[env-trinity] Environmental Water Gets Cut Again

Wed Dec 1 14:30:51 PST 2004

As the subject indicates, environmental water (Miller/Bradley legislation b2
water) gets cut back yet a third time.  Never has the 800,000 acre feet of
water for the environment in that legislation been provided.  These proposed
actions, in combination with other initiatives - OCAP, SDIP, Contract
Renewals - ultimately will affect all Northern California rivers with the
exception of the Klamath.

Natural Resources Defense Council

Butte Environmental Council

California League of Conservation Voters

California Sportfishing Protection Alliance

California Trout

Clean Water Action

Defenders of Wildlife

Deltakeeper

Environmental Defense

Friends of the River

Friends of TheTrinity River

Marin Conservation League

Mono Lake Committee

Pacific Coast Federation of Fishermen's Associations

Planning and Conservation League

Public Citizen

Sacramento River Preservation Trust

San Francisco Baykeeper

Santa Clara Valley Audubon Society

Save San Francisco Bay Association

Sierra Club California

Southern California Watershed Alliance

December 1, 2004

Lester Snow, Director                                            Ryan
Broddrick, Director

Department of Water Resources                             Department of Fish
and Game

1416 Ninth Street                                                   1416
Ninth Street

Sacramento, CA 95814                                          Sacramento, CA
95814

Re:       Proposed Weakening of CVPIA Environmental Protections 

Dear Mr. Snow and Mr. Broddrick:

We are writing regarding a letter, dated November 22, addressed to both of
you from Kirk Rodgers and Steve Thompson.  The letter is entitled
"Integration of CVPIA Actions with the Environmental Water Account," but it
appears to be principally a proposal to weaken implementation of Section
3406(b)(2) of the Central Valley Project Improvement Act (B2).  Although we
agree that CVPIA actions should be coordinated with the EWA, it is both
unwarranted and unrealistic to ask the EWA to take on some of the
obligations of the CVPIA, as the letter suggests.

As you know, the important B2 provision devotes 800,000 acre-feet of CVP
water annually to the primary purpose of ecosystem restoration, particularly
the restoration of anadromous fish.  Under the Interior proposal, the
availability of CVPIA water to restore anadromous fish would be further
diminished.  We are deeply concerned that this proposed rollback could have
serious impacts on the Bay-Delta ecosystem and on the CALFED program. It is
a painful irony that the Department of Interior has released a proposal that
would be so damaging to CALFED, just as Congress has authorized full federal
participation in the program.   

We have attached a letter, dated October 13, from the environmental
community regarding the development of the OCAP.  This letter was discussed
extensively at the last Bay-Delta Authority (BDA) meeting.  Please note that
this letter specifically refers to our concern regarding rumors of a
proposed rollback of the B2 policy.  At that meeting, Deputy Assistant
Secretary Peltier indicated that he was not aware of any proposal to
rollback the B2 policy.   Unfortunately, it is now clear that such an effort
was, by that date, well under way.  There was a consensus at the BDA meeting
that state and federal agencies must do a much better job of involving the
CALFED process and stakeholders other than their contractors.  The new
proposed B2 rollback will be a key test of this commitment.  Unfortunately,
the November 22 Interior letter fails to discuss any role for the CALFED
program.  

Although the November 22 letter is not clearly written, it appears to be
similar to a proposal that has been under development for several months in
confidential discussions between the Bureau and CVP contractors.  Although
that document has not been publicly released, we have obtained a copy.
Despite a long history of interest in this issue, none of our organizations
have been invited to participate in discussions regarding either of these
documents.  

