Save the California Delta Alliance (STCDA)

STCDA attorney Michael Brodsky submitted formal administrative comments to the Delta Stewardship Council on behalf of STCDA criticizing many aspects of the Delta Plan. The Plan is currently being developed and could change life in the Delta as we know it. See the formal administrative comments here.

Mr. Brodsky also sent the following letter to Wall Street Journal reporter Jim Carlton

Dear Mr. Carlton,

Mike Guzzardo asked me to contact you to provide my overview of Delta water issues. I apologize in advance for the length here but there are number of interrelated things going on and so far I haven’t seen any coverage that puts all the pieces together in a way that really gives the public an overview of what is going on so I thought you might find this useful.

From my perspective all of the present controversies are really framed by one thing: the water contractors have seized the levers of power. Not only is this Chinatown all over again, its Chinatown meets George Orwell: the huge new canal to divert Sacramento River water to Los Angeles is officially classified as a “conservation measure;” the move to privatize public water resources is advanced under the newspeak rubric of “public benefit;” the master plan to guide resource management of San Francisco Bay and the Delta for the next 30 years, called the Bay Conservation and Development Plan (BDCP) is being formulated with the water contractors in the driver’s seat and the dominant goal of building the Peripheral Canal to divert water to southern California.

1) The Peripheral Canal and the BDCP. Plans to build the Peripheral Canal in order to transport Sacramento River water around the Delta and directly to the export pumps, depriving Delta sloughs and rivers of water that currently flows through them, is being advanced through the BDCP process. The BDCP process was originally billed as a fair, balanced, and transparent planning process where all options to deal with Delta issues were on the table. As it turned out, the water contractors had secret and outsized influence from early on and the BDCP’s stakeholder meetings and other public relations measures are no more than a fig leaf for the water contractors to push through the Peripheral Canal.

Congressman George Miller has complained extensively about the inappropriate role of the water contractors in the BDCP. The San Jose Mercury news has covered the issue and editorialized about the favoritism of the BDCP process to water export agencies. I have submitted formal comments to the agency on behalf of MIke Guzzardo’s group (Save the California Delta Alliance) about the unlawfulness of the process.

2) The Canal Bond Measure. An $11 billion dollar bond measure will be submitted to California voters this November. The bond is billed as the “Safe, Clean, and Reliable Drinking Water Supply Act.” Who could be against that? But this bond has nothing to do with the safety of drinking water . Drinking water standards are set by the federal and state governments and are in no way affected by this bill. Rather, the underlying purpose of the bond measure is to enable construction of the Peripheral Canal, shift costs from the water contractors to the tax payers, and further privatize public water resources. The bond measure states that its funds cannot be used for canal construction. However, it allocates billions for other critical costs associated with the canal. The exact mechanics of this are a bit too complicated to go into in detail here, but I would be happy to explain the details if you wish. Traditionally water infrastructure is paid for by the end users through the water rate structure. Here a new concept of “public benefit” has been introduced. But what public benefit really means is that the cost is shifted from the water contractors to the general tax base.

The water contractors have attempted to hide the true purpose of the bond measure from the public as follows: California law requires that for all ballot measures submitted to the voters, the California Attorney General has the duty to review each measure and prepare an impartial ballot title and summary of 100 words. From the 100 word summary, a condensed 75 word ballot title is drawn. The ballot title is what the voters see in the ballot booth when they place their mark for “yes” or “no.” The A.G. has a duty to prepare a title and label that are impartial and will not create prejudice either in favor or against the measure. Here, the water contractors have inserted language into the Canal Bond that purports to deprive the A.G. of authority to prepare an impartial summary for this measure. Instead, the water contractors have written their own summary and inserted it into the Canal Bond. If they have their way, the voters will see only the water contractor’s version next to where they place the X on the ballot.

In my view, this was patently unlawful when the legislature approved this scheme in 2010. If there was any doubt, subsequent case law on unrelated ballot measures has removed it. The A.G. has a statutory duty to prepare an impartial summary and the legislature (doing the bidding of the water contractors) does not have the authority to usurp this function. It remains to be seen how the A.G. will respond when the time comes to prepare ballot summaries, but her actions will certainly be closely watched. California law allows for a challenge to the ballot summary before it is submitted to voters. I would not be surprised to see a challenge to this ballot summary later this summer (from groups like ours if the summary favors the water contractors, or from the water contractors if it doesn’t).

