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1
Introduction
BACKGROUND1
California's San Francisco Bay Delta Estuary (Figure 1-1) encompasses
the deltas of the Sacramento and San Joaquin rivers as well as the eastern
margins of San Francisco Bay. Although the area has been extensively modi-
fied over the past century and a half, it remains biologically diverse while
simultaneously functioning as a central element in California's water supply
system. The delta system is subject to several forces of change, including
seismic activity, land subsidence, sea level rise, and changes in flow magni-
tudes due to engineering and climate change, which threaten the structural
integrity of the delta and its capacity to function both as an important link
in the state's water supply system and as habitat for many species, some of
which are threatened and endangered. In anticipation of the need to man-
age and respond to changes that are likely to beset the delta, a variety of
planning activities have been undertaken. In addition, there have been ac-
tions taken under the federal Endangered Species Act (ESA) and companion
California statutes, including lawsuits. The net result has been considerable
uncertainty and conflict concerning the timing and amount of water that
can be diverted from the delta for agriculture and municipal and industrial
purposes and how much water--and of what quality--is needed to protect
the delta ecosystem and its component species.
The delta is among the most modified deltaic systems in the world
(Kelley 1989, Lund et al. 2010). The SacramentoSan Joaquin Delta is an
1 Much of the following material was adapted from NRC (2010, 2011).
15
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16 SUSTAINABLE WATER MANAGEMENT IN THE DELTA
FIGURE 1-1 The Delta.
SOURCE: Reproduced from NRC (2010), modified from FWS (2008).
Figure 1-1
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INTRODUCTION 17
integral part of the water supply delivery system of California. Millions
of acres of arid and semiarid farmlands depend on the delta for supplies
of irrigation water, and approximately 25 million Californians depend on
transport of water through the delta for at least some of their urban water
supplies. If California's population grows from the current 37.25 million
to nearly 50 million people by 2050, as projected by the California Depart-
ment of Finance (2007), there likely will be additional water demands even
if there continue to be significant reductions in per capita consumptive
uses. In addition to supporting these consumptive uses, the delta provides
habitat for animals and plants. Five taxa of fish residing in or migrating
through the delta [one steelhead (Oncorhynchus mykiss) population, two
populations of Chinook salmon (Oncorhynchus tshawytscha), delta smelt
(Hypomesus transpacificus), and green sturgeon (Acipenser medirostris)]
have been listed as threatened or endangered under the federal ESA and
similarly listed under the California Endangered Species Act. The delta also
supports recreational boating and fishing.
The various activities that have taken place in the delta over recent
decades have taken place in a complex and uncertain environment. Those
qualities apply to the biophysical environment, including complexities and
changes in the hydrologic system, such as interactions of altered freshwa-
ter discharge regimes with complexities associated with tidal influences,
changes in the composition and numbers of many species, variability and
changes in precipitation, and changes in the built environment.
They apply also to the human environment, particularly in growth of
the human population, complexities and changes in people's livelihoods
and lifestyles, political changes, financial and economic changes, changes
in people's occupations, changes in technology, and changes in people's
understanding of these systems. Uncertainty is inherent in many of the
above factors.
The delta includes the lower reaches of the two largest rivers in Cali-
fornia and the eastern estuary and associated waters of San Francisco
Bay. Most references to the delta do not include San Francisco Bay it-
self--typically, the western extent is around Suisun Bay--but hydrologi-
cally, chemically, and biologically, San Francisco Bay is an integral part
of the system and too often is not considered in analysis of the delta. The
Sacramento and San Joaquin rivers and their tributaries include all of the
watersheds that drain to and from the great Central Valley of California's
interior. The respective deltas of these rivers merge into a joint delta at the
eastern margins of San Francisco Bay and estuary. The delta proper is a
maze of canals and waterways flowing around more than 60 islands that
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18 SUSTAINABLE WATER MANAGEMENT IN THE DELTA
are protected by levees. The islands themselves were historically converted
from marshlands as agricultural lands2 and most of them still are farmed.
Unimpaired inflows of water to the delta originate in the watersheds
of the Sacramento and San Joaquin rivers. In an average year those flows
are estimated to be 40.3 million acre-feet (MAF) or 48.8 percent of Cali-
fornia's average annual total water resource of approximately 82.5 MAF.
