Legal panel: Attorneys discuss upcoming California Water Fix hearing

I’d like to just say that Doug has pointed out that people feel this is a really big hearing and it’s really a big deal, but to me the bigger deal is the update on the water quality control plan.  This is really a change petition to move a diversion and to change the operations to operate both facilities, but in front of the State Board it is just adding that point of diversion in the north Delta.  The reason why it’s so big and there are a lot of parties is because it’s a very controversial project.

Because it’s a very controversial project, it’s in the news a lot, so I thought it would be helpful before we dive into the legal issues to get an overview of what the project really is, because I think there’s a lot of misinformation out there.  Rightfully there are a lot of parties participating to protect their interests, and because the issues related to the water quality control plan update are not supposed to be raised in this change petition, the issues do sort of intermingle and there’s a really fine line so everybody wants to make sure that they’re protecting their interests.  I don’t think the change petition should be controversial, but that’s not what’s happening.

It’s a very long process in front of us once we get started with Part 1 and Part 2.  Some of the important facts are that the SWP and the CVP are exporting out of the south Delta now, and this project would add a new point of diversion in the north Delta.  They would be operated in a dual conveyance strategy, so they would continue to operate the south Delta diversion as well as the north Delta diversion.  The overall concept of the north Delta diversion and for this project that what has evolved is that it is not a water supply project; it’s really a water reliability project.  From the exporter perspective, it is providing greater reliability in terms of overall annual average deliveries, but also protection against levee failure in the Delta by having that diversion point, as then you would be able to continue to divert if you had a levee failure from an earthquake, so to me, it’s really a water reliability project at this point in time.

The concept is when you have the diversions in the south Delta, you’re operating in Delta smelt habitat. There are times when you have high water flows and you’re not able to divert more than 3000 cfs or less depending on where smelt are located, and sometimes it could be miles away from the pumps so by having the north Delta intake, you’re outside of the Delta smelt range and you can pick up some of these flows.  In the last few years, we have seen pretty significant flows and we were curtailed in the south Delta, and had we had Cal Water Fix, in a couple of significant storms we would have been able to pick up a significant amount of water.  It would have been very helpful during these critically dry and drought years we have been in.

The concept is big gulp, little sip, so the kinds of storms that we could capture with this new diversion point would be when we have 60,000-70,000 cfs going by the north Delta diversions and outflow, we would be able to capture approximately 9,000 cfs from the north Delta facility, so it’s capturing some portion of flow during those really high outflow where we right now are being curtailed.

I would take an opposite position to Ms. Morris.  I think the change petition is not a simple matter – it’s a fundamental change in the operations of the Delta.  Maybe in the abstract that could be something that’s minor, but since it will deal with every aspect of the control of flows in the Delta – exports, water quality, outflow – it is a massive undertaking, it addresses numerous issues, and that’s why the whole water world is involved in it.

When you decide to change how the Delta operates, and by that I mean intercept water before it passes through the Delta or passes through most of the Delta, there are innumerable changes which are the subject of any change petition: you’re supposed to identify who it might harm, how it might change available supplies or return flows or water quality – all sorts of things so the notion that we can fundamentally alter the operations of the Delta without this massive undertaking I think is incorrect, because it will affect everybody.

The focus for the project, rightfully or wrongfully, is always to maximize their exports.  They are trying to supply water under their contracts for certain purposes, and those purposes are all laudable and beneficial to the state as a whole or society as a whole.  The problem with it, in my view, is that it’s the wrong focus because the problem right now that we’ve seen especially over the last four or five years is that the projects simply can’t meet their permit conditions.   Now I know they can’t meet their contract provisions because of water supply, but when you can’t meet the minimum flows in a critically dry year, that means there is something wrong.  It doesn’t mean they are evil or anything, but that means that there is something basically wrong with the system that says, now that we’re in a drought, the critically dry year requirements on the permittee have to be waived year after year.  That’s another fundamental issue – why would society as a whole, or the State Board itself, or other water users stand by when someone wants to improve the efficiency of their project without improving their ability to meet their existing obligations.

Everybody assumes now, rightfully or wrongfully, that the obligations will be a little more severe and a little more strict in the near future, whether it’s through this process or the Bay Delta hearing process, but in the last four years, we’ve had 21 temporary urgency change petitions granted or a recognition from the State Board that they will not enforce some condition – 21 times we changed the minimum flow rules in the Delta.  Now all of those change petitions have to do with the Delta as a whole; none of those change petitions has anything to do with the south Delta which everybody likes to ignore.  The water quality standards in the south Delta weren’t the subject of any change petition, and they’ve been violated 400 times in the last four years.  They are being violated right now.

These are massive issues.  How one is going to meet an obligation to meet a water quality standard, not how can one squeeze more water out of the system because somebody needs it.  I understand the need, I agree with the need, I know it’s an important need, but if you can’t abide by the rules under which you operate a project, then we need to redo something very significantly.

The temporary change petition process should give everybody pause.  Now for some reason, it doesn’t give the State Board pause, and I’m not going to insult them too much … but the temporary urgency change petitions are a scary process.  It’s a non-public process by which somebody says there’s an unforeseeable emergency that I couldn’t have addressed through the normal course of things, and I need you to relieve me from my obligation.  Now, when you have a small dam and the valve breaks or there’s a cut in and you go, oh my goodness, I can’t meet my obligation because something horrible happened, that makes perfect sense for an urgency change petition; it’s some unforeseen event.  When your long-term planning prevents you from meeting minimum water quality objectives after six months of a drought, not four years, but at the beginning of a drought, that’s not some unforeseeable, unaddressable situation that you need urgency relief for.  That is some fundamental lack of planning or operations.

