CALIFORNIA WATER COMMISSION: The Delta’s history and ecology take center stage

Dr. Bruce Herbold, Robin Grossinger, and Hap Dunning among the panelists on hand to discuss the Delta’s historic ecology, the condition of native fish, the legal framework, and the emerging strategies for restoration of the Delta ecosystem

In November 2014, California voters approved Proposition 1, the Water Quality, Supply, and Infrastructure Improvement Act of 2014.  Chapter 8 of Proposition 1 provides $2.7 billion for public benefits associated with water storage projects that improve the operation of the state water system, are cost effective, and provide a net improvement in ecosystem and water quality conditions.  Eligible projects must also provide measurable benefits to the Delta ecosystem or its tributaries.

With the application period for the Water Storage Investment Program closed, Commission staff are working through the applications.  In order to inform Commission members who will ultimately make the decision, a panel was assembled at the August meeting of the Commission, held at the Bay Model in Sausalito. The panel was comprised of Jessica Pearson, Executive Officer of the Delta Stewardship Council; Robin Grossinger, Senior Scientist with the San Francisco Estuary Institute; Dr. Bruce Herbold, retired fish biolgoist with the EPA; and Hap Dunning, professor of law at UC Davis; they discussed the ecological history, the restoration challenges, and the legal framework overlaying the Delta. After the panel presentation, Carl Wilcox, Delta Policy Advisor with the California Department of Fish and Wildlife and Jennifer LaBay, Environmental Scientist, State Water Resources Control Board joined the discussion.

To set the stage for the panel presentations, Assistant Executive Officer Jennifer Ruffolo began by playing a short video about the Delta that was produced by the Public Policy Institute of California:

Ms. Ruffolo then introduced Jessica Pearson, the executive officer of the Delta Stewardship Council, who then gave an overview of the role of the Delta Stewardship Council and how the Council is focusing on science and policy in the delta.

JESSICA PEARSON, Executive Officer of the Delta Stewardship Council

Ms. Pearson began with a map of the Delta, noting that the Delta is a land of many uses as well as a complex web of governance and litigation.  “Water in California falls mostly in the north in the mountains in the Sierra Nevada as rain or snow,” she said.  “It’s stored in reservoirs and released into the Delta. Large pumping plants in the south of the Delta reverse water flows to pull water across the delta for export. Releases from reservoirs are timed to deliver water, protect against flooding, and they must also help repel intruding seawater and manage the tidal influence, which is a growing challenge. Before the pumps and reservoirs, there were seasonal floods and dry periods, but now it’s a human managed freshwater system year round, which requires a constant balancing between fresh and saltwater, especially during periods of drought.  And all of this is happening in an estuary of national interest, which is home to 750 bird and fish species, as well as home and workplace to a couple of hundred thousand Delta residents.”

Besides water infrastructure, many different forces have shaped the Delta, she said.  “Before the development boom of the 20th Century, the Delta was a vibrant ecological region, with many different types of habitats, and thriving native species.  The federal government gave what they viewed as underutilized swampland in the late 19th and early 20th century, allowing people to reclaim it or drain it for agricultural use.  This policy significantly changed the Delta from a seasonally flooded marsh, to a system of drained islands, surrounded by urban levees.”

“Much of the land today is still farmed, thanks to year round managed fresh water,” she continued.  “Only about 10% of native species habitat remains and several species are endangered. In effect, it’s a highly altered system that requires it to be highly managed, and we’re all collectively trying to figure out how to do that.”

While the Delta is special, it is not completely unique in its challenges, she said.  “The Delta faces climate change, aging infrastructure, species extinction, water quality concerns, urban development pressures, unstable levees, and land subsidence, similar to many of the major ecosystem regions across the country, such as the Everglades, and coastal Louisiana. However, these challenges in the Delta are concentrated within a single populated region that must deliver water to over 28 million Californians.  It’s also done through an inverted estuary that connects the Sierra Nevada to the San Francisco Bay, and the Central Valley. You may hear the Delta referred to as the Hub, the Switchyards, a bottleneck, the heart of California’s water supply, et cetera. All are apt descriptors, in my view.”

The 2015 Delta Challenges Report was authored by four former Delta lead scientists and prepared at the request of the Obama and Brown administrations.  “The four scientists summarized the problem like this: if the Delta problem was about allocating freshwater flows, it might be solvable,” Ms. Pearson said.  “Add in the complexity of the moving water through a hydrologically and hydrodynamically complex Delta, and it becomes complicated.  Add the uncertainty of ecological responses and the institutional complexity of many actors with many visions, and the problem becomes wicked. Then add the ever-changing water supply, and ecological and economic context, within which decisions must be made, and the problem becomes devilishly wicked.”

“They conclude that such problems can’t be ignored, that they defy straightforward characterization, and that they have no simple solutions, yet they must be actively managed to maximize beneficial use, and minimize adverse outcomes,” she continued.  “One of their key conclusions was that the fate of the Delta’s ecosystem rests not so much on technical solutions, but on the capacity of our organizations – your organization, my organization and others – to navigate this institutional complexity.”

The Delta Stewardship Council was created by the 2009 Delta Reform Act to address this institutional complexity, she said.  “We are charged to provide direction for the long-term future of the Delta, in pursuit of specific goals,” she said.  “Our role at the Council is to develop a legally enforceable management plan, which is designed to achieve the co-equal goals of state water supply reliability, and a healthy restored Delta ecosystem, all in a manner that recognizes the importance of the Delta as place. The Council provides leadership, coordination, and also, some regulation of projects.”

The Delta Plan, adopted in 2013, includes 73 recommendations and 14 regulations.  “The Council mainly does its job through inter-agency collaboration, but was given a novel regulatory authority by the legislature, known as covered action authority,” she said.  She explained that a covered action must meet a five-part test:  It’s a plan, a program or a project under CEQA; it occurs in whole or in part in the Delta; it’s an action carried out, approved or funded by the State; it’s covered by one or more provisions in our Delta Plan; and will it have a significant impact on the achievement of the co-equal goals, and/or a government-sponsored flood control program.  Projects must certify consistency with the Delta Plan’s 14 regulations; that certification is subject to appeal and review by the Delta Stewardship Council.

The Delta Stewardship Council has seven members and a staff of about 60.  The Council also includes the Delta Science Program, which is guided by a vision of ‘One Delta, One Science,’; their job is to synthesize and communicate best available science to decision-makers, as well as to coordinate and improve how Delta science is done. They conduct independent reviews, organize brown bags and symposia on key issues.  About $5 million per year is funded for research.  The Council is also informed by a 10-member independent Delta Science Board.

The Council has a full-time chairman, Randy Fiorini, and six part-time members.  One of the members is the chair of the Delta Protection Commission, a rotating position which is typically a Delta County Supervisor.  There is one Senate appointee, one Speaker’s appointee, and four gubernatorial appointees.  There is a Delta Lead Scientist, employed by the USGS, a position intended to guide the Council on science as well as serve as a mentor for Science Program staff.  The Lead Scientist is recruited by the Independent Science Board and appointed by the Delta Stewardship Council.

Ms. Pearson noted that the Council doesn’t implement the Delta Plan by itself but relies on other agencies and project proponents.  The legislature envisioned this and directed the Council to establish a committee of agencies responsible for implementing the Delta Plan.  The Delta Plan Interagency Implementation Committee consists of 17 state and federal agencies which meets twice a year, as well as year-round work groups to move initiatives forward.

In addition to the heavy reliance on science, the Delta Reform Act called for increased use of adaptive management for water and ecosystem projects.  “Sometimes I find that it’s easier to explain adaptive management, by saying what it’s not,” Ms. Pearson said.  “It’s not building a project,walking away, and hoping for the best. It’s using an intentional management cycle of plan to evaluate, and respond, which is well suited to manage the complexity and uncertainty in a system like the Delta. Adaptive management can be scaled up or down, depending on the project.  The Council actively works with and advises project proponents on adaptive management. Notably right now, we’re consulting on EcoRestore projects. And in fact, our plan requires adaptive management of certain covered actions.”

The Delta Plan and its 73 recommendations and 14 regulations calls for a comprehensive approach.

“Some of the major goals are more efficient use of water by urban and agricultural users, and maximum development of local supplies where possible to reduce reliance and pressure on the Delta,” she said.  “We call for improvements in emergency planning and response, and strategic investments and flood protection in order to protect lives and local economies in the Delta.  We call for improved reliance on science for decision-making, restoration of interconnected areas of habitat to aid in the recovery of native species, and improvements to the way the state stores and moves water across the Delta, so that we’re able to restore some natural function to the estuary, of what our Lead Scientist calls ‘more natural, functional flows.’  Our 2013 plan included specific recommendations on groundwater and surface storage projects, and those are now being updated through a Delta Plan amendment. Finally, our plan elevates the importance of using adaptive management in order to deal with uncertainty and ensure better outcomes for state dollars.”

