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April 13, 2013
Delta Tunnels: Mistrust is top obstacle to repairing the Delta

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(April 13 -- By Gregory S. Weber, Special to The Bee)

A recent conversation made me realize that something critical was missing from the efforts to "fix" the Sacramento-San Joaquin Delta.

The Bay Delta Conservation Plan proponents are spending tens of thousands of dollars daily to develop a plan that will cost taxpayers and ratepayers well over a million dollars daily, for decades. But not one cent is being spent to directly address one of the Delta's most fundamental problems: gut-level mistrust among key stakeholders.

For starters, finding a Delta farmer who trusts anything the Department of Water Resources says is as difficult as finding a Delta smelt in a summer tow-net survey. Moreover, unlike the smelt, mistrust is not found only among Delta residents.

While some environmentalists support the Bay Delta Conservation Plan to some extent, if pushed hard, there'd be fundamental concern among many that, in a critically dry year, a governor's emergency declaration might tip operations of new Delta plumbing away from ecosystem values and toward Big Ag and Big Urban interests.

Similarly, I imagine that leaders in areas that receive Delta water have their own deep skepticism about the willingness of Northern Californians to allow exports to thirsty trees, vines and Angelenos in those same dry years.

In short, how the pumps and tunnels will be operated concerns all who have a stake in the Delta's waters. I haven't read all of the latest drafts to see what BDCP proponents have to say about this. But whatever they say is largely irrelevant. Given the distrust among key stakeholders, there are no assurances that its backers can give that will overcome what its opponents think is its fundamental flaw: In a drought, water will flow south, toward money and away from Delta farmers and fish.

With stakes so high, mistrust should be expected. What's discouraging is the tacit assumption that nothing can be done about it. This mistrust imposes huge costs on all who depend upon the Delta for any part of their water supply - in short, the majority of Californians. Mistrust amplifies uncertainty, hardens positions, breeds litigation and blocks solutions.

California's water leaders tried unsuccessfully for more than a decade to seek consensus-based solutions. The postmortem on those efforts could identify multiple causes for their failure. Distrust among stakeholders would emerge high on my list of causes.

Despite the distrust, or, perhaps, because of it, in 2009, the Legislature enacted laws that codified the "co-equal goals" for the Delta - restore the Delta ecosystem and improve water supply reliability.

It tasked state agencies with meeting those goals while vaguely encouraging the Delta's "evolution as a place," whatever that means. Collectively, the state's efforts to achieve these two, or 2 1 / 2 goals, are the "Delta Plan."

As a critical component of that plan, the BDCP has its covered actions, its conservation measures and its environmental documentation. It's got more extensive technical appendices than any policy document I've ever seen.

I'm sure there's a lot of good stuff in it. There's so much stuff in it that some of it has to be good. But, as I'm neither a scientist nor an engineer, I can't help but feel as if I'm being blinded by the sheer volume of technical material presented.

The message I take away from these massive information dumps is "Trust us."

Trust us, because the subject is so mind-bogglingly complex, and we're so doggedly thorough. Trust us, because we've spent more money addressing these matters than any effort previously. And, finally, trust us, because we're right; our conclusions flow from our premises, observations and analyses.

I don't question the bona fides of the BDCP team. I do not believe that it is obfuscating by burying us in paper. "Trust us" is the message that I'm taking away, not the message intended. Instead, that intended message seems simple: "The problems are complex and serious; spend billions of dollars to try to fix them in the ways we propose."

But I keep returning to trust, and I keep recalling the conversation described at the beginning of this article. It doesn't matter how well-thought out, well-documented and well-articulated the Bay Delta Conservation Plan becomes. It will be dead on arrival simply because key stakeholders do not trust the people or the process by which it was developed.

And that's a shame for all Californians. Because of that mistrust, there will be decades-long fights in front of agencies and in the courts. Eventually, the state's voters will weigh in, probably in dueling ballot initiatives.

In the meantime, the status quo will prevail: the same status quo that is no status quo at all, but a continuing deterioration of both the ecosystem and water supply reliability. It's a status quo where the Delta's evolution as a "place" is shaped not by thoughtful action but by external events such as levee failures, sea level rise and creeping urbanization. It doesn't have to play out like this.

But I'm increasingly convinced that it will unless at least some tiny portion of the effort behind the Bay Delta Conservation Plan is devoted directly toward building trust among the stakeholders. Mediators frequently propose activities to help them better understand and empathize with their counterparts, both of which help build trust. Imagine that just 0.10 of 1 percent of the $27 billion proposed for BDCP were spent directly on trust-building activities. (Full disclosure: I occasionally work as a public policy mediator.)

With trust as low as it is now, the potential downside would be equally low, while the potential upside would be high. Good ideas would not necessarily be DOA simply because of who suggested them - a phenomenon that mediators call reactive devaluation.

Open-mindedness might replace other behaviors mediators notice, such as the confirmatory bias, where people select favorable information to confirm their viewpoint; the accuser bias, where we place excessive blame on people whom we perceive have harmed us; and the excuser bias, where we discount harms we've caused to others.

If distrust is a problem, and I think that it is, then surely something should be done directly to work on that problem. Blinding it with science will not make it go away. Ignoring it will not make it go away.

Maybe trust has no place in the BCDP documents themselves, but surely it has a place in the political process. And policies that are crafted without recognition of distrust face a far more uncertain political future.

Perhaps it's too late for the state's current water leaders to develop any more understanding of, or empathy for, each other, much less actual trust. Perhaps they know each other too well already. Perhaps we need to wait for new leaders. But time is not on anyone's side in the Delta, and tomorrow's leaders are being steeped in yesterday's and today's distrust.

If distrust is truly intractable, then solutions need to be found that do not depend upon trust, but focus on legally binding assurances on the two matters where distrust is most ripe: How will the pumps and tunnels operate during dry and critically dry years? And what levels of diversion will otherwise be permitted?

Both these questions involve the various fish and wildlife agencies, and the state water board. In a purely technocratic state, their decisions would be final. But we don't live in such a world.

Charged as they are with protecting a wide range of public interests, these administrators are not deaf to political concerns. Moreover, if the concern is that a governor's politically motivated declaration of emergency can supersede some of these agencies' decisions, then a solution needs to be found that addresses that concern.

Similarly, if the concern is that economies in the export areas are going to suffer tremendous but otherwise avoidable losses, then minimum export levels could be guaranteed, with compensation specified for any losses otherwise incurred in the Delta.

Perhaps the solution involves the creation of an autonomous, multi-member board. Perhaps it requires more meaningful "area of origin" protections. Perhaps it simply requires some limits on the governor's abilities to declare emergencies. In any event, it likely requires an amendment to the state's constitution.

Where distrust is as high as it is, guarantees short of a constitutional amendment are unlikely to hold any sway.

Meanwhile, the Bay Delta Conservation Plan juggernaut marches on. Its proposed project is unparalleled in scope, complexity and cost. It offers nothing comparable in the way of legally binding assurances that its tunnels and pumps will not be operated in a way that elevates one of the two co-equal goals over the other, or ignores the Delta as an evolving place. A transparent and inclusive process that attempted to develop constitutional-level assurances could go a long way toward overcoming the distrust that threatens to impose the status quo for another generation.

Gregory S. Weber is a professor of law and the director of the graduate and professional water resources law program at the University of the Pacific McGeorge School of Law.

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