PPIC POLICY PRIORITIES FOR CA WATER: Environmental impacts, the Endangered Species Act, and extinction

Today I am channeling Peter Moyle, who we asked to sit in this seat, so as a fluvial geomorphologist, I’m taking the place of a biologist … Yes, I do have the reputation of Dr. Doom and I’m going to do nothing to dispel that at this point on the environmental side.

If Peter were here, the quick lesson we need to take from this particular drought is in this system is that droughts are evolutionary bottlenecks.  We force our ecosystems through drought periodically and actually that drives a lot of natural selection in this system.  As Peter Moyle and Ted Grantham and others have pointed out, we’re in a state of perpetual drought in California because of the way we manage water.  This is inarguable.  We’re in a state of perpetual drought, and then when droughts come, they really have a profound biological effect, because we’re in perpetual drought. …

I’m hopeful that by this time next year we all understand that this is the drought of the future.  We get a window into the future with this drought because it’s so warm.  Our climate flipped in 1980-83 and we shifted into a much, much warmer climate; we also shifted into one that is highly variable, so there are some really good lessons to learn from this, particularly because of the temperature of this drought, so to all of us who try to manage ecosystems, this is what our future looks like, and it’s really valuable to take a look at it in that respect.

Let me give you what we know.  This is all Peter Moyle.  He is the most brilliant mind in freshwater biology in California, and I’m only just channeling him.  Those 18 species of fish – those are most of our salmon runs.  The cold water dependent species are the ones that are being hit hardest by this, and that their future is pretty grim, if we continue with the status quo, and that’s one of the big challenges.

But I want to flip this on its head.  And it comes from spending yesterday reading the State Board’s San Joaquin water quality plan and the approaches they take.  Let me offer something some general observations.  The federal government and the state government despite well intentioned efforts have been unable to arrest the extinction trajectory of our freshwater dependent species in California.  I don’t know how you can paint it any other way.  We have been unable to arrest that trajectory.  The methods and the approaches we’re using are not working.

In fact, what I’ll argue is that what we suffer from is we’ve wedded ourselves to incrementalism.  And that’s been part of our challenge.  What we do is we say, ‘if we just had 80,000 cfs more outflow at the Delta, a miracle will occur.  If we can release just a little bit more water out of Shasta’ – I just don’t think that’s going to be the case.  There are many sound biological reasons and physical reasons in the system that incrementalism has not been working.

So let me posit something crazy, which has been posited multiple times since the beginning of the Endangered Species Act, that it may be in fact that we’re going at this all wrong … maybe should we take more of an ecosystem-based approach; these are ecosystems that we’re managing, not species.  I realize that is anathema to many people because that is a rethinking of the approach to the Endangered Species Act.  My question for all of you is can we think more about ecosystems?  If you think about it as ecosystems, you begin to stratify risk, rethink risk in this system.

Right now what we do is we focus on species with a species-based approach, which is extremely high risk of extinction.  We put all our eggs into that basket and we make tremendous resource investments in that, whereas the more moderate species with moderate investments might actually do better, and that’s if you take an ecosystem based approach to that.  You know, we can do really great things on ecosystems if we focus on the ecosystem function rather than the species.

One of the radical things we wrote about in a book in 2011 … What we’re doing is we’re starting thinking about specialization, and not trying to do everything everywhere at all times.  That’s acknowledging that not all species will exist in all of the historic habitats, and that we should be making investments in improving habitats where we can get the best return on those investments.

This is the notion of specialization, whereas Peter Moyle would say, making investments which have very high level of return, and some of this could be refugia, conservation of cold water is a good example; finding those places that those river segments which are a very high value and making investments in those.  That means not making investments in other places.

Specialization also is the radical notion that we can’t have salmon everywhere, and we need to concentrate our limited resources so that we have salmon where we can have salmon and make for robust populations.