The first Delta Plan was adopted in 2013.  The Council is required to review the plan every five years; however, in some cases, they have found it necessary to make cases sooner.  Ms. Pearson noted that they are currently undergoing environmental review of three major amendments:

1. Delta Levee Investment Strategy which sets priorities for state investment in Delta levees to reduce the likelihood and consequences of failure in order to protect people, property, and state interests, which includes the co-equal goals.
2. The Delta Plan Performance Measures, a requirement of the Delta Reform Act, are intended to quantitatively measure progress and gauge the effectiveness of the Delta Plan.
3. The Conveyance, Storage, and Operations Amendment, which the Council began working on in the summer of 2015, when the Bay Delta Conservation Plan changed course, splitting into Water Fix and Eco-Restore. This triggered a commitment in the Delta plan to revisit the directive in the Delta Reform Act that the Council promote options for conveyance, storage, and the operations of both to achieve the co-equal goals.

”In addition to emphasis on how storage projects can contribute to the protection and restoration of the delta’s ecosystem and of course water supply, reliability, and climate resilience, we also call for ways that projects can further another 2009 Delta Reform Act goal, which is to reduce alliance on the Delta,” said Ms. Pearson.  “Our recommendations are fairly well aligned with your regulations and it’s no accident. Not only did we work with your staff but in my view, Chapter Eight was clearly written with the directive of the 2009 Delta Reform Act in mind. They reflect the recognition that in order to make progress in California’s water management, we must address the Delta. It’s all interconnected and sometimes in surprising ways.”

Ms. Pearson noted that Council staff worked closely together not only on the regulations but also in reviewing drafts of our Conveyance, Storage, and Operations Amendment, which ensures consistency across our agencies.  “I look forward to continuing that relationship going forward and finding ways we can mutually assist each other in pursuing the state’s goals.  Thank you.”

ROBIN GROSSINGER, Senior Scientist, San Francisco Estuary Institute

Robin is a senior scientist at the San Francisco Estuary Institute where he is one of the directors of the Resilient Landscapes Program.  Over the past few years, Robin and his team have produced the Delta Landscapes Trilogy of reports that analyzes and recommends strategies for improving the Delta ecosystem.

Robin Grossinger began by saying his job was to discuss the Delta in terms of how the ecosystem worked, how it’s changed, and what the broad ideas are for its restoration and improvement.  He noted that this presentation is drawing on a series of reports the San Francisco Estuary Institute (SFEI) has done over the past five to six years that analyzed how the Delta used to work, how its changed, and what’s possible in the future.  SFEI is a not for profit, independent, impartial science entity created by agencies and NGOs to provide this kind of guidance for decision-making; SFEI also administers a Joint Powers Authority of the state called the Aquatic Science Center; and they work closely with DFW, the Delta Science Program, the Delta Stewardship Council, and others to provide some of the science information and underlying policy decisions.

Mr. Grossinger then presented two slides to demonstrate the tremendous transformation system: the Sacramento River before extensive modification in the 1850s, and what it looks like today.

“Based on our research and then reconstructing a 3D visualization, you can see that Sacramento aligned with a broad riparian forest along the river,” he said.  “You can see some big lakes out there and the extensive wetlands are the pattern sort of in between all of that.  Then, here is a view of the same spot today and you can see the tremendous transformation.”

Mr. Grossinger noted that interestingly, a lot of the remnant structure of the historical landscape remains.  “It’s actually not that long ago, just 150 years,” he said.  “We follow the same general template in where we put levees and towns. Towns are on the natural levees that the forests are on. You can see parts of a lot of the lakes still there. So it’s an interesting combination of transformation and also persistence of some of the bones or skeleton of the system.”

One of the key aspects of the Delta was that it would flood.  “It is this complex combination of land and water and a lot of the productivity, the diversity, and food for fish came in that pulsing of water spreading across the 700,000 acres in different patterns at different times of the year,” he said.  “How dry, in contrast, the landscape is today with all the effort we’ve done, which has been very successful at building agricultural landscape without requiring removing water from the landscape and really transforming the Delta functions, leading to a lot of the challenges that we have both in terms of fish and habit and also in terms of subsidence, which is a result of that as well.”

In the Central Delta, there were masses of tidal channels that branched into smaller and smaller networks – thousands of miles of channels, he said.  There are little pieces are left; on some agricultural islands, it was inefficient to continue the levees around the narrow tips of islands, so those were left as marshes, and the islands that are in the middle of the channels now were originally connected to those larger patches, he said.

In 1861-62, there were massive floods, which is more than just an interesting historical factoid because scientists now understand that the phenomenon that created that flood remains and is likely to occur again.  “That event is used as some of the basis for testing out what can happen in the future, so it’s not irrelevant,” Mr. Grossinger said.

The Delta really is a unique part of the California landscape, he pointed out.  “We know that from the political crises and attention it gets, but also just remembering that ecologically, it is a unique feature in the heart of the state,” he said.  “It’s this massive tidal freshwater wetland historically which represented almost half of the wetlands of the entire coast of California. Add to that that it’s freshwater, and all those other ones are mostly a little bit brackish, and how productive a freshwater marsh is, add to that it’s in the center of the state, a state that dries out because it doesn’t get rainfall for six months every year. This is a freshwater oasis in the center of a seasonally dry state.”

“It was a massive unique feature in a region that doesn’t have a lot of freshwater wetlands, so I think that’s why, fast forward 150 years, it still becomes such a hotspot of challenge and of fundamental importance to the California ecosystem, from salmon to water fowl to a variety of different wildlife, to Delta smelt,” he said.  “Since it has been transformed so much, it’s hard to understand what can we do to improve that, particularly since we never studied it as a functioning system and it’s been so altered. So we developed a project called the Historical Ecology Study, diving into all these historical documents about the Delta.”

Mr. Grossinger presented a map used to help guide miners headed to the Gold Rush around 1850. There are photographs of the marsh once cameras became available, and quotes from early explorers describing the vast plain.

Some of the information was surprisingly detailed, such as a surveyor for the Public Land Survey indicating how big the channels were, how wide the riparian forest was, and how deep the marshes were, and they were able to put together a three-dimensional view based on those survey notes.  “We’ve put all that information together, including descriptions about flooding, which leads us to understand sort of the basic nature of how the system wants to work,” Mr. Grossinger said.  “The rivers were actually kind of small for the amount of flow that comes in the winter and spring, and so a lot of the flow would go parallel in these flood basins; the Yolo Bypass is sort of a small version of that.”

He presented a chart showing flooding between 1850 and 1860, pointing out that flooding would last well into May or June almost every other year or so.

So they took all that historical information and put that together into a picture of how the system used to work into the report, Sacramento-San Joaquin Delta Historical Ecology Investigation: Exploring Pattern and Process.  The second report, A Delta Transformed, took a look at how the human development has changed the Delta’s ecosystem.  The third report, A Delta Renewed, looks at strategies for restoration of the Delta in the future.  These reports were done in conjunction with the Department of Fish and Wildlife, and many of the scientists working with the Delta Science Program.  Click here to access all three reports for the Delta Landscapes project.

“Those provide a new basis for managing the Delta as an integrated system, and supporting the processes that enable a functional ecosystem,” Mr. Grossinger said.

He presented a graphic showing how much the Delta’s landscape has changed since human development.  He noted that tidal wetlands dominated the system historically and it was a very productive ecosystem; now agricultural lands dominate the system, while also a very productive ecosystem, it’s quite different.  A lot of other habitats existed around the periphery, such as oak woodlands, seasonal wetlands, and different types of wetland like the riparian forest along the creeks; there was a lot of complexity that was probably important to that ecosystem as well, he said.

Mr. Grossinger noted the dramatic change in tidal marshland, about a 98% loss.  “It’s an extreme loss of the dominant characteristic of that system into which these species have evolved,” he said.  “If you want to look at the positive side, that means there’s so little now that restoring even modest amounts will make a big difference potentially. For example, if we got to 10% of what was there historically, that would be five times as much as we have now. That could make a difference. The point is that significant restoration improvements could be done within the existing context of an agriculturally dominant landscape.”

Mr. Grossinger then discussed flooding, noting that this might be something the Water Commission might be able to influence through the decisions they make.  Historically, it was a very complex system, but through their research, they identified several types of flooding.

The light blue areas were flooded tidally, particularly during the higher tides.  A massive area of several hundred thousand acres would be flooded rather frequently; fish were able to get out onto the marsh and food came back into the channels from the marsh.