Of the total unimpaired average inflow, 11.4 MAF are diverted upstream
of the delta for agricultural (83.8 percent), urban (15.0 percent), and
environmental (1.2 percent) uses. Diversions from the delta average 6.35
MAF, a little more than one-third of all diversions in the SacramentoSan
Joaquin system. Diversions from the delta are dominated by the exports to
the irrigation service areas of the federal Central Valley Project (CVP) and
the State Water Project (SWP), which include southern portions of the San
Francisco Bay Area, the western side of the San Joaquin Valley, and much
of southern California. Significant amounts of water are diverted to irrigate
delta lands, and irrigation return flow is discharged into delta channels.
The average yearly outflow from the delta remaining after diversions equals
22.55 MAF (Lund et al. 2010).
The quantities of water reported above are for an average water year,
but hardly any water year in California is average. Water supplies are highly
variable from one year to another. Thus, for example, in the Merced River,
which drains the watershed including most of Yosemite National Park and
is a tributary of the San Joaquin River, the average annual flow is 1.0 MAF.
Yet the low flow of record for the Merced River is 150,000 acre-feet, only
15 percent of the average flow, whereas the high flow of record is 2.8 MAF,
280 percent of the average flow. The variability in flows, which is charac-
teristic of all of the state's rivers, is largely a function of the interannual
variability in amount and patterns of California's Mediterranean climate,
which has a wet and a dry season with precipitation falling mainly in the
late fall and winter months. In addition, there is considerable variability
in the proportion of the precipitation that falls in the mountains as snow,
which adds to the variability of the hydrologic regime.
Until recently, planning for water shortage was based on a 5-year dry
cycle from the 1930s, or on 1977, the driest year of record. However, recent
analyses by the California Department of Water Resources (CDWR 2008,
2011) and Hanak (2012) indicate that changes in precipitation resulting
from different anticipated climate conditions (see Chapter 4) will affect
water availability for all users. Despite statewide conservation efforts,
particularly in the urban sector, increasing seasonal restrictions have been
2 Recent historical ecology studies at the San Francisco Bay Institute are revealing that the
original delta landscape was more complex than formerly thought, and had been modified by
humans long before the 19th century (http://sfei.org/node/1088).
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INTRODUCTION 19
applied to diversions, although the total amount of water available for
delivery under the terms of SWP and CVP water-supply contracts has not
decreased. These projects, which export water to regions of the state that
have experienced persistent water scarcity for many decades, are particu-
larly important features of the California waterscape.
The CVP withdraws water from the delta and conveys it southward
into the San Joaquin Valley through a system of canals built and operated
by the federal Bureau of Reclamation and various municipal and agricul-
tural water-user groups. Most of this water is used for agricultural purposes
in the eastern regions of the San Joaquin Valley and the Tulare subbasin
at the southern end of the valley. Some is contracted for domestic use. The
SWP withdraws water separately from the delta and conveys it southward
to agricultural users on the west side and at the very southern end of the
San Joaquin Valley and subsequently over the Tehachapi Mountains into
the conurbation of the South Coast Basin, including Los Angeles and San
Diego. The SWP supplies domestic water users in southern California (and
domestic use in the southern San Francisco Bay Area) as well as Central
Valley agriculture in proportions that are determined in any given year by
the CDWR based primarily on water in surface storage and anticipated
runoff. Available supplies, especially seasonally, have been constrained in
recent years by court decisions mandating additional seasonal supplies for
environmental purposes.
Changes in hydrologic and physical conditions in the delta could con-
strain and threaten the ability of state and federal water managers to
continue exporting water in accustomed quantities through the two major
projects. This is a concern since the levees, other infrastructure, and the
original geomorphology of the delta are eroding. Lund et al. (2010) iden-
tify several factors that today pose significant threats to human uses and
ecological attributes of the delta, including (1) subsidence of the agricul-
tural lands on the delta islands; (2) changing inflows of water to the delta,
which appear to increase flow variability and may skew flows more in the
direction of earlier times in the water year in the future; (3) sea level rise
that has been occurring over the last 6,000 years and may accelerate in the
future; and (4) earthquakes, which threaten the physical integrity of the
entire delta system. There is a long history of efforts to solve these physical
problems as well as persistent problems of flood control and water qual-
ity (salinity). Salinity intrusion from the waters of San Francisco Bay now
requires a specific allocation of delta inflows to repel salinity and maintain
high qualities of low-salinity water at the western margin of the delta. This
management of salinity is accomplished by monitoring and management
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20 SUSTAINABLE WATER MANAGEMENT IN THE DELTA
of the average position of the contour line of a specified salinity ("X2").3
Controlling salinity requires outflow releases from reservoirs that could be
used to satisfy other demands.
