Delta

A pair of simultaneous and seemingly contradictory actions announced by Gov. Gavin Newsom’s administration last week has sent mixed signals regarding the state’s intentions for managing the Delta.

Newsom announced plans to sue the Trump administration after the October release of a biological opinion completed by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. The opinion stated, in essence, that the U.S. Bureau of Reclamation’s Central Valley Project (CVP) can increase the volume of water drawn from the South Delta without any negative impact to native fish like Delta smelt and Chinook salmon, a position the state disputes.

“We value our partnerships with federal agencies on water management, including our work together to achieve the voluntary agreements,” said Jared Blumenfeld, California secretary for environmental protection. “At the same time, we also need to take legal action to protect the state’s interest and our environment.”

Nearly 90% of the 5.6 million acre-feet of water drawn by the CVP annually is distributed for agricultural use in the Central Valley. Reclamation’s plan calls for increasing the volume of water taken by 300,000 to 500,000 acre-feet a year over current volumes. (There are approximately 326,000 gallons in an acre-foot of water.)

Reclamation immediately pushed back against the Newsom administration’s position.

“Today’s announcement by Governor Newsom is disappointing in his preference to have judges dictate these important projects instead of the career professionals at the federal and state levels who have developed a plan based on the best science and significant input from the public,” said Brenda Burman, Bureau of Reclamation commissioner. “If that’s their choice, we’ll see them in court.”

A key point among those who oppose the new biological opinions is Reclamation’s claim that the best available science was used in the development of the opinions. It has been widely reported that the first draft of the opinion was critical of Reclamation’s planned changes to the operation of the CVP, and the Trump administration had the scientists responsible reassigned and replaced.

“The new biological opinions finalized by the U.S. Fish and Wildlife Service are more than 400 pages, and I am awaiting further analysis from our Delta partners,” said Assemblymember Jim Frazier, D-Discovery Bay, when the opinions were released in October. “However, one fact is clear. Less than three months after Federal scientists completed a first draft criticizing the proposed operations, the Trump administration has manipulated the science in favor of wealthy Central Valley business and declared the changes perfectly safe. Delta stakeholders need a complete picture of how and why these dramatic deviations from established science occurred. We have seen this far too many times from unscrupulous South-of-Delta water users to blindly accept another flawed proposal backed by untested theories.”

While Newsom now appears to be taking steps to oppose the Trump administration’s plans for the Delta, he has recently foregone opportunities to assert a clear Delta policy. In September, the state legislature passed Senate Bill 1, a bill that would have required federal environmental standards in place as of Jan. 19, 2017 remain in effect under state law, even if the Trump administration loosened standards at the federal level. Newsom vetoed the bill in a move that was widely criticized by the environmental community. At the time, he stated his support of the bill’s intent, but claimed it provided him no new authority. When the biological opinion was released last month, there was little reaction from the Newsom administration other than a vague assertion of the state’s commitment to “push back if it does not reflect our values.” Newsom’s tentative handling of the issue so far has members of the environmental community feeling only cautiously optimistic.

“To be quite honest, it’s hard to know exactly what it is that the governor is proposing to do with respect to the biological opinions,” said Kim Delfino, California, director of Defenders of Wildlife. “We don’t know if they are challenging them as a violation of the federal Endangered Species Act. Are they going to be asserting that the Central Valley Project should be complying with the state Endangered Species Act requirements? I think we need to wait and see what the scope of the litigation is. Generally speaking, it’s a good thing. We’re supportive of the governor being willing to challenge and call out the federal biological opinions as being insufficient. Beyond that, the question is what would be considered sufficient.”

In the same press release that announced Newsom’s intent to sue the Trump administration over the proposed operation of the CVP, the release of a draft environmental impact report regarding the operation of the State Water Project (SWP) was also announced.

“This draft points to a more sophisticated and nimble way to manage the State Water Project to improve our ability to protect species and operate more flexibly,” said DWR Director Karla Nemeth. “This is essential in order to capture water when it’s available and leave more water when and where fish need it.”

According to several sources familiar with the draft report, the state plan for pumping water from the Delta closely resembles the federal plan the state opposes.

“There are many components of that draft document, particularly what they’re identifying as their preferred alternative, that are very, very similar to what’s in the Trump biological opinion,” said Delfino. “It also appears that they’re taking more water out of the system during drought, which is clearly inconsistent with what we want.”

Like the CVP, the SWP draws water from the South Delta and moves it to points south. The Department of Water Resources (DWR) manages the SWP, and they state that the project provides water for 27 million California residents.

“The part for us that is so disappointing is that the Delta Reform Act of 2009 calls for reduced reliance on the Delta,” said Barbara Barrigan-Parrilla, executive director of Restore the Delta. “You cannot have reduced reliance if you’re taking more water out. They will argue that it’s about timing, when you take the water. But when you go through the details in the document, they are not protective enough in the summer and fall. They’re going to take more water out during the spring, which is bad for Delta smelt.”

The CVP and SWP are only two components of the state’s complex water system. Before the end of the year, DWR is expected to publish a document that will define the scope of the single-tunnel project currently under consideration. The Newsom administration is also negotiating voluntary agreements to manage water flowing into the Delta from its tributaries. With demands on the Delta increasing and its health diminishing, the governor will need to align these recent divergent actions into a policy with a clear direction.

“I would say that the state position is confused, at best,” said Delfino. “If you look at the combination of the announcement of the lawsuit, and then you look at the issuance of the DWR’s (draft) document, it feels like the state is trying to be all things to everyone. What that ultimately means is unknown. Are they really trying to put in place protective measures for the Delta? Or, are they simply using the litigation as leverage?”

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