The darker blue areas were flooded in late winter and spring; they called this seasonal long duration flooding.  Those areas could flood for weeks or months at a time.  “Our native fish species were evolved to take advantage of that huge pulse and expansion of habitat, the ability to fatten up as they head out to the ocean,” he said.

The very light blue represented flooding for days or weeks, which fish still were able to take advantage of because the fish had evolved to take advantage of the complex California climate, he said.

“In contrast, today we have more of the darkest blue, which is the water that’s always there, perennial water, ponds and lakes, channels, and very little of the flooded area,” he said.  “You can see how the Yolo Bypass really jumps out; that points to its value and why it’s so important. But even it is a small shadow of how that used to function. It’s relatively short duration compared to what we used to have, and it’s relatively small. But even these areas as they’re studied, the benefits of that kind of function to the fisheries is really dramatic, and this picture shows just how effective those floodplains are in making healthier, fatter, bigger fish, which then, have much likelier chance of survival when they go out to the ocean and chance of coming back.”

In the third report, they emphasize establishing the processes that support the ecosystem, not just restoring little pieces here and there, he said.

Another important part of restoring processes are those along creeks, the freshwater-related processes.  “That’s where I think there’s a lot of opportunity in the kinds of projects you’re probably considering to reestablish some of the characteristics of the riverine systems that contributed to the Delta,” he said.  “The Delta is a combination of riverine processes and tidal processes.  We can affect tidal processes by how we deal with levees, but the river processes are flows and timings – the issue of quantity of flow and the timing of flow creating heterogeneous patterns. Flow can also come from groundwater. There used to be high groundwater levels around the perimeter that would probably bring flow in in a gradual way throughout the summer and keep things fresher than they would have otherwise been.”

“There’s many dimensions of how we can create a more functional ecosystem that relate to how we manage water obviously, but not just quantity but also timing, also groundwater and flooding potential,” Mr. Grossinger said.  “The idea is that if we design things at the appropriate scale and with the appropriate kind of science and collaborative approaches, there may be a way in there that we can have more functional systems like this but within the context of thriving agricultural and urban (in some areas) landscapes.”

DR. BRUCE HERBOLD, retired EPA fish biologist and consultant

Dr. Bruce Herbold has studied the ecology of California’s estuarine fishes since 1979. He received his PhD under Dr. Peter Moyle at UC Davis; he worked for 21 years with the US EPA on management issues of fish and water. Since retiring from the EPA in 2013, he works as a private consultant on the same issues.

Dr. Herbold began with an aerial view of the estuary, the said to drive home that a lot of what happens here is driven by processes on the ocean.  “Both our climate and our weather are driven by changes in the ocean conditions,” he said.  “Our fish spend a lot of time out where there’s a lot of water and then they come up to where there’s not much water – that integrating across places where the water’s really restricted and where conditions are really location-specific to out in the ocean where they live a whole different life.”

“Our fish use that,” Dr. Herbold said. “A lot of them have what has come to be called a portfolio effect. That is, they have a variety of strategies so that when things are bad one way, their other strategies will pay off. So that’s going to be a theme of what I talk about, that reinforcing of a broad portfolio is what we most see as what is needed for restoring fish populations.”

Salmon are the epitome of the portfolio effect, said Dr. Herbold.  “Here we have a fish that’s out foraging, getting fat in the ocean, and then coming up and getting away from all those oceanic predators and finding good places to spawn and raise the young and the young being able to be in shallow water places, able to get away from predators, and then moving back down to the ocean to grow up,” he said.  “If conditions are bad in the ocean, well, then maybe it’ll be conditions in the freshwater. It’s that kind of playing one thing off against another and every so often, things are good in both places. Then, you have a banner year. But that diversity is what I’m going try to drive home.”

Delving into it further, consider just two of those adults coming back to spawn, he explained.  They spawn; they produce a bunch of eggs.  Those eggs have to be spawned in the correct places, and then once those young come out, they’re subject to a variety of new stressors along the way, he said.  A lot of our salmon relied on reliable cold water sources, spawning on the streams coming off of Mount Lassen or coming off of Shasta; no matter how dry it was in California, there was always cold water that was always suitable for spawning, he said.

All that habitat is now gone, he said.  “The areas where those young fish could rear, grow up, and get fat and happy before heading out to the ocean are largely gone,” he said.  “We have slowed down the water and so it has gotten warmer. Along with that, we have climate change warming up the water. We’ve seen that in the last drought. It was a drought not just because lack of precipitation but because it was hotter than hell. We lost a lot of fish not because of lack of water so much as bad temperatures. We still have people out there harvesting our salmon. It is the livelihood of a lot of people. It is a cultured economic resource and a cultural resource that just really annoys me when people talk about fish versus people because people rely on fish as much as they do on a lot of the products that we grow on land.”

“In ideal conditions, those two adults produce enough young so that two adults can come back in three or four years and produce all those young again,” he said.

Dr. Herbold said he hates things that present a normal year because in California, there is no such thing as a normal year.  “We have droughts. We have floods. We had 1986 where we had the wettest month on record, February 1986, in the middle of what would otherwise have been a critical year; we called it a wet year, but for a lot of fish it was a critical year. Then we have 1983, where it started raining in October and it kept on raining through June. That’s a wet year. Really different, and the quantities and timing all change. That’s what our fish face. Changes, huge changes in the amount of water coming down and in the timing of when that water comes down.”

We also have droughts, he noted.  “We had the Dust Bowl drought that drove a lot of people out to California and drove home the idea that we needed to provide water,” he said.  “Then we had 40 years without a critical year in the mix. During that year we built a lot of dams. We had a lot of people come to California. It was a lovely place. Then we had a nice two-year drought in 1976, ’77. The least precipitation in the record there, and that was where we pretty much lost winter-run salmon. Then we’ve been starting having normal California climate, that is, floods and droughts. Those 40 years, I think, misled a lot of us; a lot of us grew up right in that time period, and we came to expect that maybe it’s raining, maybe it’s not, but it’s always okay.”

There was a study by USGS that determined that if California had half of the floods that occurred in 1861-62, it would do more economic damage to the state than any earthquake scenario they’ve ever developed, he said.  “Before that flood there was a drought,” he said.  “It was a 10-year drought. We haven’t had a 10-year drought since then. There is no reason not to expect that – there’s lots of great work being done on paleoclimatology that shows California is a land of tremendous droughts and tremendous floods of varying lengths. We were blessed for 40 years thinking that it was a suitable place to have 35 million people and develop a lot of water-requiring industries. We’re not seeing that now. We’re seeing the normal.”

Dr. Herbold also pointed out that with the exception of one year back in the 1920s, all the droughts are multi-year.  “We don’t have a critical year that’s not followed by another drier critical year,” he said.  “The two-year drought was the shortest one. Since then, they’ve all been at least three, and depending on how you count one it’s either six or eight. But if we have a critical year, it’s the start of a multi-year drought. But we don’t behave that way. We try to drain the reservoirs and make up for that increased demand and decreased water, and then the second, third, and fourths years of the drought come along and we do really, really badly, and the fish do worse.”

California has four main runs of salmon, named for the season when the adults come up.  Dr. Herbold presented a graphic, noting that the red bars show when the adults come up the rivers; there is fall run, late fall run, winter run, and spring run.  “The winter run actually spawned in the middle of summer because they were the ones that came up and spawned on the streams above Shasta Dam, where Shasta Dam is now. Now they rely on the cold water being released from Shasta Dam, and if Shasta Dam has been drained down as it was in 1976 then they don’t have any cold water, and we see the population plummet as it did in 1977 and it did in 2015.”

We have more runs of salmon in our river than anywhere else, and that is to cope with California’s variable climate, he said.  “If you want to have salmon, what you want is to have variable conditions out there that are good for somebody; right now, they’re bad for everybody,” he said.  “Part of that is because we have blocked access to all those reliable cold water spawning spots. After the Dust Bowl and after we got done with World War II, we started building dams.”

California has 1,594 dams.  “Our grandparents were smart; they built a lot of dams. They took all the good dam sites, so now when we’re talking about building dams that are in really crappy places where you either have to pump the water uphill into them, or they weren’t built that way because they weren’t the best place to build a dam. Now we’re looking for every place that we can. You can see we have over 300 dams that are over 100 feet tall. The decline in building dams was not because environmental regulations or anything else, it was because we ran out of dam sites. That nice decline there is just the desperate reach to find dam sites, and we just don’t have anything that our grandparents considered a dam site available.”