With that history, we’re now contemplating the new Water Fix project.  Guess what the world would look like if we had two tunnels and a drought.  The urgency change petitions wouldn’t say, ‘I can’t meet X2, would you allow it to move in a mile’; the urgency change petition will say, ‘you know in a drought, the Delta would be all bad water anyway, so why don’t you let us take all of the stored water through the tunnels before it reaches the tunnels because that’s stored water, it wouldn’t be there naturally’, which is what they are saying now.

That’s why this is such an important watershed moment in the history of the State Board and the projects in that we’re trying to embark upon a path whereby we will allow ourselves to not only continue to not meet the standards, but also to ensure that in a drought, we cannot weaken worse – of course that’s horrible grammar.

Anyway, that’s my biased, narrow minded opinion, thank you very much.  <laughter>

Well I can agree with you on that.  <more laughter>

I do want to respond to a couple points.  Regarding the temporary urgency change petitions, the projects weren’t exporting.  We were at minimum health and safety when the temporary urgency change petitions were in place, so very low – less than 1000 cfs pumping between the two projects.  I don’t think it’s fair to say that we’re just going to take water when we’re in this critical drought in this new spot.  The temporary urgency change petitions really were meant to address species trade-offs between sending the water down the river from the reservoirs and making releases to meet the outflow requirements for other species or conserving that water in upstream reservoirs to meet cold water pool management; that was largely outside the projects control.  They were coordinating through the Real Time Drought Operations Team with the fish agencies and the State Board, but the State Board was setting the requirements and managing with the fishery agencies what the management of that cold water pool would be.

I think characterizing this change in operation of the Delta as ‘it’s the end of the world, we’re going to do this totally differently’ is a misnomer because the projects have said and they are required to meet the D 1641 standards; those are the current water quality standards that are sufficiently protective at this point in time of legal uses of water and to protect public trust resources. Now they are revisiting those, but those are the current standards.  DWR will continue to meet those standards.

Regarding the south Delta exceedances … for the most part the State Water Project operations have little to no impact and we can’t control what’s going on in the south Delta with water quality.  There are a lot of other more complicated issues which I don’t think we should get into here.  John and I have had spirited discussions about it.

The last point on D-1641 and the drought.  We don’t have a plan in D-1641 when we have these consecutive drought years and how do we deal with that; we don’t have an off-ramp to do anything, so we do it with these temporary urgency change petitions.  I do think moving forward with the new water quality control plan that we should be looking at what do we do in these dry years and how are we going to adjust so that we don’t have to go through this temporary urgency change petition process all the time but we have a contingency plan for drought built into the water quality control plan.

I now know why you seated me in the middle.  As they say, there’s a little bit of truth on both sides of the aisle.  And being in the middle, I’m going to try and walk the middle line here.

Let me start off my saying that Stefanie’s point about the petition is really correct.  The petition as drawn says the Department and Reclamation will abide by all of the senior water rights everything down the line, including area of origin, etc. and it’s to their credit that that’s what they put in the petition.

From the Sac Valley’s perspective where we have some doubts – we’re not from the state of Jefferson, contrary to what people may think, but we’re from the state of Missouri: ‘Show me’.  so we are eagerly awaiting the evidence that’s going to come in on May 31^st to be able to see if, when we actually being to look at something other than the couple of pages in the petition, we can really see that the project is going to honor our contracts and our senior water rights.  That’s an important thing for us, so in that regard I think Stefanie is right.

On the other hand, John is exactly right in saying that this is a very important process and it’s the details of how the project is going to be operated that really begins to say what are the effects on fish and wildlife and the other water right holders.  Again, hopefully on May 31^st we will begin to see that, so that’s where I think there is a little bit of truth, if we’re trying to find a common ground here.

I do think John raised a number of interesting questions that go well beyond Water Fix in the way in which the State Water Board operates and I just want to pick up on the TUCP process.  Everybody for the last two years has understood that the projects have been in very, very bad reactive mode.  Not anybody’s fault; these were two of the driest years on record. If you look at the hydrology, it’s a 500-year or a 1000-year drought.  We didn’t develop a system to deal with that sort of a situation.  Maybe we should; I think Stefanie’s point is well taken, as we go through the water quality control plan, we need to have these drought contingencies.

From a legal perspective, we really need to make sure that we have due process procedures in place, because when there is a draft order and we have three days to comment, we don’t have the ability to look at evidence, we don’t have all sorts of things that really go into determining whether there might be injury to water right holders or unreasonable and adverse effects on the environment.  That is not a good process, and I think that the water board is going to be amenable to looking at how do you revamp that process, at least I hope so.

The February 11, 2016 order was a ruling on a pre-hearing conference; its supposed to be procedural issues, but they did not just stick to procedural issues; they kind of waded into some substantive content in my mind, but the order came out with this sentence, referring back to what the appropriate Delta flow criteria is in the statute,  it says ‘The appropriate Delta flow criteria will be more stringent than petitioner’s current obligations (meaning D-1641), and may well be more stringent than the petitioner’s preferred project.’  That’s a sentence that caught a lot of people’s attention.  There were two motions to disqualify based on bias and predecisional.  That sentence, truthfully to me, sounds very predecisional, it sounds like they’ve already made up their mind that an appropriate flow criteria is something more than D-1641 and maybe even more than what the petitioners were even presenting.

