| March 11, 2010 -- Special Edition
""I'm Dancing As Fast As I Can"
--Barbara Gordon
Warning: this is a long newsletter that will require careful and thoughtful reading. It is filled with details and digressions. Grab a cup of coffee and get comfy before getting started.
Analysis of Delta Joint Assembly/Senate Oversight Legislative Hearing
No grass growing under their feet
It its haste to begin fixing what the state and federal governments spent decades breaking, the legislature last year came up with a tight schedule for the Delta Plan. And once lawmakers passed the 2009 Delta Legislation, the Administration wasted no time in getting started.
Former CALFED Director Joe Grindstaff moved right over as Acting Executive Officer of the newly created Delta Stewardship Council. And staff transferred from CALFED got busy sending out RFQs-Requests for Qualifications-for things like developing performance measures and tracking ecosystem health. The RFQ screening process is already underway. The Department of Water Resources (DWR) didn't want to wait until later this year to get a consulting team on board.
On March 9, at a joint Assembly/Senate oversight hearing on Funding and Implementation of 2009 Delta Legislation, Assemblymember Huffman, Senator Pavley, and their committees (Assembly Water, Parks and Wildlife, and Senate Natural Resources and Water) were surprised to learn how much DWR has already done-without legislative oversight.
SB 1, the Delta Governance/Delta Plan bill, took effect February 3, and the timeline gives the Delta Stewardship Council (DSC) only six to eight months to do the RFQs. DWR thought its services would save time and said that the DSC will be involved in the final consultant interviews.
In addition to getting things moving with the stewardship council, DWR made some "interim" decisions about the Independent Science Board created by the legislation. DWR is using the existing CALFED lead scientist, but only until the DSC is in place and can recruit its own lead scientist. (The fish can't wait.) DWR is also staffing the new Delta Conservancy but hasn't hired an executive officer.
(So far, only one person is in place for all this new governance: Sacramento Supervisor Don Nottoli, appointed to chair the Delta Conservancy and thus also a member of the Delta Stewardship Council. Huffman hastened to announce that no other appointments had been approved, although RTD has heard that former Speaker Karen Bass put forward the name of Metropolitan Water District board member, Gloria G. Davis, to serve as a Delta steward.)
Huffman acted like he had been blind-sided by the water bureaucracy. He pointed out that the legislation specifically says that the DSC will choose its own staff. Huffman seemed to think that making Grindstaff head of the DSC, even temporarily, was not the Administration's decision to make.
Huffman said that lawmakers intended to initiate a change, not a shift of staff and a continuation of the status quo. Senator Cogdill, too, expressed concern that the CALFED Bay Delta office has just rolled over into this new council, without changing the ineffective CALFED culture.
RTD staff cannot help but point out to the legislative leaders who insisted last year that this water pack was the solution for the Delta that we saw the water package as nothing more than a continuation of the status quo. Not because the bill was riddled with bad legislative intent, but because we know major reform of the existing water agencies is essential to ensure proper governance of the Delta.
Much in the same way that the architects of the financial system collapse will never create real financial system reforms for the benefit of average Americans, the water bureaucrats who have brought the Delta to the brink of complete collapse cannot be trusted to bring about the changes needed to restore the delta, regardless of how much oversight and attention is given to their work by legislators with good intentions. We need new leaders and a new work culture in the Department of Water Resources, the State Water Resources Control Board, the Department of Fish and Game, and the Natural Resources Agency.
And we're paying for this how?
Staff is using $2 million from the Governor's budget allocated to DWR from Prop. 84, and they've asked for an additional $14 million to develop the Delta Plan, which must be completed by January of 2012. (Never mind that Prop 84 was supposed to fund levee improvements to protect the millions of Californians living behind levees.) Staff was to be paid primarily with $5-$6 a year from the general fund, plus some Environment License Plate Fund money and some bond funds that go to the science side. Pavley would still like to see beneficiaries paying more through fees, but right now there is no long-term funding strategy. Assemblymember Salas suggested including wastewater dischargers and diverters as beneficiaries for purposes of assessing fees.
Catherine Freeman, author of the 2008 "California's Water: An LAO Primer," presented an analysis of SB 1 by the Legislation Analyst's Office. She noted that the legislation created the Delta Conservancy and the Delta Stewardship Council but provided no continuing funding for these new governance bodies. Also, the water bond wasn't created to fund the whole package. Freeman said that the LAO, too, was concerned about the timeline for the Delta Plan and thought that the DSC would be seated by now.
Freeman noted that the seven-member DSC has been given 58 support positions, nineteen of them executive level staff. (And this doesn't include the Water Master.) Yet much of the work is to be contracted to state agencies or other consultants. The LAO recommended reducing the number of contracts under the Delta Plan, arguing that executive staff should handle much of that work.