Another radical notion … we surprised the biological community a few years ago where we did an anonymous survey and we asked them to look out in the future and the conditions of some species out in the future.  This was for a PPIC report where we looked at multiple stressors in the Delta, and it was illuminating to see what the scientific members of the community would tell us about the future of these species everywhere.

This is the now painful discussion … Peter Moyle will tell you that he thinks that some species are now functionally extinct, and some species are headed for extinction, and we need to have an adult conversation about what that means.  For some members of some communities, they will say, ‘this is great, it’s going to liberate vast quantities of water for other consumptive uses.’  That would be a terrible mistake, because what has happened to us is that so many of our ecosystems, if we take an ecosystem approach, are actually now reliant on the Endangered Species Act to basically keep those ecosystems in some way, shape, or form.  So that’s the last provocative thing I want to add in here.

I think we need to take an ecosystem based approach to management, and the reason I think that is that our ecosystems are changing, and the pressure is on, and we cannot make perfect endangered species habitat everywhere.  An ecosystem based approach has stratified risk and invests our resources more strategically then trying to make sure it is good everywhere at all times.

Then finally, let’s have a conversation about what extinction means.  We all know the Endangered Species Act did not consider extinction and what the consequences of extinction would be, and the second aspect is it never anticipated climate change and changing climate conditions and changing habitat conditions which will put stress on those things.

I agree with Jeff that we’re going about this all wrong right now.  My view on how we’re going about this wrong is that we are generally operating particularly the Bay Delta system way too much by relying on the Endangered Species Act.  The Endangered Species Act is designed as the emergency room for species; it’s the last ditch effort to stave off extinction, and what it basically indicates is it’s a flashing neon sign that we have failed to enforce all of those other good laws that were mentioned in the opening.

We haven’t updated water quality standards in the Delta substantively in more than 2 decades.  That’s a big failure for reflecting the current science and the current needs of the system, the pressures of climate change, and all of the other things.  We haven’t meaningfully enforced the public trust doctrine, 5937 and a number of other laws which are really much more foundational and much more focused on the bigger picture of trying to create a healthy ecosystem that addresses a lot of issues and in the case of the water quality control plan, does that in the context of what are the other needs that we have to meet while we’re doing this.

So I think the fact that we have basically called jeopardy on this system for almost a decade now and haven’t yet called on some of those other laws to replace the emergency room that we’re operating in is a big problem.  That said, the ESA has acted as a necessary stopgap measure to stave off extinction, which we’ve managed to barely do so far.  I sat in a courtroom in 2007 when a number of very respected biologists, including Peter Moyle, said Delta smelt were likely to go extinct within a year, so they are not yet.  We need to do a lot better, but the ESA is necessary but not sufficient part of the puzzle and we need to call on many of those other laws.

The answer is you have to set the goal you want to reach first before you can decide failure.  Since all of us spend all of our time setting different goals, ignoring the laws we don’t like and only talking about the laws we do like, it’s really hard to figure out how to answer that question, so I’ll go at it a different way.

The environment is still a junior partner in the actual actions of the federal government, the state government, and the local water agencies in California, in my opinion.  By the way, I speak personally at this conference today and for no one else.

So the answer is as an inheritor of all the things that you talked about was after the early days of water development and the destruction of the wetlands and so on, the Clean Water Act, the Endangered Species Act at the federal level and everything else was the first wave of major reaction to what is now mostly conceded as being a bunch of actions taken for human purposes that nobody paid much attention to the likely consequences,  But it doesn’t mean that we’ve advanced to the point that California law now requires, which is coequal status at least in the Bay Delta, for environmental protection and restoration of the Delta and a more reliable water supply for California, in my opinion.

That’s because even people who supported the 2009 legislation aren’t happy about seeing it applied.  Laws don’t enforce themselves, and we have a history in California of hundreds, probably thousands of laws in the water field promising water to every activity of human beings, either directly or preferred activities that they favor; you add them all up and it exceeds the available water on a pretty regular basis.

