Wednesday, September 5, 2012


By Patricia McBroom

        Seated at the head of a square of tables last week, California water officials – led by Jerry Meral of the state resources agency and surrounded by consultants – tried to answer questions concerning the hugely controversial Bay Delta Conservation Plan.
Deputy Resources Secretary, Jerry Meral (L), and ICF International
consultants, Jennifer Pierre and David Zippin, at the BDCP meeting.
Photo by Dan Bacher
       Around the square were people who would be powerfully affected by the plan – a project to construct two massive tunnels beneath the Sacramento/San Joaquin Delta for diverting water from north to south.  There was Ann Spaulding from Antioch, where water could turn saltier as a result of the diversion. There was Richard Pool, from sportsfishing organizations that care deeply about saving salmon runs from the threat of too-little water. There was Osha Meserve, a lawyer working to save the North Delta, where the diversions would begin, from irreparable losses. There was Jason Peltier from the Westlands Water District, an agricultural powerhouse that is legendary for its ability to turn state and Federal policy to its own benefit.
       One thing not present at the meeting was equality. Peltier's district (along with a few other big contractors) had everything to do with writing the plan; the rest of the stakeholders, little or nothing. How did it happen and what do we do about the prospect of a multibillion dollar project being built – the largest water infrastructure project in California since 1960 – without a vote of the people or the legislature? Moreover, the five Delta counties – Contra Costa, Sacramento, San Joaquin, Solano and Yolo – whose water supply and agricultural land will be affected, oppose the plan. They have not had a role in its creation.
Attorney Osha Meserve at the Sacramento River
       Some people in the water world accept this inequality as a matter of course. One top state official said flatly (in a recent interview) “Money drives policy, not the other way around.” There was no regret in his voice, just a sense that the world works this way. Others, like Meserve, continue to fight the odds, despite slim returns, while many just plan their next legal challenge, hoping to tie up the project in court.
       If that happens – and there's every reason to think it will – California's hopes for solving the Delta's problems will probably squeal to a stop again, as in the past, raising serious questions about whether there was a better way – or, indeed, any way – to make progress on such a “wicked” problem.
       As defined by Horst Rittel and Melvin Webber in 1973, a wicked problem is so multifaceted it has no clear definition, no good scientific answer, no unambiguous interpretation of the public good. Its “solution” depends on how the problem is framed. Moreover, those invested in the problem (stakeholders) hold radically different world views and espouse competing frameworks. There are few ways to solve a wicked problem. One way is to resort to authority, restricting the number of people whose inputs count. Governments often do this in making policy decisions on wicked problems, and that is what has happened in the Delta with this project. The other way is to collaborate.
        Could the state have made “ those people who are being affected into participants of the planning process,” as Rittel recommended? Could it have included people who are not merely asked, but actively involved in the planning process....?
       If the struggles of indigenous peoples around the world to have a say in the development of their lands and resources are any indication, the answer is, yes.
        Five years ago, 144 countries signed the United Nations Declaration on the Rights of Indigenous Peoples, calling upon States to “consult and cooperate in good faith” with indigenous people. In particular, States should obtain “free, prior and informed consent” to any decisions regarding the lands and resources traditionally used by native peoples. Prior consent is crucial. In other words, if you want resources, you have to negotiate with the locals from the beginning.
       That is happening in many parts of the world today – in Ecuador, Bolivia, and Brazil, for example. The Declaration and its principle of free, prior, informed consent have newly empowered indigenous peoples, writes international legal scholar Siegfried Wiessner, of St Thomas University School of law in Miami.  As women did 40 years ago in their quest for equality, it's time to "think globally and act locally."
       Obama's White House adopted the UN manifesto in 2010, reversing a Bush Administration's decision in 2007 to reject it.  
       The principle has been particularly salient among peoples of the forest: “By insisting on their right to free, prior and informed consent, forest peoples have been able to block plantations and dams planned for their lands and have been able to negotiate fairer deals with palm oil developers, loggers and local government land use planners,” according to the global Forest People's Programme.
Delta's unique cultural traditions at risk in water plan.
        The idea is not to halt progress, but to channel it through negotiations with rural and established communities – as in the Delta – whose customs and survival matter. It may be that California needs a tunnel for delivering water under the Delta. The current pumps in Tracy chew up fish big time. And big releases of water from upstream reservoirs at unnatural times distort the Delta's ecology.
       But the size and location of those tunnels has never been open to discussion with the millions of us affected. And there's the rub.
        Back at the meeting, there were few answers for the urgent questions.
        How much water will be left in the Sacramento River during drought and dry times of the year? Meserve wanted to know. Delta residents are acutely aware that the tunnels could take ALL the water in the river during dry periods. So far, they have seen no base limits on diversion.
        Pool was concerned about the flow available to salmon. He said he could no find answers in the 5,000 pages of the plan's first environmental draft report. Meral promised that the next environmental report, due in October – maybe – will clear things up. And, he assured them, there would be mitigation for any damage done.
       To be fair, the state agencies and consultants were doing their best. They just don't have the answers. Fish agencies and contractors are locked in debate over the amount of water that can be safely exported – safely, as in not destroying any species, ruining Delta agriculture, or turning the water in Contra Costa County into an undrinkable salt solution.
       Water contractors want to export an average of 6 million acre feet per year from the Delta. California fish and game scientists say they won't get that much – an amount most environmentalists believe is responsible for the recent collapse of the fish populations.
       The diversion “is more likely to be what they have now,” said Carl Wilcox, a biologist at the table representing California's Department of Fish and Game. That would be 4.8 million acre feet, since contractors now must operate under court restriction to preserve fish species. “Maybe, the number will go into the low fives” (million acre feet), but not six, said Wilcox.
 Manager Ronald Jacobsma of Friant Water Authority 
       Once the level of exports is agreed upon (if that happens), the next mountain to climb is identifying the payers for this massive construction. Also at the meeting was general manager Ronald Jacobsma of the Friant Water authority, a combine of two dozen water districts in the Fresno area, none of which receive ANY water from the Delta, nor would they if the tunnels were built. Nevertheless, these water agencies have been advised they must ante up 15% of the $20 billion cost of construction.
       Who told them they would have to pay? The State Water Contractors who receive Delta water and want the tunnels built – and they have the power of government behind them. Despite Jacobsma's vigorous campaign to get Friant's name removed from the list of payers, it's still there two years later, apparently because Friant gets water through a Federal project on the San Joaquin River, upstream from the Delta.
       “We want a beneficiary analysis done,” Jacobsma said. Peltier responded with the comment that all Federal water contractors would have to pay capital costs on the Delta tunnel no matter where they were located.
         Jacobsma made a broad comic gesture, grabbing for his wallet in his back pocket and the room erupted in laughter. Jacobsma, a friendly sort, laughed too, but the crazy prospect of water users paying billions of dollars for nary a drop was ultimately no joke.