The reason it becomes interesting is this is a prehearing conference.  When you go to a prehearing conference, you talk about schedule, order of testimony, what days are going to be spent here and there; you don’t take evidence.  They have absolutely no evidence in the record; they haven’t even started the hearing and we have this sentence.

In their order [responding to the motion for dismissal due to bias], they focused on the Andrews versus the Ag Labor Relations Board.  This case was interesting to me; it has interesting words about what bias could look like, but there are no facts, because the hearing officer for this particular hearing, he was in private practice and they were trying to disqualify him on a 170.6 where you don’t have to show any evidence on the fact that he represented minors in labor and litigation in his private practice, so therefore he couldn’t be a fair fact finder.  What the court said was no, that’s not enough, so we’re not even going to talk about that, so they didn’t get into the factual determination.  I find it interesting that it’s being cited by the board instead of going through a factual determination and talking about in particular this statement that they later clarified which they said in the ruling it was preliminary, but there’s no preliminary language in the original order.  That’s the basis of the motions to disqualify, in particular the San Luis Delta Mendota Water Authority’s motion for disqualification.

In the Board’s order from April 25^th, the board cites the Andrews case and says, ‘as explained by the California Supreme Court, the right to an impartial trier of fact is not synonymous with a claimed right to a trier completely indifferent to the general subject matter of the claim before him.  A trier of fact with expressed political or legal views cannot be disqualified on that basis alone, even in controversial cases.’  This long established practical rule is nearly a recognition of the fact that anyone acting in a judicial role will have attitudes and preconceptions towards some of the legal and social issues that may come before them, so what the Supreme Court was doing there in that passage was to say, look, you can’t simply allege that there’s an appearance of bias.

One of the interesting dissents in that case said, look we disqualify judges when there is an appearance of bias because to use the dissent’s language, ‘the appearance of justice, the appearance of bias, that we want someone to have their day in court; much better to disqualify the judge and make sure that our system of the judiciary is seen as absolutely unbiased.’  The majority didn’t hold for that.  The majority said, ‘we’re really worried about, particularly in the administrative law context, people having strongly held views, having experience in the area, and we don’t want to disqualify them merely if a litigant believes they might be biased.

The Court goes on to say a party must allege concrete facts that demonstrate the challenged judicial officer is contaminated with bias or prejudice.  We had invited Tim O Laughlin from the San Joaquin Tribs and Tim agreed to be here but he had a TRO this morning so he is not with us, so I’m going to try to channel my inner Tim O’Laughlin.  So then the Supreme Court says, using an example where a judge said, ‘if you put on this witness, I think you’d be totally screwed up,’ and the Court not surprisingly says such prejudgement of testimony is more than an appearance of bias; it evidences an actual bias.  Then in another case the Supreme Court looked at, they said here, where the judge wrote a letter to the parties during the pretrial phase of the case saying, ‘I believe the plaintiffs claims are meritorious and they will in all probability prevail at the time of trail.’  That’s a pretty clear bias, but if I were Tim O’Laughlin, I would go back to the board’s order, and I would say where the Board says in a preliminary procedural ruling that the appropriate Delta flow criteria, note the word, will be more stringent than petitioners current obligations and may well be more stringent than the petitioner’s preferred project, that comes pretty darn close to the judge who wrote the letter.  I think that’s what Tim was getting at in his motion, and so I think it’s a harder case then what the Board had put in the ruling.

I’m not sure that the evidence is there.  I haven’t seen the evidence that would demonstrate the type of bias, but I think it’s a much closer case than the Board’s order.  If you go back to the dissent, this was a 4-2 on the Supreme Court, the dissent says, ‘it is important, of course, not only that the integrity and fairness of the judiciary be maintained, but also that the business of the courts be conducted in such a manner as will avoid suspicion of unfairness. Prejudice, being a state of mind, is very difficult to prove, and when a judge asserts he is unbiased, courts are naturally reluctant to determine that he is prejudiced.’ It goes on to say, ‘the truth of cue, if any ultimate facts of human existence are established to the point of complete servitude, which eliminates all possible doubts.’

So if I’m channeling Tim, that’s the opening of my petition for a writ of mandate.  I think that there’s a really interesting question here about where the line is.  I think probably the Board is on the right side right now, but it’s a close question and for all of us who practice in front of the Board and all of us who deal with these questions of bias, we need to know where that line is.  I’m not exactly sure where it is yet, but I think that’s an important thing that will be informing the hearing as we go forward.

I think that’s a very good analysis.  It always boils down to what does the evidence show and what does the eventual ruler on that evidence conclude, but at the same time, this is why everybody hates lawyers, right? For many reasons … <laughter> … this can’t be looked at in a vacuum.  The State Board’s obligation is to protect beneficial uses, that includes fish and wildlife uses; it includes all sorts of things.

