[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
EXTINCTION IS NOT A SUSTAINABLE WATER POLICY: THE BAY-DELTA CRISIS AND 
           THE IMPLICATIONS FOR CALIFORNIA WATER MANAGEMENT

=======================================================================

                        OVERSIGHT FIELD HEARING

                               before the

                    SUBCOMMITTEE ON WATER AND POWER

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

              Monday, July 2, 2007, in Vallejo, California

                               __________

                           Serial No. 110-33

                               __________

       Printed for the use of the Committee on Natural Resources



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                     COMMITTEE ON NATURAL RESOURCES

               NICK J. RAHALL II, West Virginia, Chairman
              DON YOUNG, Alaska, Ranking Republican Member

Dale E. Kildee, Michigan             Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas              Chris Cannon, Utah
Frank Pallone, Jr., New Jersey       Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin         Jeff Flake, Arizona
    Islands                          Stevan Pearce, New Mexico
Grace F. Napolitano, California      Henry E. Brown, Jr., South 
Rush D. Holt, New Jersey                 Carolina
Raul M. Grijalva, Arizona            Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam          Cathy McMorris Rodgers, Washington
Jim Costa, California                Bobby Jindal, Louisiana
Dan Boren, Oklahoma                  Louie Gohmert, Texas
John P. Sarbanes, Maryland           Tom Cole, Oklahoma
George Miller, California            Rob Bishop, Utah
Edward J. Markey, Massachusetts      Bill Shuster, Pennsylvania
Peter A. DeFazio, Oregon             Dean Heller, Nevada
Maurice D. Hinchey, New York         Bill Sali, Idaho
Patrick J. Kennedy, Rhode Island     Doug Lamborn, Colorado
Ron Kind, Wisconsin                  Mary Fallin, Oklahoma
Lois Capps, California               Kevin McCarthy, California
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South 
    Dakota
Heath Shuler, North Carolina

                     James H. Zoia, Chief of Staff
                   Jeffrey P. Petrich, Chief Counsel
                 Lloyd Jones, Republican Staff Director
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                

                    SUBCOMMITTEE ON WATER AND POWER

              GRACE F. NAPOLITANO, California, Chairwoman
     CATHY McMORRIS RODGERS, Washington, Ranking Republican Member

Jim Costa, California                Ken Calvert, California
George Miller, California            Dean Heller, Nevada
Mark Udall, Colorado                 Doug Lamborn, Colorado
Joe Baca, California                 Mary Fallin, Oklahoma
Vacancy                              Don Young, Alaska, ex officio
Nick J. Rahall II, West Virginia, 
    ex officio
                                 ------                                
                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Monday, July 2, 2007.............................     1

Statement of Members:
    Costa, Hon. Jim, a Representative in Congress from the State 
      of California..............................................     4
        Prepared statement of....................................     7
    Miller, Hon. George, a Representative in Congress from the 
      State of California........................................     9
        Graphs submitted for the record..........................   123
    Napolitano, Hon. Grace F., a Representative in Congress from 
      the State of California....................................     1
        Prepared statement of....................................     4
    Tauscher, Hon. Ellen O., a Representative in Congress from 
      the State of California....................................    10
        Prepared statement of....................................    11
    Thompson, Hon. Mike, a Representative in Congress from the 
      State of California........................................    12

Statement of Witnesses:
    Broddrick, L. Ryan, Director, California Department of Fish 
      and Game, Sacramento, California...........................    48
        Prepared statement of....................................    50
    Cooley, Heather, Senior Research Associate, Pacific 
      Institute, Oakland, California.............................    94
        Prepared statement of....................................    95
    Crettol, James A., Farmer, Shafter, California...............    23
        Prepared statement of....................................    25
    Isenberg, Phillip L., Chairman, Delta Vision Blue Ribbon Task 
      Force, and Partner, Isenberg/O'Haren, Sacramento, 
      California.................................................    15
        Prepared statement of....................................    16
    Larson, Hon. John P. (Phil), Supervisor, County of Fresno, 
      Fresno, California.........................................   110
        Prepared statement of....................................   112
    Martin, Christopher C., Immediate Past Chair, Los Angeles 
      Area Chamber of Commerce, and CEO, AC Martin Partners, Los 
      Angeles, California........................................    30
        Prepared statement of....................................    31
    Miller, William J. (BJ), Ph.D., Consulting Engineer, San Luis 
      and Delta-Mendota Water Authority, Berkeley, California....   103
        Prepared statement of....................................   105
    Moyle, Dr. Peter B., Professor of Fish Biology, Center for 
      Watershed Sciences and Department of Wildlife, Fish, and 
      Conservation Biology, University of California, Davis, 
      California.................................................    56
        Prepared statement of....................................    58
        Supplemental testimony submitted for the record..........    72
    Nawi, David, Attorney, Environmental Mediation, Sacramento, 
      California.................................................    89
        Prepared statement of....................................    91
    Stelle, William W., Jr., Assistant to the Chairwoman, Bay 
      Delta Conservation Plan Steering Committee, and Partner, 
      K&L Gates, Seattle, Washington.............................    99
        Prepared statement of....................................   101
    Thompson, Steve, Manager, California and Nevada Operations 
      Office, Fish and Wildlife Service, U.S. Department of the 
      Interior, Sacramento, California...........................    44
        Prepared statement of....................................    45
    Wolk, Hon. Lois, Assemblywoman, State of California..........    13

Additional materials supplied:
    Erlewine, Terry, General Manager, State Water Contractors, 
      Letter submitted for the record............................   127
    McNerney, Hon. Jerry, a Representative in Congress from the 
      State of California, Statement submitted for the record....   126
    Michalczyk, Bert, General Manager, Dublin San Ramon Services 
      District, Letter submitted for the record..................   132
    Smith, Felix E., Carmichael, California, Statement submitted 
      for the record.............................................   133


