Spillway News Spring 2001
Again, substitute "Delta Plan" for "CalFED" and viola...there you go!
Hold CalFED to Its Word!
By Alex Hildebrand
The CalFED Bay-Delta Program (CalFED), a joint statefederal
program addressing water and ecological problems in
the Bay-Delta region, makes laudable progress on statewide
water use efficiency, water quality, and watershed programs.
CalFED also brings policy focus to levee system integrity for
the 1,100 miles of levees protecting farms, cities, and towns
in the Sacramento-San Joaquin River Delta immediately
west of Stockton.
However, the public has been led to believe that CalFED
will resolve almost all water issues in California’s Central
Valley, but they are being misled.
After its inception in 1995, CalFED adopted goals and
principles that were derived in a public process. Those
principles included commitment that CalFED’s program
would reduce conflicts over water, would be “durable” and
“equitable,” would avoid “redirected impacts” (that is, those
in which solving a problem in one place creates a new
problem somewhere else in the water system), and that
“solutions will solve problems in all problem areas” such
that “improvement for some problems will not be made
without corresponding improvement for other problems.”
Re-authorization and further funding of CalFED by
Congress and the state Legislature should be contingent on
CalFED revising its implementation plan to adhere to its
publicly adopted principles, and to assure that it addresses
groundwater overdraft, electric power, salt pollution, and
more, throughout California. CalFED has not even been
willing to evaluate the magnitude and the long-term consequences
of its plan’s deficiencies. CalFED has ignored the
advice of its own Bay-Delta Advisory Council on these
matters. These are fundamental water issues; CalFED
ignores them at the peril of California’s future.
Inadequacies in CalFED’s Plan
In February 2001, San Joaquin County and Delta area
farmers presented to California Senator Dianne Feinstein and
Congressmember Richard Pombo of San Joaquin County the
following proposals on which CalFED’s continued funding
from Congress should be made contingent.
• California now depends on an unsustainable net longterm
overdraft of groundwater. Pumpers take out more water,
year-in and year-out, than is returned to the ground. Large
overdrafts of groundwater now get California through
droughts, but the underground supply is not fully restored in
other years. CalFED’s plan would increase the rate at which
we destroy the availability of groundwater for overdraft
during droughts.
• CalFED has been unwilling to estimate the water supply
needed in and from the Delta watershed to meet urban,
agricultural, and environmental needs during the life of its
plan. It has also been unwilling to determine and reveal the
effect of its plan on the adequacy of future water supplies,
and it has misled the public regarding the extent to which its
storage proposals could increase water supply.
• California has a serious power shortage, but CalFED
promotes types of water storage (like off-stream pumpedstorage
reservoirs, and conjunctive use schemes) which
would be substantial power consumers instead of power
generators. Increased Delta water exports called for in
CalFED’s August 2000 Record of Decision will also be a net
power consumer.
• CalFED has not disclosed the extent to which its
implementation plan can comply with key state and federal
laws.
• CalFED’s plan would increase the ongoing destructive
accumulation of tens of millions of tons of imported salt in
agricultural soil and groundwater south of the Delta.
• CalFED pledges to reduce conflicts, but has not
resolved the injustices when state flood control agencies
require reclamation districts to do levee maintenance needed
for flood protection and then other agencies (particularly
federal) delay and deny permits, and threaten criminal
actions prohibiting those same measures.
• CalFED’s plan would reduce agricultural production by
converting large amounts of land and water from food
production to other uses (see “Decimating Delta Farming,”
this issue).
In exchange for future funding, the CalFED Bay-Delta
Program must assure Congress it will address fundamental
issues affected by its plan for California water, and will
evaluate the consequences of failing to address any broad
water related issues that it does not address. In what follows,
several specific contingency items need immediate congressional
attention:
Goals and Principles
CalFED’s program must comply with its publicly-adopted
goals and principles, and a public process should be
required to bring its implementation actions into line with its
goals and principles.
Groundwater Overdraft
California will experience a major catastrophe when it
can no longer overdraft millions of acre-feet of water during
its recurring droughts. Furthermore, overdrafting causes aquifer sediments to compact and irreversibly lose water
storage capacity. This lost storage capacity in California’s
Central Valley is already equal to more than 40 percent of all
of the state’s surface storage reservoirs.1
CalFED’s plan proposes groundwater storage in some
unquantified degree that will provide drought year water.
However, the plan also exacerbates agricultural water
shortages that will increase the need for groundwater
pumping in most water years. The plan does not assess these
effects on long-term groundwater depletion, nor does it seek
to eliminate them.
Future CalFED funds must be contingent on revising its
plan to avoid exacerbating the net long-term overdraft of
groundwater in the short-term and to make that overdraft
unnecessary in the long-term.
Water Supply
CalFED refuses to estimate the overall water need within
and from California’s Central Valley during the life of the
CalFED plan in order to adequately provide for all water
uses, including urban and environmental needs, and domestic
production of food and other agricultural commodities
needed for a growing population. CalFED ignores its Bay-
Delta Advisory Council’s (BDAC’s) recommendation to do
this, and the Council’s proposed basis for the calculation.2
CalFED is also unwilling to estimate net overall effects
of its proposals on the adequacy of water supplies needed for
use within and from the Central Valley (which is the Delta’s
watershed). CalFED’s plan proposes multiple uses of water
and proposes a few new storage facilities for study. But it also proposes new stream flows, substantial conversion of
farm lands to wetlands (which consume substantially more
water than farmlands), more water consumption by terrestrial
habitat, and reservoir “re-operations.” These actions may
reduce water yields.
CalFED has neither revealed the amount of new water
supply its storage proposals would provide nor acknowledged
that the resulting firm yield in water supply derived
from new storage would be far less than the volume of new
storage capacity.
When cumulated with other governmental actions,
CalFED’s plan will seriously deplete agricultural water
supplies and will be insufficient to avoid a major overall water shortage as the population grows. The public should
know the extent of this potential shortage and the extent to
which CalFED’s plan will exacerbate the shortage.
CalFED funding should be contingent, first, on the
Program estimating and publicly disclosing the total water
supply needed within and from the Central Valley during the
30-year life of CalFED’s plan in order to provide for urban
needs, environmental needs, and the need to produce an
adequate domestic supply of food and other farm products.
CalFED’s funding should also be contingent on the Program
estimating and disclosing the net effect of its proposed
actions on the adequacy of California’s water supply and the
extent to which the resulting supplies will meet estimated
need.
Power
CalFED’s preferred types of new or expanded storage, its
water management proposals, and its emphasis on increased
Delta water exports will all require a lot of power and may
collectively cause a substantial increase in both total and
peak power consumption. Yet California already has a power
shortage, and its crown jewel, the State Water Project, has
long been a net consumer of electrical energy.
CalFED funding should be contingent on the program
disclosing the overall net effect of its plan on power consumption
and on peak power loads and demands.
Compliance with Laws
CalFED must be required to disclose a review of its plan
for compliance with all existing state water quality standards
and with all existing and relevant state and federal laws,
including but not limited to water rights, Area of Origin
Statutes, and the Delta Protection Statutes, as well as
compliance with California Environmental Quality Act and
National Environmental Policy Act requirements that relate
to proposed reallocation of agricultural land and water to
other uses.
Accumulation of Imported Salts
One effect of the California State Water Project (SWP)
and the federal Central Valley Project (CVP) is to import tens
of millions of tons of salt from the Delta into the Central
Valley south of the Delta, since water exports began in the
1940s. Water exports to the south contain salt from tidal
action in the Delta. Most of this salt accumulates in soil and
groundwater of land receiving water imports for San Joaquin
Valley irrigation. Gradually, the productivity of those lands
will be destroyed.
