[env-trinity] ICYMI - Deep Regulatory Capture Exposed: The Links between Delta Tunnels Plan and MLPA Initiative

[Dan Bacher]

  https://www.indybay.org/newsitems/2016/06/15/18787581.php

Photo of the Sacramento River at Clarksburg by Dan Bacher.

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original image (800x533)
Deep Regulatory Capture Exposed: The Links between Delta Tunnels Plan  
and MLPA Initiative

by Dan Bacher

One of the least discussed issues in California environmental politics  
– and one of the most crucial to understanding Jerry Brown’s Delta  
Tunnels plan - is the clear connection between the Marine Life  
Protection Act (MLPA) Initiative and the California WaterFix, formerly  
called the Bay Delta Conservation Plan (BDCP).

The privately-funded MLPA Initiative and the California WaterFix to  
build the peripheral tunnels at first may appear to be entirely  
different processes.

The MLPA Initiative, a process begun in 2004 under the Schwarzenegger  
administration, purported to create a network of "marine protected  
areas" along the California coast. The network was supposedly  
completed on December 19, 2012 with the imposition of contested  
"marine protected areas" along the North Coast.

On the other hand, the Bay Delta Conservation Plan process began under  
the Bush and Schwarzenegger administrations to achieve the so-called  
"co-equal goals" of water supply reliability and Delta ecosystem  
restoration. In 2015, the state and federal governments divided the  
BDCP into two projects, the California WaterFix, the conveyance  
component and the California EcoRestore, the habitat “restoration”  
component.

But in spite of some superficial differences, the two processes are  
united by their leadership, funding, greenwashing goals, racism and  
denial of tribal rights, junk science and numerous conflicts of  
interest. When people educate themselves on the links between the two  
processes, I believe they can more effectively wage a successful  
campaign against the Delta Tunnels and to restore our imperiled salmon  
and San Francisco Bay-Delta fisheries.

Mike Carpenter, a sea urchin diver and organizer of a fundraiser for  
the California Fisheries Coalition in Albion on the Mendocino coast,  
made the vital connection between the MLPA Initiative and  
Schwarzenegger's campaign to build a peripheral canal back in 2009  
when the battle against the creation of questionable "marine protected  
areas" on the North Coast was amping up.

Carpenter emphasized that the MLPA Initiative was just a "cover-up"  
for the Governor's plans to build a peripheral canal or tunnel around  
the California Delta, the largest estuary on the West Coast of the  
Americas, through the Delta Vision and Bay Delta Conservation Plan  
(BDCP) process. Carpenter's words have proven very prophetic,  
considering what has happened since that time.

How are the Delta Tunnels plan and MLPA process linked by leadership,  
funding, conflicts of interest, greenwashing goals, racism and denial  
of tribal rights, and junk science?

1. Leadership: Phil Isenberg, a former Sacramento Mayor and  
Assemblyman, chaired the MLPA Blue Ribbon Task Force to create faux  
"marine protected areas" on the Central Coast from 2004 to 2007.  
Isenberg then went on to Chair the Delta Vision Blue Ribbon Task Force  
that advocated building a peripheral canal or tunnel.

After that process was finished, he went on to chair the Delta  
Stewardship Council created under the water policy/water bond  
legislative package of 2009. He recently retired from the Council.

Under his leadership, the Council released a Delta Plan that creates a  
clear path to the construction of the Delta Tunnels. The deeply-flawed  
plan has been contested by 7 lawsuits from a diverse array of water  
contractors, agribusiness interests, urban water agencies,  
environmentalists, Indian Tribes and fishing groups.

Likewise, John Laird, former State Senator and the current Natural  
Resources Secretary, is the key cheerleader for both the MLPA  
Initiative and the Delta Tunnels. He oversaw the completion of the  
faux "marine protected areas" for both the South Coast in January 2012  
and the North Coast in December 2012, in spite of overwhelming  
opposition by fishermen, Tribal leaders and grassroots  
environmentalists.