The State Board was ordered by the 2009 water bills to develop flow criteria as sort of an advisory that concluded more flow is needed.  Fish and Wildlife thinks more flow is needed.  Fish and Game, now Fish and Wildlife thinks more flow is needed. NOAA Fisheries thinks more flow is needed.  The Independent Science Board thinks flow is needed.  The Delta Conservancy thinks more flow is needed.  The Delta Stewardship Council thinks more flow is needed.  Everybody on earth thinks more flow is needed, so when the hearing officer in the thing says, the flows are going to be more stringent or more onerous – if they’d put the word ‘likely’ before that, then there’s no argument, because then they are saying, well that’s what the evidence seems to indicate, but this happens all the time, everywhere, especially with the State Board.  I hope that this doesn’t go up on a writ somewhere, because we’re just going to spend more time and money on this.

The State Board constantly makes statements that are prejudicial to a future or ongoing hearing.  I spent two years trying to convince some State Board members that there was water in the Delta when the San Joaquin River flows were low.  They thought the Delta flows were empty, which meant if anybody is diverting in the Delta, they are illegal diverters.  When D-1641 was going to apply to 1995 water quality control plan, everybody said ahead of time, it’s going to be assigned to the Bureau and DWR.  Is all that prejudicial or evidence of prejudice or bias?  Yeah, but unless you have some specific reference to the fact that they will not give you a fair hearing because they’ve already decided it, then it’s that waste of time effort.

Now if somebody thinks that the statement that these flows will be more onerous, that’s fine they can pursue that; I’m not going to criticize them for that.  But the fact that we’re undertaking the most important water related undertaking in the last 50 years before the State Board, taking this thing into the courts ahead of time so that we have three board members instead of five board members voting on that, there’s no merit in that.  There’s no benefit to be gained from that.  We all know that the fisheries are crashing in the Delta, historic lows for virtually every species, and the notion that the burdens placed upon the projects have been predetermined by that statement I think is a waste of time.

Now that is not to diminish what was previously said, because again there’s a legal question there.  Somebody can honestly believe that that’s enough and that shows that they’ve already decided.  What you should be more concerned about is what the Governor has told the State Board to do.  That’s not in the public; we don’t’ know what the prejudice there is and we can never find that out, but that’s why we’re having an expedited process instead of a normal process because somebody said, get it done!, so the get it done part is prejudicial against me and everybody else.  It’s pro project people, so it’s a big mess.  I didn’t’ join in any petition to disqualify.  I understand the issue but I think it’s a …

This is one of those situations where everybody knows that we need more flow in the Delta.  I was at the Water Board a couple of weeks ago, and a scientist from the National Marine Fisheries Service made a very interesting presentation.  If I understood his presentation correctly, and I’m the first to admit I might now, he was saying that the flows are pretty much adequate and what we have is a real problem of predation and invasive species in the Delta; those are not flow issues, those are other sorts of issues.  I think what Tim is saying is that those sorts of issues need to be determined based upon evidence presented to the board, rather than blanket statements in a prehearing conference.  If Tim were here, I think that is what he’d be saying.

I would agree that they shouldn’t make that blind statement.  If the evidence shows that flows are not the issue, then one would hope that the decision makers aren’t corrupt or biased to the extent that they won’t accept that evidence.  But it’s hard to argue that we don’t need more flows when the history of D-1641 is not meeting the flows, so we didn’t really have evidence whether or not the existing flows would have been beneficial or not or to what degree they were because they were violated constantly.

The 2010 flow report has a ton of caveats.  It doesn’t consider any balancing of the public trust.  That’s what the board says, well everybody knows we need more flow, we have this 2010 report – well no.  It talks about the timing and the magnitude; it says we need to look into other things and to take other things into consideration, we need to balance the public trust and all of that, so I don’t think it’s accurate to say that because the 2010 report says we need more water.  They wrote it, they caveated it, not me, so go back and look at it.

Second point, I think there’s a lot of confusion about what is being expedited.  This expedited process; people keep saying well it’s unfair to them.  It’s not an expedited process.  I don’t know who started using that word.  How can a 30 day hearing for one part be expedited?  It’s not expedited; it’s a normal hearing process.  All that they meant by ‘expedited’ is that it’s going to go before the water quality control plan or parallel. That’s just part 1.  If you look at part 2 on the schedule – we don’t even know if those days are going to hold or if there are going to be more days.  I don’t think anyone can argue 30 days of hearings on one piece is expedited or unfair or isn’t allowing them their day in court.

I would agree 30 days on one part of the hearing is not expedited, but the hearing itself, the scheduling, was expedited.

Now in terms of the Delta flow report, I think your point is well taken.  Let me ask everyone to do a thought experiment.  If we had not only a Delta flows report about how much water the fisheries could use, but the Delta flows report about how much water south of Delta ag could use, or the urban sector in California, I daresay that we would find that those reports would be just as over the top as the Delta flow report.  But we don’t have that right now, and so that kind of drives the discussion.

We all know that there’s more demand for water than we actually have.  The board’s responsibility – and I trust that they will actually exercise this at the appropriate time – is to balance all of those competing demands for water.  Not to say the fisheries trump everything, or ag trumps everything, or the urbans, but rather how do we achieve the general welfare per Article 10 Section 2 which is what the Board is called to do in its balancing.

The last part – first I would disagree with that.  There is a balancing that’s required in the development of water quality control plans, and there is a balancing that’s in effect when they apply those, too, but the notion that some area needs water when the minimum objectives are not being met by the permittee – that doesn’t need to reinitiate some new balancing that says, ‘well, even though we examined that in all of our modeling in 1995 water quality control plan and D-1641, we’re going to allow you some off-ramp later because we think it’s good that you have water.’  That balancing has already been done, and that’s why the TUCPs are so horrible is because they rebalance after someone has to suffer the consequences of the implementation of the water quality standards.