Several hundred thousand tons of salt also drain into the
San Joaquin River each year at high concentrations with
resulting salinity problems for downstream users and river
ecosystems. Furthermore, some of CalFED’s proposals
would improve the quality of urban water deliveries by water
trades (such as one proposed between the Metropolitan
Water District of Southern California and the Friant Water
Users Authority in the east side of the San Joaquin Valley)
that would exacerbate this salt accumulation. CalFED’s funding should be contingent on assurances that the Program’s proposals must not worsen salt accumulation in Central Valley soil and groundwater in the shortterm.
Instead, it must stop this accumulation of imported salt
in the long-term either as part of CalFED’s plan or through
a separate plan concurrently administered by CalFED
agencies.
Delta Levees
One of CalFED’s purposes is protection of land and
water in the Delta as part of its system reliability objective
and to reduce conflict among all objectives. CalFED also
strives to increase ecosystem restoration options including
revegetating Delta channel levee banks to increase habitat.
But CalFED fails to provide sufficient assurances for
permanent levee protection through long-term funding
strategies or the leadership needed to resolve conflicting
demands by different agencies regulating levee-related
activities.
State flood control agencies and legal obligations of local
reclamation districts require that levees be managed to
control burrowing rodents (whose normal activities, if
unchecked, undermine levees’ structural integrity), maintain
visibility for inspection of “boils” and seepage flow, armor
banks and levees as needed to prevent erosion, and so forth.
These obligations are critically necessary to protect life,
property, infrastructure, and habitat within the levees as well
as maintain eligibility for state and federal disaster funding.
Other agencies have delayed, opposed, and denied permits
for these activities, and even threatened to bring criminal
charges against Reclamation Districts for carrying out some
of these responsibilities. Similar problems occur with regard
to channel maintenance.
CalFED funding must be contingent on the program
resolving these conflicts so that, first, reclamation districts
and other entities cannot be prevented from doing levee and
channel maintenance necessary for primary flood protection
purposes. In addition, any levee-related requirements for
environmental enhancement or protection of endangered
species must not jeopardize the levees’ primary purposes of
flood protection. Finally, CalFED should help resolve these
conflicts without creating a new layer of administration over
the state’s Delta Flood Protection Program (administered by
the California Department of Water Resources).
Conversion of Land and Water
CalFED proposes converting a substantial acreage of
agricultural land and thousands of acre-feet of agricultural
water to other uses, particularly in the Delta (see “Decimating
Delta Farming,” this issue). This is proposed without
regard to the consequent reduction in domestic food production
and other agricultural products that will be needed as
California’s population grows.
CalFED asserts disingenuously that its implementation
plan will increase agricultural water supplies by 15 percent.
CalFED has only committed to restore part of the water
previously taken from some imported water users by
governmental action, for example under the Central Valley
Project Improvement Act, state and federal endangered
species acts, and from State Water Resources Control Board
decisions. There is no commitment that there will be an
increase in overall agricultural water supply.
The negative socioeconomic impacts of CalFED actions
in the Delta must be addressed and mitigated. CalFED must
not use funds directly or indirectly for the acquisition of land
or property rights in land within the Sacramento-San
Joaquin River Delta as described in California Water Code
Section 12220 if such acquisition diminishes the value of
land for agricultural purposes unless first certified by the
U.S. Secretary of the Interior, the California Secretary of
Resources and in consultation with the California Delta
Protection Commission. These parties must find that no
publicly owned or controlled land is available for the
purpose to be served by such acquisition. CalFED must also
disclose the long-term reduction of domestically produced
food and other agricultural products resulting from all its
proposed land use conversions and water reallocations.
No More Excuses
CalFED will continue to provide benefits for some water
needs, such as those of the Metropolitan Water District of
Southern California, but it appears to have removed itself
from any commitment to address its proposals to all of the
water-related social and ecological needs of our growing
population. The California Legislature and the U.S. Congress
should insist as a minimum condition of future funding that
CalFED at least assess the consequences of failing to address
these issues.
The fact that there are no perfect solutions to complex
and conflict-ridden water-related needs does not excuse a
failure to address and quantify what is and is not feasible.
Quantification of potential unmet needs will focus attention
on what can be done, and will prepare us for whatever
austerity we must endure. If CalFED ignores these issues,
there is no other entity that will address them.
NOTES
1. Worldwatch Institute, State of the World 2001, p. 24
2. Letter from Mike Madigan, Chair, and Sunne Wright
McPeak, Vice Chair, Bay-Delta Advisory Council, to David
Hayes, U.S. Deputy Secretary of Interior, and Mary Nichols,
California Secretary of Resources, May 24, 2000, Specific
Recommendation 12, pp. 8-9.
Spillway News Spring 2001
(In this article, replace "CalFED" with "Delta Plan" and we have a keeper!)
CalFED Designs Decimating Delta Farming
Decimating Delta Farming
By Tim Stroshane
CalFED, the joint state-federal water planning program,
completed its comprehensive, $9 billion Bay-Delta plan for
California’s water future last August 28th.1 The plan affects
California water users from Mount Shasta clear to San
Diego, promising to restore “ecological health” to the
Sacramento-San Joaquin River Delta estuary at the same
time it would improve “water supply reliability” for the rest
of the state.2
Despite its promises, CalFED’s plan is plagued by
controversy over proposals that are seen as a thinly disguised
land and water grab. Moreover, CalFED’s plan begins at a
time when the U.S. farm economy faces harrowing conditions,
magnifying CalFED’s impacts on Delta agriculture.
Most troubling among its 600-plus proposals are the
CalFED ecosystem restoration program (ERPP), and a
strategy for determining when to build the peripheral canal
that is reminiscent of the sword of Damocles.3 These
proposals will convert or consume nearly a fifth of the
Delta’s agricultural land to aqueduct, wetlands, or wider
river channel, reducing the supply of agricultural land and
increasing competition among California farmers for
cultivable land. The peripheral canal will also end Delta
farmers’ ready access to water of sufficient quality to irrigate
crops.
Ironically, the Delta is the region whose complex aquatic
environments CalFED professes to save; but while other
farming areas of California would be affected by CalFED’s
actions, its environmental impact report says its program’s
adverse effects on farming “would be most concentrated and
most substantial in the Delta Region.”4
To be sure, key CalFED programs aim to improve Delta
drinking water quality, levee stability, watershed management,
farm and urban water conservation, and Delta fish and
freshwater habitats to comply with state and federal mandates.
But a legitimate question never confronted in CalFED’s
deliberations is whether depopulating the Delta’s farm
communities for ecosystem restoration is equitable.
Now, as Delta farmers and rural “area of origin” counties
sue CalFED over its flawed “framework for action,” statewide
and Bay Area professional environmental groups find
themselves defenders of an increasingly indefensible plan,
clutching to a narrowly-conceived ecosystem restoration
program in post-CalFED water politics.
Here’s how CalFED’s August “record of decision” sells
out the Sacramento-San Joaquin River Delta.
Why the Delta?
Why is the Delta important to the state’s water systems,
its major industries, to CalFED, the governor, and the Bush
Administration?
Located about 40 miles east of San Francisco, the Delta
is a 738,000 acre farming region through which drain waters
of the Sacramento and San Joaquin Rivers from more than
61,000 square miles of the Central Valley watershed, about
37 percent of the state.5 The Delta is the largest coastal
estuary in the American west and doubly unique because it is
an inland estuary (the outlet of California’s mountain-rimmed
bathtub topography).
Over 7,000 individuals, agricultural and industrial
corporations, and big and small cities divert fresh water from
streams there, including some 1,800 diverters (mostly
farmers) in the Delta proper.6 CalFED estimates the farm
economy of the Delta averages about $500 million in gross
value of farm output per year; it is a small part of the state’s
multi-billion dollar agricultural industry.7
Nonetheless, some of the state’s best agricultural (peat) soils are found here, and
smaller family-run farms are common, many tracing their
histories back to the original 19th century reclamation of
swamp land. The average Delta farm size is smaller than the
state’s.8
Most farmers’ water rights here date from the 19th
century and run with the land.