Resolution of these problems is complicated by water scarcity gener-
ally and because alternative solutions impose differing degrees of scarcity
on different groups of stakeholders. There are additional allocation prob-
lems that arise from a complex system of public and private water rights
and contractual obligations to deliver water from the federal CVP and
California's SWP. Some of these rights and obligations conflict and in most
years there is insufficient water to support all of them. This underscores the
inadequacy of delta water supplies to meet demands for various consump-
tive and instream uses as they continue to grow. Surplus water to support
any new use or shortfalls in existing uses are unavailable and any change
in the hydrologic, ecological, or physical elements in the delta could reduce
supplies further. The risks of change, which could be manifested either by
increases in the already substantial intraseasonal and intra-annual vari-
ability or through an absolute reduction in available supplies, underscore
the existence of water scarcity and illustrate ways in which such scarcity
could be intensified.
In its natural state, the delta was a highly variable environment. The
volume of water inflows changed dramatically from season to season and
from year to year. The species that occupied the delta historically were
adapted to variability in flow, quality, and all the various factors they helped
to determine. The history of human development of land and water use in
the delta is a history of attempts, with varying degrees of success, to con-
strain this environmental variability, to reduce environmental uncertainty,
and to make the delta landscape more suitable for farming and as a source
of water supplies. It also included the deliberate and accidental introduc-
tion of a large number of species of fishes, invertebrates, and plants into the
delta and the surrounding uplands. A full understanding of the historical
pervasiveness and persistence of environmental variability underscores the
need to use adaptive management4 in devising future management regimes
for the delta (Healey et al. 2008).
The history of water development and conflict in California focuses in
3 X is the salinity isohaline--the contour line--of salinity 2. Often X is used as shorthand
2 2
for the mean position of the contour line of salinity 2, measured in kilometers east of the
Golden Gate Bridge (across the mouth of San Francisco Bay), but in this report, X2 refers to
the isohaline and not its position.
4 "Adaptive management is a formal, systematic, and rigorous program of learning from
the outcomes of management actions, accommodating change, and thereby improving man-
agement" (NRC 2011). Adaptive management and its relevance to the delta are extensively
discussed in that report; the summary reprinted in Appendix B of this report provides a brief
version of that discussion.
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INTRODUCTION 21
part on the delta. Beginning with the California gold rush in 1848 early
settlers sought to hold back the seasonal influx of water and create agricul-
tural lands. The construction of levees played a central role in this effort,
an effort that was threatened in the late 1800s and early 1900s by the
movement of hundreds of millions of cubic yards of debris from upstream
hydraulic mining that passed through the delta. Further work throughout
the first third of the 1900s helped to stabilize a thriving delta agriculture
(Jackson and Patterson 1977, Kelley 1989). The CVP, begun in the 1930s,
and the SWP of the 1960s required conveyance of water from mainstream
river channels through the channels and sloughs of the delta to the extrac-
tion points located in the southern delta from where water is pumped into
the Delta-Mendota Canal (CVP) and the California Aqueduct (SWP) for
transport south, as illustrated in Figure 1-2. Once these projects became
operational, there was a need to keep the waters of the delta fresh, and
salinity control became a problem that was decided by the courts (Hundley
2001, Lund et al. 2010).
In addition to serving economic purposes, delta water has been man-
aged for other purposes. Since the beginning of CVP operations, diversions
of water to users outside the delta have been managed to limit salinity
intrusion to local domestic water users in the western margins of the delta.
Additionally, California's constitution (article 10, § 2) requires that the
waters of the state be put to "beneficial use"; this criterion is subject to
judicial review and determination. The enactment of both state and federal
environmental laws, including the California Environmental Quality Act
and the National Environmental Policy Act (NEPA), have led to greater
allocation of natural and stored water to environmental (instream) uses.
The importance of environmental uses of water has been reflected further
in many state regulatory decisions and, more recently, in judicial interpreta-
tions of the federal Endangered Species Act and the California Endangered
Species Act. Several taxa of delta fishes that live in or migrate through the
delta have been listed as threatened and endangered. The courts became
involved and specific water allocations followed from court findings. The
maze of federal and state laws as well as dozens of stakeholder groups have
combined to create a gridlock that sometimes appears penetrable only by
state and federal courts (Lund et al. 2010). As a result, most recent realloca-
tion of water has tended to be based on legislative requirements mandating
the protection of individual species rather than the optimization of water al-
location among all purposes. The legal backdrop is explored further, below.