The primary goal of this proposal appears to be to turn the restoration
priority of the CVPIA on its head.  The CVPIA dedicates the B2 water to the
"primary purpose" of "fish, wildlife and habitat restoration."  The existing
B2 policy dedicates "approximately 200,000 acre-feet" of this B2 water to
fishery restoration actions on upstream tributaries (May 9, 2003 DOI B2
Policy, p. 4).  (It is important to note that, as discussed below, we do not
believe that the existing policy dedicates enough water to the primary
purpose established by the CVPIA.)  Thus, these upstream restoration actions
are established as a priority, although the policy does allow some B2 water
to be applied to compliance with the State Board's Bay-Delta Water Quality
Control Plan.  The November 22 proposal and the related confidential draft
proposal, however, appear to establish the WQCP as the top priority for the
use of B2 water and restoration as the lowest priority.  The result of this
proposed change in the B2 policy could be that, in some years, hundreds of
thousands of acre-feet of B2 water would no longer be available to implement
restoration actions.  

We strongly oppose this proposal, which contains serious problems and raises
important questions for your agencies.

The proposal would violate state and federal requirements that CALFED
develop a balanced program.  State and federal law require the CALFED
Bay-Delta Program to develop a balanced program to achieve the co-equal
objectives of improved ecosystem health, water quality and water supply
reliability.   Several federal actions, however, threaten to redirect water
and funding dedicated to fisheries restoration in order to benefit south of
Delta water users.  These actions include: the current proposed B2 rollback;
the May 9, 2003 B2 rollback; the environmental rollbacks contained in the
OCAP; as well the proposal to use federal CVPIA restoration funds to help
pay for compliance with the ESA.  The ROD promises multiple benefits from
the CALFED program.  The clear pattern of rollbacks in the past year and a
half, however, appears to be designed to increase CVP deliveries by
weakening environmental protection and restoration programs. It is
inconceivable that the CALFED program could be found to be in balance when
agencies are weakening one program area to benefit another.  

The proposal would violate CALFED ROD requirements regarding the EWA.   The
proposal appears to suggest that when, as a result of this rollback,
Interior refused to use B2 water to implement fishery restoration actions,
those actions could be provided by the EWA.  The ROD clearly states that
"(t)he EWA has been established to provide water for the protection and
restoration of fish beyond water available through existing regulatory
actions related to project operations" (ROD, p. 54).  B2 actions are
explicitly written into the CALFED ROD as part of this regulatory baseline.
However, the new Interior proposal would use the EWA, rather than B2 water,
to implement baseline restoration actions. Thus, this proposal would violate
the key ROD requirement that explicitly prohibits the use of the EWA to
replace existing baseline protections.  Do your agencies support this
fundamental revision of the EWA?

The proposal would expand the burden placed on an under-funded EWA.  The
proposal relies on the EWA to replace hundreds of thousands of acre-feet of
B2 water that would be redirected away from upstream restoration actions.
However, the EWA is already over-allocated and under-funded.  Over the past
several years, it has fallen far short of the level of assets required by
the ROD.  In addition, as some of us have noted previously, CALFED agencies
have, on several occasions, chosen not to dedicate permanent water assets to
the EWA.  The addition of new responsibilities would significantly increase
the likelihood that the EWA will fail, harming both the environment and the
water users who rely on it to provide improved water supply reliability.  In
short, we simply do not believe that the proposed strategy to use the EWA to
replace the reallocated B2 water would work.  Do your agencies have a
proposal to provide the additional funding - perhaps more than $20 million
in some years - that would be required by this proposal to expand
dramatically the EWA?   Do your agencies propose that SWP water or funds be
made available, when needed, to provide these upstream restoration actions?

The proposal would threaten the viability of the EWA by expanding it to
include upstream actions.  The ROD states that "(t)he EWA focuses on
resolving the fishery/water diversion conflict at the CVP/SWP Delta export
pumps" (ROD, p. 54).  The Interior proposal, however, would expand the EWA
to include upstream restoration actions.  By expanding the purpose of the
EWA as defined in the ROD, the proposal would open up the EWA to requests
from literally dozens of interests to help meet their upstream regulatory
requirements.  Has DWR or DFG surveyed water users to determine what other
proposals are likely to be forthcoming to take advantage of this proposal to
expand the EWA beyond the Delta?   Has DWR or DFG evaluated the merits of
this proposed new use of EWA water, in comparison with other potential
upstream uses of EWA water?   Given that water users continue to refuse to
pay additional user fees to support the EWA, how would DWR and DFG determine
what upstream restoration actions deserve public funding?