I can provide you with the source documents (bill language, etc) establishing the above-stated facts as well as contact information for others familiar with the subterfuge associated with this bond measure.

3) The Delta Plan and the Delta Stewardship Council. Running alongside the BDCP planning process is another process to plan for the future of the Delta. Once adopted, the Delta Plan will be the top tier plan for the Delta. After the BDCP planning process is complete, the BDCP will be submitted to the Delta Stewardship Council (the agency responsible for promulgating the Delta Plan) and, if approved by the Council, will be incorporated as a part of the Delta Plan. The legislation that created the Delta Stewardship Council and authorized the Delta Plan requires that reliance on the Delta as a source of water be reduced. This was part of the grand bargain struck to allow for construction of the Peripheral Canal. It mandates increased conservation and development of local supplies (among other things) in order to reduce Delta exports. However, the regulations being proposed by the Delta Stewardship Council thus far ignore this critical requirement by simply stating that existing water conservation measures are going really well and nothing further need be required. The water contractors thus get their canal but don’t have to keep their end of the reduced Delta reliance bargain. I have submitted formal administrative comments on behalf of STCDA to the Stewardship Council addressing this issue.

4) The Consolidated Salmonid Cases. Operation of the Central Valley Project and the State Water Project (the two vast systems of canals that export water from the Delta) is governed by biological opinions issued by federal regulators from time to time. The 2009 biological opinion mandated a number of measures to protect endangered fish populations, including water export curtailment. The water contractors challenged this biological opinion in court and in a surprising decision, departing from precedent and normal practice, Judge Wanger struck down the biological opinion. You are probably familiar with the controversy surrounding Judge Wanger’s decision to retire from the bench and go to work for the water contractors immediately after issuing the Consolidated Salmonid Opinion.

The case is currently being appealed to the United States Court of Appeals for the Ninth Circuit.

5) Privatizing the Kern Water Bank. In a series of secret meetings, the State Department of Water Resources turned over ownership and control of the Kern Water Bank to private interests. The secret deal is being challenged in court and opponents claim that the deal “turned over control of a significant portion of California’s water supply to a cabal of agricultural barons including billionaire Stewart Resnick.” This is another example of the “public benefit” concept.

6) The 2-Gates Project. I believe the 2-Gates project was the original concern that got you in touch with Mike Guzzardo. I submitted administrative comments on behalf of STCDA challenging the science underlying this project (as well as addressing its environmental impacts). Currently operation of the export pumps near Discovery Bay is curtailed by court order because the pumps tend to suck up the endangered Delta Smelt. The water contractors are always looking for ways to get around this court order. 2-Gates is their latest attempt. The idea behind 2-Gates is that the smelt prefer muddy water (high turbidity). Their theory is that by operating the gates they can manipulate water quality so it is less muddy in the area surrounding the pumps. If the water is less muddy, the smelt will stay away and they can run the pumps full tilt. However, there is little evidence to support the theory that the smelt will respond in this way. Because of our comments and those of others regarding the lack of scientific support for the 2-Gates model, the project was put on hold. But the water contractors are sponsoring new research that will purport to prove their theory. The researchers are employed by the United States Geological Survey but I would not be surprised if the water contractors are paying the tab for the research (they certainly will pay for construction and operation of the Gates project if it goes through). And the Metropolitan Water District of Southern California hired the researchers who came up with the original smelt-turbidity hypothesis. The new U.S.G.S. research was originally planned as 4 year study but it is being cut short and the researchers are being pressured to write up their findings based on a truncated study. The whole 2-Gates thing was billed as a “demonstration project” to generally benefit fish in the Delta. This is nonsense. It has no purpose other than to allow vastly increased water exports. The water contractors have been roundly criticized for trying to hide the true purpose of the project by the Delta Science Panel, among others.

The Peripheral Canal is the water contractor’s long term plan to take more water, but even under the best scenario for them it wouldn’t be operational for at least 10 and probably 15 years. So the gates are a high priority in the near term.

Finally, I understand Mike took you out for a boat ride. I hope you enjoyed our Delta and got to meet some of the characters out on some of the islands out there. From grizzled Marina operators to farmers fighting eminent domain to make way for the canal you can’t beat the Delta for local color. You’re less than a 100 miles from San Francisco but you might as well be on another planet. The Post Office even delivers mail by boat out there.

Michael Brodsky
Law Offices of Michael A. Brodsky