There have been several efforts to resolve differences, find areas of
agreement, and identify solutions to the problems of the delta and the al-
location of the waters that flow through it. These efforts assumed particular
urgency as California was beset by severe droughts in the period 1987-
1992 and another late in the first decade of 2000. A collaboration of 25
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22 SUSTAINABLE WATER MANAGEMENT IN THE DELTA
FIGURE 1-2 Delta levees, 2006. There are approximately 1,100 miles of levees in
the delta.
SOURCE: Lund et al. (2010).
R02208
Figure 1-2
bitmapped raster image
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INTRODUCTION 23
state and federal agencies called the CALFED program was established in
1994; it was unusual in that it had no federal or state legislative mandate
(Booher and Innes 2010). It had the mission "to improve California's wa-
ter supply and ecological health of the San Francisco Bay/Sacramento-San
Joaquin Delta."5 State and federal agencies quickly developed a science-
based approach to water-quality standards titled Principles for Agreement
on Bay-Delta Standards between the State of California and the Federal
Government, otherwise known as the Bay Delta Accord. State and federal
agencies with responsibilities in the delta and stakeholders engaged in a
decade-long CALFED process, which resulted in the conclusion that the
strategy of relying on the delta to convey crucial elements of the water sup-
ply to California would continue. CALFED would also be used to attain
the four main goals of water-supply reliability, water quality, ecosystem
restoration, and enhancing the reliability of the levees (CALFED 2000).
CALFED's functions were taken over by the Delta Stewardship Council
under California's Delta Reform Act of 2009, as described below. Booher
and Innes (2010) provide more detail about the formation, functioning, and
evolution of CALFED into the current organizational structure.
The Sacramento-San Joaquin Delta Reform Act of 2009 ("Delta Re-
form Act") designated the Delta Stewardship Council as "successor" to
the California Bay-Delta Authority (the agency that coordinated CALFED)
and provided that the Stewardship Council should take over from the Bay-
Delta Authority all of its "administrative rights, abilities, obligations, and
duties" (California Water Code § 85034(b)). The Delta Reform Act also
specified that the newly created Delta Science Program "shall function as
a replacement for, and successor to, the CALFED Science Program" and
that the newly created Delta Independent Science Board "shall replace the
CALFED Independent Science Board" (California Water Code § 85280(c)).
The Bay-Delta Accord of 19946 and the CALFED process began to
unravel around 2003 as environmentalists and water users came to believe
that their interests were not being well served and legislators were not sat-
isfied by the CALFED process (Booher and Innes 2010, Lund et al. 2010,
Owen 2011). There followed an attempt by the governor to develop a Delta
Vision Strategic Plan or "Delta Vision" with the aid of an independent Blue
Ribbon Task Force. The Delta Stewardship Plan ("Delta Plan") resulted
from this effort. The Delta Plan is a broad umbrella plan mandated by the
California Delta Reform Act of 2009 (California Water Code § 85300) to
advance the "co-equal goals" of providing a more reliable water supply for
5 See http://calwater.ca.gov/calfed/about/index.html.
6 Principles for Agreement on Bay-Delta Standards between the State of California and
the Federal Government 1 (Dec. 15, 1994), available at http://www.calwater.ca.gov/content/
Documents/library/SFBayDeltaAgreement.pdf.
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24 SUSTAINABLE WATER MANAGEMENT IN THE DELTA
California and "protecting, restoring and enhancing the Delta ecosystem"
(California Water Code §§ 85020, 85054). The act requires the Delta
Stewardship Council to "develop, adopt, and commence implementation"
of the plan by January 1, 2012, and specifies that the membership of Delta
Stewardship Council must reflect broad California water interests. Also
beginning in mid-decade, federal, state, and local water agencies, state and
federal fishery management agencies, environmental organizations, and
other parties began work on the Bay Delta Conservation Plan (BDCP), an
early draft of which was the subject of a recent National Research Council
report (NRC 2011).
Developing the BDCP has been a large and expensive endeavor (NRC
2011). The BDCP is technically a habitat conservation plan under the
federal ESA and similarly is a natural community conservation plan under
California's Natural Community Conservation Planning Act. "It is intended
to obtain long-term authorizations under both the state and federal endan-
gered species statutes for proposed new water operations--primarily an
`isolated conveyance structure,' probably a tunnel, to take water from the
northern part of the delta to the southern thus reducing the need to convey
water through the delta and out of its southern end" (NRC 2011). The ini-
tial public (November 2010) draft of the BDCP was reviewed by the NRC
(2011)7; the summary of that report is reprinted in Appendix B.