The proposal would shift the burden of implementing fisheries restoration
actions from the CVP to the State.  To date, the majority of the funding for
the EWA has come from state taxpayers.  Therefore, to the extent that the
proposal would use the EWA to provide water for upstream restoration
actions, the proposal would result in state funding being used to pay for a
federal environmental rollback.  We strongly oppose this proposal to shift
the burden of restoring the Bay-Delta ecosystem.  Do your agencies propose
that state taxpayers pay the cost of this federal rollback in ecosystem
restoration requirements?  

The draft policy would undermine the CALFED ecosystem restoration program.
State and federal taxpayers have dedicated hundreds of millions of dollars
to the goal of restoring the health of the Bay-Delta ecosystem.  The
proposed rollback could undermine this investment of public funds.  For
example, this rollback could directly undermine CALFED's fisheries and
riparian restoration efforts.   These impacts on the CALFED Ecosystem
Restoration Program have not been analyzed.  Will DFG commit to undertaking
an analysis of these impacts?  Will your agencies support an examination by
the CALFED ecosystem restoration program and the CALFED science program of
these impacts?  

Agencies must evaluate the cumulative impacts of regulatory rollbacks on
CALFED ecosystem restoration efforts. Unfortunately, this is not the first
proposed rollback of a key environmental protection in the Bay-Delta
ecosystem.  Since the ROD was written, the Department of Interior has
already weakened the B2 policy once.  Through the OCAP process, federal
agencies have also weakened environmental protections for the Sacramento
River.  As discussed previously, state and federal agencies have failed to
provide the EWA with the amount of water required by the ROD.  In addition,
the current EWA financing plan assumes that funding will be redirected from
ecosystem restoration actions to paying for the EWA.  Will your agencies
support an analysis of the cumulative impacts of these actions on the CALFED
ecosystem restoration program?  In particular, will your agencies commit to
undertake modeling to determine the specific restoration actions and the
amount of water dedicated to restoration in the CALFED baseline that could
be lost as a result of these rollbacks?  Will your agencies commit to
working with CALFED to develop a strategy to replace these lost assets,
without further raids on ecosystem restoration funds? 

The proposal undermines the CALFED ROD call for increased water dedicated to
upstream restoration actions. Scientific work in recent years has reinforced
the importance of upstream actions to restore the estuary's anadromous
fisheries.  This need is reflected in the ROD requirement for an additional
100,000 acre-feet of water per year to provide for restoration actions above
the baseline (ROD, p. 36).  The proposed Interior rollback would eliminate
one of the most powerful tools to implement upstream flow-related fisheries
restoration actions.  Thus, in terms of upstream restoration actions, the
proposal would move backwards, when the ROD calls for more forward progress.

The draft proposal conflicts with federal court rulings regarding the
management of B2 water.  The most recent Ninth Circuit ruling regarding B2
states that Interior's allocation of this water must give "effect to the
hierarchy of purposes established in Section 3406(b)(2)" (Ninth Circuit
Court of Appeals, June 3, 2003, p. 5).  This is an area in which the
existing policy and the environmental community prevailed.  However,
Interior's new proposal fails to meet this test.  Rather than establish
restoration actions as the "primary purpose" as required by the CVPIA, the
new proposal would establish restoration as the lowest priority for the use
of B2 water.  We believe that this ruling requires Interior to devote more,
not less, B2 water to fisheries restoration.  (Environmental Defense
explained this position in greater detail in a letter to Assistant Secretary
Raley dated June 10, 2003.)  The flaws in Interior's proposal are even
clearer when one recognizes that the State Board has not adopted any
requirements to implement its salmon doubling narrative standards. Mere
compliance with the WQCP cannot "give effect" to the restoration mandate in
the CVPIA.  Far from implementing this ruling, the new Interior proposal
ignores clear direction from the Ninth Circuit.  We agree with the
additional concerns expressed by The Bay Institute, in a letter dated
November 29, 2004 regarding the management of the EWA and B2 water.