“Subsidiary question: is the Endangered Species Act – a species-by-species evaluation – really a good idea if you are talking about ecosystem management?  No, it isn’t.  Never heard any serious scientist argue that it is a great tool for multispecies, habitat, water, and all the other ingredients that go into an ecosystem, but at the same time, in the political context, it is one of those few things remaining that forces governmental agencies and private parties to pay attention to what ostensibly is legally now a coequal goal.

I always thought for all the problems the Bay Delta Conservation Plan had, they had a major statement of giving protected status to a very large amount of land, up to 150,000 acres; shifting to Water Fix has retained the magnitude of the tunnels, but decreased the amount of conservation and restoration, and it’s hard to visualize how that’s going to work over time, consistent with the coequal goals.  Personally I always thought that if the Kate and the water contractors could get together and work out some general thing, you might have gotten maybe federal but state authorization to try general ecosystem management through what was then the Bay Delta Conservation Plan in a more meaningful way.  Now that requires the involvement of scientists with decision making authority, not just the ability to comment; it involves serious and substantial amounts of money; and it means that water operations are merged with the decision making on ecosystem.  That opportunity I think has been lost for a while, although it’s worth thinking about.

For many of you, this is an unwieldy document and I don’t advise it unless you need some sleep, and that is to go into the State Board’s description of what they want to do in the San Joaquin … most people are focused on the fact that they want to increase the amount of water for the environment, so essentially the staff recommendation of 40% of the unimpaired flow.  But read it closely; what they are suggesting in this, and why I thought it was so intriguing, is that it isn’t 40% specifically; it is an allocation of water, of the unimpaired flow, which can be flexibly managed, at least in the period of February to June.  It’s a baby step in the right direction of something we have been pushing now for some time, and this notion of allocating water to the environment and creating the ability to flexibly manage it.

I am greatly influenced by what happened in Australia in a very different way than most of you are.  Most of you are focused on the urban management.  The environmental management in Australia during the drought, what was so striking about it was they allocated water to the environment and gave the environment the tools to flexibly manage it, and so the environment became a partner instead of a constraint.

Now mind you I expect the political process to chew up a lot of what the State Board is proposing to do, and indeed the State Board has said, ‘go out and do settlements and come back to us with your settlements.’  There’s the germ of a really good idea in there; it essentially represents an allocation that can be managed as an ecosystem in the San Joaquin.  Now, where we could really get a good argument going is what that ecosystem ought to look like and what its functions should be and whether it’s dedicated principally to steelhead and fall-run Chinook salmon, but there’s the germ of a really good idea in there.

I think the State Board’s San Joaquin flows proposal that’s on the table is a marked improvement over where we have been.  It’s a much better sort of more holistic approach than the ESA approach – the species by species approach that we’ve been using, so I think that for that reason, I think it’s a much better management tool.

I’m not quite sure what Jeff means when he talks about a water budget.  And what worries me about that approach is that I flashback to the early 2000s when we had the Environmental Water Account under CalFed.  What that essentially did was constrain fisheries agencies and made them feel like there was this set amount of water that they could use in any given year, and so they would hold back from calling for necessary actions.  This is all sort of laid out in a bunch of meeting notes, because they said we might need that water later in the year for salmon, or we might need it for some other reason, and as a result the Delta ecosystem in particular went in the tank, so that is a bad approach.

In terms of being more flexible and being able to allocate water where it’s most needed, when it’s most needed, at the right time, you can’t argue with that, that’s just sensible.  I’m not sure that anybody is proposing something different than that.

You were going to show that you’re remarkably insightful but very naive about the political process.  For all America’s talk about how self-reliant we are and how independent we are and how action oriented we are, in my judgment we’re actually are risk averse and want someone – anyone, someone else – to protect us from the risk of any change.