The LAO also recommended replacing Metropolitan Water District as the BDCP liaison, a contract MWD has held under CALFED. MWD's status as a major stakeholder gives the appearance of conflict of interest. (Well, yes.) Freeman said the BDCP contract and others should not be funded until a budget for the Delta Plan is in place.
Freeman said that all CALFED costs are continuing, with DWR funding two-thirds of CALFED's expenditures, much of it from off-budget water project contractor fees. Senator Pavley said, and Freeman agreed, that the SWP should be brought on budget because there are problems with the way DWR is accounting for funding and tracking expenditures. For example, if a contractor funded anything outside the process, DWR wouldn't know. The Legislature can put all or part of the SWP on budget to give itself some oversight.
LAO needs to know how the Council plans to manage its tasks before determining how many staff are needed and what the costs should be. The LAO recommended a financing plan with a zero-based budget rather than a budget based on increases over previous similar expenditures. The LAO also wants to see a workload analysis for all the agencies involved. Freeman agreed with Senator Cogdill that if the bond fails, they will have to look at water user fees or other revenue sources (or existing funding) to meet the policy goals.
Lester Snow, newly appointed director of the newly renamed Natural Resources Agency (formerly the Resources Agency), assured committee members that the Administration intends to work with the Legislature on DSC appointments. DWR is providing funding until a long-term funding plan can be developed. He and Grindstaff insisted that once the DSC is seated, they can change anything done so far.
But Assemblymember Huffman expressed concern that contracts are "off and running" before the DSC has even been formed. And Senator Wolk suggested that having so much already laid out would make it difficult for the DSC to function as the Legislature intended.
There is plenty of pressure to get the council seated. Freeman said the legislature should continue oversight, and the sooner the council is seated, the better. In the meantime, the Legislature will be working with existing CALFED staff.
Do this our way and no one gets hurt...
After getting the news on how little oversight they actually have, the oversight committees turned to the question of how the Delta legislation is beginning to be implemented. They heard first from David Nawi, Senior Advisor to the Secretary of the Interior. Since the Legislature has no authority to oversee the Department of the Interior, everyone was at pains to make it clear that Nawi was appearing voluntarily, by invitation.
Nawi said that Interior Secretary Salazar thanked the Legislature and the Governor for enacting the Delta legislation and said that all involved federal agencies are committed to the coequal goals. They have even issued a federal interim work action plan and are committed to working with the BDCP, which they see as the best mechanism to solve the state's Delta-related problems.
Assemblymember Tom Berryhill, voicing concern for west side economic dislocation and reliance on foreign food supplies, wondered why Salazar had gone back on his promise, made last summer in Fresno, to put the Two-Gates Project on a fast track. Assemblymember Caballero, too, said she thought Two-Gates was a priority. According to Nawi, the project was on a fast track until fish biology intervened in hydrology, and the projected cost of what was supposed to be an interim project more than doubled. (Nawi also mentioned that west side landowners are holders of junior water rights.)
(RTD staff cannot help wandering how supporting the Two-Gates Project, also know as the full Delta pumping plan, would help secure American food supplies. All it would do is finish off the Salmon fishery, a local protein source, while securing maximum water for junior water-rights west side landowners so they could export more almonds to China.)
Wolk raised the issue of the involvement-or lack of it-of local land use permitting authorities in the BDCP. Nawi's position was that counties had had the opportunity to be involved in the steering committee process but had chosen not to be. Now, local cities and counties can participate in the EIR for the plan.
Following Nawi, the oversight committees heard from Karen Scarborough, Undersecretary of the Natural Resources Agency and Chair of the BDCP. Scarborough said that the BDCP is incorporating habitat restoration and other stressors in its plan. She emphasized that the Natural Community Conservation Plan (NCCP) that the BDCP is pursuing meets a higher standard than a regular Habitat Conservation Plan.
Huffman asked Scarborough about the Purpose and Need Statement first published in the Federal Register for the BDCP. At that time, the purpose was to protect the ability of the projects to deliver up to the full contract amounts. Since the 2009 legislation includes measure to reduce dependence on the Delta, Huffman suggested that the Purpose and Need Statement needed to be redone. He also asked whether the BDCP included demand management actions as part of its analysis.
Scarborough said that the BDCP focuses on Delta water and is not the forum for considering other management strategies. She deferred to DWR on the question of what the SWP can deliver.
Huffman wondered why the BDCP was pushing forward to have a draft plan by the end of this year, a schedule that will put it out before the Delta Stewardship Council has determined how much water the Delta ecosystem needs and before it has completed the draft of the Delta Plan. Wolk called it an "artificial rush to judgment." Scarborough justified the aggressive schedule as necessary to maintain the momentum of "people at the table."
But the committee seemed to think this was all about politics and getting a plan out before the Governor leaves office. Never mind the science.