  OVERSIGHT FIELD HEARING ON ``EXTINCTION IS NOT A SUSTAINABLE WATER 
POLICY: THE BAY-DELTA CRISIS AND THE IMPLICATIONS FOR CALIFORNIA WATER 
                              MANAGEMENT''

                              ----------                              


                          Monday, July 2, 2007

                     U.S. House of Representatives

                    Subcommittee on Water and Power

                     Committee on Natural Resources

                          Vallejo, California

                              ----------                              

    The Subcommittee met, pursuant to call, at 9:00 a.m., in 
Vallejo City Council Chambers, Vallejo City Hall, 555 Santa 
Clara Street, Vallejo, California, Hon. Grace F. Napolitano, 
[Chairwoman of the Subcommittee] presiding.
    Present: Representatives Napolitano, Costa, and Miller
    Also Present: Representatives Tauscher and Thompson

  STATEMENT OF THE HONORABLE GRACE F. NAPOLITANO, CHAIRWOMAN, 
                SUBCOMMITTEE ON WATER AND POWER

    Mrs. Napolitano. Thank you, ladies and gentlemen and good 
morning. I'm Congresswoman Grace Napolitano from Southern 
California, Chair of the Subcommittee on Water and Power.
    This meeting of the Subcommittee will now come to order.
    The purpose of this meeting is to conduct an oversight 
field hearing regarding the current crisis in California's Bay-
Delta estuary, the largest estuary on the West Coast and the 
water supply for more than 25 million people. The population of 
the Delta smelt, once the most abundant species in the Delta, 
has reached critically low levels. The numbers of the small 
fish officially listed as threatened for the past 14 years 
under the Endangered Species Act have decreased to such 
dangerously low levels in recent years that they may be at risk 
of extinction in the very near future.
    The Federal state pumping facilities that export water out 
from the Delta may play a significant role in reducing the 
Delta smelt population abundance and their inability to 
recover. Other possible affecting factors--excuse me. Am I not 
recorded? It's down. It was on. Logistics. Thank you.
    The other possible affecting factors include invasive 
species and pesticides. And we trust we will be able to learn 
more about various studies and conclusions this morning.
    The fact remains that the State and Federal courts are now 
involved and in effect, we have the courts directing water 
policy decisions for Californians. What little is left of 
California water policy is in disarray. And the officially 
threatened Delta smelt continue to die at the State and Federal 
pumping plants as they are, especially now, almost at full 
pumping capacity.
    This hearing, aptly entitled ``Extinction Is Not a 
Sustainable Water Policy: The Bay-Delta Crisis and the 
Implications for California Water Management,'' will consider 
essential questions that go beyond our immediate concern for 
the Delta smelt. Other witnesses will address the difficult 
challenge of managing the Delta in a sustainable way that 
complies with the law without placing California's economy at 
risk.
    Let me begin by welcoming our members on the dais. First 
Members of Congress, the Subcommittee, our friends and 
California colleagues. Representative Jim Costa from Fresno and 
Representative George Miller. Thank you, gentlemen, for being 
here.
    And I'd also extend a great welcome to other Members of 
Congress who are guests today. Congresswoman Ellen Tauscher of 
Alamo, Congressman Mike Thompson of Saint Helena in Napa, and 
State Assemblywoman Lois Wolk, Chairwoman of the California 
State Assembly Committee on Water, Parks, and Wildlife. I'll 
get it yet, Lois.
    Congressman McNerney unfortunately could not be with us 
this morning. And I ask unanimous consent that his statement be 
included for the recorded.
    Thank you everybody for coming, especially to the witnesses 
who are here today, and the audience who is here to learn as we 
are. I am very glad to see this level of participation. And I 
know that you and your constituency are concerned with the 
future of the Delta. And it is important that you have not 
shied away from this controversial topic.
    Please let me take this moment to point out that our 
colleagues from the Minority are not here, despite my personal 
calls to several Members. And in fact, they are unhappy about 
this hearing. And I say that wholeheartedly because I've spoken 
to them and we were hoping they would be able to join us and 
work with us on this issue.
    I would like to recognize the Minority staff. Kiel, where 
are you? Kiel? In the back. And you're welcome to join us up 
here, Kiel.
    I ask unanimous consent that Representatives Ellen 
Tauscher, Mike Thompson and State Representative Lois Wolk be 
allowed to sit on the dais with the Subcommittee this morning 
to participate in Subcommittee proceedings. And hearing no 
objection, so ordered.
    I will begin the hearing with a brief statement. I then 
will recognize the Members of the Subcommittee for any 
statement they may have. Any Member of Congress who desires to 
be heard will be heard. And, of course, additional material may 
be submitted for the record within ten days.
    Since we have a full schedule of witnesses today, I will 
request that Members please keep their remarks brief. The five 
minute rule with our timer will be enforced.
    Then I would like to thank, of course, Congressman Miller 
as being the most gracious host, and his staff from the Concord 
office. Thanks, George.
    I also want to thank the City Council, the City Manager and 
their staff for working so cooperatively with our staff and for 
allowing us to use these Council chambers. They're very 
impressive, and I congratulate them.
    On behalf of myself and Congressman Nick Rahall, Chairman 
of the House Committee on Natural Resources, thank you for your 
hospitality.
    This hearing was requested by eight members of your North 
California delegation, Congressmen and women, Miller, Tauscher, 
Thompson, Woolsey, Honda, Lantos and McNerney. I'm here at 
their request.
    The Delta smelt is referred to as an indicator species for 
the health of the Delta. The population of the Delta smelt has 
literally crashed in the last five years and they are now below 
their effective population size. If the Delta smelt becomes 
extinct, there are no winners. If anyone here thinks the 
challenges facing the Delta will just go away if the smelt 
completely disappear, you are mistaken.
    There is scientific uncertainty about the cause of the 
smelt decline. Uncertainty seems to be the theme of many of the 
agency documents and decisions related to the smelt. The Delta 
is a complex system; I don't have to tell you that and it has 
many interacting factors. But there has been clear evidence 
that the decline of the smelt and other fish species is 
correlated to our water management practices. So much so that 
the Federal courts have had to step in. Was this neglect on the 
part of the Federal agencies or manipulation?
    If the courts start managing our water, nobody wins. The 
courts will not give users or the smelt, for that matter, more 
certainty about their future. Managing from crisis to crisis 
will not be effective and it will not work. There is one 
fundamental question we must ask ourselves: Can we get to the 
bottom of why there has been no real action on the part of the 
Federal or state agencies to address the overall health of the 
Delta, of which the smelt is just one indicator?
    This basic question touches on so many related water 
issues. Why is it that we have become so dependent on the Delta 
that our entire economy is at risk if water exports are stopped 
to protect fish? What's our backup?
    Shouldn't we have already started developing some more 
alternative water supplies for California through water 
recycling and conservation? Should we not be looking for more 
groundwater storage and banking?
    Broadly stated, we are here today to learn and to explore 
what we have done to the Delta, what we have neglected to do 
and to explore ways to restore and manage the Delta in a 
sustainable manner. Our cities, our farms, our economy and the 
future of California depends on it.
    I trust today's hearing will yield cooperation that will 
lead to solution with very real ideas. And with that, I yield 
to my friend and colleague The Honorable Jim Costa for any 
statement he may have.
    [The prepared statement of Mrs. Napolitano follows:]

