Capitol Alert Insider Edition

Insider Access - Exclusive content for the Insider Edition iPad and iPhone apps

Note: Capitol Alert Insider Edition stories are for the exlusive use of subscribers of the service. You can subscribe with your iPhone or iPad in the App Store.
May 17, 2014
Viewpoints: Bay Delta Conservation Plan is a 50-year gamble

RB_Delta_Aerial_2.JPG(May 17 - By John Kirlin, Special to The Bee)

Discussion about the Bay Delta Conservation Plan mostly revolves around new water intakes and the twin tunnels. But this ongoing debate misses a large elephant in the room; the plan proposes to lock in public policies on water operations for 50 years, and limit future policy decisions even though circumstances can - and inevitably will - change.

Fifty years is a long time; having been engaged in public policy analysis for nearly as many years, I know well the long-term impacts of policies that no longer fit the times. Before the state moves forward with the Bay Delta Conservation Plan, potential unintended consequences need to be examined. In particular, Monday's announcement of the formation of the "Delta Conveyance Facility Design and Construction Enterprise" is worrisome, in that it shares state agency authority with water contractors. This will undoubtedly muddle accountability and invite conflict.

While the plan speaks to improving reliability of water supplied through the Sacramento-San Joaquin Delta and the function of the Delta ecosystem, the plan clearly gives priority to water exports. Realistically, the proposed tunnels are much more likely to be completed in a timely manner than any extensive habitat restoration. Why? Ambitious projects require having the resources at hand. For example, President John Kennedy was able to propose sending a man to the moon and back within 10 years because NASA provided the necessary organizational framework and $25 billion in federal funds.

The twin tunnels are a similarly bold launch. Environmental reviews are nearly completed. The Department of Water Resources was assigned construction of tunnels, now done through the new Design and Construction Enterprise. Water operations are shared with the U.S. Bureau of Reclamation. Water contractors have promised to pay for the tunnels. The legal authorities, technologies, organizational framework and money are in place; all systems go.

Compared to the advanced agenda to build the twin tunnels, large-scale ecosystem restoration is still in the infancy stage. California's past experience in Delta ecosystem restoration has been more talk than action. Projects have been constrained by scientific uncertainty, conflicting land uses, permitting and staff resources - all familiar and daunting challenges. It's not a unique problem; large ecosystem restoration initiatives in the Everglades and Chesapeake Bay are similarly challenged.

The Bay Delta Conservation Plan handles implementation of habitat restoration sharply differently than water exports: additional environmental reviews are needed, and responsibility to implement habitat restoration is assigned to a new "implementation office" with very little capacity and limited accountability. It would have no authority to enter into contracts or own property, and no permanent staff. Financing is a patchwork of projections. What is good for the gander is apparently not available to the goose.

Moreover, the implementation office is also given the large responsibility of ensuring that future regulations, starting with criteria for Delta flows, and possible future projects such as expanding Shasta Reservoir, conform to current permit terms under the Bay Delta Conservation Plan. Managing these relationships and the likely conflicts over water operations will divert resources from habitat restoration.

The BDCP, as proposed, is a bet on being right 50 years from now, but California is famously ever changing. Policymakers respond to and seek to shape those changes, but the Bay Delta Conservation Plan erects barriers to any significant future modification in water operations. Proposed assurances in the plan isolate those who are granted operating permits from risk. They cannot be required to provide additional land, water or financial compensation, or to accept additional restrictions in use of land, water or other natural resources except under very limited conditions.

And, the "adaptive management" component is likely to make actual adaptation nearly impossible, even if scientific assessment warrants change. Critical decision-making would be concentrated in a new "authorized entity group" composed of Department of Water Resources, the Bureau of Reclamation and participating state and federal water contractors - each with a specific agenda and veto power.

Under the Bay Delta Conservation Plan, the authority of the U.S. Fish and Wildlife Service, National Marine Fisheries Service and California Department of Fish and Wildlife to adapt to failures or change would be limited. As an example, those agencies would have to prove that no alternative was available before considering a change in permits. Moreover, any substantive change would require new environmental review processes. Who will support and fund those processes, especially if beneficiaries of a permit oppose any change?

Improving Delta water conveyance is a valid public policy objective, but the Bay Delta Conservation Plan imposes unnecessary risks and costs on California. The state needs to enhance the ability to adapt to change, not limit it. The objectionable governance features of the plan, such as locking in choices or giving veto powers to specific interests, can - and should - be modified by permitting agencies and other public authorities.

Otherwise, the Bay Delta Conservation Plan is a very high-stakes gamble that giving state authority to narrow interests for the next 50 years is the right choice.

John Kirlin has analyzed, taught and consulted on California public policies for decades. He was executive director of Delta Vision, 2007-08.