WATER RIGHTS IN CALIFORNIA
All of the above activities have taken and continue to take place in a
complex legal environment. Below is a description of the legal backdrop
surrounding California water.
Surface Rights
California water law is a unique and complicated system that recog-
nizes both riparian water rights (the system that predominates in the wetter
eastern states) and the prior appropriation doctrine (the system that pre-
dominates in the arid western states) (Cal. Constitution, article 10, § 2).
From time to time, the state legislature has tried to diminish the importance
of riparian rights to simplify the legal system but has met with obstacles in
the nature of constitutional property rights protections (see in re Waters of
Long Valley Creek Stream System, 599 P.2d 656 [Cal. 1979]).
If there is not enough water to satisfy both riparian and appropriative
rights, riparian rights must be satisfied first (Tulare District v. Lindsay-
7 The NRC's review focused on the use of science and adaptive management in the draft
BDCP.
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INTRODUCTION 25
Strathmore District, 45 P.2d 972 [Cal. 1935]). However, in some cases, un-
exercised riparian rights may not enjoy this superior priority (in re Waters
of Long Valley Creek Stream System, 599 P.2d 656 [Cal. 1979]). If surplus
water remains, appropriative rights can be satisfied in order of priority.
Riparian Rights
Riparian landowners--those who own property that abuts a natural
watercourse--are entitled to make reasonable use of the adjacent water.
Riparian uses can be initiated at any time and they are generally not lost
through nonuse (some older rights may have been lost under the doctrine
of prescription, a type of "squatter's right"). However, several important
limitations apply to riparian rights:
1.Reasonable use: The type of use must be "reasonable." The amount
of use must also be "reasonable" in light of the purpose to be ac-
complished and in comparison to the needs of other riparian land
owners sharing the same water source.
2.Storage: The riparian right allows for the diversion of water, but
generally not for its storage for later use.
3. Place of use: Generally, water must be used on the tract of land
adjacent to the water source.
4. Shortage: In times of shortage, all riparians must share the loss
through pro rata reductions (percentage cutbacks often correlate
with the percentage of land owned along the common watercourse).
The state constitution restricts all water rights to uses that are rea-
sonable and beneficial (Cal. Constitution, article 10, § 2).
Riparian rights are imprecise. Not only must they be cut back in times
of shortage, but the determinations of "reasonableness" are made by courts
on a case-by-case, after-the-fact basis when conflicts arise. Thus, it is dif-
ficult to know in advance the precise scope of a riparian water right.
Appropriative Water Rights
Water rights may be acquired independently of riparian land owner-
ship under the doctrine of prior appropriation. The primary requirement is
that the water be placed to "beneficial" use through a "reasonable" means
of diversion. Appropriative rights differ from riparian rights in several
important respects:
1. Permit process: Before using water, one must acquire a permit (au-
thorizing the development of a water diversion or project) or a
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26 SUSTAINABLE WATER MANAGEMENT IN THE DELTA
license (confirming the water right) from the State Water Resources
Control Board ("State Water Board"). Early appropriations known
as "pre-1914" rights are exempt from the permit scheme.
2.Storage: Appropriative rights may be stored for later use.
3.Place of use: Water may be used on land apart from the place of
diversion, and even transported to other watersheds.
4.Shortage: Water rights are administered according to the maxim
"first in time, first in right." In times of shortage, the most senior
priority is satisfied before the next most senior user receives any wa-
ter. This gives rise to the phenomenon of "paper water rights," under
which junior water users may have state-issued water rights that do
not yield "wet water" except in years of exceptional precipitation.
5. Nonuse: Because beneficial use is the basis and measure of appro-
priative rights, they can be lost through nonuse (Cal. Water Code §
1241). At times, this might create a perverse incentive for users to
waste water in order to maintain a historic record of diversion not
subject to loss through nonuse. To counteract this tendency, 1977
legislation recognizes water conservation as the equivalent to a rea-
sonable beneficial use (Cal. Water Code § 1011(a)).
The priority system provides a measure of predictability lacking under
riparian rights. For example, agricultural water users with relatively senior
priorities may plant higher priced, permanent crops such as grapes and
fruit trees, whereas more junior users might not feel comfortable making
an investment in such permanent crops. Despite this relative predictability,
appropriative rights can be modified by the State Water Board, which has
continuing jurisdiction to modify water permits with conditions to protect
other water users and the environment. This authority derives, in part, from
California's rigorous interpretation of the ancient public trust doctrine,
under which the state has a duty to supervise flowing waters, tidelands,
and lakeshores to protect the public interest in resource preservation, fish-
ing, navigation, and commerce (National Audubon Society v. Superior
Court of Alpine County, 658 P.2d 709 (Cal.), cert. denied, 464 U.S. 977
(1983); State Water Resources Control Board Cases, 136 Cal. App. 4th
674 (2006)).