The time to challenge that is long past.  DWR didn’t challenge those in court; I don’t know if there were court proceedings on the D-1641, but there’s no balancing when you develop criteria and those criteria are applied to a water permit holder; they are supposed to abide by those, they don’t get an out because it’s harsh on them.  That’ s not how it works.

But let me go back to the expedited process.  In the normal course of things, somebody files a petition, the State Board reviews it, and they decide whether or not enough information is provided.  If anybody in this room thinks enough information was provided to support a normal petition in this case, they’re nuts.  The petition was horribly deficient; it’s not even close. The Department of Water Resources and the Bureau of Reclamation of had to begrudgingly admit that in both writing and in the preconference hearing; the State Board acknowledged it not only at the hearing but in their quarters after that.

Anyway, if you have a satisfactory petition, then there’s a notification that goes out to all the users that might be affected, which are supposed to be listed in the petition.  Then there’s a protest process and people get to file a protest, and then the petitioners are supposed to resolve the protest with people.  Then if they can’t resolve it, the State Board can try to help the resolution of that; they can demand more information if necessary in order to see whether or not there is the basis for some sort of resolution.  And when that’s all done, then you start to set the hearing process.

Now this thing started with a horribly inadequate petition last summer, August, and do you know what the State Board did?  The State Board said well let’s have two weeks in next March to review this.  What the hell is that?  A fundamental change to the Delta and we’re going to have a couple weeks of hearings? So of course, somebody corrected them in their error and they changed that, and so we started on this process which is now this horribly messed up ugly unresolvable thing.

Anyway, the whole thing has been rammed down our throats so that it could get done quickly.  There’s no reason this petition should be held before the Bay Delta Water Quality Control Plan completes, in fact, logic and rational thought tells you the Delta process should go first, because that’s what determines what needs to be done by anybody and everybody in order to protect the estuary.  We don’t go to the Bay Delta process to ensure some percentage of contract deliveries to exporters.  That’s not what it does.  It’s supposed to protect the beneficial uses and the ones that are at threat are the fisheries.

So before you do a fundamental change in the operation of the Delta, you would have a process that determines what needs to be done to protect the Delta, then anybody with a permit or license could say well I want to do something a little different, so please consider that, now that you have determined what’s going to protect the Delta.  Because when you do it this way, guess who loses – the Delta.  If anybody thinks that this process is going to result in a recovery of any species in the Delta before the Bay Delta plan goes forward and new water rights – their nuts.  This thing is so screwed up, it’s hard to sit here and talk about it.  It’s really nuts.

Now I don’t mean to be rude, but this is a horribly exepedited process; it’s being rammed down our throats because the Governor told something to get it done now because he wants the project approved.  That’s it.  Because no other petition has been handled in this manner.  Now that doesn’t even get into the issues of the modeling and CEQA which I think will be part of the motions for dismissal.

There’s nothing different about this process than every other change petition process.  There’s not.  Why do we need a protest period?  It’s like religion.  We are not going to resolve all of the protests that have been filed.  We have been negotiating deals with Delta users  – we haven’t come to resolution at this point, so why do we need a protest process for dismissal when we know we are not going to be able to resolve the protests.  We might resolve some, but we’re not going to resolve all of them.  That doesn’t significantly change this process, in my mind.

Secondly, I would ask John, if you want to change your point of diversion right now, do you have to wait until the State Board finishes a process that they started – how many years ago? That updates the water quality control plan?  And you have to wait as a water user until they are done with that process before you can petition the board to change your point of diversion?  Or is that just apply to the projects?

That’s just for the projects because my license or permit diverts 3 cfs.  <emphatically> Your licenses and permits dam the main rivers of California, regulate the downstream flow, adversely affect outflow, kill all the fish, and export water out of the system!  Of course you should be treated differently! <laughter>

Wait a minute.  She just said that Department of Water Resources or whoever they are have been triple negotiating with the Delta.  That’s what called false.  I’ve been trying for 25 years to negotiate a contract which was required by law of DWR and the Bureau, and they won’t talk to me.  …  DWR has no interest in negotiating with the Delta parties to resolve these issues.  If that’s an excuse to have an expedited process, so be it.  The Bureau refuses to even talk to me, nothing gets done, nothing moves forward, they do not want to solve the problems; they want to say the Delta people are obstructionists and in the way when they won’t sit down and talk to me.

When BDCP was in its infancy, Alex Hildebrand and I sat down with Gerry Meral, we invited the contractors, we sat down and said let’s move forward on this, so we were working on that, and then they said, ‘goodbye John.’  The federal contractors told their two of their representatives to not talk to the Delta people, so I don’t want the impression to be given here, Stefanie, that there’s somehow a lack of effort to resolve these problems.  There’s a decision to not resolve these problems in the Delta, and that’s why these hearings are so important.

Because the hearings are an initial step in an unfair process that we hope at the appellate level at the courts, we’ll get some justice.  But this process is simply meant to accomplish export goals of infrastructure, and I told you what happened when we have a drought and we have that infrastructure.  There’s no justification for the expedition of this process.  It’s contrived in order to get it done quickly to the detriment of the Delta.

