Last week, Congressman Nunes introduced an eye-poppingly radical bill, H.R. 1837, which would:
- Eliminate a century-old requirement that the federal government follow state water law whenever possible;
- Overturn Endangered Species Act protections for the Bay-Delta and its imperiled fisheries;
- Abolish the widely-supported San Joaquin River restoration settlement and its collaborative process to restore historic salmon runs;
- Wipe out requirements to modernize the Central Valley Project in the Central Valley Project Improvement Act;
- Override the historic state Water Reform Package passed in 2009 that adopted the co-equal goals of restoring the Bay-Delta ecosystem and improving water supply reliability as the twin drivers of California water management;
- And turn state water rights on their head by making senior water rights holders responsible for the ecological mess made by the more junior Central Valley Project and State Water Project.
But that’s not all. One of the more insidious but less obvious effects of H.R. 1837 is the destructive effect it would have on consensus-based efforts to improve California’s water system. One of these efforts is the Bay Delta Conservation Planning process, an attempt to craft a habitat conservation plan under the federal Endangered Species Act and state Natural Community Conservation Planning Act. By eliminating Endangered Species Act and state law protections for threatened and endangered species in the Bay-Delta, H.R. 1837 pulls the rug out from under the BDCP. If H.R. 1837 were to pass, there would simply be no legal foundation on which to build a habitat conservation plan anymore.
H.R. 1837 would also likely make authorizing a new peripheral canal impossible. A new canal to carry water around the Delta has been a central aspect of BDCP. Such a canal would have to be authorized by the State Water Resources Control Board, which could only approve it if it caused no injury to other beneficial water users and uses, including fish protection. H.R. 1837 would likely make the State Board’s approval of such a permit impossible because it caps the flow and habitat contributions that the CVP and SWP could make at levels defined in 1994, long before we faced the ecosystem conditions and developed the scientific knowledge that we have today. Collectively, the limitations in H.R. 1837 would prohibit all of the proposed operations of a canal that have been seriously considered in BDCP to date. It’s hard to imagine how the proponents of a peripheral canal could show “no injury” to other water users in light of such restrictions. As a result, it’s hard to imagine how the BDCP could ever receive necessary state permits, if this bill were to pass.
H.R. 1837 would also hobble existing CVPIA restoration funds and flows that are currently used to mitigate the effects of the CVP on the Bay-Delta ecosystem, and do away with increased San Joaquin River flows under San Joaquin restoration settlement. By eliminating these existing contributions of the CVP to aquatic health, the bill would shift the burden to other water users to make up the difference under the status quo. To then impose the even steeper burden on these other water users of mitigating for the effects of a new canal on the environment would be daunting, if not impossible.
Perhaps most importantly, H.R. 1837 would erode the trust necessary for BDCP to succeed. BDCP is a process in which different water interest groups are trying to work together to craft a long-term plan to satisfy their many needs. Developing such a plan requires a fundamental degree of trust: trust that if a new peripheral canal is built, it will be operated in such a way that it will not harm the environment. Trust that the terms of a BDCP permit will be followed even if those terms cause some pain in the form of increased need for alternative water supplies in drought years. Trust that the parties won’t reach an agreement at the end of this lengthy process, only to have some parties turn around and seek a legislative rewrite of the deal when it becomes inconvenient for them.
It’s abundantly clear that, should H.R. 1837 become law, the BDCP process could not succeed. But even the legislative debate over the bill could be damaging. It’s challenging, to say the least, to cultivate an environment of trust in the BDCP’s efforts to restore California’s Bay-Delta when some parties are seeking to undermine existing protections in Congress.
These next few weeks will be a very delicate time for BDCP. We will be watching closely to see whether BDCP participants demonstrate their commitment to a collaborative, science-based solution to California’s water challenges by opposing the Nunes bill, or whether they decide to roll the dice in Congress and doom BDCP to failure.