      Statement of The Honorable Grace F. Napolitano, Chairwoman, 
                    Subcommittee on Water and Power

    First, I would like to thank Congressman George Miller and his 
staff from the Concord District Office. You all have been gracious 
hosts. I would also like to thank the city manager's office of Vallejo 
for allowing us to use the Vallejo City Council Chambers. On behalf of 
myself and Congressman Nick Rahall, Chairman of the House Committee on 
Natural Resources, I thank you for your hospitality.
    The delta smelt is referred to as an ``indicator species'' for the 
health of the delta. The population of the delta smelt has literally 
crashed in the last 5 years, and they are now below their effective 
population size. If the delta smelt becomes extinct, there will be no 
winners. And if anyone here thinks the challenges facing the delta will 
just go away if the smelt completely disappear, you are mistaken.
    I understand there is scientific uncertainty about the causes of 
the smelt decline. Uncertainty seems to be the theme of many of the 
agency documents and decisions related to the smelt. Yes, the delta is 
a complex system with many interacting factors, but there has been 
clear evidence that the decline of the smelt and other fish species is 
correlated to our water management practices. So much so, that the 
federal courts have had to step in. Was this neglect on the part of 
federal agencies, or manipulation?
    If the courts start managing our water, nobody wins. The courts 
will not give water users, or the smelt for that matter, more certainty 
about their future. Managing from crisis to crisis will not work. I 
have one fundamental question I want to get to the bottom of:
      Why has there been no real action on the part of federal 
or state agencies to address the overall health of the delta, of which 
the smelt are just one indication?
    This basic question touches on so many interrelated water issues. 
Why is it that we have become so dependent on the Delta that our entire 
economy is at risk if water exports are stopped to protect fish? Where 
is our backup? Shouldn't we start developing more alternative water 
supplies for California through water recycling? Shouldn't we be 
looking more to groundwater storage and banking?
    Broadly stated, we are here today to explore what we have done to 
the delta, what we have neglected to do, and to explore ways to restore 
and manage the delta in a sustainable manner. Our cities and our farms 
and the future of California depends on it. I hope today's hearing 
yields real ideas.
    And with that I yield to my friend and colleague, The Honorable Jim 
Costa for any statement he may have.
                                 ______
                                 

