Conflict and change mark the California water world
by Gene Beley, CVBT Delta Correspondent

FOLSOM
August 13, 2017 9:01pm
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•  Delta Stewardship Council Chairman gives his five-year predictions

•  “The State Groundwater Management Act will drive significant changes in the way water is managed”


Editor’s Note: While the length of the following article by our correspondent might seem off-putting, we strongly suggest that one saves and studies it – and the two hour video reached via the link at the end -- for a stronger foundation of understanding the state’s unending water wars, their victors, their victims, and their future.

After Delta Stewardship Council Chairman Randy Fiorini delivered a more than one-hour speech to the Mountain Counties Water Resources Association in Folsom, he was asked by MCWRA Executive Director John Kingsbury to look into a crystal ball and foretell California’s future water infrastructure five years from now.

“We’ve got $2.7 billion loaded up in support of storage — it’s historic,” said Mr. Fiorini. “There’s been some frustration expressed about how long it is taking the water commission to get their guidelines in place to begin receiving applications but that process is moving forward. I’m convinced we’re going to have four or five new reservoirs under consideration and perhaps under construction five years from now.

He declined to use his crystal ball on the governor’s controversial Delta water tunnels proposal.

“I can’t predict what’s going to happen with conveyance improvements in the Delta in five years,” he added, “but I can predict a certainty is that the State Groundwater Management Act (SGMA) will drive significant changes in the way water is managed, particularly the interaction between surface water storage and ground water replenishment and conveyance necessary to do that. Much of that will be in the foothills on farms. There are hundreds of thousands of acres being farmed in the foothills of eastern Stanislaus County and San Luis Obispo County. They have some chance of getting surface water, but they will have to develop their infrastructure to move that water.”

Mr. Fiorini’s speech was directed to water managers and a gaggle of county supervisors in the mountain counties, who during the question and answer period fired tougher questions at him than most seasoned reporters. Barbara Balen, director of the Tuolumne Water District and vice-president of the MCWRA, said, “The co-equal goals (in The Delta Plan) are a lot different in the mountain communities.”

“Everybody likes one of them,” joked Mr. Fiorini.

It was unclear if Ms. Balen appreciated the humor.

“When you look at species,” she continued, “in the mountain communities those lines are blurred. You’re getting into food chains within food chains. You’re getting into what all species need: food, water and cover. As you go up the gradient, the co-equal goals in my opinion are much less defined with agriculture and water. Pumps (here) are tiny little pumps. It’s kind of like wanting to get a pound of flesh.”

“In every area, it is a challenge largely derived from the stressors on the system,” Mr. Fiorini replied. “The stressors in this region are different than along the tributaries or the Delta or (San Francisco) Bay. If you’re concerned about the area, the first thing to do is define the problem.”

One technique Mr. Fiorini has when answering tough questions is to use that answer: “Define the problem and come up with a solution to work with us.” In fact, that’s how he ended up with his current job when he worked for Association of California Water Agencies.

“In 2004 we were at an ACWA meeting in Cambria,” he told the audience. We were discussing our priorities for the next year. “We spent so much energy on others’ bad ideas,” he told the group. “Since we are the experts, why aren’t we setting the agenda?”

“I was given the assignment to help develop the answer. So we developed a team of 25 representatives. It took one year for a blueprint for California water called ‘No Time to Waste’ with 10 recommendations. One of the interesting things was the one issue we could not agree upon is what to do with Delta conveyance. So we punted. We recommended in the blueprint that the governor appoint a Blue Ribbon Task Force to look into how to solve the conveyance conundrum in the Delta.”

Then-Gov. Arnold Schwarzenegger responded, naming a task force chaired by Phil Isenberg. Two years later they presented a series of recommendations.

“This is where dual conveyance came from — about improving through Delta conveyance and developing an isolated facility,” Mr. Fiorini continued. “They also recommended a need for a new governance approach to deal with Delta issues. That report was issued in 2008. A year later, after two previous failed attempts in special session, the California Legislature came together in November 2009 in five bills known as the Delta Reform Act. One was a large water bond. The other recommendation included groundwater-monitoring requirements. But they also recommended the basis for the Delta Stewardship Council and The Delta Conservancy.”

