Today, California's Governor is signing into law SB 7X 1, part of the legislative package to reform water policy in the state. The bill being signed today builds the foundation for a sustainable 21st century water policy, which is built on two interrelated principles:
- Improving water supply reliability and protecting and restoring the health of the Delta estuary, and its native fisheries, are co-equal goals for Delta policy (See Sections 85020, 85054, 85300); and
- In order to achieve these goals, the policy of the state is to reduce reliance on water exported from the Delta and invest in alternative water supplies, like water efficiency, water recycling, and low impact development. (Section 85021)
Many fishermen and environmentalists are nervous about the co-equal goals, and what they mean for California's environmental laws. When I first heard the Delta Vision Task Force discussing the co-equal goals, I was pretty anxious myself: would this require the Endangered Species Act or other environmental laws to be "balanced" against water exports? Would the co-equal goals require more water be pumped out of the Delta?
The answer to both those questions is an emphatic no. Rather than undermining or weakening existing environmental laws, these two intertwined policies in the State legislation should help California protect its fisheries and the Delta environment. Indeed, two of the most important things about the co-equal goals in this state legislation are what they do not do.
First and foremost, the co-equal goals do not override existing environmental laws, like the California Endangered Species Act, the Porter-Cologne water quality law, or the Public Trust doctrine. (See Section 85032). In essence, the co-equal goals mean that environmental concerns are no longer an afterthought or something to be mitigated after the fact, but must be at the heart of all decisions about the Delta, not just those that affect endangered species, but also other native fish (such as salmon runs that aren't listed under the ESA). It requires the water projects to not only meet the requirements of the ESA and CESA, but also to prevent things from getting so out of balance that our endangered species laws have to be implemented.
Second, the co-equal goals do not require greater water exports from the Delta. The goal is "improving water supply reliability," not increasing water supply from the Delta, or greater water exports, or full contract deliveries. Quite the opposite: this legislation establishes state policy to achieve water supply reliability by reducing reliance on water exports from the Delta, and to meet our State's future water needs by sustainable, alternative supplies: the Virtual River.
These changes in policy are the foundation of a 21st Century water policy for California. But to understand the magnitude of this change in policy, we have to consider the policies in place when the State and federal water projects were first constructed.
For decades, California's water policy focused solely on extracting more water from the Delta and moving it to arid parts of the San Joaquin Valley and Southern California. Historically, the purpose of the federal Central Valley Project was to regulate and protect against floods, provide water for irrigation and domestic use, and generate power. Over the years, the state and federal water projects increased water exports from the estuary, rising to record levels in the early part of this decade (five of the six highest export years occurred in the past decade). The water projects proved very successful at expanding agriculture and urban development in these arid lands.
But those water exports also came at a huge cost: the collapse of California's once mighty salmon fishery, loss of wetlands and wildlife habitat, rivers dammed and dried up, and numerous fish and wildlife species listed as threatened or endangered as a result of the declining health of the Delta and our rivers. Sometimes mitigation was required, in the form of fish hatcheries or other measures, but it was usually an afterthought, and never came close to fully mitigating those impacts.
However, in the early 1990s, the environmental consciousness that had taken hold in the 1970s resulted in Congress enacting major legislative changes to the federal Central Valley Project. Passage of the Central Valley Project Improvement Act (CVPIA) in 1992 changed the declared purposes of the federal project, making ecosystem protection and fishery restoration co-equal project purposes with water supply. In addition, in the early 1990s several salmon runs and other fish in the Delta were listed under the federal Endangered Species Acts (ESA). Passage of the CVPIA, legal protections for salmon under the ESA, and the end of the drought resulted in reduced exports from the Delta, habitat restoration, and other changes to water project operations. And with more water remaining in the rivers and delta, and technological changes and habitat restoration being implemented, salmon runs rebounded from the very low levels seen in the early 1990s.
Unfortunately, the federal protections embodied in the ESA and CVPIA were cut short when the Bush Administration determined to subvert science and the law in order to maximize water exports far beyond sustainable levels. Water exports soon increased again, with combined exports of the state and federal water projects achieving record levels (five of the six highest levels of water exports from the Delta occurred in the past decade). And our salmon runs, and populations of other native fish in the Delta, collapsed.
Ultimately, reducing water exports from the Delta, and increasing investment in alternative water supplies, is the foundation of a 21st Century water policy for California that will sustain farmers, fishermen, cities and the environment. California has adopted bipartisan legislation to strengthen environmental protections in the Delta, rebutting those who argue we must waive environmental laws to meet our water supply needs. But as the past decade shows, the real measure of a law isn't what it says, it's how it's implemented and enforced. So advocates will have to ensure that this State legislation achieves its desired goals, especially in terms of sustainably managing the state and federal water projects.