Bertrand Russell once said that “The greatest challenge . . . is stating the problem in a way that will allow a solution.” One would think that articulating the problem to be solved with a habitat conservation plan for the Bay-Delta would be straightforward: to conserve and restore the natural habitat and native species that rely on the Bay-Delta ecosystem. But it seems that nothing is straightforward in the topsy-turvy world of California water.
Instead of focusing the conservation plan on establishing a comprehensive path for restoring the critically-imperiled Delta and its crashing fisheries in the context of the many stressors facing these species, the current stated purpose of the Bay Delta Conservation Plan includes to “restore and protect the ability of the [State Water Project] and [Central Valley Project] to deliver up to full contract amounts.” As my colleague Barry Nelson writes, this project purpose threatens to take a wide range of options for restoring the Delta off the table before we’ve even left the starting gate. This is not a sensible way to find a solution to one of the thorniest resource management challenges facing California.
Why not modify the project purpose to make clear that any Delta solution will be based on a comprehensive look at all of the science and tools at our disposal? If the solution indicates that we need to reduce deliveries to contractors from the Delta, then we need to analyze alternative water supplies, such as increased investment in water recycling, stormwater capture and reuse, and conservation and efficiency measures. We wouldn’t be taking water supplies off the table – on the contrary, we’d be taking a broader look at the many ways to meet the water needs of California’s growing population while sustaining its bountiful resources.
Some proponents of the Bay Delta Conservation Plan argue that we needn’t bother modifying the project purpose because the project purpose won’t be used to limit the range of alternatives to restore the Bay-Delta simply to those that substantially increase deliveries to SWP and CVP contractors. Under this view, the project purpose is essentially meaningless, and isn’t worth the effort to get right. While these assurances are comforting to those of us who are hoping for a meaningful, long-term solution to the problems in the Delta, it ignores the real legal vulnerabilities created by this constrained “project purpose.”
For example, many of the State Water Project and Central Valley Project contractors that are part of the BDCP, as well as the Department of Water Resources, are currently trying to convince a federal judge that the existing delta smelt biological opinion is unlawful because the measures it recommends to protect this critically-threatened species are inconsistent with the “project purpose” of the OCAP – the “operating criteria and plan” that describes one approach to operating the CVP and SWP for the next twenty years or so. They pin this claim to a regulation that states that “[r]easonable and prudent alternatives refer to alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action….” The contractors and DWR argue that the water supply impacts of the delta smelt biological opinion are inconsistent with the “intended purpose of the project,” which, in the case of the OCAP, is “continued operation of the CVP and SWP.”
If the purpose of the Bay Delta Conservation Plan includes “to restore and protect the ability of the SWP and CVP to deliver up to full contract amounts,” it’s a safe bet that these same entities, or any other water contractor who gets Delta water supplies and is unhappy with the final Plan, will argue that any approach that reduces contract deliveries from the Delta conflicts with the BDCP project purpose. Whether this is a winning argument remains to be seen. But why create a legal risk up front when any realistic observer recognizes that a legitimate Bay Delta Conservation Plan is going to leave some people unhappy and will (already has) incite litigation?
Let’s take the time to state the problem correctly that we are trying to solve with the BDCP, so that a real solution is possible. Otherwise, we run the risk of wasting valuable time and resources that we can no longer afford to squander with nothing to show at the end but inadequate solutions and a court order to start over again.