“But what the dam building did to our spring run that went up all the other creeks that weren’t on Shasta and relied on the cold water coming off the Sierras, all that cold water is now blocked, so the spring run and the winter run, the two listed species, were the ones that really cued in on reliable cold water and our dams have now blocked that and made the ability of them to find places to spawn a much more difficult proposition.”

It’s getting more difficult under climate change, Dr. Herbold said, presenting a graph of mean temperature departure.  “The average isn’t changing a whole lot in terms how much runoff we get,” he said.  “But what has changed is because the mean temperature has gone up, and that last drought was the warmest on record, that means that the amount of snow we get is getting less and less. As the temperature goes up the snow goes down, and that means there’s less cold water for our salmon.”

Once the young salmon spawn, they start to move down the Central Valley, and it used to be lined with wetlands.  “Lining both rivers was all this riparian vegetation, marshland, immersion vegetation, great places for young fish to eat, escape predation, and get ready for their big swim to the ocean,” he said.  “Lovely spots to be a young fish.”

One of the differences comparing the Sacramento Valley versus the Central Valley is that in the San Joaquin there are canals that move water around, so the water is taken before it reaches the Central Valley, whereas in the Sacramento Valley, they use the same river channels to move the water downstream.  “In the Sacramento Valley, they still look sort of like rivers, whereas San Joaquin has very little water in that a lot of the year, most of that water being agricultural return flows that are salty and nasty,” Dr. Herbold said.

Looking at the Delta of 150 years ago, there were dendritic systems, meaning tree-shaped with branches.  “At the upper end of those branches you had little cookers making food; the water would move in and out with tidal energy, but it didn’t move very far, and it moved backwards and forwards, so you could produce a lot of food in those areas,” he said.  “And if something was bad in one part of the Delta it didn’t necessarily affect other parts of the Delta.  So the habitats were both productive and more isolated from each other.”

“Now, with all the levees, all of those wetlands are gone,” he said.  “The levees are between where the water and the land is. And now as the tides move in and out, and we deepen the channel so there’s more tidal energy coming in, everything gets swirled around.   If you throw in an orange into one of those channels, it could be anywhere the next day whereas before, it would have gone in and out of the same channel. It’s much the same for fish. They have lost all of that ability to find a good spot. The spots are now all homogenized. We have this large tidal blender at work.”

“For a fish that is not out so much in the ocean, the habitat is a combination of, what are the characteristics of the water, particularly the salinity in an estuary, and the physics – what’s the geometry?  Is the water spread out over a flood plan, or is it in a deeply dredged channel? It makes a very big difference to how good that habitat is for a fish,” said Dr. Herbold.  “So if you picture this as tidal flows changes and river flows changes, it moves the salinities back and forth over the bathymetry or the channels of the Delta and the bay, then what the fish sees varies very much over every tidal day and over the seasons as the river flows change – and they do change.”

“Year to year variation in outflow is really high,” he said.  “Dry years are like happy families; they’re all the same. Wet years are like unhappy families in that they’re all weird in their own particular ways. You can see there in 1997 where we almost lost Sacramento. That was a really, really, really high flow. But the rest of the year was pretty low. Whereas, as I was talking about, 1983, the pink line. It starts up, that 0 is in October 1st. So it started raining in late October, and that red line is still pretty high on out through day 270 or so. Really different year to year variations for what the fish see.”

What the fish see then changes because the salinities move, Dr. Herbold said, presenting a graph showing the salinities at which different fish species are found.  “We catch almost all of our estuarine fish before the salinities get over ten parts per thousand.  So as that ten parts per thousand moves, it moves over Suisun Bay or San Pablo Bay, or Carquinez Straits, that really changes what the fish see. Whether it’s deep dark water, or whether it’s shallow bays next to the largest remaining estuarine marsh, or whether it’s down in San Pablo.  Same thing for the fish that require less saline water, only they’re moving between Suisun Bay and the Delta.”

There are a lot of things that changes with flow changes, and as those year-to-year and season-to-season changes happen, it affects a lot of what the fish see, Dr. Herbold said.  “As the flows change, the salinities move downstream. The fish don’t sense river flow. The fish are wrapped up in tidal flow, and they sense the salinity around them, but the salinity changes with river flow because it dilutes the salt, and so that is what they respond to.  If the low salinity zone moves up or down, and the fish that rely on the low salinity zone move up and down with it, if it moves up into the deeply dredged channels of the Western Delta, that’s very different than if it moves in the Suisun Marsh.  The Suisun Marsh, if you’re a fish, it’s a good place to be.  Whereas, if it’s at the Sacramento Decker Island a rip wrapped, dredged, dark channel; this is a place you do not want to be a fish.”

Dr. Herbold said that the historical ecology study has been ‘surprisingly valuable.’  “Because the footprint is still there and the processes that produce that footprint are still there, so if we’re going to try to restore things, it’s nice to know how they used to work,” he said.

“In the Delta, it used to be all marsh with some channels through it, but we have reversed that,” he said.  “We’ve taken away 97% of the wetlands. We’ve also dredged, deepened, and widened the channels. So we’ve gone from having 1 part open water to 14 parts wetlands, to 6 parts open water to every part wetland. So we’ve flipped it tremendously and that has implications for what processes we can hope to restore.  But in the Bay, because there’s always been so much open water, it’s been a very different thing.  So far tens of thousands of acres restored because of the salt pond restoration. Great stuff happening down there, but the change is much, much less in terms of how much open water versus how much wetlands, comparing the bay with the Delta.”

Dr. Herbold noted that there has been a lot of ideas that tidal marsh restoration will produce a lot of food.  “Look at that in the context of the volume of water in the tidal marsh and the volume of water in the channels that it flows into – it doesn’t take very long before whatever food comes off gets diluted quite a bit, to whereby the time it moves any distance at all, it’s not going to be in any elevated food densities for fish.”

“So as in real estate, it’s location, location, location,” he continued.  “Restoration work down where the fish are, that are adjacent to or on the path of the fish movements are likely to be beneficial, but because of that huge amount of open water and the small volume of water that can be on a marsh, a wetland, that amount of water, while it might be very, very, very good on site, rapidly loses all that value. And this is not accounting for the clams that lie in a lot of those channels, which amplify that dilution effect.”

There are portfolio effects for fish other than salmon as well, Dr. Herbold said.  “As the climate changes, it’s likely to change in ways that make it more like the climate that was here in the 1800’s.  We are seeing more droughts, we’re seeing more floods, and we have 1500 kilometers of levees, not all of which are going to survive the floods that come.”

The variability is what the fish relied on.  We have a wide variety of fish: Sacramento pike minnows that can be up to a meter long; Sacramento splittail that can be a half a meter and live ten years or more.  Sturgeon can live decades, and that allows them to spawn in years when it’s appropriate, he said.   “If it’s a wet year, the splittail do great; if it’s not good then they just get bigger so that when it is wet they produce more eggs, and that’s a very successful strategy for them. On the other hand, the tule perch is the only freshwater member of its family; it’s really successful because it’s a live bearer. It doesn’t have to find proper conditions for spawning. If the adult can survive, then the young will do well.”

“The exception is Delta Smelt,” he said.  “It responds to conditions each year because it had found the one habitat that is always there. It lives and thrives in the low salinity zone. No matter whether it’s a wet year or a dry year, there will always be a low salinity zone where the freshwater meets the saltwater. What has changed is that now, if it’s a dry year, that low salinity zone is up in the Delta where there is no wetlands, and where there are deep dark channels where freshwater predators have been introduced and there are no hiding places for fish. Now they do better in wet years than they do in dry years. They don’t do well much at all right now, but their strategy was to find a habitat they could rely on and in both cases we’ve really degraded that habitat.”

Dr. Herbold then gave the Commission his recommendations.  When the Commission is looking at proposed projects, he urged them to consider fish in several ways.  “First, do they enhance the portfolio for salmon?  Do they allow salmon to both have places for fry to rear, because in wet years the fry come down and rear in the Delta, and in dry years they stay up in the streams until they have to move out and so they move out much later and move out at greater size.  So habitat for all sizes of salmon at all times along all the migratory paths of salmon give back some of that portfolio effect.”

“Anything that helps manage their streams differently,” said Dr. Herbold.  “Right now, all the streams are managed to get fall run salmon out as quickly as possible. That’s like putting all of your money in one stock. That’s a fine strategy for some of our fish but the problem is that we need to restore that portfolio of possible ways that salmon can respond to what we do to them and what the climate does to them.  They are very, very flexible fish. They need some flexibility in the environment to take advantage of them.”

