recommendations of a group of scientists called the Delta Smelt Working Group to inform real-time decision-making by the Service, in an attempt to prevent this species from falling over the edge of extinction. After the Working Group reviews the latest scientific results and makes management recommendations, the State and federal water projects may propose alternative approaches, and the Service makes final decisions on a relatively short timeline. This approach is science based, highly adaptive, nearly real-time and designed to allow for the input of the regulated agencies.

This BO addresses the needs of a single species (although many species benefit from actions to protect the smelt). Achieving the co-equal goals envisioned by Delta Vision, however, will require adaptive management decisions that consider a full range of species, habitat conditions, water quality and ongoing changes in the ecosystem.

As the state legislature considers Delta governance reform legislation to implement the recommendations of the Delta Vision Task Force’s Strategic Plan, it should pay particular attention to the creation of an adaptive water management program that meets the requirements of state and federal law, that fully protects all beneficial uses (e.g. commercial and recreational fishing, not just listed species.), that includes measurable, enforceable biological objectives and is based on sound science.   Baseline State Board standards like X2 are essential to ecosystem health, but the Board cannot fully protect beneficial uses without adding a more adaptive approach.

One option would be to build on the approach in the smelt BO and create, under a new California Ecosystem and Water Council, a Delta Water Management Group including all of the state and federal regulatory agencies (SWRCB, DFG, NMGS, FWS and EPA). Such a group could lead to a more coordinated, adaptive approach among all of the relevant regulatory agencies. It would allow these agencies to share a common base of scientific analysis on a broad range of issues (including the Delta Smelt Working Group and the CALFED Science Program. It would provide a forum to work through the delicate balancing act of ensuring the protection of different parts of the ecosystem – such as providing adequate flows for the Delta and sufficient cold water for salmon spawning upstream. It would also provide a more transparent forum for environmentalists and water users alike. Finally, creating a more functional, adaptive regulatory program would likely reduce court intervention.    There would be no need to revisit the underlying authority of these agencies. Each of these agencies has an important role to play in making final regulatory decisions. However, reforming the existing system through the creation of such a body could help support Delta Vision’s co-equal goals and bring the management of the Delta into the 21st century.

The Virtual River - Fueling California's Economic Growth with Water

2009-02-03T18:01:43Z

Yesterday, the Senate began debating a recovery package to strengthen the nation's economy. During this discussion, the Senate should look to water as a key area for investment - across the nation, and especially in California.

Water is one of the fuels that drives California's economy. While the nation's economy and the state's budget deficit are dominating headlines, a perfect storm is facing our water systems. Fortunately, smart water solutions can also deliver economic benefits and should be included in federal and state stimulus packages.

There are many signs that our water systems are in trouble. A federal court and federal regulators have ordered reduced pumping from the collapsing San Francisco Bay-Delta estuary. Southern California's drought stricken Colorado River supply may be showing the early signs of climate change. Northern California's rivers are in trouble, leading to the first ever closure of our salmon fishery in 2008 - at a cost of $250 million and thousands of jobs.

Hundreds of waterways, including San Francisco, Santa Monica and San Diego Bays are listed by the state as "impaired," by urban runoff and other sources of pollution. Across California, groundwater contamination has closed more than 4,000 wells, showing how water quality problems can threaten our water supply. Water quality problems make people sick, impair ecosystems and weaken coastal economies.

During the Great Depression, the construction of massive dams was part of a heroic economic stimulus program. These dams have helped California meet its water needs, but at great cost to our environment. Today, business leaders and environmentalists agree that new dams are not the best water solutions. For example, the Southern California Leadership Council said earlier this year that new traditional dams "offer Southern California little in the way of water reliability and if and when deliverable would be one of most expensive and energy intensive options." What we need are new solutions for the 21st century.

One such new idea is what we call the "virtual river," which consists of the combined water supply potential of conservation, water recycling, improved groundwater management and urban stormwater capture. These proven tools can provide more water than we have ever exported from the Bay-Delta, which was the largest single source of water for California in the late 20th century. The virtual river can be California's largest source of water for the 21st. There is a consensus among the Department of Water Resources, business leaders, environmentalists and urban water agency leaders that these tools offer the greatest potential water supply. On California water issues, such a consensus is not easy to come by.

But the virtual river is more than just a source of supply. It represents a superior solution to water quality and other environmental problems as well. By greening our cities, capturing runoff, cleaning up groundwater and recycling wastewater, we can turn polluted water into a valuable resource. And by providing alternative supplies, these tools can help restore salmon runs and the ailing Bay-Delta.

Other factors suggest that investments in the virtual river would be an appropriate part of an economic stimulus package. These tools offer the quickest and most cost-effective water supply available. Conservation, for example, can produce water at ten percent of the cost of water from new dams. And unlike the Colorado River and Sierra snowpack, climate change will not reduce the amount of water we receive from tools like conservation and recycling.

The House-passed economic recovery package includes $6 billion for clean water infrastructure and $2 billion for drinking water infrastructure upgrades, rehabilitation, and repair, including grant funding for a number of elements of the virtual river, such as water efficiency and use of green infrastructure to re-use stormwater and to recharge groundwater supplies. The Senate is expected to consider an amendment that would increase clean and safe water funding from $6 billion to $13 billion, 15% of which would be reserved for water efficiency, green infrastructure, or other environmentally innovative projects. NRDC has been working hard with both wastewater and drinking water agencies to increase this funding.

Federal stimulus funds, however, should only be the beginning of this effort. Once California resolves its current budget crisis, funds from a water bond approved by California voters two years ago are also available to invest in these solutions. Governor Schwarzenegger, the legislature, local governments and water leaders can also work together to maximize the benefits of these investments, by writing building codes that encourage the capture of stormwater and reuse of recycled wastewater, launching groundwater clean-up efforts, and passing legislation to implement the Governor's call for a 20 percent reduction in per capita water use by 2020.

California is leading the world by showing how investments in energy efficiency can prepare our economy to be a world leader in the coming century. Smart investments in water solutions can do the same - providing abundant clean water while strengthening our economy and environment.