   STATEMENT OF THE HONORABLE JIM COSTA, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Costa. Thank you very much, Madam Chairman, for your 
hard work and your focus and your tenaciousness toward trying 
to not only work on water issues throughout the country and the 
west in particular, but here in California. And your leadership 
and your passion and your desire to help us solve those 
problems I think are highly commendable. And I enjoy serving 
with you, as I know our colleagues look for your leadership and 
your work and your efforts in this area.
    I have a couple of points I want to make as it relates to 
my statement, and both as it relates to the impacts facing the 
Delta and as it relates to historical perspective. Because some 
like our colleagues Mr. Thompson and Mr. Miller and with our 
arctic blonde and Mr. Isenberg detect in terms of our age the 
fact that we have been associated with many of these issues for 
many decades. And I think that historical perspective is 
important to note.
    Climate change and global warming, I believe, are 
occurring. And they will have ramifications throughout the 
world as well as throughout our country. In California it could 
result in the next 50 years with an increase of sea level from 
one to two to three feet. Increasing three feet of sea level in 
the Delta will have dramatic impacts as it relates to the 
Delta--not only the ecosystem, but also as a linchpin as our 
plumbing system for water purposes for the rest of the State.
    In addition, we have other natural factors that could cause 
great change. Earthquakes. The Midland Fault lies throughout 
the Delta and is cross-sected by the San Andreas and the 
Hayward Fault lines.
    Let me give you a scenario. It's July 4, 2008, 1:30 in the 
afternoon. Americans are celebrating Independence Day. People 
in California are with their families and at their homes.
    1:37 in the afternoon a 7.0 earthquake goes through the 
Midland Fault dramatically impacting the Delta. Suddenly the 
earth begins to shake. Within seconds levees and dikes melt 
away. Within a minute a wall of water from the Bay sweeps 
across the Delta taking out the remainder of the earth and 
structures that had survived the initial catastrophe rocked by 
the 7.0 earthquake by the Midland Fault.
    The loss of lives could never be replaced and the impacts 
to those who were directly at the earthquake at ground zero. 
But the water upon which 25 million of our citizens depend upon 
would no longer exist. It takes a while to realize the loss of 
drinking water, irrigation water is a greater catastrophe than 
the value of the lost physical facilities; buildings and 
infrastructures that would be impacted by such a quake.
    This is not a scenario that any of us hope or wish we will 
experience. But the odds that such an event will occur in the 
next 50 years are significant. Just as the odds are significant 
that climate change will raise the water level in the next 50 
years.
    As that vision or nightmare illustrates, the health of the 
Bay-Delta and the regional implications to the rest of 
California is what we are really talking about here today. The 
social, the economic, the environmental consequences cannot be 
overstated.
    Congressman George Miller, our good friend, has done a good 
job in both increasing the water supply and improving the water 
quality for his district. In the early 1990s the Water 
District, along with others, constructed the Reservoir to 
improve the supply and improve the water quality by moving the 
intake to the Old River and the Delta. And this area has 
benefitted from his good work and others.
    The rest of California must increase its water supplies and 
restore the Delta ecosystem by doing the same. Unfortunately, 
we have not had the same success. And let me give a 
perspective.
    We know, as the Congresswoman stated in her opening 
statement, our Chairperson today, that exports have affected 
the Delta fishery. But I do not believe they can account for 
the current decline in the smelt.
    We also know that invasive species, including the Striped 
Bass that were introduced in the 1930s as a game fish, and 
Asian clams that have been brought in here by shipping, have 
had an impact, and we cannot measure it and we have not been 
able to figure out how to solve that. And there are 1,800 
unscreened diversions within the Delta that take the same 
amount of water comparable in size to the Federal pumps each 
year, and we don't talk about that.
    In addition, urban and agricultural pesticide use in the 
Delta and around it are significant factors and may have been 
the chief culprit in this year's drastic decline in the smelt 
population.
    And one other thing we do not ever talk about, and that is 
the urbanization that has occurred in the last 25 years in the 
Delta. Dramatic growth has taken place.
    Now let me give a little historical perspective since many 
of us in this room have been involved with these issues for the 
last 25 years.
    In 1982, Governor Brown made an unsuccessful effort to 
build the controversial peripheral canal.
    In 1984, the Kesterson drain that comes from my area that 
eventually was to come to the Delta was closed because of high 
selenium concentrations that deformed wildlife, as it should 
have been. As a matter of fact, both Congressmen Miller and I 
were there at that hearing in Los Banos in 1982.
    In addition to that, Governor Deukmejian in 1988 tried a 
limited version of the peripheral canal using much of the 
existing channels. That later became known as Duke's Ditch, as 
my colleague Assemblymember Isenberg and others called it.
    Mrs. Napolitano. Sorry, Mr. Costa. You are 45 second over.
    Mr. Costa. Well, I know. But Madam Chairman, you went ten 
minutes. Let me close.
    Mrs. Napolitano. Five minutes. I'm the Chair, sir.
    Mr. Costa. I understand, but can I close?
    Mrs. Napolitano. Yes, sir.
    Mr. Costa. Thank you.
    In 1992 there was a reauthorization of the Central Valley 
Project by our good friend George Miller. It reallocated 
800,000 acre-feet of water to improve water quality in the 
Delta and water supply, 400,000 additional acre-feet went for 
wildlife refuges. All this occurred, 1.2 million acre-feet of 
reallocation, during the drought that we experienced.
    In closing, let me just try to say that all of these 
efforts with Assemblymember Jones and myself, we put together a 
coalition of environmentalists, urban and agricultural water 
users that said we would all get better together. That resulted 
in this funding. And it is important to note as I close that in 
1996, Prop 204 passed and $995 million dollars was provided. In 
2000, Prop 13, which I authored, provided $1.97 billion. Prop 
50, in 2002, $2.6 billion was for water-related issues. 
Finally, Proposition 84 passed $5.4 billion just last year. All 
of this is important to note because in the last ten years the 
State has provided $8 billion, and there has been hundreds of 
millions of Federal dollars that have been applied to try to 
improve the Delta. That does not talk about Governor Davis' 
successful negotiation of the CALFED effort.
    And on water conservation effort in closing, we've done a 
lot. Today the Metropolitan Water District of Southern 
California conserves more water each year than the entire city 
of San Francisco uses. California agriculture, which I in part 
represent, is trying to keep up with its urban brother. 
California farms produced 67 percent more crops using less 
water than they did in 1970. From 1990 to 2000 we have doubled 
the amount of drip irrigation and we're doing a whole lot of 
other things as well.
    So let me say that I am looking forward to hearing the 
statements by you and others in today's hearing. We have 
Assemblymember Isenberg's Task Force. And as I listen to the 
hearing today, I ask myself--what are we as Federal elected 
officials doing to help our State partners? Will we figure that 
out today?
    Continuing regional fighting and polarization that has 
existed over the last 30 years will not solve the problem. Nor, 
should we be looking at this hearing from the same old paradigm 
of you are wasting water, because we are not.
    [The prepared statement of Mr. Costa follows:]

  Statement of The Honorable Jim Costa, a Representative in Congress 
                      from the State of California

