Northern California cries "Foul!" on BDCP

November 8, 2010

"I can be pushed just so far."
- Harry Leon Wilson

Northern California cries "Foul!"

Last week 43 cities, counties, water districts, and associations from all parts of Northern California sent a letter to Karen Scarborough, Undersecretary of the Natural Resources Agency, expressing concerns about the lack of Due Process in consideration of the BDCP plan document scheduled for release November 18.

They expressed "foundational concerns" about water rights and Delta flows, and about funding. They noted that "The November 18th document should describe in detail the benefit that the PREs [potentially regulated entities] will receive, as well as any benefits that the public is expected to receive and pay for."

Attached to this letter was another to sent to Scarborough on September 3 by Stuart L. Somach, General Counsel of Glenn Colusa Irrigation District (GCID) expressing concerns about the "ranges of operations" being considered by the BDCP.

Said Somach, "GCID supports efforts to achieve the coequal goals set forth in SB 7x 1, but remains concerned that the obligations for meeting these goals will fall upon parties not responsible for the Delta's existing conditions and who will not benefit from the activities contemplated by SB 7x 1."

According to Somach, long-standing principles of California water law would be violated if upstream senior diverters were expected to forego diversions in order for BDCP to meet its goals. Area of origin statutes protect Northern California water supplies from injury by export projects.

Secretary of the Interior Kenneth Salazar got a copy of this letter. He needs to study it carefully before getting together with the PREs this week to talk about federal support for the BDCP.

We'll take just water, please. Hold the selenium.

Petitions have been filed asking the State Water Resources Control board to reconsider its October resolution approving a Basin Plan for the Sacramento and San Joaquin river basins that did not adequately address selenium control in the San Joaquin river basin.

Petitions have been filed by the California Sportfishing Protection Alliance, the California Water Impact Network, AquAlliance, and a group of Environmental Advocates consisting of the Southern California Watershed Alliance, the North Coast Rivers Alliance, the Planning and Conservation League, Friends of the Trinity River, the Pacific Coast Federation of Fishermen's Associations, Sierra Club California, and Friends of the River.

Says the petition by Environmental Advocates, "Resolution 2010-0046 refuses to effectively address partially regulated and the unregulated discharges of pollutants from adjacent and north Westside upslope areas into the Grasslands Watershed."

Grasslands drainers have a joint powers agreement with the San Luis Delta Mendota Water Authority allowing groundwater to be pumped to the surface and discharged in the San Joaquin river via the federal San Luis Drain and Mud Slough.

The discharged water contains a number of chemicals, including selenium, that have been identified by EPA as pollutants. The petitions assert that selenium occurs at levels toxic to fish, wildlife, and humans who rely on the San Joaquin River for a domestic water supply.

Byron Buck, Executive Director of the State and Federal Contractors Water Agency, thinks we're overly emotional when we describe selenium-loaded irrigation drainage water as "toxic."

So let's just say that anyone ingesting selenium - an essential micronutrient - should be doing it only by choice. Because too much selenium can make fish, birds, and people very, very, very sick.

Another detour around the BDCP process

The Sacramento Bee's Matt Weiser announced that State officials have reached an agreement that will provide an estimated $188 million over 10 years to restore habitat for imperiled fish in the Sacramento-San Joaquin Delta.

DWR and DFG will undertake certain restoration activities to satisfy state and federal environmental laws. State water contractors will pay for those projects.

Weiser writes that, "In the agreement, finalized last week, DWR also commits to restoring a total of 8,000 acres of habitat for fish including salmon, sturgeon, Delta smelt and Sacramento splittail. This may involve acquiring additional Delta properties."
"The deal is intended to satisfy state and federal endangered species acts, as well as the terms of a forthcoming Bay Delta Conservation Plan."

Now, excuse us for being confused, but the BDCP still doesn't have a clear plan, let alone a plan that has been through environmental review. So how can state agencies start in on restoration activities to satisfy the terms of the BDCP?

Is this a way to bypass consideration of the environmental impact of the whole BDCP project? But CEQA doesn't permit a public agency to subdivide a single project into smaller sub-projects in order to avoid considering the environmental impact of the whole project.

On the other hand, if there are restoration activities that DWR and DFG can legitimately undertake, a naïve person might wonder what they have been waiting for.