The proposal violates CALFED ROD requirements regarding the Delta conveyance
program.  The proposed action is described as an attempt to coordinate B2
operations with the EWA - a key part of the CALFED Delta management plan.
This rollback is designed to allow the CVP to convey more water through the
Delta to South of Delta customers.  The ROD clearly states that the CALFED
conveyance program must "complement ecosystem restoration" (ROD, p. 48) and
that this program must avoid "adverse impacts to fisheries protection" (ROD,
p. 49).  By harming existing upstream restoration programs, including
fisheries restoration, the proposal would violate this ROD requirement. 

CALFED, other agencies and the public must be provided with adequate time
for involvement prior to action on this proposal. We agree with the
consensus at the past BDA meeting that state and federal agencies must do a
much better job of fully involving CALFED, all state and federal agencies
and the public in CALFED-related issues.  The Interior proposal provides
agencies with another opportunity to restore the relevance of CALFED.
Unless state and federal agencies are fully committed to addressing the
issues of fisheries restoration, upstream reservoir operation, EWA
management and funding, and Delta management through CALFED, then we
question the need for its continued existence.  Will your agencies ask the
Department of Interior for a delay in final action adequate to resolve the
above questions through an open and transparent process? 

We believe that the proposal contained in the November 22 letter is fatally
flawed, which leads us to a final question:  Will your agencies request that
Interior withdraw this proposal?  

We are writing to you directly because we believe that it is time for a
frank and open discussion regarding the continued usefulness of the CALFED
program for addressing key water management issues.  We would greatly
appreciate your response to the questions and concerns outlined above.  In
order to facilitate discussion, we request that this response be provided
prior to the upcoming BDA meeting.   

We thank you in advance for your responses. 

Sincerely,

Barry Nelson

Natural Resources Defense Council

Lynn Barris

Butte Environmental Council

Sarah Rose 

California League of Conservation Voters

Richard Izmirian

California Sportfishing Protection Alliance

Brian Stranko

California Trout

Jennifer Clary

Clean Water Action

Kim Delfino 

Defenders of Wildlife

Bill Jennings

Deltakeeper

Spreck Rosekrans 

Environmental Defense

Steve Evans 

Friends of the River

Byron Leydecker

Friends of The Trinity River

Bob Raab

Marin Conservation League

Frances Spivy-Weber

Mono Lake Committee

Zeke Grader

Pacific Coast Federation of Fishermen's

Associations

Karen Douglas

Planning and Conservation League

John Gibler

Public Citizen

John Merz

Sacramento River Preservation Trust

Sejal Choksi

San Francisco Baykeeper 

Waterkeepers Northern California

Craig Breon

Santa Clara Valley Audubon Society

David Lewis

Save San Francisco Bay Association

Jim Metropulos

Sierra Club California

Conner Everts

Southern California Watershed Alliance

Felix Smith

Cc:       Senator Diane Feinstein

            Senator Barbara Boxer

Congressman George Miller

            Congresswoman Ellen Tauscher

Senator Don Perata

Senator Mike Machado

Senator Sheila Kuehl

Assemblywoman Fran Pavley

Assemblywoman Lois Wolk

Terry Tamminen, Cal EPA

Gary Hunt, Bay-Delta Authority

Kirk Rodgers, BOR

Steve Thompson, FWS

Patrick Wright, Bay-Delta Program

Byron Leydecker

Chair, Friends of Trinity River

Consultant, California Trout, Inc.

PO Box 2327

Mill Valley, CA 94942-2327

415 383 4810 ph

415 519 4810 ce

415 383 9562 fx

bwl3 at comcast.net

 <mailto:bleydecker at stanfordalumni.org> bleydecker at stanfordalumni.org
(secondary)

http://www.fotr.org

http://www.caltrout.org

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://www2.dcn.org/pipermail/env-trinity/attachments/20041201/adb37225/attachment.html>