Now Laird promotes the construction of the tunnels at virtually every  
conference and media event he participates in, along with writing  
frequent op-eds in mainstream media portraying the WaterFix as the  
“solution” to water supply and ecosystem problems. (http://www.sacbee.com/opinion/op-ed/soapbox/article58494508.html 
)

2. Funding: The Resources Legacy Fund Foundation and David and Lucille  
Packard Foundation both funded the MLPA Initiative, along with giving  
millions of dollars to the "environmental" NGOs that supported both  
the MLPA and BDCP processes. (http://www.californiaprogressreport.com/site/big-corporate-money-behind-fake-marine-protection 
)

Five non-profits donated a total of $20 million for the creation of  
"marine protected areas" under the Marine Life Protection Act  
Initiative. The Packard Foundation, the biggest contributor to the  
widely-criticized process, contributed $8.2 million to the Resources  
Legacy Fund Foundation to fund MLPA hearings.

The Packard Foundation and Resources Legacy Fund also helped fund,  
along with the Stephen Bechtel Foundation, several Public Policy  
Institute of California (PPIC) reports advocating the construction of  
the Delta Tunnels as the "solution" to California's water problems and  
ecosystem restoration.

For example, the PPIC in 2011 published a 500 page book, "Managing  
California's Water: From Conflict to Reconciliation," designed to  
greenwash the construction of a Peripheral Canal or Tunnels. The book  
was funded by the S. D. Bechtel, Jr. Foundation, the David and Lucile  
Packard Foundation, the Pisces Foundation, the Resources Legacy Fund,  
and the Santa Ana Watershed Project Authority. (http://www.indybay.org/newsitems/2011/03/03/18673760.php 
)

3. Conflicts of Interest: The Blue Ribbon Task Forces to create  
“marine protected areas” under the MLPA Initiative were filled with  
individuals with numerous conflicts of interest, including a big oil  
lobbyist, a marina corporation executive and a coastal real estate  
developer.

Catherine Reheis-Boyd, the president of the Western States Petroleum  
Association (WSPA( and a relentless advocate for offshore oil  
drilling, fracking, the Keystone XL Pipeline and the weakening of  
environmental laws, chaired the South Coast MLPA Blue Ribbon Task that  
developed the MPAs that went into effect in Southern California waters  
on January 1, 2012. She also served on the MLPA Blue Ribbon Task  
Forces for the North Coast, North Central Coast and Central Coast. (http://www.dfg.ca.gov/marine/mpa/brtf_bios_sc.asp 
)

While Reheis-Boyd served on the task forces to "protect" the ocean,  
the same oil industry that the "marine guardian" represents was  
conducting environmentally destructive hydraulic fracturing (fracking)  
operations off the Southern California coast. Documents obtained under  
the Freedom of Information Act and media investigations by Associated  
Press and truthout.org in 2013 reveal that the ocean has been fracked  
at least 203 times in the past 20 years, including the period from  
2004 to 2012 that Reheis-Boyd served as a "marine guardian.”

In the case of the BDCP/California WaterFix, the proverbial fox was  
also in charge of the hen house. Governor Jerry Brown appointed Laura  
King Moon of Woodland, a lobbyist for the state’s water exporters, as  
chief deputy director of the California Department of Water Resources  
(DWR). (http://www.indybay.org/newsitems/2013/09/18/18743462.php)

Moon had been a project manager for the Bay Delta Conservation Plan  
since 2011 while “on loan” from the State Water Contractors, an  
association of 27 public agencies from Northern, Central and Southern  
California that purchase water under contract from the California  
State Water Project. Moon passed away from cancer last year.

DWR also hired Susan Ramos, Deputy General Manager of the Westlands  
Water District, "on loan" from the district to serve as "a liaison  
between all relevant parties" surrounding the Delta Habitat  
Conservation and Conveyance Program (DHCCP) and provide "technical and  
strategic assistance" to DWR.

Documents obtained by this reporter under the California Public  
Records Act revealed that Ramos was hired in an "inter-jurisdictional  
personal exchange agreement" between the DWR and Westlands from  
November 15, 2009 through December 31, 2010. The contract was extended  
to run through December 31, 2011 and again to continue through  
December 31, 2012. (http://www.indybay.org/newsitems/2011/12/14/18702762.php 
)

4. Greenwashing Goals: Desperately needed actions to restore our  
ocean, bay and Delta waters have been substituted under the MLPA  
Initiative with the imposition of more fishing closures on some of the  
most heavily regulated ocean waters on the planet to further the  
Governor's "green" facade.

The alleged "marine reserves" created under the MLPA scam fail to  
protect the ocean from fracking, oil drilling, pollution, military  
testing, wind and wave energy projects and all human impacts on the  
ocean than fishing and gathering - at a time when the ocean is under  
assault by the oil industry, corporate polluters and ocean  
industrialists.