Suction and Destruction
Decades ago, state and federal engineers viewing
California’s virgin waterscape made the Delta the “switching
yard” for the state’s major developed water projects, including
the Central Valley Project (CVP) and the State Water
Project (SWP). The engineers came up with two methods of
moving pure northern California water to their pumps for
export to the south. One way is to suck the water through the
Delta’s sinuous and languid channels using huge pumps.
This is what the SWP and CVP do now. These systems
hoist Sacramento River water from the Delta uphill to the
federal Delta-Mendota Canal and the state’s California
Aqueduct, south of the Delta. (State Water Project water is
also pumped over the Tehachapis for southern California.)
Water from the Delta irrigates 5 million acres of farm land
(mostly in the San Joaquin Valley), and reaches 22 million
residents (mostly in southern California, but also in the East
and South Bay areas).
To pull in fresh Sacramento River water for export, the
suction of CVP and SWP pumps near Tracy must compete
with the gravitational force of the Delta’s rivers draining to
San Francisco Bay. (These facilities help make waterpumping
the largest use of electricity production in Califoria.)
This suction makes Delta river channels flow back wards at times, confusing anadromous (migratory) fish
reliant on an aquatic sense of smell as they migrate between
the Pacific Ocean and their upstream spawning grounds.
Other times of year, eggs, fingerlings, and young fry get
sucked into the pumps, resulting in massive fish kills.
Delta smelt, Sacramento splittail, and various stocks of
chinook salmon are now listed as either endangered or
threatened species by the state and federal governments.
Operation of these vast water projects are largely responsible
for their decline, and the projects thereby run afoul of the
state and federal Endangered Species acts.
Pollution remains an important cause of food chain
collapse in the Delta too. “The United States Geological
Survey has characterized the San Joaquin River and its
tributaries as one of the most degraded basins in the entire
nation,” reports Bill Jennings of DeltaKeeper. Yet, the
Delta’s water quality “has all too often been treated like the
crazy aunt locked in the closet at home.”9
The Delta’s aging levees hold back salt water tides from
San Francisco Bay by containing relatively fresh waters in
their channels from the Sierras and southern Cascade
mountains.
But they are vulnerable. As rich peat soils of central
Delta islands compacted, lands behind the levees sank as
much as 25 feet below water levels in Delta channels. A
Noachian flood or catastrophic earthquake today could
undermine Delta levees and destroy many of these farming
islands, threatening to create an inland salt-water sea that
would disrupt the export of fresh water stored at the CVP and
SWP’s huge Shasta and Oroville reservoirs. (We have updated science that proves this to be an exaggeration of facts and now considered 'fear mongering' to earthquake-prone areas of California.)
As God promised Noah a great flood, CalFED geologists
assure us that relatively moderate earthquakes could cause “3
to 10 levee failures in the Delta, on one or more islands.”10
Just imagine what the Big One tomorrow could do.
Peripheral Canal Politics
The engineers’ other idea is to build a canal around the
eastern periphery of the Delta (about where Interstate 5 runs
now) that would carry Sacramento River water directly to the
export pumps. This “Peripheral Canal” would avoid mixing
the Sacramento’s pure fresh water with salty waters entering
the Delta from Carquinez Strait, and salt and pesticide-laden
waters from the San Joaquin River.
Many water observers predicted that “the peripheral
canal is dead” after it was overwhelmingly defeated by
California voters in a June 1982 referendum. But Delta
residents never believed it was dead. CalFED’s proposals
revive its spectre, and introduce an ecosystem restoration
program that removes farms and people from the region,
easing the canal’s return.
With a canal in place, the Delta and San Francisco Bay
become expendable to the state’s “peripheral” water system.
“I don’t think the environmental consequences [of a
peripheral canal] would be that great, but the bigger issue
here is motivation,” says Tom Graff, an attorney and longtime
water politico for Oakland-based Environmental
Defense. “It may improve export water, but it will significantly
degrade water quality in the Bay and Delta. The more
water you export, the more the Bay and Delta suffer.”11
Dante Nomellini, a Stockton water lawyer who is chief
counsel for the Central Delta Water Agency, has pleaded the
Delta’s case for over 30 years, and says the peripheral canal
“would destroy the Delta ecologically and economically.”12
He also cites as threats to Delta farming communities not
only the canal taking 4,500 acres of important farmland out
of production, but CalFED ecosystem restoration projects
that may take up to an additional 112,000 acres of farm land
out of production, and a CalFED proposal to flood Delta
islands to create a freshwater reservoir there.
Acquiring Delta farm land now to restore 30,000 to
45,000 acres of tidal wetlands, Nomellini adds, makes it
easier for CalFED to let more tidal salt into Delta channels,
simultaneously harming Delta cultivators and making the
“need” for a peripheral canal a self-fulfilling prophecy.13
If Sacramento River water is diverted to a peripheral
canal, or its CalFED euphemism, the “isolated conveyance
facility,” the cost of peripheral canal water will come dear, ruining the bottom line for most Delta farmers.
A CalFED report on water management options analyzes “isolated
facility” costs, allocating them to each major urban region in
the state, strongly implying that CalFED does not think that
Delta farmers will want water from the peripheral canal,
though thirsty cities will.14
Is that perhaps because there
would be no Delta farmers to buy it from the peripheral
canal?
“CalFED says, ‘oh we don’t expect to solve everybody’s
problem,’” says frustrated Manteca (south Delta) corn farmer
Alex Hildebrand, who was a member of CalFED’s citizen
advisory council (see “Hold CalFED To Its Word!” this
issue). “But they are very politically motivated about what
they say is within their prerogative and what they say isn’t. It
depends on how many votes are involved and how much the
public understands the problem.”15
The CalFED environmental impact report backs up
Nomellini’s claims:
• The ERPP would use more fresh water than does land
currently cultivated in farms. Creating 28,000 acres of
seasonal wetland could require 28,000 to 56,000 acre-feet of
water per year of additional water. Restoring 58,000 to 74,000 acres of aquatic and riparian habitat would require an
additional 175,000 to 222,000 acre-feet a year in the Delta.
No crops would be grown with this water.16
• Up to 15,000 acres of Delta farm islands would be
converted to a reservoir by Delta Wetlands, a development
partnership headed by John Winther, an Orinda civil engineer.
This project received a permit from the State Water
Resources Control Board in February. Delta Wetlands hopes
to complete the project and sell it either to the California
Department of Water Resources or the U.S. Bureau of
Reclamation.17
• Channel widening of Old River in the southwestern
Delta region would accommodate increased SWP export
pumping and would convert another 4,500 acres of Delta
farmland, the equivalent of about 20 average-size Delta
region farms.18
• Construction of the peripheral canal would dig up and
convert another 4,500 to 6,000 acres of farmland as well.19
• The regional economic impacts of CalFED’s “preferred
program alternative” (no peripheral canal, but with a
diversion at Hood) includes up to $225 million in lost farm
revenues (about 20 percent of the Delta region total), loss of
up to 11,000 farming jobs (about half the Delta’s ag employment
base), and those are just the direct effects. Indirectly, all
economic sectors may experience losses approaching $500
million in output, and up to 20,000 jobs foregoing $400
million in lost personal income.20
“These effects,” the CalFED environmental impact report
concludes, “could substantially affect the region, especially
small communities that depend on agriculture for their
income. Some adverse effects also could be expected in the
urbanized areas that surround the Delta: Sacramento,
Stockton, and Pittsburg/Antioch. The form of these effects
would be reduced employment and income, a reduction in
property tax base through land conversion and reduced
residential property values, and increased costs for social
services and other local services — especially in the short
run.”21
Sword of Damocles
CalFED’s 30-year plan does not propose to build a
peripheral canal — at least not yet. Its plan calls for an
intensive “through-Delta” approach that constructs a short
canal from the village of Hood on the Sacramento River to
the Mokelumne River beginning as early as 2006 so that
fresher Sacramento River water pulses into the central Delta
on its way to the Tracy pumps to the southwest.22
CalFED hopes this pulse will boost central Delta water quality to
enable the SWP and CVP to comply with 1995 state water
quality standards.