    It is the Fourth of July and families across California are in the 
parks, yards or watching parades to celebrate our independence. 
Suddenly, in the Delta the earth begins to shake. Within seconds, the 
levees and dikes melt away. Within a minute, a wall of water from the 
Bay sweeps across the delta, taking out the remainder of earthen 
structures that had survived the initial catastrophic damage wrought by 
a 7.0 earthquake. The water on which 25 million of our citizens depend 
no longer exists. It takes a while to realize that the loss of the 
drinking and irrigation water is a greater catastrophe than the value 
of the loss of physical facilities, buildings and infrastructure 
sustained by the quake.....
    This is not a scenario I ever want to experience, but the odds are 
such an event may very well occur in the next 50 years.
    As that vision, or nightmare, illustrates, the health of the Bay-
Delta and the regional implications to the rest of California is what 
we are really talking about here today. The social, economic and 
environmental consequences cannot be overstated.
    Congressman Miller's area has done a good job of both increasing 
water supply and improving water quality for his district. In the early 
1990s Contra Costa Water District constructed Los Vaqueros Reservoir 
and a new intake on Old River in the Delta to fill it with better 
quality water.
    The rest of California must increase its water supplies and restore 
the Delta ecosystem by doing the same. Unfortunately we have not yet 
had the same success.
I. The causes of the decline in the health of the Delta are numerous:
      Exports affect the Delta fishery, but cannot account for 
the current decline
      Invasive species, including striped bass and Asian clams, 
clearly have an impact
      1,800 unscreened diversions, which taken together are 
comparable to the size of the CVP's pumps must be acknowledged
      Urban and agricultural pesticide use in and around the 
Delta are significant factors and may have been the chief culprit in 
this year's drastic decline in the Smelt population.
      The impacts of urbanization in the last 25 years is also 
a factor
II. As we look at today's conditions and to future solutions, it is 
        absolutely critical that we examine what we have already done.
      1982 Governor Brown made an unsuccessful effort to build 
a peripheral canal
      1984 Kersterson was closed because of high selenium 
concentrations that deformed wildlife
      1988 Governor Deukmejian's tried a limited version of a 
peripheral canal using much of the Delta existing channels in what 
became know as ``Duke's Ditch''
      1992 CVPIA, authored by our colleague, George Miller, 
reallocated 1.2 million AF from farms south of the Delta.
      800,000 AF is now used each year to restore the Delta 
fishery.
      400,000 AF is used for wildlife refuges.
    The last 3 actions were taken during one of the worst droughts up 
to that time,
      1995 Governor Wilson tried to combine the state and 
federal water projects for increased effectiveness and improved water 
utilization
      1995 I began an effort with Assemblyman Bill Jones and 
Sunne McPeak and a large coalition of environmentalists, urban and 
agricultural water users to fund a new approach that would allow the 
Delta's many uses to all ``get better together.''
        That effort resulted in broad, bipartisan water 
propositions:
              Prop 204 (1996) $995 million;
              Prop 13 (2000) $1.97 billion;
              Prop 50 (2002) $3.4 billion of which $2.6 billion 
            was for water-related projects including the Delta 
            ecosystem;
III. Prop 84 (2006) $5.4 billion of which $3.3 billion was for water-
        related projects including the Delta ecosystem.
      We have spent as much as $8 billion in state money over 
10 years. And at the federal level hundreds of millions of dollars have 
been provided through CaIFED.
      In 2000, Governor Davis successfully negotiated the 
CALFED ROD with two primary goals:
        Assimilating state and federal efforts
        Spending state and federal; money to restore the Delta 
environment, increase water supplies, upgrade the Delta levee system, 
and improve Delta water quality
    Throughout this time California's water conservation ethic 
exploded:
      Today the Metropolitan Water District of Southern 
California conserves more water than the entire city of San Francisco 
uses in a year.
      And California agriculture is keeping up with its urban 
brother. California farms produce 67% more crops using less water than 
they did in 1970.
      From 1990 to 200 alone the number of acres that converted 
to using water saving drip irrigation systems doubled.
IV. Despite the many problems in the Delta, and the many attempts we 
        have made to solve them, we are more focused on solutions than 
        ever.
      In 2006, the out of court settlement of the San Joaquin 
River restoration suit will result in 160,000 AF to be devoted to 
improving water quality and the salmon fisheries on the San Joaquin 
River.
      The U.S. Bureau of Reclamation is developing a new and 
very innovative proposal to solve the Westside drainage problem that 
would clean-up the current drainage problem, relieve the federal 
government of a multibillion dollar liability and equitably compensate 
the farms that take on that obligation.
    As we move into 2007, we must also give Governor Schwarzenegger and 
the Legislature credit their efforts to fund new water storage and 
conveyance facilities to solve the Delta crisis. The Delta's challenges 
not new, but OLD.
    It is significant to have former Assemblyman Isenberg chair the 
Delta Vision Blue Ribbon Task Force to make recommendations that will 
restore the Delta and California's water supply. So as we begin this 
hearing, I ask myself, ``What are we, as federal elected officials, 
doing to help our state as partners?'' Hopefully we will figure that 
out today, but in my mind that does NOT include:
      Continuing the regional fighting and polarization of over 
30 years
      Nor should we be looking at this from the same old 
paradigm of ``You're wasting water, we're not.''
    So I ask my colleagues and the witnesses that will testify today: 
``What is the key for building the consensus we need to solve 
California's water problems in the 21st Century, knowing that our state 
is growing and time is running out?''.
                                 ______
                                 
    Mrs. Napolitano. Thank you.
    Mr. Costa. So I ask my colleagues and witnesses to testify 
what is the key to building the consensus we need to solve 
California's water problems in this 21st century. We know two 
things. Our State is growing----
    Mrs. Napolitano. Thank you.
    Mr. Costa.--and we are running out of time.
    Mrs. Napolitano. Thank you, Mr. Costa. And we need to 
listen to the witnesses and your statement will be entered into 
the record.
    Mr. Costa. Thank you.
    Mrs. Napolitano. Thank you.
    Mr. Miller?