“On the other hand, smelt, they don’t support a fishery. We don’t really care how many are out there. We just make sure that fish and fish like them are there. They need to be protected every year. They don’t need to be in the abundance that they used to be – back in the ’50’s they were a fish that got in the way of the sampling for stripe bass the VFW was doing. They were very abundant. That would be great, but they only live for one year. A bad year for them can wipe them out. Bad year for sturgeon? No, it takes decades to wipe them out.”

“The native fish, the ones that aren’t listed, don’t get much press, but they really do well in jackpot years, so anything that amplifies things like the Yolo Bypass so that when they have a chance to spawn they have access to it and they have habitat,” he said.  “That can be focused and then we don’t have to worry about them. They will make it through. Those are three strategies be looking for and do the projects address them.”

HAP DUNNING, professor of Law, UC Davis School of Law

Jennifer Ruffolo then introduced the third panelist, Hap Dunning, a professor of law emeritus at UC Davis School of Law.  He is a leading expert in natural resources law and water law, and he is the author of the public rights portion of a leading national treatise on water law called “Waters and Water Rights”; he has written numerous articles on water law particularly with regard to the public trust doctrine.  In 1977-78, Hap Dunning was the staff director of the Governor’s commission to review California water rights law and he served on the Water Commission during the second term of Governor Jerry Brown’s first administration.

Hap Dunning began by pointing out that legally, the entire system is built on the foundation of water rights. “We have a rather complex system of water rights in California; it has been developed for many years,” he said.  “One of the rights actually goes back to the Mexican days, the so-called Pueblo right, which is a municipal water right. It’s been of value to Los Angeles and San Diego.”

The other water rights were developed starting in the 1850’s with statehood.  Mr. Dunning noted that a chief justice of the California Supreme Court in the early 1900’s claimed that they had more water rights cases in the California Supreme Court than any other kind of case.  “This was really central; it was politically important and legally important,” he said.

The most important of our water rights over time has been what’s known as the appropriative right, or the right of prior appropriation, which developed when most of the land was owned by the federal government, he said.  “The courts developed this system of recognizing water rights based on physical capture of the water.  The Eastern system had depended on land ownership, and we have that in California although it was much debated whether we should have it or not.  However with appropriation, you don’t have to have land ownership. What you do have to have is putting water to beneficial use. You can’t just take it and waste it, you have to take it and put it to beneficial use.”

The state constitution was amended in 1928 to say that the beneficial use has to be reasonable, but that is awfully hard to define, Mr. Dunning said.  “The courts have emphasized what’s reasonable; what’s reasonable in one point in time can be unreasonable in another.”

In addition to appropriative rights, there are also riparian rights, the dominant right in many of the Eastern and Midwestern states.  “It was huge debate when the California Supreme Court in the 1880’s decided whether we would recognize riparian rights; it was a four to three vote,” he said.  “They put out an opinion, which was 200 pages long. This is in the 1880’s – No computers, no typewriters, nothing like that. They put out 200 pages on this whole question. There was a political aspect to it too. There were leagues to save the riparian right and to oppose the riparian right.  Anyway we have it and it’s very common in the Delta so you should certainly be aware of that.”

Mr. Dunning said he would use the issue of salinity intrusion to discuss legal aspects because salinity is central issue: As the Delta was developed for agriculture, as well as municipal and industrial water supply, it’s important that the water not be too salty, else it was not usable and couldn’t be put to beneficial use.

There was time in the early 1920’s when there was an attempt to utilize the water rights system to deal with the salinity problem.  Mr. Dunning noted that a couple significant things happened between 1917 and 1920:  There was a lot of federal dredging in the part of the system between Rio Vista and Collinsville; and a lot of land in the Sacramento Valley was going into rice production, which involved diversion of water, flooding the rice fields, and then putting it back in the river later on.

In 1920, the July-August inflow to the Delta was under 200,000 acre feet.  Antioch, which is close to the mouth of the San Joaquin river, had maximum chlorides of over 7,000 parts per million, a large amount of salt that made the water not usable for municipal and industrial purposes.  “The town of Antioch sued and they tried to use their water right to get some relief,” he said.  “They initially claimed as a riparian, but the court said, ‘no, you are not really a riparian; you are an appropriator’.  They won in the Superior Court in Sacramento. There was an injunction saying that so much water has to be provided every year. It went to the Supreme Court. They lost in the California Supreme Court, 1922.  It was the Town of Antioch vs. Williams Irrigation District. Antioch had sued about 27 different irrigation entities up in the Sacramento Valley, and the court came to the conclusion that the prior appropriation water rate does not extend to preventing salinity intrusion.”

So then what to do about the salinity problem in the Delta?  The attention in the 1920s turned to having some kind of physical solution – some kind of barrier.  The idea that was studied and discussed a great deal in the 1920s was to have a salt water barrier – a dam in Carquinez Strait and the question was where in the strait should it go?   The strait is seven to eight miles long, and connects the Suisun Bay on the upstream side and San Pablo Bay on the downstream side.

“The feds, as well as the state, were involved in doing these studies, and by 1929, they had come to the conclusion that there’s a site called Army Point near Benicia which would be the best place to put a salt water barrier,” he said.  “What happened in 1929?  The Stock Market Crash. Depression begins. Herbert Hoover is president; he says no, too expensive. We’re not going to spend money on that. So that was the end of that.”

A similar idea was floated in the 1940s known as the San Francisco Bay Project or the Reber Plan, after the actor who popularized the plan.  The plan, which was discussed a lot at the time, was to build a new causeway between Oakland and San Francisco and fill in a large part of San Francisco Bay.   The Bay Model was built in the 1950s to have a physical model to study the consequences of doing that, Mr. Dunning said.

So with no salt water barrier in Carquinez Strait and no Reber Plan to re-do San Francisco Bay, what do to do instead? “What happened I think of as not the creation of a hydraulic barrier, but the improvement of a hydraulic barrier of controlling salt by controlling freshwater flow,” he said.  “We already had freshwater flow.  We had the Sacramento River, principally, but we had other rivers coming into the system, pushing out the saltwater so that places like Antioch with their diversion or the agricultural diversions in the Delta would be okay. The technique that was used was to condition water rights to say as a condition of your water right, you’re going to have to help control salinity by making releases from water you have stored in order to put to beneficial use. Instead of sending it to your customers, you’re going have to use it to repel salinity.”

At the time, many dams had been constructed; Shasta went into operation in 1943 and there other dams as well.  “We had a state water rights board that developed this idea that even stored water would have to be available in order to control salinity for the benefit of agriculture and for the benefit of urban use. In the early days, when you look at those reports, there wasn’t much discussion about fish, but salinity’s important for fish, too,” he said.

“This was all facilitated when there was a decision made in 1967 to merge the water rights board and the water quality board in California,” Mr. Dunning said.  “They’d been separate functions. And in most states today, if you look around the country, they’re still separate functions, but the Little Hoover Commission had made some suggestions about reform and they didn’t sit very well with a lot of people, and other people, particularly Assemblyman Porter and others said, ‘No, because there is such a close relationship between water rights and water quality, and because we’re conditioning water rights to require releases to hold back the salt, what we should do is put the Water Rights Board and the Water Quality Board together. The legislature agreed and that’s how we got the State Water Resources Control Board.”

Initially, after the two functions were formally combined in the State Water Resources Control Board, the practice was to prepare the Water Quality Plan and a Plan of Implementation, which affected the Water Rights at the same time.  “It made a certain amount of sense because what level of water quality you can achieve really does depend on how well you can condition water rights, if you’re going to do it with this hydraulic barrier approach,” he said.

Mr. Dunning noted that when he used the term ‘conditioning the permits’, that was only done for the Central Valley Project and the State Water Project.  “There was an important decision in the Court of Appeal in California in 1986, commonly referred to as the Raccanelli Decision because Justice John Raccanelli was the author of that particular opinion and he raised some questions about the approach.  He said, ‘you really ought to do your Water Quality Plan first and then figure out a Plan of Implementation, and things like conditioning the water rights.’ He also said, ‘why aren’t you looking at the non-project diverters? The CVP and the state Water Project are not the only ones who are impacting the system. What about other people, city and county of San Francisco with Hetch Hetchy? What about all the agricultural water districts? Turlock or any of the others? They’re impacting the system, too.’”

(More information on the Raccanelli decision here: http://www.deltavision.ca.gov/BlueRibbonTaskForce/Nov2007/Handouts/Attachment_2.pdf )

Mr. Dunning noted that decades later, the State Water Resources Control Board is updating the Bay Delta Water Quality Control Plan, and they are looking at contributions that might be required of diverters on the Tuolumne River, the Stanislaus River, the Merced River, and others.

