Oral Testimony
Bill Jennings, California Sportfishing Protection Alliance
Hearing Regarding the Bay-Delta Strategic Plan
16 July 2008
Before the State Water Resources Control Board
We live in a state that averages about 75-77 million acre-feet of unimpaired runoff, has an average water budget of about 82.5 million acre-feet and diversion and storage rights to over half-a-billion acre-feet.
The Strategic Plan, like CalFed, Delta Vision and BDCP will fail because they all evade addressing the fundamental questions.
1. How much water does the estuary require to maintain ecosystem integrity?
2. How much surplus water is available for export?
3. What interim or emergency measures are necessary to avoid catastrophic fisheries collapse?
The Delta cannot be protected without answers to these fundamental questions.
State and federal project operators believe that, after the Delta and Vernalis standards and Table “A” allotments have been met, the rest is “surplus.” They believe they’re entitled to all the remaining water they can pump. This explains the substantial increase in exports since 2000 and why storage at Oroville and Shasta is nearing “1977” record lows.
By gaming the system, they’ve exported water that doesn’t belong to them, brought the Delta to the verge of collapse and should we not have a wet winter, created a nightmare.
Project operators have simply out-foxed the State Board. They’ve been successful because the Board has ignored its most basic responsibility.
As Henry Holsinger, long time chief attorney for the Division of Water Resources and subsequently Chairman of the old State Water Rights Board, stated in a 1942 report and later reiterated in testimony before the Senator Engle’s Congressional Committee hearing in 1951; a comprehensive adjudication of water rights on the Sacramento and San Joaquin Rivers is a fundamental necessity.
Mr. Holsinger emphasized that adjudication of vested rights should have occurred before construction or operation of the projects, a view shared by many others like Walker Young, the Bureau’s supervising engineer in Sacramento (in 1939).
The formal Findings of the 1951 Engle Congressional Committee were:
1. “That for all practical purposes, the developed water supplies of the Sacramento River are overcommitted and oversubscribed.”
2. Without adjudication, “The State of California and Bureau of Reclamation officials may create a ‘legal Frankenstein,’ which would destroy all hope for State control of Central Valley water rights…”
3. It also found that both the state and federal projects were claiming and depending upon the same Feather River water rights.
Legendary water rights attorney Walter M. Gleason, in a 72 page opinion submitted at the request of Senator Stephen Teale, Chairman of the California Senate Interim Committee on Water Projects, during the 1960 consideration of the Burns-Porter Act (Brown Water Bill) described the consequences of a failure to identify and quantify vested rights and prophetically detailed the likely collapse of the Delta in the absence of adjudication.
The Delta export schemes were based, in Holsinger’s words, “wholly and entirely in assumptions.”
The reality was described in DWR Bulletin No. 76 (Delta Water Facilities) in 1960. It states that, after 1981, operation of the SWP and CVP “will necessitate importation of about 5,000,000 acre-feet of water annually to the Delta from north coastal streams…” With the exception of the 52% of Trinity water that is now diverted, that never happened.
Deprived of north coast water, the projects have, over the last three-plus decades, exported water that they have largely embezzled from counties-of-origin, riparians and the public trust.
The State Board has not taken an affirmative action to protect the Delta since the ill-fated D-1630 (released in 92, revised in 93), which included specific restrictions on reverse flows in the South Delta. Unfortunately, the Governor demanded retraction and in 1993 Maughan retired and Samaniego was not reappointed.
The Board can’t even honor its own resolution adopted last December to enforce Delta salinity standards. In a recent backroom non-noticed decision, it unilaterally modified D-1641 by authorizing the use of JPOD even as standards are violated.
The Strategic Plan is little more than business-as-usual.
1. It ignores meaningful near-term measures to protect fisheries and water quality.
2. It shamefully attempts to victimize the victims; i.e., Delta farmers.
3. It essentially punts until Delta Vision and BDCP are finalized.
BDCP is little more than a massive water project masquerading as an HCP to circumvent ESA. It, like Delta Vision, is doomed because it is predicated upon water supply reliability, as first among equals. You can’t have reliability based upon embezzlement. Neither program: will quantify the amount of water required for ecosystem integrity, evaluate reduced export scenarios or establish interim measures.
If the Board is serious about addressing the present crisis in the Delta, it needs to:
1. In the interim, initiate emergency hearings to consider;
a. Reducing exports to 1990 average levels,
b. Limiting reverse flows,
c. Directing DWR and the Bureau to;
i. Comply with the ROD’s fish screen requirements,
ii. Implement a comprehensive contaminate monitoring program,
iii. Evaluate ecosystem water needs for the Delta, including reduced export scenarios.
2. In the mid-term, schedule evidentiary hearings on the CSPA/CWIN and Felix Smith unreasonable use, method of diversion and public trust petitions.
3. For the longer-term, the Board needs to schedule;
a. Adjudication for the Sacramento and San Joaquin River Basins, and
b. Hearings to establish comprehensive, enforceable instream-flow, water quality and Delta outflow requirements.