A peripheral canal is not a self-fulfilling prophecy with
the Hood diversion, insist CalFED officials. Still, wags refer
to it as an “on-ramp” for the canal.
CalFED also hopes to fine-tune the Delta by widening
river channels, strengthening levees, and providing tidal
barriers for key south Delta channels to protect water depths
for adjacent farmers and keep anadromous fish fry away
from the big CVP and SWP export pumps, making the Delta
more reliable as a source of fresh water.
But if these actions fail to improve Delta water quality,
sustain restored sensitive aquatic habitat, and replenish the
battered populations of endangered fish and other aquatic
species that rely on the Delta — and many skeptics think
they will fail — then CalFED says the Peripheral Canal, er,
the isolated conveyance facility would be all but necessary.
CalFED’s “strategy” for getting water to the pumps
dangles the peripheral canal like a sword of Damocles over
the planned shrinkage of the Delta farm economy.
It should not be necessary, as CalFED claims, to depopulate
a large proportion of the Delta region to achieve ESA
goals, because most Delta farmland was reclaimed and
cultivated there long before the CVP and SWP pumps were
installed to export Delta water south. This means that water
rights held by Delta farmers have first priority over the more
recently granted CVP and SWP rights.
Yet CalFED plans ignore these rights in a fashion
reminiscent of a case recently decided by the California
Supreme Court that gave older farm water rights holders
more priority to water than latecomer urban interests in the
Mojave River basin.23
CalFED’s plan proposes, Hildebrand wrote to CalFED in
June 2000, “that existing impacts of the [SWP and CVP]
projects on fishery [sic] should be mitigated to the extent
feasible with ‘no net loss to exports.’ It does not propose to
mitigate existing impacts of the projects on the Delta’s inchannel
water supply and water quality and does not provide
for ‘no net loss’ of water to water users in the Delta and area
of origin water users. This reverses the priority of water
rights.”24
In other words, CalFED’s plan ignores existing higher
priority water rights in the Delta region. In doing so, large
chunks of CalFED’s whole program become vulnerable to
litigation — after six difficult years of work — and to the
charge of being a huge waste of taxpayer money.
Hildebrand, the South Delta Water Agency, and a
coalition of Delta and Feather River water rights holders,
sued CalFED over its Record of Decision in September.
They were followed by the California Farm Bureau Federation a few days later (see “Will Suits Bring CalFED to Heel?” this issue)
NOTES
1. CalFED Bay-Delta Program, Programmatic Record of
Decision, 28 August 2000. Hereafter CalFED ROD.
2. Ibid., p. 9, where CalFED’s Mission Statement is “to
develop a long-term comprehensive plan that will restore
ecological health and improve water management for
beneficial uses of the Bay-Delta system.”
3. CalFED Bay-Delta Program, Ecosystem Restoration
Program Plan, 2 Volumes, (hereafter ERPP); and Phase II
Report, pp. 81-86. These documents are both technical
appendices for CalFED’s Final Programmatic Environmental
Impact Statement/Report, July 2000. Hereafter, CalFED Final
EIS/R.
4. CalFED Final EIS/R, July 2000, p. 7.2-27.
5. Phase II Report, op. cit., note 3, p. 10.
6. Ibid.
7. CalFED Final EIS/R, p. 7.2-5.
8. Ibid., Table 7.2-1, p. 7.2-4.
9. Bill Jennings, DeltaKeeper, remarks before the Commonwealth
Club of California, Oakland, 2 March 1999. Available
at the Peace and Justice Connections web site,
www.sonnet.com/usr/pjc/04-99/
10. CalFED Bay-Delta Program, Levee Improvements
Program, Technical Appendix of CalFED Final EIS/R, July
2000, Appendix G: Seismic Vulnerability of the Sacramento-
San Joaquin Delta Levees, p. iv., 23, and Figure 5-2.
11. Graff quoted in Glen Martin, “Peripheral Canal foes see
another try,” San Francisco Chronicle 4 August 1999, A15.
12. Dante Nomellini, counsel for Central Delta Water Agency,
personal communication, Stockton, California, 3 March 2000.
13. Ibid. See also ERPP, Volume II, July 2000, Table 6,
p. 114.
14. At $15 to $75 more per acre-foot than they currently pay
for treated irrigation water, most Delta farmers would not be
able to afford peripheral canal water. See CalFED Bay-Delta
Program, Economic Evaluation of Water Management
Alternatives: Screening Analysis and Scenario Development,
October 1999, Table 6-6, p. 6-10.
15. Alex Hildebrand, personal communication, Manteca,
California, 10 December 1999.
16. CalFED Final EIS/R, op. cit., p. 7.1-16.
17. Ibid., p. 7.1-18; see also Table 4-3, p. 4-13. See also Bill
Lindelof, “Visionary engineer’s dream of Delta reservoirs gets
closer,” Sacramento Bee 27 February 2001. The Delta
Wetlands project is actually larger than CalFED revealed,
though the total “lake” storage may be the same. According to
Lindelof, the islands targeted as reservoirs are Webb Tract
and Bouldin Island, totaling 11,000 acres. Holland Tract and
Bouldin Island, totaling 9,000 acres would be transformed
into “a mosaic of wetlands, lakes, and riparian forest.”
18. CalFED Final EIS/R, p. 7.1-24.
19. Ibid., Table 4-3, p. 4-13. See specifically, Alternative 3,
Delta Region conveyance land use impacts.
20. Ibid., p. 7.10-12.
21. Ibid., 7.10-24.
22. Phase II Report, op. cit., note 3, p. 84. CalFED blandly
states, “Study and evaluate a screened diversion structure on
the Sacramento River of up to 4,000 cfs. This evaluation
would consider how to operate the Delta Cross Channel [a
Central Valley Project structure] to improve drinking water
quality, while maintaining fish recovery. If the evaluation
demonstrates that the diversion facility is needed to improve
water quality in the Delta and at the export facilities, and can
be constructed and operated without adverse effects to
anadromous and estuarine fish, construction will begin late in
Stage 1 [about 2006]. This facility would likely include a fish
screen, pumps and a channel between the Sacramento and
Mokelumne Rivers. The design, size, and operating rules for
this facility would allow for analyses of impacts to upstream
and downstream migrating fish as well as impacts from
habitat shifts resulting from increased flows in the eastern
Delta on Delta species.” The CalFED ROD, p. 49, contains
more specifics, and places the start of construction into 2007.
23. City of Barstow v. Mojave Water Agency, S071728, 2000.
See “Don’t Tread on Mojave,” SPILLWAY v1n1, Fall 2000,
p. 2.
24. South Delta Water Agency, Assessment of CalFED’s
“Framework for Action,” prepared by Alex Hildebrand, 16
June 2000, point 8, p. 3.
Spillway News Spring 2001
Habitat Plans Undoing
Species Protection
By Roanne Withers
“California has exceeded its carrying capacity,” stated
California Resources Secretary Mary Nichols, keynote
speaker at the annual UC Davis Endangered Species Act
(ESA) and Water Resources Issues Conference in Sacramento
last September.1 Her statement represents official
admission that California’s population exceeds the resource
base here supporting it.
Nichols further lamented that she “had no useful answers”
to “lots of questions” about how to reconcile providing
water to the state’s growing human economy and
population and protecting endangered species dependant on
that same water for survival — except to “spend money.”