So far, he has been talking about state laws, but federal law is also very important.  In 1972, the Clean Water Quality Act was enacted.  The Environmental Protection Agency had just been created, and President Nixon had said that the 1970s would be the decade of the environment.  “The Clean Water Act imposed various requirements on the state so that when the State Water Resources and Control Board goes about its business of doing water quality control plans and plans of implementation and conditioning water rights, it’s really subject to federal review and oversight and in a couple of cases, federal disapproval of what the state has done,” he said.

Not long after the Clean Water Act came the Endangered Species Act, which required federal agencies such as Reclamation to consult with the federal fisheries agencies, the National Marine Fisheries Service for anadromous fish like salmon, and the Fish and Wildlife Service with jurisdiction over the Delta smelt and others.

During consultation, the fish agencies study whether an action would jeopardize continued existence of the species in question; if it would, then the project can’t go forward.  “This is a big, big hammer,” said Mr. Dunning.  “If they say, ‘jeopardy’, that’s it. If they say, ‘no jeopardy’, they can still influence a project because they can impose conditions and say, ‘there’s no jeopardy if you do, A, B, C, and D.’ So it really functions like a permit. We call them biological opinions; but really maybe it’s easier to think of them as permits that can have conditions and the conditions can be very, very important.”

Another complicating factor is known as the area of origin protection legislation.  “Back in 1933 when the Central Valley Project was first being approved by the legislature (because it was a state project before it became a federal project), you had to do something politically to satisfy those rural counties up in the Sacramento Valley,” Mr. Dunning said.  “This is before reapportionment and the rural counties had tremendous power. They were very nervous about the idea of taking Northern California water and moving it down to other areas through the CVP.  So there were a couple of different statutes passed. Some of them speak in terms of the protection of the watershed. Others speak in terms of protection of the counties of origin of the water. And of particular importance, later on, about the time that the financing for the state water project was being approved in 1960, just before that, there was another statute called the Delta Protection Act which is area of origin protection for the Delta.”

“Now, the problem is that there’s hardly any case law for any of these statutes,” he continued.  “The advocates for the Delta bring them up all the time, but we don’t have expressions from the courts definitively saying, ‘This is what it means’, so there are lots of different interpretations, so that’s a factor that you should be aware of.”

DISCUSSION HIGHLIGHTS

At this point, the panelists were joined by Carl Wilcox, Delta Policy Advisor for the California Department of Fish and Wildlife and Jennifer LaBay, Environmental Scientist with the State Water Resources Control Board.

Chair Armando Quintero began by noting that the Delta is 700,000 acres of mostly agricultural land spread out over five counties.  It is home to about 500,000 people, most of those in urban areas, although there is also a smaller rural population living throughout the Delta as well.

Commissioner Joe Del Bosque asked about the biological changes in the Delta in the last 150 years.

“We’ve done a lot of hard work to make this habitat suitable for water supply,” answered Dr. Bruce Herbold.  “One of the first things we did when we finished the Transcontinental Railway, was to fill railway cars with fish that we used to fish for out on the East Coast and that we knew how to fish for, and we brought them out here. And a lot of them thrived. Striped bass just came in. The gold rush had happened. There was a lot of silt in the rivers; that silt was really bad for salmon, but the striped bass eggs bounced along the bottom and they just took off. And they became a major fishery and spread up the coast.   We brought in a lot of other nesting fish, whose young are protected in nests and so they didn’t require a lot of things that our native fish require. And they could protect their little nests and grow them up safely there. They did really well.”

“We’ve done really good work in trying to make California be like the Mississippi; we brought in a lot of Mississippian fish. And they continue to do really well,” Dr. Herbold continued.  “If that doesn’t continue, if the levees fail and we start getting salinity intrusions into the Delta or if we start getting more variable conditions out there … we’ve managed for 40 years to keep the Delta as constant as possible, month to month, year to year.  That’s been really good for the fish that are used to that kind of climate. If California climate reasserts itself and if we lose some of the habitats that we have built – if what’s behind the levees starts connecting with the river, that’s likely to be good for California fish and bad for a bunch of the introduced species.”

“We are faced with the fact that you can’t really eradicate a fish once it’s done well,” said Dr. Herbold.  “My expectation is that the threat of climate change is a threat to all of us in a variety of ways. But there’s a small silver lining that some of those things are going to end up making conditions better for our native fish if they’re still here. And so I’d like them to still be here because otherwise we won’t have much of anything that’s worth having.”

Predation is talked about and is really intensive in places where there’s no place for the small fish to hide, Dr. Herbold said.  “We’ve made miles and miles and miles of places where there’s no place for the small fish to hide. So if you’re looking at habitat restoration along migratory paths for salmon that provides a place for small fish to hide, so that will address predation. That’s getting back to that variability that they expect, that their whole life strategy is centered around, restoring some of that variability, including ability to grow up in the Delta, ability to grow up along the way … “

Dr. Herbold added that they have been radio tagging fish on their way out, and winter-run fish coming down from the Sacramento River will sometimes go up the Feather River, well off their obvious migratory path. “They will try to find those habitats and the easier they are to find, I think the better it is,” he said.  “But that was another strategy they have. If it was bad over here, they will go explore where there’s a good place, but we don’t have very many good places for them on that way from the spawning grounds to the ocean.”

Robin Grossinger added that the whole Delta ecosystem has been diminished or altered; it’s not just fish. In their report, they try to address the fuller ecosystem; there were yellow-billed cuckoos, riparian brush rabbit, giant garter snake, red-legged frogs, amphibians, reptiles, mammals, and a whole diverse plant community.  “Our presentation today didn’t really capture that whole dimension, but I think that’s what you’re hinting at.  There was a really complex diverse ecosystem that thrived there … that might have been one of the best places for a lot of those species because it was such a big unique habitat there.”

Commissioner Del Bosque asks if there are efforts to prevent further invasive species.  A panelist (can’t tell whom) notes that the State Lands Commission is working on that; Jessica Pearson notes that the Delta Science Program is facilitating a study on ballast water, a source of introduction of invasive species.

Dr. Bruce Herbold pointed out that quagga zebra mussels that have spread across North America, and into Southern California.  “There’s a population over the hill not very far from the State and Federal Pumping Plant,” he said.  “It is shocking to me that they haven’t spread into the Central Valley. DWR and the Bureau have both done studies and the water chemistry is probably not good for them on the Sacramento River side but there’s no problem for them in the South Delta and San Joaquin, they should thrive there. And I keep thinking that if you know a problem is coming, planning for it is good.  But I’ve failed to find any evidence that we are planning for that invasion despite everything it’s done in The Great Lakes and everywhere they’ve thrived all over North America. They’re going to thrive here and we could be doing something about that but to the best of my knowledge we try to keep them out and that’s a delaying action. If you keep them out, that gives you time to do something in preparation for them. But keeping them out is I think a fools game in the long term.”

Commissioner Joe Del Bosque asks Hap Dunning what constitutes beneficial use and what is non beneficial use?

“There’s not much guidance,” answered Hap Dunning.  “There was an attempt once to try to draft some regulations. It’s very, very difficult because reasonableness can change over time. … that leaves it wide open.   One of the other famous cases came up from Marin County, the Joslin case, where an angry producer was relying on the flow of the river to bring aggregate down and the aggregate flow was cut off by a dam. Marin Municipal district built a dam there and the court said ‘no, that’s not reasonable.’ Joslin. That’s probably the leading case on it. But it’s wide open. And it’s not much utilized really.”

Besides the Reasonable Use doctrine, there is another overriding consideration that affects the water rights system and that is the Public Trust Doctrine, which came much later, said Mr. Dunning.  “A California Supreme Court decision in 1983 announced that in addition to the water rights system, we also have a Public Trust Doctrine that can affect water rights. Now the public trust in California has been around for a long time, ever since the 1850’s, but it hadn’t been used for water rights until that decision. And there was this long opinion by Justice Broussard in the California Supreme Court that said ‘we’ve got to accommodate the two systems.’ This litigation was with regard to Mono Lake and the Los Angeles Department of Water and Power’s diversion, not of Mono Lake. Mono Lake level is falling, there were grave concerns about the future of the lake. And now the lake’s in better shape because of that decision. But, you know, we don’t have many Public Trust decision cases really. There’s one on Putah Creek near where I live. There’s one on The American River.  Justice Racanelli in the case I talked about also referred to Public Trust Doctrine as a jurisdictional basis.”

“These are two looming things out there: the Public Trust Doctrine and Reasonable Use requirement that could mean a lot in the future or could mean very little – we just don’t know,” Mr. Dunning said.  “But flooding the field to kill gophers and relying on the creek for the aggregates are two examples where they said ‘that’s not reasonable beneficial use.’”