This is one of the most studied projects.  Historically, the State Water Project always considered and was anticipating building a project like this, some alternative conveyance, so I apologize if I insinuated that there’s ongoing discussion with John; there have been discussions as he has noted.  I am not privy to them, but if I was guessing, maybe John was asking too much and maybe that’s why he can’t get a settlement.  In his mind … I don’t know …

I would like the projects to leave me alone, that’s what I’m asking for …

Again on the TUCP, I think that saying the projects are going to take advantage of that situation is just not accurate because that TUCP were for fishery purposes.  Saying the projects kill fish – I think that’s unfair.  The State Water Contractors and our member agencies spend a lot of money trying to do science to try to understand what’s going on with the fish.  We spent a lot of money litigating against Sac Regional to get them to upgrade their facility, so the fish have better food, because it was affecting the food system in the Delta.  We’re not interested in killing fish; we’re interested in understanding the mechanisms and addressing the Delta fishery issues from a holistic perspective.  Just dumping more flow down without understanding what it’s going to do – we don’t think that’s a good use of water.  We think we should be looking at flow, we should be looking at predation, we should be looking at habitat, and food.  We need to be looking at it holistically, not just from one flow-centric perspective.

We could go at this all night if you want, but the history of what’s going on is not understood, I’m sorry.  And because I’m at ground zero, I’ve been forced to understand it. I don’t know what the year was – 2000, 2001 – I was on some phone call for some Delta group.  During the early years of CalFed they kept changing the forum, management group – and then when more people started going, they’d have a no name group that other people were invited – they tried to make sure people couldn’t participate and the public didn’t know what was going on.  In one of those conversations, the operators and the fishery people are talking about – this is true now –  ‘the last two weeks, we killed 100,000 smelt’, which by the way was a listed species, and the debate was whether or not to go red light or yellow light warning at the pumps – not to stop killing them, but what warning stage should we go to; in other words, how closely monitor how many more will be killed in the next week.

Now we have 12 smelt, right?  Maybe 7.  3.  This has to all be taken in perspective of the unbelievably massive impacts that the projects have had in the Delta.  If we keep denying that that’s the history of what’s going on, we’re not going to solve it.  A project that has some better flow regime in the Delta may help us and it’s probably too late, but it may help us.  A project that makes it easier to siphon off more water sometimes can’t help the Delta, right?  It can’t help the Delta.  Now there are all sorts of disputes about fish and back and forth about what’s good and the biologists probably don’t know what they are doing anyway, but you have to have water.  Water is the medium in which fish live, and when you suck them down to the pumps and kill them all, or when you fundamentally change the hydrodynamics of the flows of the system, that’s what is bad for the species.  That’s what we have to fix.

Let me try to sort out.  This is the problem we have about this Water Fix project – there is a lot of heat and not so much light.  Stefanie is exactly right in saying that you have to look at this problem holistically.  In the Sacramento Valley, we’ve been trying to do that.  We’ve been trying to say, what are the stressors on fisheries and how do we begin to address them.  A great example is our Knights Landing Bridge Outfall Gate project.  A couple of years ago, we had a bunch of salmon that strayed up into the Colusa Drain, so what we did was to put essentially a fish barrier so that they can never come up there again.  It was dedicated by the CDFW Director Bonham a couple months ago.  It’s a major success story, because we look at the situation holistically.  We didn’t think that simply throwing water at this problem is the only solution.

There’s no question that John is correct that water is a part of what’s going on here. Fish do need water to swim in, but on the other hand, the question is after CVPIA, after the RPAs, etc. how much water do we really need and how do we optimize, balance, whatever words you want – respecting water rights and all the other sorts of things we’d have to deal with and how do we make sure that all of the beneficial uses are served? I come back to that’s the water board’s function and I trust that at some appropriate time, they are going to do that.  But that’s the debate we’re having, and it really shouldn’t’ be an either-or, it’s a both-and.

I’m Tim O’Laughlin , it’s really very clear that this is an absolutely paltry effort to try to comply with the water board’s regulations.  I believe it is section 794.6 (but don’t quote me on that) of the water boards regs that says in great detail exactly what needs to be in a petition.  John alluded to a lot of this before, that you have to say who is going to be affected, what are the changes in flows, what are the changes in water quality, and what are all of these different things.  You need to notify everybody and the Department did that by mail; but you have to have a lot more information.  Until you have that information to allow everybody to see what this project might be and whether or not they might be injured, dismiss without prejudice to allow them to file again.  I think that’s where Tim would be.

I think that’s correct.  Whether or not you’re biased like myself or some real attorney like David, there are those specified criteria that are supposed to be complied with, and all you have to do is read the petitions, and you end up looking sideways and feeling embarrassed for whoever wrote that.

There’s a long tirade about the needs of the projects really, but it doesn’t get into the specifics of what’s going to happen and the effects.  Then it says by the way, please see our draft EIR-EIS.  You know, the first one was 30,000 pages, the second one was 10,000 or whatever it was.  And then we find out at the pre-conference hearing – that’s when I found out that the biological assessment process going on for compliance with Endangered Species Act used different modeling and different operational criteria then were in the draft EIRs.  Now you should have all gasped at that and said, well that’s not right, is it?  Well it’s not, and so we have a petition that said please rely on this while at the same time and developing and negotiating I guess, new project criteria.  So you don’t have to be a biased Delta-centric person to say that your petition’s not complete, try again.  That’s no bad, horrible, uncontrollable duty that you put on somebody; that’s just normal.  You didn’t submit a petition that filled out all the blanks and it didn’t tell us what’s going on.