Nichols was referring to the costly and contentious
marriage of economic development and species protection in
federal Habitat Conservation Plans (HCPs). HCPs in
California also result from a 1991 state law called the
Natural Communities Conservation Planning Act, creating
the state’s HCP counterpart, Natural Community Conservation
Plans (or NCCPs).2
Major regional HCPs and multi-species conservation
strategies have been adopted or planned by CalFED Bay-
Delta Program agencies relating to water supply reliability
and ecosystem restoration throughout the Central Valley, as
well as for key frog, snake, plant, bird and other species
throughout California.3
As developers (and corporate owners of vast tracts of
timber land) increased criticism of the ESA and its application
to private land, the Clinton Administration adopted
policies, such as a “no surprises” rule, to increase use of
HCPs. Neither the US Fish and Wildlife Service (USFWS)
nor the National Marine Fisheries Service (NMFS) — let
alone California’s resource protection agencies — are
allocated enough staff and funding by legislators to assess
species for their biological status and enforce the ESA on
every individual development (or timber harvest plan)
despite ESA mandates that assessment and enforcement
occur.
Instead, private landowners hire consultants to provide
biological assessments for HCPs. The burden of proof of a
species’ status relative to ESA is borne by conservationists.
To challenge the adequacy of a biological assessment, and in
turn argue an HCP does not protect endangered species,
conservationists must sue in court to correct the matter.4
What Is a Habitat Conservation Plan?
Section 9 of the federal ESA prohibits “take” of federally
listed animals without appropriate authorization. Take is
defined under the ESA, in part, as “killing, harming, or
harassment” of a federally listed species. “Harm” in the
definition of “take” means an act which actually kills or
injures wildlife, and may include habitat degradation or
changes that actually kill or injure wildlife by impairing such
essential behavior patterns including breeding, spawning,
rearing, migrating, feeding, or sheltering.
In 1983, Congress adopted Section 10 of the ESA which
allows for some “taking” of endangered species. “Incidental
take” involves a take that is incidental to, and not the
purpose of, otherwise lawful activities.
In 1988, Congress further defined Section 10 by passing
amendments to provide a means for non-Federal projects
resulting in take (and harm) of listed animals to be permitted
subject to carefully prescribed conditions. These amendments
try to balance economic development with endangered
species conservation. They encourage public-private
partnerships through HCPs (and other similar plans) to
accomplish these goals.5
“The principle underlying the Section 10 exemption,”
says the National Audubon Society, “is that some individuals
of a species or portions of their habitat may be expendable
over the short term, as long as enough protection is provided
to ensure the long term recovery of the species.”6
Many conservationists are convinced that HCPs are used
to avoid, undermine, and sabotage state and federal environmental
protection laws. In San Diego, for example, a widelyused
HCP process, called the Multiple Species Conservation
Program (MSCP) was only half-baked before approved.
Mark Massara of Sierra Club’s Coastal Campaign states,
“Despite virtually no funding and no monitoring or evaluation
of habitat set-asides, development is moving forward
[under the San Diego MSCP]. Open space habitat to be
‘established’ is often existing public parks, or even street
medians. Vernal pools and wetlands have already been
destroyed.”7
The Politics of HCPs
Monitoring and evaluation of HCPs is not readily smiled
upon by the powers that be.
The California Coastal Commission (CCC) became
concerned last October that US Fish and Wildlife Service approved
HCPs circumvent the Commission’s environmental
protection authority. Some 80 HCPs now exist in California,
and many include coverage of large stretches of California
coastline.8 Apparently, the CCC had not been consulted on
the growing use of HCPs by USFWS and the California Department of Fish and Game (DFG), which is surprising since state and federal coordination of coastal protection
policies has long been a hallmark of coastal zone management.9
Despite CCC’s normal procedures for reviewing federal
actions for consistency with coastal land use plans, Governor
Gray Davis relieved a commissioner of her seat before she
could cast a vote to sustain a request for Commission review
of federal HCPs before the U.S. Department of Commerce
(NMFS’s parent agency).
Ten other states, reports the Los Angeles Times, had such
requests routinely approved by Commerce. But with developers,
landowners, and government officials, complaining
that CCC review would have a “chilling” effect on development
activity in the coastal zone, Governor Davis did not
wish to alienate an important and well-heeled constituency,
especially in the midst of the state’s energy crisis. The CCC
voted 6-5 to withdraw the request to Commerce in January
2001.10
In addition, the North Coast Regional Water Quality
Control Board (NCRWQCB) also became concerned
regarding the water quality implications of the HCP for the
Headwaters Forest settlement.11
HCPs Mean “No Surprises”
Lynn Cox, a lawyer for the US Interior Department stated
at the ESA and Water Conference last September that
USFWS, despite sparse case law on indirect effects — such
as growth inducement caused by expansion of a water
district’s services — would require a water district to consult
with USFWS and/or NMFS for an opinion about possible
harm to endangered species as a result of the water service
expansion, even though water districts have no authority to
regulate growth.
Cox stated that in the absence of an HCP, USFWS would
issue a “jeopardy opinion” (which would halt the water
service expansion) as a matter of policy. Dawn Andrews-
McIntosh, attorney for NMFS, said that NMFS concurs with
this policy.
These consultation policies led Interior Secretary Bruce
Babbitt to make HCPs more attractive to developers and the
water industry in 1994 by issuing a “no surprises” rule,
guaranteeing that the federal government will not change
conditions of HCPs for a specific time period, even should
the situation become more dire for a species. Most clauses
last about 30 years, although some cover 100 years and
others just a few.12
With an HCP in place, then, the water district could
expand service, even if it meant incidental taking of an
endangered species individual, and could continue doing so
for the term of the HCP agreement.
The Surprise in “No Surprises”
Spirit of the Sage Council, a southern California based
environmental coalition, filed suit in federal court in the
summer of 1998, hoping to invalidate the vast majority of
HCPs with a legal challenge of “no surprises” rules. The suit
contends that “no surprises” rules violate the Endangered
Species Act, and that Babbitt overstepped his authority in
authorizing them.13
In effect, Eric R. Glitzenstein of the Spirit of the Sage
Council told Congress in 1999, the HCP requirement of the
ESA “has been converted from one intended to facilitate the
recovery of species into one under which the wholesale
‘taking’ of endangered species is authorized in exchange for
woefully inadequate ‘mitigation’ — not ‘conservation’ —
plans which do little, if anything, to offset the extensive
damage to the affected animals and plants.”14
In 1999, a major scientific analysis of HCPs released by
the American Institute of Biological Sciences and the
National Center for Ecological Analysis and Synthesis
confirms conservationists’ long-held concerns about HCPs.15
A group of 119 independent scientists examining 43
HCPs in detail and 208 more generally, concluded that
critical scientific information about endangered species is
often not available for the HCP approval process. They
specifically cite a major lack of biological monitoring to
determine specific effects of the HCP on the species concerned
and an over-reliance upon unproven management
techniques.
USFWS and NMFS acknowledged these findings, but
added, “the HCPs currently in place are based on the best
available scientific and commercial information. If we lack
critical information regarding the biological needs of a
continued on page 14
Many conservationists are convinced
that HCPs are used to avoid,
undermine, and sabotage state and
federal environmental protection laws.
species proposed to be covered under an HCP, we will not
issue the permit until such information is obtained or an
acceptable adaptive management strategy is incorporated
into the HCP to address the uncertainty.”16
In June 2000, USFWS and NMFS clarified policy
guidance used by biological consultants and developers for
the incidental take permit program and for those applying for
incidental take permits under section 10(a)(1)(B) of the
ESA.17 Five areas of policy guidance in the addendum are:
establishment of biological goals and objectives, adaptive
management, monitoring, public participation and duration
of incidental-take permits granted as part of the HCP
process.18
“HCPs were designed by Congress to authorize incidental
take [of endangered species], not to be mandatory
recovery tools,” according to the Handbook. Nor are HCPs
required to contribute to recovery of a species or to even
have a net benefit to affected species. All that is required is
that the issuance of a section 10 incidental take permit based
on the HCP must not “appreciably reduce” the likelihood of the survival and recovery of the species in the wild.19
In this world of non-protective protection, “adaptive
management” addresses the situation where inadequate
information exists about the ecology of endangered species
or their habitats. USFWS claims HCPs have been and will be
“carefully crafted so that unforseen circumstances will be
rare.”