 STATEMENT OF THE HONORABLE GEORGE MILLER, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Miller of California. Thank you, Madam Chairman. And 
thank you so much for taking time out of your schedule to chair 
this hearing in the 7th District.
    And I want to welcome the other member of the Committee, 
Mr. Costa. And I want to welcome our colleagues Ellen Tauscher 
and Mike Thompson and Lois Wolk for taking their time also to 
be here.
    I believe they are here because we all recognize that one 
of the great and last remaining delta systems in the world is 
in serious, serious trouble. It is in serious threat of 
collapse. And it is in serious threat of failing to meet its 
historic needs, not only to Northern California but also to 
Southern California.
    And we have heard the history of actions taken with respect 
to the Delta, but the fact of the matter is we continue to see 
year after year the Delta go into decline.
    It is rather interesting. As the laws continue to be passed 
to strengthen and protect the Delta, the Delta continues to go 
into decline because of a series of decisions that we have made 
every year, year after year, and which we now see as a result 
of lawsuits that have been filed where the laws have been 
evaded, ignored and in fact violated that were designed to 
protect the Delta. And I think that is unfortunate.
    I think we have come to a point, Madam Chairman, where we 
have to make some fundamental decisions. There is no question 
that the Delta must continue to function as a multipurpose 
entity in terms of its complexity, both locally and statewide. 
But it cannot continue to give and give and give and not suffer 
the detriments of that. And that is why we are here today. We 
are at a point where the State has been put on notice with the 
temporary shutting down of the pumps. The temporary closing of 
the pumps was done in accordance with the law because the law 
was not adhered to. And the government is, in fact, engaged in 
activities and a take that was not authorized. We are 
continuing to watch that litigation, but I think it is also 
clear that the years of processed discussions have not taken us 
much closer. In fact, I think it has diverted our attention 
from the kind of Delta protection that is necessary for this 
region of our State.
    It is clear that the Delta is stressed, and that stress can 
lead to serious economic consequences in the rest of the State. 
I think we now have to once again consider the idea that 
perhaps not all water is equal in the State of California. That 
there is water that is being used in large quantities that 
provides very little economic return to the State, and water 
that could be better used in other parts of the State and the 
economy. Those are difficult and tough decisions. But just as 
energy forces us to look to new technologies, new uses and new 
values on that policy, so does water and its scarcity require 
us to do that.
    My colleague, Mr. Costa, mentioned climate change. We have 
all seen studies and discussions of what will happen in the 
future to California--where our snowpack will be, where it will 
not, who will be the beneficiaries. And I think those all have 
to be taken into consideration.
    Unfortunately, Madam Chairman, I think this is probably the 
first in a series of hearings on this complex problem. But the 
leadership you have provided and the Committee has been 
fantastic for our State. Your absolutely unparalleled 
leadership in the recycling of water and just passing out of 
the Committee this week major authorizations for recycling 
projects in our State, I think, is key to getting ahead of the 
curve so that we can also be a contributor to lessening the 
pressure and the threat to the Delta.
    I look forward to hearing from the witnesses. And I want to 
thank all of them for agreeing to be here today and to testify, 
and to answer questions.
    Thank you very much.
    Mrs. Napolitano. Thank you, Congressman, for being pretty 
much on time. And thank you for your leadership.
    For all of you that do not know this, this is only my ninth 
year. I have learned from this man. And so when he tells me 
that we are doing a good job, I feel very good. Because water 
is critical to the State.
    So with that, I would like to introduce Congresswoman Ellen 
Tauscher.

STATEMENT OF THE HONORABLE ELLEN TAUSCHER, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Ms. Tauscher. Thank you very much Chairwoman Napolitano for 
the opportunity to appear today and welcoming me as a temporary 
member of the Water and Power Subcommittee.
    I would also like to thank the City of Vallejo, and my 
colleagues for being here. And especially my friend Chairman 
Wolk from the Assembly.
    I think that what is really important is that Chairwoman 
Napolitano needs to be thanked for the quickness for which she 
responded to Bay area Members of Congress who asked for today's 
hearing.
    I am grateful that you share our concern for the future of 
the Bay-Delta as well as the long-term management and quality 
of California's water supply.
    Today's hearing is about righting what can only described 
as a floundering ship. We can all agree the Bay-Delta is in 
crisis. It faces challenges that if unmet will cause the 
continued degradation of its ecosystem and threaten the water 
supply Californians throughout the State depend on. It would be 
a terrible injustice to all Californians if today's hearing 
devolves into the typical and tired blame game, fish versus 
farmers and then Delta water versus Southern California. And 
whether you believe the Delta smelt are the proverbial canary 
in the coal mine or not, these recent actions have highlighted 
the need for a foresighted plan to deal with all the issues we 
face in the Delta; water quality, habitat restoration, water 
exports, levee stability and invasive species.
    I applaud the recent work being done by the State to lay 
out the plan. The Delta Vision process, I hope, will bring us 
some clarity about our long-term options. And I am pleased that 
the Chair of the Governor's Delta Vision Blue Ribbon Task Force 
Phil Isenberg is here today.
    Additionally, I hope the Bay-Delta conservation plan 
process will help us address the issues surrounding compliance 
with the Endangered Species Act. I have seen in eastern Contra 
Costa County and my district how the habitat conservation 
planning process has worked, and I hope that it can be emulated 
in the Delta. But these are long-term efforts and the Delta 
needs help now. So today I am looking for answers about what we 
can do right now. We need to know that there is an action plan 
being developed to stop the decline of the Delta smelt, ensure 
reasonable and regular exports, protect and enhance water 
quality and deal with the loss of habitat. It is time to make 
some near term decisions that will save this vital ecosystem 
and preserve California's water delivery system.
    Additionally, I want to know from Federal regulators and 
the people they are meant to work with that they are the type 
of partners that are helping in this process. The Federal 
Government has a lot at stake in this process, and I want to 
know that the Federal Government is an active and willing 
partner in all aspects of the Delta.
    Madam Chairwoman, again, thank you for holding this 
hearing. And I look forward to hearing from today's witnesses.
    And I yield back the balance of my time.
    [The prepared statement of Ms. Tauscher follows:]