The greenwashing that occurred under this process become crystal clear  
during the Refugio Oil Spill of May 2015 when a badly corroded  
pipeline operated by the Plains All American Pipeline Company burst,  
fouling more than 9 miles of pristine coastline. (http://www.dailykos.com/story/2016/5/17/1527673/-Grand-Jury-Indicts-Pipeline-Company-on-Criminal-Charges-in-Refugio-Oil-Spill 
)

Not mentioned in the superficial coverage of the spill by the  
mainstream media and most of the “alternative media” is the alarming  
fact that Catherine Reheis-Boyd, the head of the same oil industry  
trade association that lobbies for the Plains All American Pipeline  
corporation, whose pipeline rupture caused the massive oil spill, is  
the very same person who chaired the panel that created the so-called  
"marine protected areas" that were fouled by the spill.

"Plains All American, the owner of the pipeline, is a member of the  
Western States Petroleum Association," proclaimed Catherine Reheis- 
Boyd, President of the Western States Petroleum Association (WSPA), in  
her blogpost responding to the spill last year. (http://www.wspa.org/blog/post/statement-santa-barbara-oil-spill 
)

In the case of the Delta Vision and BDCP/California Water Fix  
processes, the dire need to restore the Delta by decreasing water  
exports and retiring drainage impaired land on the San Joaquin  
Valley's west side has been substituted with plans to build twin  
tunnels and increase water exports to corporate agribusiness,  
developers and oil companies while taking Delta family farms out of  
production under the guise of “habitat restoration.”

Meanwhile, California’s fish populations are in a historic crisis. The  
population of Delta Smelt plummeted to a new low in the annual spring  
survey conducted by the California Department of Fish and Wildlife  
(CDFW) as the endangered fish moves closer to the abyss of extinction.  
The 2016 Spring Kodiak Trawl (SKT) index, a relative measure of  
abundance, is 1.8, a decrease from the 2015 index (13.8) and is the  
lowest index on record. Only thirteen adult Delta Smelt were collected  
at 8 stations contributing to the index in 2016.

Ironically, Bill Jennings, Executive Director of the California  
Sportfishing Protection Allliance (CSPA) pointed out that the State  
Water Resources Board is now preparing for upcoming hearings on the  
petitions by the Department of Water Resources and Bureau of  
Reclamation to change their points of diversion in order to proceed  
with the construction of Governor Jerry Brown’s Delta Tunnels.

“This plan will deprive the Delta smelt of their habitat by exporting  
vast quantities of water from the Sacramento River,” said Jennings.  
“If the State Board approves the petition, it will only exacerbate  
things enormously for the Delta smelt and other fish species.”

The Delta Tunnels plan will not only hasten the extinction of Delta  
smelt, but it will also drive longfin smelt, winter-run Chinook  
salmon, Central Valley steelhead, green sturgeon and other fish  
species closer and closer to extinction, according to Delta advocates  
and scientific experts. The WaterFix will also imperil the salmon and  
steelhead populations on the Trinity and Klamath rivers, since water  
from the Trinity, the largest tributary of the Klamath, is diverted to  
the Sacramento River watershed through a tunnel in the Trinity  
Mountains from Trinity Lake to Whiskeytown Reservoir.

5. Racism and denial of tribal rights: Tribal and environmental  
justice communities in both processes have been excluded in a classic  
example of environmental racism.

The institutional racism of the MLPA process was demonstrated when the  
Yurok Tribe was banned from harvesting abalone, mussels and seaweed  
off their traditional areas off the False Klamath and Reading Rock as  
they have done for thousands of years under the "marine protected  
areas" that went into effect off the coast in December 2012. (http://yubanet.com/california/Dan-Bacher-MLPA-Initiative-based-on-incomplete-and-terminally-flawed-science.php 
)

And in spite of direct action protests and outrage by Tribal members,  
fishermen and grassroots environmentalists over the flawed Initiative,  
the MLPA Initiative still fails to recognize tribal gathering rights  
in no take "State Marine Reserves," allowing tribal gathering only in  
"State Marine Conservation Areas" where some fishing and gathering is  
already allowed.