Mr. Fiorini was still at ACWA at the time. “I remember the statewide hearing after the blue ribbon task force as I sat with a group of officials discussing the hearing. I told them there were over 200 state, federal and local agencies responsible for managing water and resources in the Delta. I told them I don’t think we need another agency. But ultimately the DSC was adopted. Then I got a call from the Governor’s office in late 2009 asking if I would be willing to be one of the four representatives on the Council. I had to think long and hard about that. It was an intimidating invitation. I knew there was going to be a lot of science involved.”

Initially he turned it down. “I said I don’t think I’m the right person.”

Word got out about his turning down the job. People like Dave Breninger, then the general manager of the Placer County Water Agency and deputy director of ACWA, told him they thought he should take the job because it was a great opportunity to serve the state.

“So ultimately I agreed and it has been the best decision I’ve ever made,” Mr. Fiorini said, who added the DSC was officially formed on April Fool’s Day 2010. “It’s been a great ride,” he told the Folsom audience.

“We spent the first three years doing what the Legislature told us to do — to develop a comprehensive, long-term management plan for the Delta to achieve the co-equal goals of a more reliable water supply or California and a healthy restored eco-system in the Delta, keeping in mind that the Delta is an evolving place where people live, work and recreate.”

“Pretty simple, uh?” he asked the audience, adding quickly, “It’s almost impossible.”

He said the next three years were spent developing the Delta Plan with 73 recommendations and 14 regulatory policies. In 2015, he said the DSC was told that if the Bay Delta Conservation Plan were to be permitted, it would be included in the Delta Plan. “The governor decided to bifurcate BDCP into the ‘Water Fix’ and ‘Eco Restore,’ which has had an impact on our work.”

Mr. Fiorini said that after a lot of conflict in the processes, there are a lot of lawsuits already in the courts “and we’re working our way through that now.”

“The good news,” he told the water managers, “is the lawsuits have not impacted out ability to implement the Delta Plan at all.”

It’s the old divide-and-conquer strategy.

“Part of the reason for that,” he revealed, “is half of the people suing us like half the things in the Delta Plan and the other half like the other half. So we continue to try to implement the recommendations and carry out the policies that we have set.”

He said they adopted the Delta Science Program. “This makes up about one-third of our agency of 60 people. About 20-25 scientists of multiple disciplines are not out in the field doing the science. They are collecting the data and synthesizing the data for reports and hosting seminars and workshops in a form that decision makers can use. This is a very important role for the DSC.”

In his history-oriented speech on California water, Mr. Fiorini said 2015 was a very significant year. “Proposition One water bond passed providing $2.7 billion for increased storage as well as for the watershed and eco-system restoration in the Delta. The State Groundwater Management Act passed in 2014. It had been 100 years since the Appropriative Water Rights Act had been established (for pre-1914 and post 1914 water rights).

“SGMA is the right way to do water regulations, providing the locals ample opportunity to organize themselves, develop a plan, and implement it. Too often at the federal and state level, there is a thought, ‘We are going to dictate what should be done — not recognizing one size doesn’t fit all, particularly with water.

“I think SMGA has a chance of being something very helpful to restore groundwater balance done in a way locals will have a lot of control.”

He said there is a concern about declining water quality, especially in the San Joaquin Valley. “Nitrate pollution is a significant problem. To go below the Corcoran clay layer to get to non-nitrate polluted water, they are running into arsenic. It’s a very difficult situation, particularly on the disadvantaged.”

DWR and the Flood Protection Plan

“The Department of Water Resources and the Flood Protection Board are working on updates of the Central Valley Flood Protection Plan,” continued Mr. Fiorini. “That will result in assigning dollars to be spent in a priority manner. We’re working with them in relationship to the Delta levees. The State Water Resources Control Board is working on an update for their Water Quality Control Plan. We’re learning a lot about the differences between the percentage of unimpaired flow and functional flows. We are also learning there are non-flow measures that can be implemented that will help the environment and maybe achieve better conditions in the Delta with more than just adding flow. Stay tuned.”