So if the federal government or the state would stand up announce that the state and the governor have now agreed to simply give trillions of dollars to anybody who complains about the lack of water, that would probably get a certain level of support in this room.  It isn’t exactly what I call a plan for managing water supply, because the reality is the water supply is not infinite; we cannot supply water in the amounts desired by everyone for everything for everyday just because you want it.  It isn’t going to improve because the population’s growing, the economy is growing, and even with the good conservation that’s going on and the drop in per capita use, the fact is we’re consuming more and more water.  It’s more costly, the farther you go up the chain of these actions, to generate reuse water for various kinds of things.

I think the real dilemma here relates back to the conversation in the previous panel … It was SGMA government public psychotherapy for water managers.  It’s a continuing debate in American society, the preference for local control over evil federal control, but the constant desire to have the evil federal government give us all the money we think we need, once we have the decision.

I spent 11 years as a local elected official and 14 as a state official; I see no higher level of courage between the state level and the local level of elected officials on imposing taxes or fees; I found a general reluctance of all of my peers to do that, and nothing has convinced me since that local officials are more brave than state officials, or federal officials.

I think what you ought to do on this one is think about the complication.  At what point do human beings decide they have to do things they don’t want to do, and are there things that we could do to encourage reaching that point?  John Fleck’s recent book on the Colorado River called Water if for Fighting About and Other Myths in the West is worth reading, because it’s behind that sweat and fear of independent action where you find that you really can do things. … Now how do you make other folks in that jump past the gap and that’s an art form, it’s very difficult to do.  John didn’t say it in his book, but it seems to me the intervention of the US Supreme Court most lately in the 1960s had a lot to do with it, because if there’s anything scarier than Jerry Brown, it’s probably the US Supreme Court.

Politicians are realizing every day that water is a terrible political issue for them, because they can’t deliver what their loudest constituents want.  The folks you deal with in the panels that yell at you for the first hour, hour and a half before you can talk to them about the issues.  They don’t care about any of the rest, they just want to be fully protected.  You can’t deliver that; no one can deliver that, and politicians are eventually going to want to turn some of these hard issues over to someone else.

One of the things that occurs to me is the Bay Delta could well afford to have a merged water and ecosystem operating system.  I keep looking at the Coordinated Operations Agreement on the federal and the state system, all these retired military engineers that push buttons … they just do what they are told to do which is solve problems, and they don’t like the politicians hovering around.

The purpose of politics is to convert contentious social issues into boring, good government.  And that’s what interests me.  How do you take a contentious issue and convert it over time.

I think there’s a big role for the courts, an action forcing role, much like Governor Brown’s conservation mandate was an action-forcing role.  When a court or when the Governor says you really have to do this, it makes people step up and pay attention.

I agree completely with Phil that we are in a very painful transition period in this state where we’re still moving from just reaching for the next river or groundwater basin to tap to a realization that we have overtapped those systems and we have to look for different sources of supply in terms of recycling, stormwater capture, and those sort of things and different sources of management, including efficiency improvements in order to get into the future.

That’s going to be hard, but one of the things we have to do in the near term is stop the bleeding.  We have actually gone to the court to try to prevent many of the waivers of our minimum baseline environmental standards that we’ve seen during the drought to prevent that from occurring again in the future, because that’s really made a bad situation for the environment in terms of the drought far worse, by taking at least a million and a half acre-feet of water away from those minimum environmental protections over the last three years, so yes, I think there is a role for the courts to come in and say ‘no, you can’t do that, you have to actually pay attention to your laws.’

Then we have to enforce those.  We have to get the State Board to update its water quality control plan, we have to look at all of the measures that we looked at holistically.  How can we bring the Governor’s Water Action Plan which has a lot of good ideas for achieving a sustainable water future, how do we really add some meat to that, and make sure that regions and communities can look at all of their sources of supply and demand management and be able to take less water from overtapped rivers and put more water into the groundwater basins while creating enough of a supply to get into the future.