Commissioner Carol Baker asked about water flowing out to the ocean.  “Maybe this touches on the salinity issue or pushing back the salinity in the water, but is there like a minimum requirement of what needs to go quote, “to the ocean?” And if those flows cease to exist or wouldn’t go out to the ocean, what impact does that have on San Francisco Bay and the habitat?”

Hap Dunning answered, “There has been this long standing debate about waste of water to the ocean. There was a speech given by the Governor Earl Warren of California in 1944 said, ‘We should not rest until not a single drop gets to the ocean.’ That’s one point of view. The other point of view is, they’re all kinds of beneficial functions that water flowing out to the ocean performs. The UC Davis Center for Watershed Sciences puts out a blog, and one of the recent blog posts was exactly about this.  They took six different points of view.  If you’re a farmer in the San Joaquin Valley, dependent on deliveries of water from the CVP or the save water project, you might say, ‘Anything that goes to the ocean is a waste,’ but if you’re a fisherman, if you’re this, if you’re that, if you the other thing, then it doesn’t look like waste.  … I guess the conditions that require releases to repel salinity and perform other functions, are the closest thing we have. … There’s a lot of points of view on this question.”

Carl Wilcox adds, “There are minimum standards, which are basically the water quality control plan. There are additional standards that are promulgated through the biological opinions or permits that are issued by the Federal Fish and Wildlife Agencies, as well as the departments; there are authorizations for the State Water Project under the California Endangered Species Act, so there are minimum standards that have built upon by the ESA requirements subsequent to those, and currently the State Board is going through the process of revisiting those standards for the purposes of protecting beneficial uses, which protection of San Francisco Bay.”

“You saw from Bruce’s presentation that many fish in San Francisco Bay have a flow relationship, so the amount of water entering San Francisco Bay influences their abundance,” continued Mr. Wilcox.  “We have one species that’s state listed, the longfin smelt, that has a distinct flow abundance relationship in the winter and spring.  So the Department’s focus is on protecting those flows and it is part of our permitting that we have done to relative to California Water Fix.  Probably subsequently when the existing take permit for the State Water Project expires at the end of 2018, we’ll be revisiting that and probably including that in our subsequent permit authorization. But there are minimum standards. There are definite relationships between how well fish do relative to the flow and particularly the seasonal nature of it.”

“I was involved in writing some of those standards,” said Dr. Herbold.   “It is worth appreciating that some of the standards that apply in the spring call for the low salinity zone, that two parts per thousand line of average daily, to be positioned at one of three locations.  We have the ability in this system. We have the world’s largest water projects. We have those 1,500 dams. We can do that. We can actually have 12 days of low salinity zone at this location and 10 days at a location upstream of that. So it’s … If you stand there and look at the Bay, you think you’re looking at nature of it in terms of it is exceptionally well managed.”

“The problem with those minimum standards right now is that we still treat droughts as emergencies and we have all these temporary urgency changes to relax standards of various sorts,” Dr. Herbold continued.  “Every indication is that since 2000, we going back to a time when droughts are a normal part of what we see. And we respond to drought by relaxing standards. We don’t write standards for the droughts. And so it’s been, to my mind, a clear problem because you can’t plan. You end up making all these sudden changes.  We have droughts. … We’ll have floods. This is California. But again, those 40 years of fairly consistent conditions set us up to think droughts are a sudden emergency and gosh, who could have ever imagined this would happen?”

“That’s a big part of the thrust of the Delta Plan’s amendment on conveyance, storage and operations which is to start treating drought periods as part of the new normal and to integrate it better into planning for operations of the system,” added Jessica Pearson.

“I would second Bruce’s comments after having lived through the last four or five years and participating in those Temporary Urgency Change processes,” said Carl Wilcox.  “This is where I think some of the projects that you’ll be evaluating become very important for how you manage through those droughts, how those can be integrated in to the system, and how they can help buffer those situations, so that we’re not constantly in a mode as we were in the drought of, in effect trading Delta Smelt for winter run salmon, or whatever at the time.”

“So having some variability, but being able to protect outflow in to the Delta and through it is a critical component in maintaining the Delta ecosystem in a healthier fashion,” continued Mr. Wilcox.  “Because with the lower flows, we tend to see an increase in the other stressors being expressed. Things like microcytosis and toxicity in the Delta, expansion of invasive species.  All of those things work together and you know, well there’s great debate about the flow relationships and the need for flow, but I think there’s pretty good observational information that when we have low inflow and outflow conditions in the Delta, we see bad things happening. And when we have better flow conditions like we have this year, we see better results.”

Robin Grossinger notes that the article about water wasted to sea is a worthy read.  “If you want the Delta to be fresh enough to divert water for agriculture, or if you want Contra Costa to be able to divert water for drinking water, then you have to have fresh water to that point, and you can’t just stop it right there, you have to keep going.  The hydraulic barrier – that’s reason to have fresh water going to the bay. The marshes around the edge of the bay are dependent on the sediment that comes down, so if you want marshes and all habitats associated with San Francisco Bay, mud flats and marshes, which also protect the shoreline from sea level rise and wave erosion, you need the sediment that comes along with the water.  If you like beaches along the coast of California, that depends on the sediment, the sand that is carried down by the rivers. It goes on and on, dungeness crab, halibut, salmon obviously, so the cascading range of impacts are pretty extensive, even though at first glance it might seem maybe a waste.”

“For a long time, the lawyers that represented the Department of the Interior claimed that with regard to the Central Valley Project, their water quality obligation was to meet water quality standards for the Contra Costa Canal and for the Delta-Mendota Canal and that’s it,” said Hap Dunning.  “They argued with the state about that for years, and it wasn’t really settled until 1978 when, in a case that involved New Melones Dam on the Stanislaus River, the U.S. Supreme Court said, ‘No, you’ve got to meet state water quality standards.’  There’s a provision in the federal law, which is section eight of the Reclamation Act that says that the Bureau of Reclamation shall comply with state law with regard to water rights.”

“Then there was a decision about Reclamation Law,” continued Mr. Dunning.  “California was against the acreage limitation in Reclamation Law and it went to the Supreme Court. The decision, called the Ivanhoe Decision, said ‘you don’t have to follow the state law there; you can impose the federal requirement for acreage limitation because it’s explicitly stated in another section of the Reclamation Act, section five.’  So the standard that emerged was you have to comply with the state law unless there’s a clear Congressional directive to the contrary. Of course right now there’s legislation pending in the Congress that would give some clear Congressional directives to the contrary.”

“From the Gold Rush, we had a lot of sediment still coming down which changed the nature of the bay,” said Dr. Herbold.  “Sediment does a lot of good things, and as we have been restoring wetlands in the bay, there’s become evidence that sediment is limited, that those newly restored ponds are capturing sediment, and the problem is that in about the year 2000, the amount of sediment coming down the rivers took a real sudden drop off.   So we’ve gone from ‘we’re going to dredge sediment, how are we going to get rid of it?’ to ‘who has some sediment we can use?’  It’s becoming a resource now, and as you build wetlands, one of the considerations is, is it going to starve sediment from somewhere nearby? Is it going to get enough sediment to maintain itself?  In one case, is it going to be filled in with sediment because it’s the one place where the sediment accumulates?  So since 2000, that has really changed some thinking. It has clarified the water in some of the bay because we just don’t get as much sediment coming down.”

“The sediment came from hydraulic mining where large quantities of water were applied under pressure to tear down the hillsides to get the buried deposits of gold,” said Hap Dunning.  “Then the rest of the hillside went into the rivers and caused huge problems in places like Marysville and all down the Sacramento River.  We were talking before about what might happen in the future under the heading of a public trust doctrine or reasonableness. In a way it was sort of similar in the 1880s, both the federal and the state court said no more deposit of this sediment into the rivers, and that killed hydraulic mining. It was a very interesting time, because it was a time when it was a transition in the interior California from relying on mining as our main industry to going to agriculture, and again, as with the riparian right, there were huge debates on what to do about hydraulic mining.”

Chair Armando Quintero noted that there’s an interesting confluence in terms of a couple of things.  “One of them is a public, we’ve all experienced this long drought and now this heavy rain year. So we have an incredible opportunity in terms of public awareness of what we’re dealing with.   One of the things that I’ve seen is that water districts have gone from establishing drought committees when they’re in the middle of a drought to now having water resiliency and reliability committees that are standing committees.  So there is a shift in how those organizations are behaving and in part it’s because of the Water Resources Control Board.   … I would really like see a change in the public conversation around the water year to also include water year and water periods or something that takes into account these multi-year periods.”