Likewise, the Bay Delta Conservation Plan/California WaterFix has been  
developed without the required consent from California Tribes  
including the Winnemem Wintu Tribe, as required under the UN  
Declaration on the Rights of Indigenous People. In fact, the first  
formal informational meeting for California Tribes on the BDCP was  
held on December 10, 2013, in Sacramento - the day after the EIR/EIS  
for the tunnel plan was released!

That is hardly "government-to-government" consultation, as required  
under state, federal and international law.

“There is no precedent for the killing of an estuary of this size, so  
how could any study be trusted to protect the Delta for salmon and  
other fish?" asked Caleen Sisk, Chief and Spiritual Leader of the  
Winnemem Wintu Tribe. "How can they even know what the effects will  
be? The end of salmon would also mean the end of Winnemem, so the BDCP  
is a threat to our very existence as indigenous people.”

This environmental injustice extends to non-English speakers in  
California impacted by the Delta Tunnels Plan. Restore the Delta (RTD)  
and environmental justice advocates charged the Brown Administration  
with violation of the civil rights of more than 600,000 non-English  
speakers in the Delta by its agencies' failure to provide for  
“meaningful access to and participation” in the Bay Delta Conservation  
Plan (BDCP) public comment period.

"More than 600,000 Delta residents alone don't speak English, and are  
being shut out of the public comment process on this massive project  
that would affect them deeply," said Esperanza Vielma, executive  
director of Café Coop & Environmental Justice Representative, San  
Joaquin County/San Joaquin Valley Air Quality Board. "The Brown  
Administration is violating the civil rights of Limited English  
speaking Californians in its rush to build tunnels to serve the top 1%  
of industrial agriculture."

6. Junk Science: Both the MLPA Initiative and BDCP/California Water  
Fix fiasco have relied on false assumptions and flawed data with  
little or no basis in natural science to advance their goals and  
objectives.

In the case of the MLPA Initiative, the Yurok Tribe said it attempted  
on numerous occasions to address the scientific inadequacies with the  
MLPA science developed under the Schwarzenegger administration by  
adding "more robust protocols" into the equation, but was denied every  
time.

The Northern California Tribal Chairman's Association, including the  
Chairs of the Elk Valley Rancheria, Hoopa Valley Tribe, Karuk Tribe,  
Smith River Rancheria, Trinidad Rancheria, and Yurok Tribe, documented  
in a letter how the science behind the MLPA Initiative developed by  
Schwarzenegger's Science Advisory Team is "incomplete and terminally  
flawed."

Frankie Joe Myers, Yurok Tribal member and Coastal Justice Coalition  
activist, exposed the refusal to incorporate Tribal science that  
underlies the "science" of the MLPA process on the day of the historic  
direct action protest by a coalition of over 50 Tribes and their  
allies in Fort Bragg in July 2010.

“The whole process is inherently flawed by institutionalized racism,"  
said Myers. "It doesn't recognize Tribes as political entities, or  
Tribal biologists as legitimate scientists." (http://klamathjustice.blogspot.com/2010/07/july-21st-2010.html 
)

To make things even worse, a federal judge in May 2014 sentenced Ron  
LeValley of Mad River Biologists, the former co-chair of the Marine  
Life Protection Act (MLPA) Initiative Science Advisory Team for the  
North Coast, to a 10 month federal prison sentence for his role in a  
conspiracy to embezzle over $852,000 in federal funds from the Yurok  
Tribe!

LeValley pleaded guilty to a single federal charge of conspiracy to  
commit embezzlement and theft from an Indian Tribal Organization  
(18U.S.C §§ 371 and 1163) in the complex scheme in collaboration with  
former Yurok Forestry Director Roland Raymond. According to court  
documents, LeValley submitted more than 75 false invoices between 2007  
and 2010 in payment for “work” on northern spotted owl surveys that  
was never performed. The link to the indictment is available at: http://noyonews.net/wp-content/uploads/2013/10/U.S._v._Ron_LeValley_As_Filed.pdf

For many of the Yurok Tribe's documents regarding the MLPA Initiative,  
go to:http://www.yuroktribe.org/government/tribalattorney/OfficeoftheTribalAttorney-MLPA.htm

The BDCP/California WaterFix “science” is also a sham. For example, on  
July 18, 2013 scientists from the U.S. Bureau of Reclamation, U.S.  
Fish and Wildlife Service, and National Marine Fisheries Service  
exposed the hollowness of claims by Secretary John Laird and other  
state officials that the BDCP is based on "science." This was done  
after the federal agencies had already made "red flag" comments  
stating that the completion of the tunnel plan could hasten the  
extinction of Sacramento River Chinook salmon, Delta smelt, longfin  
smelt and other fish species.

