Former Interior Secretary Bruce Babbitt has called for creation of a “Bay-Delta Compact,” which he describes as a stakeholder drafted framework for action on the Bay Delta. It is worth looking at how the CALFED agreement which Babbitt helped negotiate in the 1990s fell apart.
The major components of CALFED included:
- Ecosystem Restoration
- Water Quality
- Water Supply Reliability
- Levee Integrity
The components of the CALFED “comprehensive package” were negotiated with stakeholders, including environmental, fishing, and Delta groups.
The CALFED Environmental Water Account
CALFED also had an Environmental Water Account program, which provided for purchases of ecosystem water from willing sellers. Environmental groups rapidly became disillusioned with the Environmental Water Account program. In 2008, the Natural Resources Defense Council commented on the Environmental Water Account EIR/EIS:
From 2001-2004, the EWA provided only 29% on average of the expected 195,000 acre-feet of operational assets …. These shortfalls have occurred while exports from the Delta have reached record high levels and the ecosystem has continued spiraling downward. Clearly, the EWA experiment has not performed as planned.
The agencies have turned the EWA on its head and, instead of using it to supplement the resources needed and required for fish protection, have used it as an excuse to short the environment and avoid committing those mandatory resources. Unless the agencies make very clear that limited EWA assets cannot be used as a reason not to take an action that would help protect or restore imperiled fish, it should be discontinued.
Because of crashing pelagic fish populations, in 2006, the Center for Biological Diversity, the Natural Resources Defense Council and the Bay Institute filed an emergency petition to change the listing for the Delta Smelt to “endangered” from threatened. A period of intense litigation over federal Endangered Species Act protections in the Delta followed the filings. In 2009, the State Water Contractors argued that the revised federal Biological Opinions would result in “waste and unreasonable use” of water under the California Constitution. The argument did not prevail, and the ESA restrictions on diversions in the Delta were upheld.
A Failure of Governance
Meanwhile, the cost of the CALFED program became a major issue for the state legislature. The Ecosystem Restoration Program commitments were $150 million a year, and the Environmental Water Account cost $50 million a year. With the state’s growing budget crisis, and a lack of apparent progress on restoring the Delta ecosystem, the cost of the program became an issue. Governor Schwarzenegger directed a review of the CALFED program by the Little Hoover Commission in 2005. The report included the following recommendation:
Recommendation: Policy-makers must adopt clear and specific goals for the CALFED program and fortify those goals with budget and legislative authority.
- Set clear, specific goals for CALFED. The Legislature must put in place goals that communicate to the implementing agencies and the stakeholders the State’s priorities and preferred strategies for restoring the estuary and meeting water needs.
- Ensure the implementing agencies have sufficient authority and resources to succeed. The Legislature must embed the CALFED goals in the authorizing statutes of the implementing agencies, empower those agencies to achieve their missions, and provide sufficient staff and funding to succeed. (p. 47.)
In 2006, the legislature moved all the funding for CALFED from the Bay-Delta Authority to the Secretary for Natural Resources. Correspondence by the CALFED Independent Science Board in 2008 stated that there was insufficient funding to even finish developing performance metrics for progress in the main program areas.
As a result of the Little Hoover Commission report and general dissatisfaction with CALFED governance, the Delta Stewardship Council was created by the Delta Reform Act in 2009. The Bay-Delta Authority was dissolved and the responsibilities were transferred to the newly created Delta Stewardship Council. But the governance problems continued. The Delta Stewardship Council dropped the CALFED water quality program, leaving consideration of effects of Delta contaminants on fish to the chronically underfunded State Water Resources Control Board. The goals in the CALFED Ecosystem Restoration Program, which included restoration of at risk native fish populations, were not included in the Delta Stewardship Council’s new Delta Plan. Environmental groups also argued that the measures in the Delta Plan requiring “reduced reliance on the Delta” were inadequate. The performance measures in the Delta Plan were ruled inadequate by Judge Michael Kenney in the Sacramento Superior Court in 2016. The case is currently being appealed.
Babbitt should examine the reasons for the failure of his previously negotiated collaborative solution for the Delta before suggesting a new one.