“It was really fortunate that with Prop One, chapter eight, and the work that the commission has done with the staff, DWR, and State Water Resources Control Board, and Fish and Wildlife, and that is that all of these project proponents had to include climate change modeling with regards to their projects and their submissions,” continued Chair Quintero.  “I see there is an opportunity really almost for the first time to be looking at these projects, and be thinking about them in the context of exactly what you’re all talking about.  We’re going to be doing all of this in the public arena. It’s going to be really important to both have public awareness and everybody keeping their eye on what we’re facing here. I also see that what we’re doing is just a step in the continuing walk into the future of water in California. We really are at an incredible confluence of opportunity.”

“I wanted to ask a question that is a little more focused on the Water Storage Investment Program which the State Water Board and CDFW have priorities embedded into that program,” said Executive Director Joe Yun.  “We’ve heard a little bit today about complexities in the Delta and ecological restoration. I was wondering if Carl and Jennifer, you could spend a little bit of time with saying how your priorities tie into that restoration picture that the other panelists have talked about?”

“This statewide program has a focus on measurable improvements in the Delta, and so for the State Board,  we structured our priorities so they were priorities that could be realized throughout various projects throughout the state,” said Jennifer LaBay.  “But many of them do have that tie in with the Delta and so along with looking at things with the REVs, the Relative Environmental Values, that we developed and many of the priorities you heard about today- temperature, salinity, restoring flows, and historical flows to the Delta.”

“We also tied in a little bit on reduced demand for the Delta, and we’re looking at projects that can structure their operations so that some of those restorative actions can occur in the Delta,” she continued.  “You heard from Jessica about that you have the reverse flows in the Delta as well as from Robin and Bruce about how the way the Delta has been adapted has changed the species and the quality of the water, and so really looking at with our priorities, looking at the flows and the quality of the water and improving on those. And so some of these projects can structure their benefits to create some of those scenarios.”

“It’s also very complex,” she said.  “The water rights situation in California is very complicated. It’s very important that when we’re looking at these, that it’s not just a matter of, can a project produce those types of improvements, but can you provide the assurances. And a lot of that ties in with the water rights in California.   So, we will be really looking at that when we are looking at applications, not only what priorities can a project provide, but do you have the set up and the assurances to actually provide those.  Then that would be carried on through the contract process that we are going to be entering into following the reviews and the projects that get decided upon by you. So, for us, it’s not just … which priorities might be achieved, but can they be achieved.”

“The complexity is the issue and the integration,” said Carl Wilcox.  “There are issues around temperature and how our project might affect the ability to maintain good temperatures in the upper Sacramento river for winter run during the summer.  But at the end the day, we’re looking for projects that have an effect on the Delta, and can benefit those whether it’s seasonal releases or having water to release at critical time, or during drier periods, where we can augment that out flow in relationship to the other demands that are placed on the system.”

“Those kinds of flows contribute water quality benefits as well as fish and wildlife benefits,” he continued.  “You had asked about more broadly about wildlife.  Marsh in the way it’s managed currently depends on better quality water, fresher water, and there are water quality standards there that are difficult to meet sometimes for the purposes of providing wintering habitat for waterfowl in particular. Suisun is a critical place, particularly in drier periods, because it’s not water limited. You know, it’s in the tidal zone so it can take water pretty much anytime. So, I think there are multiple aspects of that, and what’s going to be the really difficult process to go through is, which projects provide the most relative environmental benefit and how do you select those in relationship to other things.”

During the public comment period, Dr. Jon Rosenfield, Lead Scientist for the Bay Institute, addressed the commission.   “Outside our doorways here, we have the largest estuary on the west coast of North or South America,” he said.  “They call it the Delta, here we call it the bay, but it’s all really one estuary, and it’s powered by the flow of rivers coming down from the mountains, and by the tidal energy and materials coming in from the ocean.  That estuary provides important services for all Californians. Aside from it being a massive tourist attraction, it supports native species, supports fisheries, fall-run  chinook salmon being the most well known, but also a valuable commercial fishery for starry flounder, and some shrimp species … as late as the 1950s, there was a smelt fishery in San Francisco Bay so fisheries are not to be forgotten in this.”

“The estuary also provides clean water as best that it can to people for recreation, for agriculture, and for drinking,” he continued.  “It provides habitats that we enjoy and that we rely on to provide for the wildlife species that we also enjoy, including mud flats and beaches all the way out as far as the coast. That’s the functions and the services, some of them, provided by the estuary. But as you all well know, our estuary is in decline. Evidence of that, six endangered species on either state or federal endangered species lists, fisheries that are in decline and result in closures across our coast … and also declines farther out in the ocean that are related to what happens in the estuary, we see declines and starvation of orca whales, and other marine mammals that rely on fish produced in the estuary.”

“There are declines in clean water. In the Delta, we have increasing frequency of harmful algal blooms, and that’s related to the flow of fresh water, and we see increasing erosion of mud flats, beaches, and tidal marshes that we’re elsewhere spending lots of money to restore because of the lack of delivery of sediment from the Central Valley.  The causes of this – certainly altered habitat has been a big part of the alteration of this estuary, of this Delta, et cetera. But also, it should be noted that most of that habitat was altered or destroyed or leveed …  the habitat was altered – or taken offline, so to speak – before we began measuring fish production or water quality, or any of the things we currently measure, so while that is a huge problem, it can’t be directly linked to the fluctuations that we see nowadays. Those fluctuations and fish production, water quality, clean water habitats, et cetera, can be linked directly to variation in flow from the mountains to the estuary and beyond. Native species, fisheries, clean water habitats, still respond to changes in freshwater flow, annual and seasonal, from the mountains, but we really only get flows that can kind of bail them out in wet years, when our storage capacity or diversion capacity is exceeded.”

“For example, in an average year, 47% of it makes it to the bay – 47% of what would make it to the bay if we didn’t divert or store water in an average year,” Dr. Rosenfield continued.  “In other years, we can get as low as 28% of the flow from the Central Valley making it to the bay. 28% happened in 2009, which was not a dry year, but it followed two dry years. So what happened?  We had all this empty storage space in the reservoirs, and the people who manage them like to fill them and for good reason.  So the more storage space we have, the more likely it is that we cut off the wet years, that are the only years nowadays that provide the resuscitation from what I would call a permanent drought.  In 19 of the last 40 years, the runoff that reached the bay is less than what would have reached the bay in 1977, the greatest drought on record. 19 of 40 years. This is not a problem of droughts that come and go, also those certainly exacerbate things; this is that we take too much water from this estuary.”

“The solution that NGOs and agencies have been faced with for a while is, why don’t we take more water in a wet year, store it and divert it, put it underground, whatever … in wet years like 2017, and then we’ll take less water in drier years.  This is the big gulp, little sip approach and it is something that NGOs and others have supported, in principle. On the back of an envelope, that sounds great. But what I want to ask the commission to consider, and focus on as it considers these projects is, what is the assurance that when you build new storage, it will be used only to take the water in the wet years, and that it will provide actual additional flows in average years, or dry years, or drought years? That’s one. And that it won’t be used to just simply even take more water during those drier years.”

“There are solutions to those problems,” Dr. Rosenfield continued.  “As you consider these proposals. I think you have to look and say, “well, it says that this is how it will work, but what is the actual assurance that we are actually taking water when there is a great abundance, like 2017, 2011, 2006. And that we are going to use that water during drier periods and let more water flow into the ocean?  So, I just wanted to say in closing, that the short paper that was mentioned by some of the speakers here, I’m going to give to the staff. It has the URL, and the larger paper that the Bay institute put together, that really demonstrates all of these estuarine benefits and how they are impacted by diverting fresh water flow.”

“There is a lot more science to come, in terms of what we need to understand around California. From, as you said, “from the top of the Sierra, out the Golden Gate,’” said Commissioner Quintero.  “One of the areas that we have tremendous knowledge gaps is actually, behind the dams and above the dams, we don’t know that.  I think that there is far more we need to do, in terms of understanding the changes in our water sheds. Especially when you go from a drought year to a wet year, multiple years of drought actually dries out the soil. So, a lot of that moisture that falls ends up getting absorbed by the system’s soil, and the expectations in the past were in a normal year, ten inches of rain would result in this much water downstream.  Well, that varies tremendously and unpredictably. So like I said, I think we all need to paying attention to the science, and information that we need to understand. And even more importantly, we need to figure out ways to communicate that clearly with the public. That’s also a huge gap for all of us. So, thank you, all that you are doing is incredibly important. Thank you for being here.”

• For the agenda, meeting materials, and webcast for the August meeting of the California Water Commission, click here.
• For the journal article, Water Wasted to Sea, click here.
• For the Bay Institute report, The Freshwater Starved Estuary, click here.

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