I just keep harping on the State Water Board updating its water quality control plan, because I think that is the key thing that we need to do in the near term, and that addresses not just the decline of species that we’re seeing but the proliferation of toxic algae blooms, other toxic contaminants and other contaminants in our water quality system.  It provides the flow we need for habitat and so that’s going to be a key piece and if we can do that quickly enough and in combination with some of these investments in other tools, which a lot of people are doing.

We haven’t mentioned the mayor of LA who has announced he wants to reduce their reliance on imported water supply by 50% by 2025, maybe 2030, so there are a lot of people who are taking these steps, and if we can marry those things effectively, I think we can come back here and see the trajectory for many of the key species that we want to retain and have the healthy river systems that provide a lot of ecosystem functions on the path towards more functionality than we see today.

I can’t imagine that you can get much positive change in terms of big solutions.  If everybody approved tunnel construction tomorrow, ten years from now, it wouldn’t be finished.  So it’s not as if that’s possible.  You might see some accelerate pace of the agency’s compliance with the 2008 biological opinion, for God’s sake, which hasn’t yet started, but it’s supposed to be underway, but there’s an example of how rapid the pace is of complying with federal orders.  You could see some further deterioration of the fish species in the Delta likely, but how much more dramatic I don’t know.

The real kicker is if the dry years continue, hope to God that the Water Board imposes their mandatory water conservation requirements; I heard the discussion about local agencies that are doing the right thing, but the reality is that you can’t solve statewide problems or problems scattered around California by giving 1000 jurisdictions free reign to do whatever they want.  Adding up the individual actions of all the people of California does not constitute a water plan, it constitutes the status quo.  So I think you don’t see much change in 10 years.

20 years, 30 years – there can always be a cataclysmic event – what an earthquake would do, what a massive spill of toxic chemicals might do in the wrong location – that could lead to change, but I think the biggest possible driver is the fact that the urban public has advanced beyond all of us policymakers and water managers because they learned a lesson – we actually reduced our water use and we saved a reasonable amount of water and the world did not come to an end.  The absence of a continuing conservation requirement jeopardizes that opinion, because it means more and more people say, well it wasn’t a real emergency anyway.  That’s the only chance I see of getting near term action.

I’ll be a ray of hope. … I have a very different view of this, which should not surprise anyone.  The Sustainable Groundwater Management Act will be considered the most seminal water act, the most profound water act in our lifetimes.  And here’s what it will have done when we come back; it will have triggered us to have a good and productive conversation about reliability, and why reliability is so important, even if you’re relying on much less water in Kern.  The gold standard for them will be reliability.

At the same time, the environmental interests and the State Board will come in and say, ‘Let’s negotiate a solution on this.  Here’s our solution; our solution looks like you’re going to get less water out of the Delta, but it’s going to be much more reliable, and that will help you deal with the Sustainable Goundwater Management Act and its implementation without blowing it up.  But you’ll have more reliability and the way we’re going to do that is we’re going to allocate the environment a certain amount of water, and that’s what the environmental managers have to live with.  They are assuming some of the risk, instead of I need a little more, a little more – No.  This is what you’ve got; work with this for ten years because we need that sustainability south of the Delta.  That’s where I see the big breakthrough coming, driven by the Sustainable Groundwater Management Act.

At the centerpiece for all of this will be our changing State Water Resources Control Board.  Remember in our youth, the State Water Board used to have people go out and negotiate stuff and they accepted it?  And now they are a very different board, and now they are actually trying to push us to solutions rather than accepting solutions.  So on that day when I dodder up here, what we will be talking about is how the Sustainable Groundwater Management Act transformed environmental management in California, so there.  That’s optimism.

I’d take all the state and all the federal employees from the Coordinated Operations Agreement that’s been in existence for some time, I’d shove them in one building, I’d tell them to read the California law on coequal goals and reduced reliance on the Delta, and say, guys don’t screw it up.  That’s what I’d do.

This goes right back to taking an ecosystem based approach, and that is, what are the ecosystem functions we want to manage for and restore in this system, rather than saying I want to focus all my effort on Delta smelt.  No, I want you to focus on at least establishing the functions of an estuary.