However, under the “no surprises” rule, the actual extent
of adaptive management provisions in the HCP are negotiated
between the Services and the developer and can be
politically restricted. “Unforseen circumstances” that arise
after the HCP has been approved are to be addressed by land
acquisition, and habitat restoration or enhancement the
expenses of which are to be paid for by state and federal
taxpayers.20
Heavy Hands-On
After two years in office, it is increasingly apparent that
California Governor Gray Davis intends to use his office to
override science and ecological ethics on behalf of developers examples
of natural resources suffering as a result of
excessive political compromise, as well as many instances in
which biologists are being told by the Governor’s staff to
‘back off’ in their efforts to protect fish and wildlife.’”21
ESA: A Failed Law?
American Lands and the Endangered Species Coalition
point out that USFWS is failing to identify and “list”
imperiled species as Threatened or Endangered, denying
these species the benefits of the ESA.
At least 6,480 plant and animal species in the US are at
risk of extinction, yet only 18 percent are officially listed as
Threatened or Endangered under the ESA. Of those species
being listed, most required lawsuits to force the Administration
to act. At least 189 species needed lawsuits, and some
required as many as 5 suits. More than 300 species are
considered “candidates” or are proposed for listing. But
unless a court orders it or the species faces a dire emergency,
no new species will receive federal protection any time
soon.22
On November 23, 2000, USFWS halted all work on
listing new species for the rest of the fiscal year (ending
September 2001) in order to complete court-ordered work on
designating critical habitat for some 30 species. Additionally,
USFWS successfully lobbied Congress for a reduction in its
budget.23
According to a Congressional Research Service Issue
Brief to the new 107th Congress, the ESA “could be considered
a failure, since only 11 species have been delisted due to
recovery, as of November 16, 2000. Seven species were
determined to be extinct since their listing, and twelve have
been de-listed due to improved data.”
The issue brief further states, however, that “a number of
listed species (41 percent of listed species according to one
study) have stabilized or increased their populations, even if
the species is not actually de-listed. Still other species (e.g.,
red wolves and California condors) might not exist at all
without ESA protection, even though the species are still
rare.”24
Tim Stroshane provided research assistance.
NOTES
1. In basic ecology, textbooks define carrying capacity as
“number of individuals in a population that the resource of a
habitat can support”; Encyclopedia Britannica defines
carrying capacity as “the maximum number of animals of one
or more species that can be supported by a particular habitat
or area through the most unfavorable period of the year. The
carrying capacity is different for each species in a habitat
because of that species’ particular food, shelter, and social
requirements and because of competition from other species
that may have similar requirements.”
2. Approved NCCPs provide the basis for issuance of state
authorizations for takes of listed species and may provide the
basis for issuance of federal take permits. However, the
NCCP process does not supplant the listing process of either
the federal or state endangered species acts. The Natural
Communities Conservation Planning Act gives the California Department of Fish and Game discretion on use of NCCPs in
California Fish and Game Code Section 2810: “The department
may enter into agreements with any person for the
purpose of preparing and implementing a natural community
conservation plan to provide comprehensive management
and conservation of multiple wildlife species, including, but
not limited to, those species listed” in the state’s endangered
species act. “The primary objective of the NCCP program is
to conserve natural communities at the ecosystem scale
while accommodating compatible land use. The program
seeks to anticipate and prevent the controversies and
gridlock caused by species’ listings by focusing on the longterm
stability of wildlife and plant communities and including
key interests in the process.” Fish and Game Code Section
2800-2840. For complete review of statutes and guidelines of
the Natural Communities Conservation Program see
ceres.ca.gov/env_law/state.html.
3. See CalFED Bay-Delta Program, Multi-Species Conservation
Strategy, Technical Appendix to the Final Environmental
Impact Statement/Report, July 2000; on the HCP for the redlegged
frog, see Annette Kondo, "U.S. Proposes to Designate
Habitat for Imperiled Frog," Los Angeles Times 9 September
2000, and Peter Felsenfeld, "Red-legged frog may slow
Dublin’s growth: The U.S. Fish and Wildlife Service will likely
designate the entire city as critical habitat," Contra Costa
Times 27 October 2000; and on the HCP for the Alameda
whipsnake, see Associated Press, "400,000 acres of California
habitat declared critical for snake," San Diego Union-
Tribune 3 October 2000.
4. See “Habitat Conservation Plans: Not All They’re Cracked
up to Be,” by Tara Mueller, Attorney-at-law, www.igc.org/epic/
pages/hcp_facts.html, and “EPIC’s Summary and Critique of
the Pacific Lumber Habitat Conservation Plan.” at
www.igc.org/epic/pages/pl_hcp.html.
5. The final rule (64 FR 32706, June 17, 1999) modified the
no surprises policy so that the permitted taking will not
appreciably reduce the likelihood of the survival and recovery
of the species. If continuation of permitted activities would be
inconsistent with the finding, and the inconsistency is not
remedied in a timely fashion, the new regulations provide for
revocation of incidental take permits, even if they contain no
surprises agreements.
6. National Audubon Society, “A Citizen’s Guide to Habitat
Conservation Plans,” at www.audubon.org/campaign/esa/
hcp-guide.html.
7. See also Susan Davis, “Plastic Greens,” Anderson Valley
Advertiser 26 July 2000.
8. Deborah Schoch, “Coastal Panel Seeks Wider Role in
Plans to Conserve Habitat,” Los Angeles Times 12 October
2000.
9. In particular, California Public Resources Code section
30330 and 30400 mandate review of federal actions authorizing
activities in the coastal zone by the CCC for consistency
with the Commission’s federally approved Coastal Zone
Management Plan.
10. Seema Mehta, “Coast panel drops bid for role in habitat
plans,” Los Angeles Times 11 January 2001. Mehta notes that
had the yanked commissioner Kitch Eitzen of Humboldt
County “was not sufficiently interviewed in advance,” according
to Mary Nichols who said Eitzen was not appointed
properly. Mehta reports, “Had Eitzen voted against withdrawal,
as expected, there would have been a tie, meaning
the request would have stood.”
11. See the North Coast Regional Water Quality Pacific
Lumber Company Staff Report, September 9, 2000 at
www.swrcb.ca.gov/rwqcb1/palco.html, and the November 9,
2000 Coastal Commission Staff Report for the California
Coastal Management Workshop on Nov. 15, 2000, at
www.coastal.ca.gov/fedcd/ccmpworkshop.pdf
12. The Services codified the “No Surprises” policy into a final
rule, on February 23, 1998 (63 FR 8859). No Surprises Rule,
Federal Register: February 23, 1998, Volume 63, Number 35,
Rules and Regulations, Page 8859-8873 from the Federal
Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23fe98-12] at www.epa.gov/fedrgstr/EPA-SPECIES/
1998/February/Day-23/e4367.htm.
13. Spirit of the Sage Council is an all volunteer grassroots
non-profit 501 ( c )3 tax-exempt project and coalition of
American Indians, environmental organizations, citizens
action groups, scientists, legal experts and wildlife advocates
dedicated to the protection and conservation of America’s
natural and cultural resources. See www.sagecouncil.com/
index.html.
14. No Surprises Testimony of Eric R. Glitzenstein Before the
Senate Subcommittee on Fisheries, Wildlife, and Drinking
Water of the Senate Committee on Environment And Public
Works at www.sagecouncil.com/noSurTestimony.html
15. To access the full "Using Science in Habitat Conservation
Plans" report see www.nceas.ucsb.edu/ for Kareiva, Peter,
Habitat Conservation Plan Data, 1999.
16. Federal Register: June 1, 2000 (Volume 65, Number
106)] [Notices] [Page 35241-35257] From the Federal
Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jn00- 166] www.eswr.com/f610g.txt.
17. The joint U.S. Fish and Wildlife Service and National
Marine Fisheries Service Habitat Conservation Plan Handbook
is available on endangered.fws.gov/hcp/hcpbook.htm
and is called "Handbook for Habitat Conservation Planning
and Incidental Take Permitting Process."