Now that’s why we have that protest process, which Stefanie thinks shouldn’t be happening because it probably won’t result it anything, but that’s why we have that.  Because the protestants can then say, okay I’ve looked at what you say you’re going to do, I believe this is how it affects me, and then the other side says, oh well no, or maybe we can do that, or … but we didn’t even have the information analyzing the proposed operations when the petition was filed, so the question is when do we get that?  Well, they kind of released most of it after the preconference hearing when this came out, but that’s all new modeling and analysis and each new model has all these thousands of new assumptions.

The biological assessment lists all of these differences, and you know what all of those differences are?  The off-ramps Stefanie is talking about.  If we have one dry or critically dry year, and by February 1^st of the following water year, it looks like it will be dry or critically dry, then the Drought Emergency Teams will have developed and will pursue temporary urgency change petitions.  So they are telling us that if we have two dry years in a row, we won’t be operating according to the modeling we’ve done.  Now how do you analyze that if you’re the State Board?  How do you analyze that if you’re a Delta person?  How do I say, what are the effects upon me when the project proponent says I’m not going to operate the way I tell you I am if something else happens?  What are the effects on me then?  That’s one of the reasons why the petition is insufficient; because it doesn’t’ tell you how it will affect you in certain places.

The whole purpose of the process is to see how it affects you and under certain conditions.  Not harm other legal users, that’s why we’re there is to see what happens.  You could say you’re harmed and you’re wronged, but that’s the whole purpose of the process, but it’s been contrived so we won’t know how it’s going to harm us.

Now let me just back up for a minute … riddle me this, Batman.  If you go in front of the fishery agencies and say, ‘I would like an endangered species take permit or authorization because this is how I plan to operate, unless there’s a year and a half of dry years, then I’ll do something else, please give me a permit,’ well they’d laugh you out of the room, because you’re not telling what you’re going to do, so they can’t analyze what you’d do to see what it would do to fish.  What they are saying, is if we have a year and a half of dry conditions, then we’ll talk about it again.  This is nuts, isn’t it? It’s nuts because there’s nothing to analyze if you say ahead of time, I’m going to change my operations if I have a year and a half of dry conditions.

There are other reasons we’ll get to, I’m sure, but the petition is in no way compliant with the regulations about what you have to file in order to proceed. There’s no way.  It’s not even close.

Let me try to start by saying that the petition did not include all that information, and I think that the Board’s regulations which lay all that out is a good way to operate.  But again, trying to be a lawyer, the Board has inherent authority to manage its own process.  And what I think the Board is trying to do is to say look, we understand we have to get all this information out, and so with the extensions for the commencement of part 1, they’ve said to the two petitioners, we want you to essentially put all of that information, including terms and conditions that would protect other legal users of water, etc, in your submission for May 31^st.  OK, is that what the regs call for? No.  Does it get the information out so that everyone can analyze it, all the protestants and everyone else who is going to be participating prior to the submission of testimony and prior to the protestants case in chief? Yes.  So is that necessarily most streamlined and most efficient and most by the books way to do it? No.  Is it within the Board’s authority? Probably.  And that’s I think where we are.

I agree with that; the Board has wide discretion on how it does that, and I don’t think it’s doing anything illegal by proceeding on this, I just don’t think it’s the right thing to do.  That goes back to the normal process, and in the normal process, something like this would take a few years.  We’ve seen that in other change petitions, and it takes a few years because it takes that long for the discussions between a protestant and a petitioner to see what are those effects.

Now when that information comes out a couple months before the hearing, I can plead poverty and say we don’t have the assets and the people and the time to put into that analysis in such a short period of time, but that’s irrelevant.  But it does allow that longer period of time for people to actually figure out what’s going on and measure the impacts against themselves or how they see it to proceed on that.  When you don’t go through that process – the protest resolution, then you get this shortened period.

I don’t know if you in the audience appreciate the magnitude of the problem of somebody analyzing and doing cross examination for modeling, for BDCP/Water Fix.  There are billion lines of data and 10,000 assumptions, and models used tiers slightly differently – it’s an unbelievable undertaking, and I think rather than go forward with a petition, the State Board should have tried to make it easier on everybody and held some sort of preliminary technical analysis where everybody could come in and try to figure out what’s going on.  It’s unbelievable.  But again, it all goes back to if you do the normal process, and you require all the information up front, then I think people have a fighting chance to put on a cogent case in chief or have their side heard.  It doesn’t mean you win ever, but it gives the appearance of being fair.

But this way, to me it’s unworkable.  We’ll have 30 days to review modeling that was never disclosed until January-ish, late January, early February, and then we’ve got to go through that and see if we need to prepare a rebuttal witness or something and how do we do that and how are we going to find an expert – it’s impossible.  I want you to hearken back to what I said earlier that the State Board said we’ll have two or three weeks in March and we’ll do that.  The magnitude of this is overwhelming.

I think the environmental document that was pointed back to in the petition, it analyzes several different options.  The biological assessment modeling that was referred to was further refined because the fishery agencies wanted some updated CalSIM to be used, and they wanted to sort of narrow what the project became after the pivot, which is Cal Water Fix.  In addition to that, I think the Board heard the issues and that’s why DWR and the Bureau have to submit their written testimony which will have to include all of the bases for what they are proposing for the project.  People have 30 days to prepare for cross examination.