Winners and losers with the Delta levees prioritization plan

The Stewardship Council has been working on three important amendments to the Delta Plan.

“The legislature told us to develop a priority plan for state investments in the Delta levees,” Mr. Fiorini said. “We’ve been working on this for four years and holding public meetings. There is some controversy because when you determine how to prioritize spending there will be winners and losers. When you are developing where to spread the money, everyone kind of gets along. But once you start prioritizing that’s when things get a little rough. To help us, we enlisted the help of the Rand Corporation to develop a decision support tool. For the first time ever, the 1,100 miles of Delta levees, or about one-third, are federal project levees, and about two thirds are private levees.

“We have developed a data base from the conditions of every levee around the multiple islands on the Delta so we have a sense of what’s needed to bring those up to certain standards,” he said. “We’ve also done an evaluation of the value of assets protected by those levees. We’ve taken a risk-management approach to determine the value of the assets, condition of the levees, and determine the very high priority and other priorities. This approach was adopted by the DSC in March 2017 along with a couple of other packages going through the SGMA process.

“A couple of other controversial things included in the Levee Investment Strategy work. There is a requirement for receiving state subvention (subsidy) funds to reimburse locals for levee improvements where they have to put in $1,000 per mile. That has been in place since the 1980s. We’ve recommended an increase in the deductible.”

Of course, the most controversial project the DSC has had to deal with has been the twin tunnels that have morphed into government speak of “dual conveyance.”

It could refer to even other water intake conveyances in the North Delta to supplement the current one in Tracy. In fact, the residents and leaders of the small towns of Walnut Grove and Locke are worried the intakes could be at the cross channels located between those two historic towns where 100 year-old buildings could collapse from pile driving construction activities and big trucks constantly going back and forth that might cause huge ground vibrations.

The Delta Plan regulations

Mr. Fiorini said that the “Water Fix/Eco Restore” has a covered action authority where any action in the Delta must conform to 14 regulations that are in the Delta Plan. This includes things like the project must be based on the best available science, be adequately developed and have a funded adaptive management program, and must avoid doing harm to high value restoration areas.

“The legislature had told us to promote options for conveyance, storage and operations. We had done that for storage, and, to some degree, operations. But we had elected not to voice much of an opinion on conveyance, because if ‘Water Fix’ was coming to us, then there really wasn’t much to talk about. But when ‘Water Fix’ became the conveyance solution, we began to work on what the legislature told us to do — promote options.

“We began by developing 18 principles that were related so that any new conveyance in the Delta should avoid reverse flows, eliminate entrainment of fish in the pumps and things like that.”

He claimed the DSC is not promoting a project, something he repeats often at the DSC meetings.

“We’re promoting dual conveyance as a solution in keeping with the task force report almost 10 years ago. The recommendations we made include improvements on through delta conveyance as well as an isolated facility underground,” he said. “This is as far as we went with a definition. It did provide the public an opportunity to express their opposition — particularly the Delta residents’ opposition to ‘Water Fix’ for the tunnels. I understand why they came to us. That was a product endorsed by us in June and is going to SGMA for further public review.”

Who Knows if the Plan is Working? Mr. Fiorini Knows

“How do we know if the recommendations we made — if they are implemented — are making a difference? We created performance measures. They are very, very painful things to develop. About 15-20 pages of data back up each performance measure. It provides the DSC the opportunity every five years when we review the performance of the Delta Plan to measure our progress against those performance measures.

“We’ve updated the performance measures so we’ve got the levee investment strategy, storage and operations, and performance measure amendments that are all going to SGMA in a couple of months.

“It will all go through public review and hopefully be adopted into The Delta Plan sometime this year,” he said.

Ecosystem Restoration

Mr. Fiorini said the DSC is working with the Department of Fish and Wildlife to revitalize the conservation measures that were in the Bay Delta Conservation Plan. “Fish and Wildlife has been holding public meetings and getting comments. We’re going to begin addressing the kinds of changes that would be advisable to make the eco-system chapter in the Delta. This keeps in mind our responsibilities to balance water supply, reliability with a healthy, restored ecosystem in the Delta. But we can’t do it all at once.”