Statement of The Honorable Ellen Tauscher, a Representative in Congress 
                      from the State of California

    Chairman Napolitano, thank you for the opportunity to speak this 
morning and thank you for welcoming me as a temporary Member of the 
Water and Power Subcommittee.
    Let me also thank you for the quickness with which you responded to 
our request for today's hearing.
    I am grateful that you share our concern for the future of the Bay-
Delta as well as the long-term management and quality of California's 
water supply.
    Today's hearing is about righting what can only be described as a 
foundering ship.
    We can all agree ``
    The Bay-Delta is in crisis--it faces challenges that if unmet, will 
cause the continued degradation of its ecosystem and threaten the water 
supply Californians throughout the state depend on.
    It would be a terrible injustice to all Californians if today's 
hearing devolves into the typical and tired blame game--fish versus 
farmers and in-Delta water users versus Southern California.
    The issues we face are too complex and too important to be bogged 
down in another California water war, especially one created by 
bureaucrats who are unwilling to follow the law.
    Today's hearing is about controlling our own destiny.
    Recent events have made clear that state and federal judges are 
willing to step in and manage California's water systems because 
federal and state regulators won't.
    This is a terrible proposition for all of us.
    The judiciary was never meant to manage water.
    But we're here now because federal and state regulators have 
repeatedly neglected their responsibility to operate the systems within 
the law.
    Our goal here today is to prod these same regulators into action.
    I bring a unique perspective to today's hearings.
    Depending on where they live in my district, families get their 
water through the Delta or through the State Water Project.
    In Livermore, the Zone Seven Water Agency gets eighty percent of 
its water from the State Water Project, while in places like Antioch, 
the Contra Costa Water District takes water directly from the Delta.
    Some would say this puts me on opposite sides of the fence, between 
protection of the Delta and its water quality and continued robust 
exports out of the Delta.
    I disagree.
    Instead, it amplifies the urgent need for federal and state 
regulators to immediately comply with the letter and spirit of the law 
and provide regularity and predictability within the system.
    When the regulators fall out of compliance, it hurts all of us, 
because we begin to lose our ability to self-determine the future of 
water in our own state.
    No doubt, we're here in large part because of the alarming decline 
in the Delta smelt population and Judge Wanger's ruling that the 
Biological Opinion used to operate the state and federal pumps is 
``legally flawed.''
    In the near term, it's clear that these legal decisions make it 
imperative for the State Water Project and the Central Valley Project 
to be brought into compliance and address their impacts on the smelt 
populations.
    I agree with those who say the pumps aren't the only reason why the 
smelt population is crashing--that other factors also affect these 
fish.
    However, I disagree with the argument that because we haven't done 
enough to improve water quality, combat invasive species and reduce 
runoff into the Delta that it is reasonable to continue to kill smelt 
through the pumps.
    That argument is both illogical and, as the judge pointed out, 
holds no legal merit.
    Whether you believe the Delta smelt are the proverbial ``canary in 
the coal mine,'' or not, these recent actions have highlighted the need 
for a foresighted plan to deal with all the issues we face in the 
Delta--water quality, habitat restoration, water exports, levee 
stability, and invasive species.
    I applaud the recent work being done by the state to lay out that 
plan.
    The Delta Vision process, I hope, will bring us some clarity about 
our long-term options, and I'm pleased that the Chair of the Governor's 
Delta Vision Blue Ribbon Task Force, Phil Isenberg, is here today.
    Additionally, I hope the Bay Delta Conservation Plan process will 
help us address the issues surrounding compliance with the Endangered 
Species Act.
    I have seen in Eastern Contra Costa County how the habitat 
conservation planning process has worked, and I hope that can be 
emulated in the Delta.
    But these are long-term effort, and the Delta needs help now.
    So today I'm looking for answers about what we can do right now. We 
need to know that there is action being taken to stop the decline of 
the Delta smelt, ensure reasonable and regular exports, protect and 
enhance water quality, and deal with the loss of habitat.
    It's time to make some near-term decisions that will save this 
vital ecosystem and preserve California's water delivery system.
    Additionally, I want to know from federal regulators and the people 
they are meant to work with what type of partners they have been in 
this process.
    Just attending meetings and working groups is not enough.
    The federal government has a lot at stake in this process and I 
want to know that the federal government is an active and willing 
partner in all aspects of the Delta.
    Madam Chairman, again, thank you for holding this timely hearing.
    I look forward to hearing from today's witnesses and I yield back 
the balance of my time.
                                 ______
                                 
    Mrs. Napolitano. Thank you, Ms. Tauscher. That is much 
appreciated.
    And I will go to Mike Thompson.