The winter-run Chinook salmon is a good example.  I don’t want you to focus on the winter-run Chinook salmon, I want you to focus on reestablishing the functions in this system that support anadromy, and that’s a little bit of let the chips fall where they may approach, but I think with a very rapidly changing climate, and major fiscal constraints.  That’s why I say you take an ecosystem based approach to this …

I agree with that.  I think we have a pretty amazing base infrastructure in this state and I think we can use it much more to our advantage.  The Yolo Bypass is a great example, if we actually operated the Yolo Basin floodplain to increase salmon productivity, it could be a huge resource, but we haven’t operated it that way very well.  And I think because of how intertied we are throughout the state, we can start thinking about moving water around in different ways than we have in the past, and perhaps get more recycled water from urban areas into ag areas to help ease the transition from less groundwater pumping and less surface water pumping.  We need to operate it differently, is the bottom line.

I may have read into your question something that you did not intend, but I’ve just finished reading the latest book by Dr. John Weins, who is a landscape ecologist on the Delta Independent Science Board … He writes in English so I can almost understand what you guys say, but his reminder forcefully was that efforts historically to restore what used to be called the balance of nature, the natural condition to which everyone must aspire, has been surpassed by science.  It’s the periodic disruptions and the constant change and almost turmoil that goes on in the natural environment compounded by human impacts on that environment that make it really difficult.  That as much as anything is why I favor the notion of talking about an ecosystem, although I didn’t initially start with that view about ten years ago, and so I think all of these solutions and comments are appropriate.

All these science guys wander in and talk to us poor public policy people and they say, ‘look, here are the problems with what you’ve said you want to do.’  And we say, ‘oh God, that’s terrible; tell us what we should do.’  ‘Not our business, you set the priorities, and we’ll tell you when you’re wrong.’ Well, who cares about that approach!  …

So in addition to merging the operators of the Central Valley Project and the state operators of the State Water Project in one building, I’d throw these scientists in and say, you get to vote on both water issues and ecosystem issues so you can’t screw up either, because I can’t think of any better way to approach to this then to try and figure a mechanical process that takes the policy decisions, no matter how imperfectly written that are in state law, and tries to implement them.

Just one quick thought on that.  I don’t agree that we have been so focused on single species approach to our detriment.  When we looked at how do you restore the San Joaquin River, we looked at how do you restore salmon, because if you restore salmon to that system, you bring back the native community.  Same for the Bay Delta system, and I think a lot of the focus on the Delta smelt has been because it’s an indicator species for the health of that estuary which relies on that freshwater saltwater interface, that the smelt likes to hang out at and how functional that is, so these are species that really support a whole host of functions.  It’s not just about those individual species in my opinion.

I have been on the receiving end of Phil’s abuse over the years and I’ve enjoyed it so much.  And I am guilty of being a weasel when it comes to this very issue.  I’m the first to say, nice idea that won’t work, and that’s usually where I stop.  So I agree with him … this is where the scientific community has to science up, is the best way I can describe it, and what I mean by that is that we need to engage on the sociological side of this and be honest about it.

So if I got locked in that room with Phil, I’d say Phil, here’s what I think you can accomplish.  I think you can accomplish a system in the San Joaquin River which has fabulous riparian habitat that supports riparian function; I’m a little more dubious that you’ll be able to over the long-term support salmon as climate change is in that system, but I can tell you where you can, and you can in the Sacramento system, and maybe this is part of that notion of specialization.  I also tell you Phil I think you can restore a healthy – and healthy is a movable target – Delta.  That you can have a Delta with good estuarine function within it.  It may not have the native species you want, but it can be – and this is part of that visioning, it can be a healthy ecosystem as we as humans decide what that healthy ecosystem is.  So I think scientists, this is where we have to get out of the business that I’ve been in all this time of telling everybody they are stupid and wrong and then dropping the mic and leaving.  (applause)