I think the key thing is that everybody else doesn’t have to submit their case in chief until two months later.  By that point, they’ve had additional time above and beyond, so the State Board did try to accommodate those requests, and that’s the best that they felt was necessary for due process.

Moderator Doug Coty clarified the dates being discussed.  “The case in chief for the petitioners is due on 31^st of this month; the hearings should start on July 26, the protestant’s case in chief would be due on September 1^st.  And there’s also an interim date of May 15 where petitioners have been required by the State Board to provide a written update on several items, including some negotiations with others, potential permit conditions, and updated modeling, so there could certainly be changes to the modeling information that had already been released following their discussions with the fisheries agencies on the biological assessment.”

That’s someone trying to be clever to suggest that we’re doing something wrong.  The South Delta Water Agency has about 149,00 acres; I don’t know the number of diverters there.  We don’t supply water; we were created by statute in order to give a voice with a tax base so to speak, so that when the State Water Project was going in so that we could negotiate a contract with the Bureau and the State.  There are very few measuring devices in the Delta, part of that has to do with the practical problems.

One of those is McDonald Island in the Delta.  It has I think 75 siphons, so when you pencil that out, you say, oh my God we need $500,000 worth of measuring devices when that island actually pumps more water back into the Delta then it removes from the Delta.  That doesn’t mean its new water, but it’s that sort of a complicated situation where when you divert too much out of the Delta (I’m being facetious here) 3 minutes later over what you should have or allowed whatever, it goes back in the Delta as it’s all the same water. Now people argue about the Delta pool or not, but there are long discussions we could have, but we have very few measuring devices.  When the rule came out, most of the people took the category that said, ‘not economically feasible’ and the State Board didn’t argue with that.  We’re now under new rules and we’re trying to work with them to figure out how to do that, too, so whether or not I’m a bad person or Delta people are cheating on their diversions, everything I said before that is still applicable, logical, and correct. <laughter>

Picking up on my Tim O’Laughlin channeling here, you are cheating on your diversions.

I wasn’t trying not to go there, but I’m glad you did … (laughter)

There are 1800 diversions in the Delta, and whether that water goes right back, it’s different quality – I don’t think we have the data.  I think what would have been more interesting on this panel would have been a discussion about the curtailment and situation in the Delta this year.  John kept raising that the project was changing the rules and missing the point that we’re not really getting any water, we’re at health and safety, it was for fishery purposes, and didn’t mention the fact that there really were not curtailments in the Delta.  There was two regulatory proceedings for the last year, and there was a complaint filed by my agency about protecting stored water. …

That was very polite, but I don’t what the hell that just meant.  Plenty of people stopped diverting because of the threat of the State Board’s curtailment.

That’s not true that those were informational and that they had no effect so nobody was listening to them, and the only diversions that maybe stopped were reduced were …

We shouldn’t go much further with this because that’s not correct.  But whatever the court ruled, that wasn’t determinative in people trying to evaluate whether or not they should continue and a number of people stopped diverting and changed their practices.  But regardless, the issue of Delta diversions is a big issue.  The projects take into account the amount of water consumed in the Delta in their operations.  Just for your edification, whether or not specific information will give you more beneficial information, the gross calculations now of Delta islands consumptive use are probably close to the best you can do, given the tools of operating the Delta. And those tools are upstream releases, exports, and maybe a little Cross Delta Channel, so when you say, when someone says, we need to know whether there’s 7500 cfs being diverted here, or a 125 cfs, that’s irrelevant to the project operators, it has no effect on them because they can’t make those sort of adjustments.

That is not true.  A water right by law is based on what you divert, not what you returned …

That’s a different issue.  I’m talking about the operation of the Delta …

There’s a lot to that, I do not discount any of the issues that you said.  I do disagree with a lot of them.  The CVPIA was based on the false assumption that there was a surplus CVP supply and so they offered 800,00 acre-feet then they fought for ten years over what did that mean.  So some water was dedicated for other purposes and it was a big mess. CVPIA also said, anadromous fish doubling program, and that was supposed to double flows on the river, and we’re nowhere near that.  That’s not a snide comment, we’re just nowhere near that and it’s never going to happen.

So the question is what do you do? There are all sorts of things.  It’s true that predators, invasive species, fishing, all sorts of things affect fish, that is correct.  In my view, and this is not to be anti-contractor, the cause of the decline is the operation of the projects.  Other things do affect fish, but those other things have become more important because of the effects of the projects.

Now if the projects weren’t there … when we have those bad droughts which we just had and hopefully not still, it’s absolutely true that the flow would decrease, then the salt water would slowly intrude into the Delta, and depending upon the year type and we’ve argued this recently, but the water moves in, it takes months for it to move in.  Nobody knows what it would have looked like in 2015 or 2014 under natural conditions … but we do know what it looked like before the projects, and the worst drought years on record were 1931 or 1932, and in 31, there was damage to Delta ag from the bad water quality coming in, there was, but the crop production was not significantly decreased and there were actually parts of the south Delta that never got to that 1000 parts chloride problem because the San Joaquin River was still alive, so it’s kind of a trade off to say under natural conditions would we be good; is it better to have the projects there, I don’t’ know how to answer that, except they approved them, their built, and they put requirements in there for salinity repulsion.  So there’s a long discussion on those things you just said – those are very good issues, I don’t have an answer except that it’s very complicated, I still think flows are the most important thing, and people disagree with that.  And they can, that’s fine.