Groundwater Rights
There is no comprehensive permit system for the regulation of ground-
water in California, although the State Water Board has some (largely un-
tested) authority to restrict "unreasonable use"; local groundwater districts
do engage in planning; and the courts can adjudicate groundwater rights
(Nelson 2011). Overlying landowners can freely withdraw the percolating
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INTRODUCTION 27
groundwater (that is, groundwater that does not flow as an underground
stream) beneath their property for reasonable and beneficial use. This right,
similar to the surface doctrine of riparianism, is subject to the "correlative"
right of other overlying landowners withdrawing from the same source.
Water Rights for the Environment
California recognizes "recreation" and "preservation and enhancement
of fish and wildlife resources" as beneficial uses (Cal. Water Code § 1243).
New water rights may not be appropriated for the purpose of "instream
flows," as recognized in many western states, because the use of water
within a stream runs afoul of the traditional requirement of diverting water
from the streambed. However, since 1991 state law has allowed existing
appropriations (originally including a quantified diversion) to be changed
to instream flow purposes. As provided by Water Code § 1707(a)(1), "Any
person entitled to the use of water, whether based on an appropriative, ri-
parian, or other right, may petition the board . . . for a change of purposes
of preserving or enhancing wetlands habitat, fish and wildlife resources,
or recreation in, or on, the water." This provision has been used in several
cases, including applications in the Sacramento River basin. California has
no comprehensive, statewide instream flow program to supplement these
privately held instream flow water rights.
WATER RIGHTS AFFECTING THE BAY-DELTA
Water Contracts
The federal Bureau of Reclamation (operator of the CVP) and the
State Department of Water Resources (DWR; operator of the SWP) hold
appropriative water rights. Like any appropriative rights, they are subject
to a variety of permit conditions and other limitations to protect the envi-
ronment and other water users. These water rights have relatively recent
(junior) priorities, generally dating back no earlier than the 1920s. As a
result, in drought years, the priority system may limit the water diversions
to which the Bureau and the DWR are entitled.
Water contracts add an additional layer of complexity to California's
water rights system. By contract, the Bureau and the DWR have agreed
to deliver prescribed quantities of their appropriative water rights to nu-
merous water user groups. Whereas most CVP water goes to agricultural
users, urban users are the primary recipients of SWP water. The contracts
are not uniform, and some have been amended over time. Many, but not
all, contain provisions designed to relieve the Bureau and the DWR of their
contractual obligations when the agencies' water rights are not fully satis-
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28 SUSTAINABLE WATER MANAGEMENT IN THE DELTA
fied due to drought, permit conditions, environmental regulations, or other
factors. A typical provision (often found in para. 18(f) of the DWR's con-
tracts) might provide that neither the state nor its agents may be held liable
for "any damage, direct or indirect, arising from shortages in the amount of
water to be made available for delivery . . . under this contract caused by
drought, operation of area of origin statutes, or any other cause beyond its
control" (e.g., Tulare Lake Basin Water Storage District v. United States,
49 Fed. Cl. 313 (2001)).
As a result of these factors, there has been uncertainty and dispute over
the precise entitlements of those who hold contracts for the delivery of
water. The DWR publishes annually a document known as "Table A" that
tabulates actual SWP water deliveries as a percentage of 4.133 MAF per
year--the maximum amount allocated under SWP contracts (correspond-
ing to the volume of water rights held by the DWR itself for use in the
SWP). In its January 2010 draft report, for example, the DWR lists 2009
average annual deliveries as 60 percent of the maximum contract amount.
The DWR notes "very significant reductions" in deliveries since 2005. The
reductions are attributable, in part, to severe drought, as well as in part
to restrictions imposed on the state and federal agencies based on salmon
and smelt biological opinions (California Department of Water Resources,
Bay-Delta Office, Draft State Water Project Delivery Reliability Report,
2009, January 26, 2010).
Some claim that the maximum amount allocated by contract is not the
appropriate baseline because it treats limitations inherent in the California
water rights system as extraneous interferences with water rights. Rather,
limitations such as the curtailing of junior water rights, water permit condi-
tions, and the public trust doctrine define the contours of the water right.