18. The five-point Addendum to the Handbook is available at
endangered.fws.gov/hcp/addendum.html. The Addendum
Federal Register took effect July 3, 2000.
19. “Habitat Conservation Planning Handbook,” pg 3-20, at
endangered.fws.gov/hcp/index.html#Handbook.
20. “No Surprises Myths” at endangered.fws.gov/hcp/
nsmyths.pdf
21. “California’s Failed Forest Policy: State Biologists Speak
Out,” California Public Employees for Environmental Responsibility,
Summer 2000.
22. “Broken Promises of Recovery: The Clinton
Administration’s 10-Prong Attack on Endangered Species,”
American Lands In Cooperation With the Endangered
Species Coalition, January 17, 2000 www.stopextinction.org/
23. Congressional Research Service Issue Brief for Congress,
IB10072: Endangered Species: Continuing Controversy,
M. Lynne Corn, Resources, Science, and Industry
Division, February 8, 2001 www.cnie.org/nle/biodv-1.html.
24. Ibid.
Spillway News Spring 2001
Legacies of the Monterey Agreement
Watering Newhall Ranch
on a wish and a prayer
By Lynne A. Plambeck
Southern California has a water problem. Government
and court decisions the past several years make clear that it
is time to re-examine how we view water and our water
resources:
• Courts forcing Los Angeles Department of Water and
Power (LADWP) to leave 15 percent of its water diversion
in the Owens Valley to wet down alkali dust in Owens Lake
bed and reduce particulate air pollution;
• Setting aside approval in June 2000 of the 21,000-unit
Newhall Ranch project in Los Angeles County, the largest
development project approved in California, for lack of an
identified water source;
• A Record of Decision in the six-year CalFED public
dialogue now facing several lawsuits, making the outcome of
CalFED’s labors uncertain, despite its protests of good faith
and equitable statewide water solutions;
• A court decision in Amador County in 1999 underlining
the need to address water in local general plans1;
• A Public Utilities Commission decision requiring
environmental review for Valencia Water Company’s water
management plan before further service area annexations are
allowed2; and
• A Sacramento appellate court setting aside the
Monterey Agreement environmental impact report (EIR) as
inadequate (particularly its project description, the Agreement
itself).
Southern California’s water problem is not just a problem
of supply. It is also a problem of concept.
Signs of Change
The Sacramento appellate court made this abundantly
clear last September when it opined that “paper water
[referring to undeliverable portions of state water project
entitlements] always was an illusion...‘Entitlements’ is a
misnomer, for contractors surely cannot be entitled to water
nature refuses to provide or the body politic refuses to
harvest, store and deliver. Paper water represents the
unfulfilled dreams of those who, steeped in the water culture
of the 1960s, created the expectation that 4.23 maf [million
acre-feet] of water could be delivered by the SWP built to capacity.”3 Now it cannot.
Are land use planners listening to the recent legal and
policy decisions and to public outcry to change things? Some
are. Although the City of Los Angeles has grown greatly in
population, water usage has remained almost steady.
LADWP deserves praise and credit for its great strides in
water conservation, a result of its efforts with community
groups to ensure that real conservation goals are achieved.
Even the Los Angeles County Department of Public
Works, that dinosaur of planning whose staff seems to glory
in concrete, has begun a shift of thought, possibly attributable
to its membership on local watershed councils. Commuity groups find its staff more open to solutions that will provide both flood control and remain natural waterways such as occurred in the Arroyo Seco and on a smaller scale in the Laing Homes development in the Santa Clarita Valley.
Local and Logical Planning
In the late 1970s, litigation gave Los Angeles (LA)
County a specific water planning tool called the Development
Monitoring System (DMS). DMS provides LA County
a means of analyzing infrastructure needs in light of previous
approvals and existing uses. If the DMS finds that fire
services, schools, roads, libraries, and water services are
inadequate, then a new development project must be
downsized, delayed or denied until such public services and
utilities exist to serve the development.4 Although the
decision was 10 years in the making, it forever changed LA
County’s planning process.
Of course, the reasoning within the DMS seems perfectly
logical to most everyone. Just ask the man on the street
“should you build housing tracts without a water supply?”
The response is inevitably a look of disbelief and an
emphatic, “No!, of course not.”
For many years land use planners, on the advice of water
agencies often controlled by developers, lived by the mantra
that “water supply is infinite, it is only a matter of how much
you are willing to pay for it; “water runs uphill to money”;
and, “build the houses and the water will come,” etc. More
recently, many general plans and many local, state, and federal
laws require an analysis of water supply for new
developments and protection of local aquifers, rivers,
tributaries and groundwater recharge areas.
In spite of such local (and logical) planning mandates,
agencies from the Army Corps of Engineers to city planning
departments allow important LA County watershed resources
to be converted to concrete channels, maximizing developer
profits at the expense of current and future community
needs.
Huge development projects, with Newhall Ranch in the
lead, were approved in LA County with little or no attention
to the adequacy of the water supply needed for new residents
or to the impact potentially massive reductions in existing
available water supply that would result to local businesses
and established communities.
Fundamental changes in viewpoint are yet to arrive.
Southern California will need to rely more heavily on our
local water resources than ever before, for example through
conjunctive use and living within our means. Have we taken
this message to heart? The Newhall Ranch Project is an
example of how far Southern California has come, but how
far it must go to bring development plans into line with water
realities.
Newhall Ranch
Newhall Ranch is a 21,600-unit project proposed for an
agricultural area along the Santa Clara River, LA County’s
last wild and unchannelized river in northwestern LA
County, in a watershed spanning two coastal counties
(including Ventura County), bounded on the south by the
Santa Susana Mountains. The project is not located within
any City boundary and is in an area previously zoned by the
LA County general plan for only 2,000 units. In one swoop,
the County increased its population projections by 70,000
people for the area and re-zoned the agricultural land to
allow the project’s urban uses.
Under developer pressure, the County refused to address
Newhall Ranch’s water or watershed issues in any meaningful
way.
For example, a regional planning commissioner stated at
a 1996 hearing that the developer, Newhall Land and
Farming Company’s proposed placement of 3,000 new
homes in a floodplain of the Santa Clara River obviously
created most of the opposition. River habitat, water, flooding
and viewshed concerns could all be resolved by merely
removing these homes and the proposed commercial uses
from this area.
There was silence in the room. Reduce a developer’s
proposal by 3,000 units?
Such a proposition was unheard-of in LA County, though
it was eminently logical, probably required by the general
plan, and would protect the River and its water supply.
The Commission seemed to support the idea though, and
the public held its breath.
But County planning staff returned a month later with the
proposal reduced to 300 units, and no loss of commercial
zoning. The Commissioner who had previously suggested 3,000 unit reduction, lauded this token change as an excellent compromise.
We all speculated that in the interim she apparently
received a stern lecture on the need for developer campaign
contributions.
One Commissioner bravely continued pushing for flood
plain protection. He was replaced before he could vote on the
project.5
LA County approved this massive project in March 1999
knowing that Newhall Ranch had no adequate water supply
and it ignored the General Plan’s mandate to protect the
Significant Ecological Area (SEA) status of the Santa Clara
River.
Still, a condition was attached to the County’s use permit
approval stating that tract maps would not be approved
unless and until a sufficient source of water was found for
each tract. This condition had the effect of delaying the
examination of adequate water supplies to the tract map
stage of the approval process. It also locked out the possibility
for local watershed protection that would aid water
supply by locking in inappropriate land uses granted with
approval of the Newhall Ranch specific plan.