During Mr. Fiorini’s speech, he gave the history of water development in California. The Fiorini Notes:

• 1848: Gold discovered in California. “That was the beginning of alter development with mining claims and water claims. Conflicts began.”

• 1849: Riparian Water Rights

• 1850: Swampland Protection Act of 1850 provided locals the opportunity to reclaim land for agriculture from swampland, beginning the development of the Delta. First-in time, first-in right provisions of water rights was adopted, known today as senior rights.

• 1850-1960: Hydraulic mining became a significant environmental problem, especially because of the mercury involved in the process. That’s when people began looking for other ways to make a living and began raising dry land wheat. By 1880 wheat in California became the number one enterprise, Mr. Fiorini said.

• 1887: The Irrigation Act of 1887. C.C. Wright from Modesto was elected to the state Senate with the sole goal to create an irrigation act for the locals. He succeeded with the Irrigation Act of 1887 that allowed locals to organize around water rights and provide water to smaller growers. This created a conflict between the large growers and the “irrigationists.” The large landowners saw this as a threat to their livelihood.

Then, after the invention of Thomas Edison’s light bulb, came electric motors, pumps, and generators, and hydroelectricity.

• 1913: Owens Valley Aqueduct

• 1913: Congress passed the Raker Act after its chief sponsor, John E. Raker. It permitted building of the O’Shaughnessy Dam and flooding of Hetch Hetchy Valley in Tuolumne County and Yosemite National Park. The Act specified that because the source of the water and power was on public land, no private profit could be derived from the development. The plan for damming the valley was fought for years by naturalist John Muir. Construction of the dam was finished in 1923. San Francisco sold the dam’s hydroelectric power to PG&E, which then resold it back to the public at a profit, in violation of the act. No one has ever been prosecuted.

• 1914: The Water Rights Permits System was enacted that provided Pre-1914 and Post 1914 water rights.

• 1926: East Bay Municipal Utility District built Pardee Reservoir, at the time the tallest reservoir in the world.

• 1928: Public Trust Doctrine, a federal document, was incorporated into the California constitution.

• 1933: Area of Origin Rights established, a very important document, especially in the mountain communities.

• 1933: Central Valley Project that now has 20 reservoirs and goes 450 miles from Lake Shasta to Bakersfield. It has 11 power plants and even three fish hatcheries.

• 1933: Central Valley Act of 1933 produced the State Water Project. The voters in a special December 19, 1933 election subsequently approved a $170 million bond act. However, due to the Great Depression, the bonds became unmarketable and the federal government had to finance it. Construction began in 1935.

• 1962: “That ended the Engineering era,” said Mr. Fiorini. “It transitioned into the Environmental Era. He said the 1962 book “Silent Spring” by Rachael Carson was an expose about the pesticide DDT. The Carson book told how DDT was relatively safe to use on humans like when they sprayed military troops with it for pest control, but it had a very negative impact on the environment. The book had a huge public impact that led to the first National Environmental Protection Act of 1970 and created the U.S. Environmental Protection Agency.

• 1970’s: Other federal government organizations and laws came into being, including: Council on Environmental Quality, Endangered Species Act, Clean Water Act, Clean Air Act, Safe Drinking Water Act, Wild & Scenic Rivers Act, California Environmental Quality Act.

• 1978: New Melones Reservoir on the Stanislaus River completed but it had begun construction in 1968. This is the last state or federal reservoir brought on line to this date in California. “Since then the action has been at the local and regional level,” Mr. Fiorini said. He said examples are Los Vaqueros in Contra Costa County and Diamond Valley Reservoir in Hemet.

• 1980: Turlock Irrigation District built a diversion dam on the Tuolumne River called LaGrange Dam, then the tallest in the world.

• 1986-1997: Significant drought period in California. “The attention shifted from developing water supplies to, ‘What are we going to do in the Delta?’ because the Delta had become the hub switchyard for the state and federal projects,” Mr. Fiorini said. The apparent conflict between water operations and the environment came to the forefront with some key species of fish like the two-inch smelt are on the verge of extinction.