The California Water Impact Network, for example, asserts that "The
[SWP] project has never in its history delivered [the full contract amount],
and has delivered no more than about 2.6 million acre-feet in its peak year"
(California Water Impact Network, California Water Rights Primer: The
Monterey Amendments to State Water Project Contracts).
The Environment
The Bay-Delta Plan of 2006 and State Water Board Decision 1641
specify bay-delta flow requirements. In 2009, California passed a com-
prehensive package of legislative reforms known as the Sacramento-San
Joaquin Delta Reform Act of 2009. Among other things, the new legisla-
tion required the SWB to develop new flow criteria to protect public trust
resources of the delta ecosystem (Water Code § 85086). On August 3, 2010,
the State Water Board issued its final report, Development of Flow Criteria
for the Sacramento-San Joaquin Delta Ecosystem. The report concluded
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INTRODUCTION 29
"[t]he best available science suggests that current flows are insufficient to
protect public trust resources" and "[r]estoring environmental variability
in the Delta is fundamentally inconsistent with continuing to move large
volumes of water through the Delta for export." The recommended flow
criteria include "75 percent of unimpaired Delta outflow from January
through June; 75 percent of unimpaired Sacramento River inflow from
November through June; and 60 percent of unimpaired San Joaquin River
inflow from February through June."
The Water Board noted that its recommendations lack binding legal
effect unless and until they are implemented through an adjudicative or
regulatory proceeding. The recommendations were intended, in part, to
inform the development of the BDCP.
ENVIRONMENTAL CONSIDERATIONS
In addition to water rights, including for the environment, actions
in the delta are affected by federal and state environmental statutes. The
federal ESA of 1973 and 1988 amendments (16 U.S.C. §§ 1532-1544) has
had a far-reaching effect through its application to pumping operations as a
result of lawsuits as described above. The act prohibits the taking of species
listed as endangered, and, by regulation, threatened species are protected
as well. It requires federal agencies to make sure their actions, or actions
they authorize or fund, are not likely to jeopardize the continued existence
of listed species or adversely modify their critical habitats. The agencies do
this by consulting with the U.S. Fish and Wildlife Service or the National
Marine Fisheries Service (NMFS) if they consider the proposed action might
imperil listed species, or sometimes if a court requires them to do so as the
result of a lawsuit. The requirements and processes of the ESA have been
described in detail by the NRC elsewhere (e.g., NRC 1995, 2010, 2011).
Other environmental statutes that have relevance to the delta include
the federal Clean Water Act and NEPA and the state Natural Communities
Conservation Planning Act, the California Endangered Species Act, and
many provisions of the California Water Code.
THE CURRENT STUDY
Given the complex backdrop surrounding the California bay delta and
the importance of this water source to human and ecosystem needs, Con-
gress and the Departments of the Interior and Commerce asked the NRC
to review the scientific basis of actions that have been taken and that could
be taken for California to achieve simultaneously both an environmentally
sustainable bay-delta ecosystem and a reliable water supply. In order to
balance the need to inform near-term decisions with the need for an inte-
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30 SUSTAINABLE WATER MANAGEMENT IN THE DELTA
grated view of water and environmental management challenges over the
longer term, the NRC addressed this task over a term of 2 years, resulting
in three reports.
First, this8 committee issued a report focusing on scientific questions,
assumptions, and conclusions underlying water-management alternatives in
the U.S. Fish and Wildlife Service's (FWS) Biological Opinion on Coordi-
nated Operations of the Central Valley Project and State Water Project (De-
cember 15, 2008) and the NMFS's Biological Opinion on the Long-Term
Central Valley Project and State Water Project Operations Criteria and Plan
(June 4, 2009). This review, A Scientific Assessment of Alternatives for Re-
ducing Water Management Effects on Threatened and Endangered Fishes
in California's Bay Delta,9 considered the following questions:
· Are there any "reasonable and prudent alternatives" (RPAs), in-
cluding but not limited to alternatives considered but not adopted
by FWS (e.g., potential entrainment index and the delta smelt be-
havioral model) and NMFS (e.g., bubble-curtain technology and
engineering solutions to reduce diversion of emigrating juvenile sal-
monids to the interior and southern delta instead of toward the sea),
that, based on the best available scientific data and analysis, (1)
would have lesser impacts to other water uses as compared to those
adopted in the biological opinions, and (2) would provide equal or
greater protection for the relevant fish species and their designated
critical habitat given the uncertainties involved?