Highlights of the October meeting of the Delta Stewardship Council

The Delta Stewardship Council met October 28-29 with a full agenda and a weighty packet of supporting documents. Following are some highlights.

According to an Agreement Listing provided in the meeting packet, Ongoing grants for the Delta Science Program (with start dates ranging from 2005 to 2010 and end dates ranging from 2010 to 2012) total over $14 million.
Delta Science Program contracts total over $9 million more, including $50,000 each to the nine Delta Science Board members for 15-month contracts.

Executive Office contracts account for almost $3 million more, with $1.5 million for legal services alone (in a contract with the Department of Justice).

These costs are offset by Receivables from agencies including the Bureau of Reclamation, the USGS, DWR, USF&G, and NOAA.

So a lot of money is changing hands in this process that does nothing to, for example, reinforce Delta levees. But it does provide employment in one sector of the economy.

The DSC had a preliminary discussion of proposed Early Actions, which will be considered by a committee this week. Early actions included stockpiling rock for levee repairs, and there was a lot of discussion about which counties or other entities had already stockpiled rock, whether it was there for maintenance or to protect water supply, and how the costs should be shared. Chair Isenberg said it would be a "modest victory" if they could work this issue out.

How to implement that BDCP, but not what to implement

The DSC worked through lunch to hear from Richard Roos-Collins about an item that wasn't even on the original agenda: the proposed plan for implementing the BDCP. This involves a BDCP Implementation Office (IO). Thus yet another layer of Delta governance was slipped in while most of the audience was out to lunch.

The BDCP appears to be on schedule to release a public viewing draft on November 18, according to ARCADIS, the independent consultant brought on by the DSC to report on the BDCP. A draft for public review including the draft EIR/EIS is scheduled for release in spring or early summer of 2011.

ARCADIS insists that just because their matrix lists unresolved issues, that doesn't mean that the issues aren't being addressed. Nevertheless, here are some issues still "pending" in the matrix:

There is still no evaluation of alternatives that will reduce exports.

The BDCP project description still needs to be determined. (They can't say exactly what it is, but they know how they want to handle governance.)
Information requests are pending regarding flow criteria, not just amount of flows but timing and levels of contaminant reduction. The Water Board has scheduled discussion on this subject for mid-December.

There is insufficient information to evaluate turbidity effects on fish movement and survival.

There still isn't enough information on the effect of Sacramento River diversions on water quality, fish, and aquatic habitat in the central and south Delta.

Science tries not to trip on policy

The DSC heard from Dr. Richard Norgaard, the new Delta Independent Science Board Chair. Dr. Norgaard showed an inclination to be . . . well, independent. He told the DSC that the charge to the Board is immense and expressed concern with the time frame for reviewing White Papers. He commented on the conflict with the BDCP process and declined to rank stressors.

DSC Chair Isenberg told him that the DSC will push the Science Board, and Norgaard agreed that the DSC could make unreasonable demands but implied that they wouldn't necessarily be met.

The DSC heard presentations on White Papers on the Delta Ecosystem and Delta Flood Risk. They also received a Preliminary Notice of Preparation (NOP), the first step in the California Environmental Quality Act (CEQA) process. In a cover memo, DSC Executive Officer Joe Grindstaff noted that a key issue in the NOP that "might be controversial" is the secondary planning area which could cover most of the state.
(The Primary Planning Area is within the Delta. The Secondary Planning area is the Delta watershed and areas that use Delta water.)

The presentation on the Delta Ecosystem White Paper included a PowerPoint with a chart indicating that Delta water use has remained stable for decades while export water use has increased. The presenter said that he had been asked to mention that changes in cropping patterns in the Delta had hardened demand - a gratuitous observation under the circumstances, and one which even the DSC members seemed to find inappropriate.

It prompted council members Fiorini and Nottoli to request a White Paper on Delta Agriculture.

In public comments, Restore the Delta pointed out that water demand has hardened statewide and suggested that the DSC consider any changes in Delta cropping patterns in that context. The DSC will have to look into this because they are required to promote sustainable use of water in the Secondary Planning Area - which is just about everywhere in California.

On the subject of Flood Risk, someone noted that how we handle flood protection depends on what we would like the Delta to look like in the future. Restore the Delta notes that not all "we's" have the same future in mind.

For more information, go to http://www.restorethedelta.org.