• 1994: CalFed-Bay Delta group was formed. State and federal agencies, along with stakeholders, worked for six months to develop a science-based proposal for water quality standards, which then led to the signing of a document titled “Principles for Agreement on Bay-Delta Standards between the State of California and the Federal government.

• 2005: Prop 1 passed with $2.7 billion

• 2009: The Delta Reform Act

• 2015: Bay Delta Conservation Plan

Tunnel Talk

Mr. Fiorini said that if the Delta water tunnels are built and provide an alternative for conveyance, the Delta farmers and people living there fear that the state interest in the levees will become less and the locals will be forced to fund more of their maintenance and improvements. This would really be very difficult, he said, recognizing they will still need state financial help.

“There is also another underlying fear that in times of drought, if the tunnels are in place, who is going to regulate how much water, if any, is transferred through the tunnels that would shorten the flow through the Delta?” he said. “If this ever gets permitted, we’d have the operational criteria that should establish safe operating parameters but it comes down to trust.”

“People don’t trust government and I’m part of that,” Mr. Fiorini said. “They don’t trust a project of that size will be operated in critical time the way it needs to be to protect the Delta. I don’t know how you deal with the trust issue. You can at least deal with mitigation for construction impacts and there will be many. That will be part of the permitting process. But the work that we’ve done establishing recommendations for conveyance, storage and operations, I think, is really important.

“We don’t have a regulatory component. We have essentially set the guidelines for how water and conveyance should be integrated and operated not just in the Delta but also in other areas in support of groundwater, replenishment, water supply, reliability and environmental purposes. I think if the recommendations that we have come up with are to be followed, I think it will go a long way to building better trust.

He expanded his thoughts about the tunnels in times of the state’s cyclical droughts.

“Frankly, if you have a year like 2015 again, even if you had tunnels, there were probably minimal times when the flow on the Sacramento River would’ve been high enough to utilize those tunnels. They need to recognize that going into it. Last year, no problem. The pressure point is in those dry years when the Sacramento River flows are less than optimal.

Mr. Fiorni said that not too long after he graduated from Cal Poly and returned to the family citrus ranch to be the “best farmer ever,” a farmer-mentor told him to always remember, “The only thing that is constant in life is change.” He remembers that “Sweet Potato Joe” farmer every day on his job with the constant conflicts and changes happening today.

He said he terms out next year with the DSC and can predict where he’ll probably be in five years. He said his daughter and son are doing such a good job at managing the family farm, that he will probably be demoted to be the Fiorini Family Farm’s shop manager.

==========

Water managers and others interested in California’s water conflicts and changes should watch the complete video that has even more substantial information from not only Mr. Fiorini, but the mountain counties’ water managers and county supervisors who attended. Near the end of the video there is a question and answer period for the audience.

Drilldown

» Go to the video here:  https://vimeo.com/229818639

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Comments on this story


Tim Stroshane 8/15/17 2:27 PM
Thanks for writing the piece about Fiorini’s recent speech to MCWRA. It’s a very good exposition of how he thinks about things. It’s remarkable too these days when anyone gets a chance to speak that long, and an audience sits reasonably still for the experience. I have one little correction for you from the timeline that was presented - I presume by Mr. Fiorini. Your notes have him stating: "• 1928: Public Trust Doctrine, a federal document, was incorporated into the California constitution.” This is incorrect. The public trust doctrine, as I understand it, is not a “federal document” but derives from Roman law. The California Constitution does not have the PT doctrine anywhere in it; it is part of state case law, however, and has origins in numerous states’ legal traditions here in the U.S. All that aside, however, in November 1928, the voters of California passed a constitutional amendment, which is still with us, that validates riparian water rights while also limiting ALL water rights to reasonable use with respect to every other water right—a part of state case law and the Water Code (section 100) now called the “Reasonable Use Doctrine”—which also expressly prohibits “waste and unreasonable use, and unreasonable method of use and diversion of water.” There have been advocates of placing the public trust doctrine into the state constitution, but nothing organized has come of that. Thanks again for the lengthy piece on Fiorini’s speech.












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