· Are there provisions in the FWS and NMFS biological opinions to
resolve potential incompatibilities between the opinions with regard
to actions that would benefit one listed species while causing nega-
tive impacts on another, including, but not limited to, prescriptions
that (1) provide spring flows in the delta in dry years primarily to
meet water quality and outflow objectives pursuant to Water Board
Decision-1641 and conserve upstream storage for summertime cold
water pool management for anadromous fish species; and (2) pro-
vide fall flows during wet years in the delta to benefit delta smelt,
while also conserving carryover storage to benefit next year's winter-
run cohort of salmon in the event that the next year is dry?
· To the extent that time permits, the committee would consider the
effects of other stressors (e.g., pesticides, ammonia discharges, inva-
sive species) on federally listed and other at-risk species in the bay
delta. Details of this task are the first item discussed as part of the
8 There were some changes in committee composition after the publication of the first report.
9 Available through The National Academies Press: http://www.nap.edu/.
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INTRODUCTION 31
committee's second report, below, and to the degree that they cannot
be addressed in the first report they will be addressed in the second.
Second, a separate but related NRC panel issued a short report that
reviews the initial public draft of BDCP in terms of the adequacy of its use
of science and adaptive management--A Review of the Use of Science and
Adaptive Management in California's Draft Bay Delta Conservation Plan.10
The current report addresses how to most effectively incorporate sci-
ence and adaptive management concepts into holistic programs for manage-
ment and restoration of the bay delta. This advice, to the extent possible,
should be coordinated in a way that best informs the BDCP development
process. The present report includes discussion of topics raised in both of
the earlier reports but it is not a recap or reissue of either of them.
This report addresses tasks such as the following (from the committee's
statement of task, see Appendix C):
· Identify the factors that may be contributing to the decline of feder-
ally listed species, and as appropriate, other significant at-risk species
in the delta. To the extent practicable, rank the factors contributing
to the decline of salmon, steelhead, delta smelt, and green sturgeon
in order of their likely impact on the survival and recovery of the
species, for the purpose of informing future conservation actions.
This task would specifically seek to identify the effects of stressors
other than those considered in the biological opinions and their
RPAs (e.g., pesticides, ammonia discharges, invasive species) on
federally listed and other at-risk species in the delta, and their effects
on baseline conditions. The committee would consider the extent to
which addressing stressors other than water exports might result in
lesser restrictions on water supply. The committee's review should
include existing scientific information, such as that in the NMFS
Southwest Fisheries Science Center's paper on decline of Central
Valley fall-run Chinook salmon, and products developed through
the Pelagic Organism Decline studies (including the National Center
for Ecological Analysis and Synthesis reviews and analyses that are
presently under way).
· Identify future water-supply and delivery options that reflect proper
consideration of climate change and compatibility with objectives
of maintaining a sustainable bay-delta ecosystem. To the extent that
water flows through the delta system contribute to ecosystem struc-
ture and functioning, explore flow options that would contribute
to sustaining and restoring desired, attainable ecosystem attributes,
10 Available through The National Academies Press: http://www.nap.edu/.
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32 SUSTAINABLE WATER MANAGEMENT IN THE DELTA
while providing for urban, industrial, and agricultural uses of tribu-
tary, mainstem, and delta waters, including for drinking water.
· Identify gaps in available scientific information and uncertainties
that constrain an ability to identify the factors described above. This
part of the activity should take into account the Draft Central Valley
Salmon and Steelhead recovery plans (NOAA 2009), particularly the
scientific basis for identification of threats to the species, proposed
recovery standards, and the actions identified to achieve recovery.
· Advise, based on scientific information and experience elsewhere,
what degree of restoration of the delta system is likely to be attain-
able, given adequate resources. Identify metrics that can be used by
resource managers to measure progress toward restoration goals.
The statement of task focuses primarily on science, and does not ask
for policy, political, or legal advice. The report organization does not follow
the statement of task because the committee concluded the current organi-
zation provides a more logical flow. The factors affecting the listed species
are discussed in detail in Chapter 3. Future water-supply and water-delivery
options are discussed in Chapters 2, 4, and 5. Scientific uncertainties are
discussed throughout the text in Chapters 3 and 4, and the degree of res-
toration likely to be attainable is in Chapter 4.
The membership of the committee that produced this report overlaps
considerably with that of the committee that produced the review of the
BDCP, but it is not identical. The committee met three times after the BDCP
review was produced; once in Sacramento, California, once in Washing-
ton, DC, and once in Seattle, Washington. At its Sacramento meeting the
committee included a public session during which it heard from a variety
of speakers (Appendix D). The committee was able to review information
received by September 2011. The report has been reviewed in accordance
with NRC procedures: the reviewers are listed in the acknowledgments.
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