The federal scientists provided the California Department of Water  
Resources and the environmental consultants with 44 pages of comments  
highly critical of the Consultant Second Administrative Draft EIR/ 
EISDraft, released on May 10, 2013. The agencies found, among other  
things, that the draft environmental documents were “biased,”  
“insufficient," "confusing," and "very subjective." (http://baydeltaconservationplan.com/Libraries/Dynamic_Document_Library/Federal_Agency_Comments_on_Consultant_Administrative_Draft_EIR-EIS_7-18-13.sflb.ashx 
)

Then in August 2014 the U.S. Environmental Protection Agency (EPA)  
issued a scathing 43-page comment letter slamming the Bay Delta  
Conservation Plan’s draft Environmental Impact Report/Environmental  
Impact Statement (EIR/EIS).

The EPA diagnosis revealed that operating the proposed conveyance  
facilities “would contribute to increased and persistent violations of  
water quality standards in the Delta, set under the Clean Water Act,”  
and that the tunnels “would not protect beneficial uses for aquatic  
life, thereby violating the Clean Water Act." (http://www.dailykos.com/story/2014/8/30/1325955/-Tunnel-opponents-applaud-EPA-s-scathing-comment-letter 
)

Bob Wright, the lawyer for Friends of the River, summed up the  
complete lack of science that the BDCP/California Water Fix is based  
upon when he said, "The plan is to grab the water and in the process  
take it away from designated critical habitat for several already  
endangered and threatened species of fish including Sacramento River  
Winter-Run and Central Valley Spring-Run Chinook Salmon and drive them  
into extinction. That is against the law because federal agencies are  
prohibited from doing that by the Endangered Species Act."

Unjust Implementation of MLPA Initiative Continues

The MLPA Initiative's unjust implementation continues to forge ahead,  
in spite of opposition by anglers, conservationists and public trust  
advocates. On April 13, the California Fish and Game Commission moved  
forward with a controversial final Marine Protected Area “Master Plan”  
that postpones environmental assessments from every 5 years, as  
originally promised, to every 10 years. (http://fishsniffer.com/index.php/2016/04/13/california-fish-and-game-commission-breaks-promise-to-anglers/ 
)

The three members of the commission at the time – President Eric  
Sklar, Vice President Jacque Hostler-Carmesin, and Member Anthony C.  
Williams – postponed the vote for approval to the June meeting. Since  
the April meeting, the Governor appointed two new Commissioners,  
Russell Burns of Napa, and Peter Silva of Chula Vista.

At the June meeting, the five Commissioners voted to postpone the  
official approval of the master plan until its August 24 or August 25  
meeting in Folsom, due to concerns about the plan from the Yurok and  
other California Indian Tribes.

It's no surprise that both of the new Commissioners have worked for  
organizations backing the Delta Tunnels. Burns is the business manager  
at Operating Engineers Local Union 3, a strong supporter of the  
California Water Fix, since 2006. Silva served as senior policy  
advisor at the Metropolitan Water District of Southern California, one  
of the key organizations pushing the Governor’s Delta Tunnels Plan,  
from 2005 to 2009

We can see that MLPA and BDCP/California WaterFix processes have much  
in common in terms of their leadership, funding, conflicts of  
interest, greenwashing goals, racism and denial of tribal rights, and  
junk science. I believe that people can more effectively oppose the  
Governor's Delta Tunnels Plan by understanding the dark links between  
the MLPA Initiative and BDCP.

The unjust implementation of questionable "marine protected areas"  
under the MLPA Initiative also provides a cautionary tale for  
activists fighting the California Water Fix - the fact that science,  
state, federal and international laws and the majority of people are  
on your side doesn't necessarily mean that you will prevail. The state  
and federal governments have a long history of implementing projects  
that don't make any scientific, legal or economic sense because  
powerful corporate interests effectively bought off and manipulated  
agency and elected officials to produce a pre-determined outcome.

It is vital that people fighting against the California WaterFix and  
for the restoration of salmon and other fish populations in California  
learn from both the successes and mistakes of MLPA Initiative  
opponents so they can more effectively wage a successful campaign to  
stop the construction of Governor Jerry Brown's Twin Tunnels.

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