Here's a recap of a brief exchange:
Huffman: Is the BDCP considering a full range of flow and operational criteria, including different scenarios and sizes? Scarborough: The EIR/EIS will incorporate all alternatives required by the legislation. Huffman: Is conveyance less than 15,000 cfs still being considered? Scarborough: It will be part of the EIR. Huffman: Who will select the final alternative? Scarborough: She'll be looking for steering committee concurrence.
She'll be noting any "trepidation" when she looks around the table.
But the Potentially Regulated Entities-the water exporters-will ultimately decide.
Wolk, noting concerns expressed particularly by Solano County, said that there doesn't seem to be good integration of local Habitat Conservation Plans into the BDCP. Scarborough said they are looking at a "tiered approach" to working with counties. Whatever that means.
Other state agencies in the know?
Following the smoothly dismissive Scarborough, who clearly knows that the real power doesn't lie in legislative oversight, the few members of the oversight committees who hadn't already left for lunch heard from John McCamman, Director of the Department of Fish and Game.
McCamman said that DFG has a trustee and regulatory role in the Delta, and he praised the BDCP as a plan that will create a "stable regulatory framework." He said the department will need $1 million and three positions to complete the flow criteria; DFG has created a water branch to deal with flow issues and the BDCP. They will also be working with federal fish agencies.
Huffman asked whether biologic objectives and flow criteria are numeric and quantifiable. McCamman said they are. Huffman noted that the Central Valley Project is supposed to comply with state water law and will need a California Endangered Species Act (CESA) permit if the federal biological opinions are invalidated. McCamman agreed that the CVP has a compliance requirement but has violated it in the past.
One committee member raised the issue of predation by striped bass, and McCamman said that the federal fish agencies are considering making rules about striped bass. Huffman suggested that the department focus on operational answers to predation, such as whether the water projects create traps. McCamman said they are researching that.
He also told the committees that the NOAA biological opinion includes acquiring habitat, and Prospect Island is being acquired with that in mind.
Wolk asked about collaboration with local land use agencies as the BDCP becomes a Natural Communities Conservation Plan. McCamman said that DFG can't participate in the Delta region because of lack of staff.
Tom Howard, Chief Deputy Director of the State Water Resources Control Board, talked about the nine-month development process for Delta flow criteria. He said the Water Board is also developing flow criteria for the San Joaquin River.
The Water Board has prepared paperwork for hiring a Water Master but needs a salary and job description, plus approval from the Department of Personnel Administration. This process, like others discussed earlier, needs to be done with the Delta Stewardship Council.
Pavley asked Howard about the process of identifying illegal diversions. Howard said they had received authority to proceed with this only a few weeks ago, after the legislation went into effect, and they would be hiring staff in May. Nevertheless, the Water Board has already identified 370 water diversions on Union and Roberts islands and issued eleven cease-and-desist orders. RTD questions the accuracy of the research behind those orders. Reliable Delta sources suggest many false assumptions are being made by state officials in this work.
The fifth panelist discussing implementation of the legislation was Mark Cowin, newly appointed Director of the Department of Water Resources (DWR). He said that SB 1 requires early action on habitat restoration projects; by the end of March, DWR expects to certify and approve a restoration project on Dutch Slough in eastern Contra Costa County.
DWR has new monitoring responsibilities under SB 6 (Groundwater Monitoring) and SB 7 (Statewide Water Conservation). Cowin reported that DWR already has protocols and reporting methods lined up.
Referring to Judge Wanger's periodic decisions about pumping, Cowin commented that "a federal judge is making real-time operational decisions for us." He said that DWR biologists have science that supports "more reasonable measures" for fish protections than are allowed under the biological opinions. Nevertheless, the Department is remaining neutral in the matter of legal challenges to the BiOps.
The final panelist was Linda Fiack, Executive Director of the Delta Protection Commission (DPC). She reported that a recast commission-reduced from 23 to 15 under the 2009 legislation-has already met. They have adopted a formal schedule for monthly meetings. By July 1, the Commission must propose changes in the Delta primary zone using a zone expansion study. That is already underway.
In addition, Fiack reported that the Commission has adopted a revised management plan, the first revision since the mid-'90s. Regarding funding, she reported that the DPC has three staff and a budget under $500,000, covered from non-general fund sources. The Commission has proposed expanding staff from three to nine and will need more funding for additional responsibilities under the new legislation, but Fiack is confident that they can manage with little guaranteed funding, as they have in the past.
Assembly Member Yamada commented that even people who are not fans of the legislative package approve of streamlining and strengthening the Delta Protection Commission.
After sitting through this Joint Oversight Hearing, RTD staff felt like the Legislature has taken five steps forward and four steps back. It is clear that water and regulatory agency leaders do not feel that legislative oversight has any real impact on their day-to-day activities. It remains to be seen whether legislative oversight can bring about any improvements at all for the Delta.
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