Shell Game vs. Common Sense
The Newhall Ranch approval was in part the fault of the
area’s over-zealous growth-oriented water agencies. Controlled
by development interests, these agencies have
consistently overstated water supply by reporting access to
full State Water entitlement and relying on extensive
overdraft of local sources.6
Instead of reporting existing planned and available water
supplies, the local water districts’ state-required Urban Water
Management Plan lists aquifers that are currently unusable
due to ammonium perchlorate pollution. In addition, the
County’s water plan relies on water bank availability for
which they have no contracts. And it overstates State Water
Project entitlement availability.7
Water information supplied for the Newhall Ranch EIR
claimed availability of full state water entitlement, giving the
appearance of a large surplus of available water supply. This
was exactly the problem anticipated in the Monterey
Agreement EIR court decision, where Santa Barbara citizens
merely put forward “the common sense notion,” wrote the
court, “that land use decisions are appropriately predicated in
some large part on assumptions about available water supply.
There is certainly the possibility that local decision makers
are seduced by contractual entitlements and approve projects
dependent on water worth little more than a wish and a
prayer.”8
Further the Newhall Ranch Court was asked to take
judicial notice of a 41,000-acre-foot Monterey Agreement
transfer that was consummated just days after the approval of
the Newhall Ranch project.
The plaintiffs (of which I am a member) had no way of
arguing to the court the myriad infrastructure problems
associated with the acquisition of this transfer, the biggest of
which is storage. Castaic Lake Water Agency has no storage
facility, no spreading grounds, no means of accumulating
water locally to supply users in the event of a multi-year
drought. And yet this state water transfer would be the
primary, not the “supplemental” water source for thousands
of homes and businesses. With only a “pass-through” 4,000
acre-feet of storage in Castaic Lake, and a “flex” agreement
that allows only a modest increase in that amount that must
be repaid in a five-year period, there is no way of assuring
water to residents in a multi-year drought event.
We also had no means of bringing to light the shell game
that Newhall Land and the water agencies were foisting on
the public. This same Monterey Agreement water transfer
was promised to three different projects before three different
agencies.
Castaic Lake Water Agency first presented data indicating
that the transfer was needed for existing general plan
land use approvals.9
Then, Newhall Land and their subsidiary, Valencia Water
Company, obtained permission from the California Public
Utilities Commission to annex the Westridge project to their
water service territory based on this transfer.10
Finally, LA County Supervisor Antonovich clearly based
his approval of the Newhall Ranch project in part upon this
transfer.11
Even the Santa Clarita area water agencies’ recently
released Urban Water Management Plan lists aquifers that
are currently unusable due to ammonium perchlorate
pollution, water bank availability for which they have no
contracts and over-stated State Water Project entitlement
availability, instead of reporting existing planned and
available water supplies.12
How can local planners and commissioners be expected
to make good planning decisions with such inaccurate and
vague water information? It is time to put some teeth in the
urban water management law that requires more accurate
reporting if this tool is ever to be really useful to the communities
and planning agencies it is supposed to serve.
Wishing and Praying
During the approval process for the Newhall Ranch
project, Newhall Land and Farming argued that the houses
would be built over a 25-year period and that by then they
would find water.
But most proponents of good watershed management
believe that destroying Northern fisheries to feed sprawl in
Southern California is no longer an acceptable option. The 27
few years ago to get clear and plain analysis of water issues
into the planning process. No, the water agencies shouldn’t
be in control of planning (who would want such a headache?),
but they must provide planning agencies with
accurate information and planning agencies, for the benefit
of their communities must act on this information.
We must also strengthen California’s urban water
management planning law. At the moment, water agencies
are determined to support the development industry to the
detriment of existing communities and local businesses.
They may mislead local planning agencies that depend on
information presented in Urban Water Management Plans,
freely and without fear of repercussion.
There must be some means to ensure accuracy of
reported water supplies and verifiable methods of balancing
demand with real supplies. Some public or agency oversight
is needed to discourage overstating of State Water Project
supplies, require clear disclosure of polluted basin water
supplies, and timelines and financing mechanisms for
bringing on capital projects needed to support any future
supplies.
Southern California politics, particularly in the Santa
Clarita Valley, is still controlled by the development industry.
With huge sums of money at stake, it is difficult to make
even very reasonable public concerns such as adequate water
supply a meaningful and enforceable part of the public
planning process.
To continue supplying even our present
population with good potable water, we must have political
leaders willing to speak out and act to protect our local
watersheds. This is just good common sense.
NOTES
1. County of Amador v. El Dorado County Water Agency, No.
C027948, 99 C.D.O.S 9544 filed Nov. 3, 1999, certified for
publication Dec. 3, 1999.
2. Application 99-12-025, filed December 17, 1999, Ruling
JLN/BDP/abw 12/21/2000. Other aspects of the application
are still pending.
3. Planning and Conservation League v. Department of Water
Resources, Case no. C024576, Court of Appeal, 3rd District,
decision filed 15 September 2000, footnote #7.
4. Coalition for Los Angeles County Planning in the Public
Interest v. Board of Supervisors of the County of Los Angeles,
C366464, entered April 30, 1986, Judge Norman Epstein.
5. Commissioner Richard Wulliger.
6. PCL v. DWR, op. cit., note 3, above.
7. See Table 1-4 pg. 1-19, 2000 Urban Water Management
Plan prepared for Castaic Lake Water Agency, Newhall
County Water District, Santa Clarita Water Company,
Valencia Water Co. by SA Associates, Reiter Lowry Consultants,
Black and Veitch available on the CLWA web site at
www.clwa.org.
8. Cal Reptr 2d 2000WL 1342138 Cal. App 3 Dist, page 11.
9. Castaic Lake Water Agency, Draft Integrated Water
Resource Plan, February 1998, see Table 2-3, p. 2-6.
10. See California Public Utilities Commission Resolution
W-4154, 5 August 1999.
11. “...The Castaic Lake Water Agency believes that it will be
able to provide the needed supplies on schedule through
County line. Final LA County approval stated that future
tracts would not be approved if supplying them with water
would result in an overdraft of the local aquifers. But how
could Ventura County believe such a statement knowing that
water supplies were overstated and overdraft was already
occurring?13
In April 1999, shortly after the approval by LA County,
11 downstream public agencies (including 4 cities, flood
control and air pollution districts), a downstream water
district, three environmental organizations, and a low-income
housing group filed suit in Superior Court in Ventura County.
After a short skirmish over venue, the case was heard in the
neutral venue of Kern County by Judge Roger D. Randle.
Volumes of briefings and several days of oral testimony led
to a historic decision to set aside the Newhall Ranch approval
“until Newhall Land could demonstrate that adequate
water sources will be available for buildout of the project.”14
The August 2000 decision suspends “all specific Project
activity or activities that could result in an adverse change or
alteration to the physical environment unless and until they
comply with the provisions of the LA County General Plan
related to the development monitoring system as it relates to
water supplies and the General Plan policies of Los Angeles
County requiring protection of natural resources in SEAs as
they relate to [the Santa Clara River].”15
Momentous Water and Land Use Issues
How can we resolve such momentous issues before they
arrive at the doorstep of the courts? Local watershed councils
will help a great deal in this area. Although broad-based
coalitions may not reach consensus, they do provide a forum
for education and understanding of the wide array of impacts
brought about by poor watershed conservation.
We need to strengthen Senator Costa’s SB 901 effort of a future acquisitions.” Motion to approve the Newhall Ranch
Project, LA County Board of Supervisors, 28 February 1999,
and more specifically in correspondence to Karen Pearson
dated 11 February 1999: “Finally, with respect to the issue of
water, the Castaic Lake Water Agency has advised us of its
intent to acquire 41,000 acre-feet of water from outside the
Valley.”
12. Castaic Lake Water Agency, Newhall County Water
District, Santa Clarita Water Company, and Valencia Water
Company, 2000 Urban Water Management Plan, prepared by
SA Associates, Reiter Lowry Consultants, and Black and
Veitch, 2000, Table 1-4, p. 1-19.
13. See comments and testimony by Ventura County and
United Water Conservation District, Newhall Ranch Final
Environmental Impact Report, 1999.
14. Kern County Case # 239324-RDR consolidated. Judgment
entered August 3, 2000, p. 35.
15. Ibid.