 STATEMENT OF THE HONORABLE MIKE THOMPSON, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Thompson of California. Well, thank you, Madam Chair. I 
appreciate you being here and taking up this issue. And I 
second all that has been said about your leadership on not only 
this issue but water issues in California in general. And I 
think today's hearing points out the importance that this has, 
not only on the Bay-Delta region, but the entire State of 
California and our economy. It is important to fisheries, to 
wetlands, to flood protection, drinking water and to 
agriculture. And this, I believe, is just one example of an 
overtapped water system that we have in California.
    So it is a prime example, and one that we really need to do 
a better job. And the State and Federal Government really need 
to double down our efforts to do everything that we need to do 
to provide the incentives that will allow us to get the most 
out of every drop of water that we have in our great State. And 
we cannot wait for a crisis to take place in order to respond 
to that. We have done just a marvelous job in waiting for 
crises to come along and then jump on them. But we need to be 
out in front of this.
    And the other caution that I want to put on the table is 
that this is not something that can--or I guess it can, but it 
should not be managed politically. We have seen too many 
examples of what a catastrophe that can lead to. And you do not 
have to look any further to the worst case scenario in 
California history for this, and that was the politicalization 
of the Klamath Basin. And for those of you who do not 
understand that there's a nexus, the Klamath is linked very 
closely to the Delta through the Trinity River. And as we all 
know, during the drought of 2001 there was a political decision 
made to divert more water than should have been diverted and it 
led to the death of 80,000 spawning salmon. And we have been 
paying the price for that ever since. We have been paying the 
price in regard to closed salmon fishing; loss of revenue. Last 
year, folks on this panel were very instrumental in getting the 
help for the fishers and related businesses that suffered. But 
it was a $60.5 million hit related to that inappropriate fish 
kill that has proven to be illegal in three different courts.
    So we need to make sure that we do a better job. We cannot 
run this stuff politically, and we should not acquiesce to the 
courts to deal with our water policy in the State. If we do not 
get ahead of this in the Delta, that is exactly what we are 
going to be doing. We are going to be doing water policy by 
court mandate and that, I do not believe, is appropriate.
    So, Madam Chair, thank you. I hope that the outcome of this 
hearing is that we will have better management of our very 
limited water resources in the State.
    I also want to thank the City of Vallejo for making the 
facility open. The last time I was in this room was 15 years 
ago. I just won a special election and then Mayor and now Mayor 
Tony Intintoli swore me in. And it is great to be back. It is a 
great city.
    You are lucky to represent it.
    Mrs. Napolitano. Thank you, Congressman. And thank you for 
holding your statements within the time frame.
    And I move on to now Assemblywoman Wolk.

STATEMENT OF THE HONORABLE LOIS WOLK, AN ASSEMBLYWOMAN FROM THE 
                      STATE OF CALIFORNIA

    Ms. Wolk. Thank you, Madam Chair.
    Good morning. I want to thank the Chair for her energy and 
commitment to California water issues and for inviting me to 
participate here this morning.
    We are united here in our belief that the Delta is the 
heart and soul of California's water system. And it is in 
jeopardy. It is not sustainable in its current direction.
    We are also here, I believe, to convey a sense of urgency 
of action. We would like to see a plan, and we would like to 
see action result from that plan.
    The issues have been laid out by my colleagues beautifully; 
climate change, water quality both from the agricultural and 
urban runoff sectors; invasives, increasing urbanization, the 
19th century piles of dirt that we call levees are crumbling 
and the species are in crisis.
    I would like to focus on one issue that has not been 
mentioned, and that is the issue of governance. There is no 
steward for the Delta. There is no one responsible for the 
Delta. No one entity is in charge. And that is a problem 
because there are hard decisions that need to be made about the 
future of the Delta.
    I applaud my colleagues for being here this morning, for 
their commitment and energy on California water issues. And I 
look forward to the hearing.
    Thank you, Madam Chair.
    Mrs. Napolitano. Thank you, Assemblywoman.
    Just to let the audience know that this hearing was put 
together in 3 1/2 weeks after the request came to my 
Subcommittee. And the plea was made that we change and bring 
the hearing here to deal with this very important issue. So 
thank you for bringing it to our attention. I believe you are 
so right.
    The statements of my colleagues and Ms. Wolk, if you wish, 
will be entered in the record. So if you will submit it to 
staff, we will ensure that they get into the record.
    We will proceed to hear from our witnesses. We have three 
panels today. And I'll introduce each one of them before they 
testify. And at the conclusion of their testimony, the Members 
will proceed with a line of questioning.
    And your prepared statement, panel, as I said will go into 
the record.
    I would ask that you summarize and highlight your points, 
panel. Like I said, your testimony will be in the record. So 
for expediency to be able to hit the major points that you want 
to make to this Committee would be very much appreciated.
    Please limit your remarks to five minutes. I have no 
problem using this little old gavel. The fact is that we have a 
long morning and I would like to ensure that everybody gets an 
opportunity to talk.
    This rule will also apply for the questions, ladies and 
gentlemen. Five minutes from each Member. If there are 
additional questions, we may go to a second round if possible, 
if the time permits.
    For our first panel, I would like to introduce an old 
friend, a colleague of the State Assembly, The Honorable Phil 
Isenberg, partner in the firm Isenberg/O'Haren. Mr. Jim 
Crettol, a farmer, from Shafter. Welcome, sir, and Mr. Chris 
Martin, Principal of AC Martin Partners, Inc. of Los Angeles.
    Our thanks for responding promptly and agreeing to serve as 
panelists in such a short time. Thank you.
    And if you will proceed, Mr. Isenberg, your testimony will 
be welcome.

             STATEMENT OF PHIL ISENBERG, PARTNER, 
                        ISENBERG/O'HAREN

    Mr. Isenberg. Thank you. Chair, Members, Ms. Tauscher, Ms. 
Wolk and to my three aging water warriors of the battles in 
California, it is----
    Mrs. Napolitano. All right. Phil.
    Mr. Isenberg. It is an honor to be here.
    Chair, I will in fact do the shortest summary possible. 
Attached to my statement are three charts that tell you how 
much water comes from California on a regular basis, how it is 
used in very gross and general terms, how it impacts the Delta, 
how much goes through the Delta and where it kind of goes, and 
then more importantly is a fast historic look from about 1923 
to the current time on Delta diversions.
    Mrs. Napolitano. Mr. Isenberg, may I suggest the next time 
you make the print a little larger for these aging members.
    Mr. Isenberg. Well, what can I tell you. And I should say, 
all of this documentation is taken either from the State Water 
Plan, which is updated every five years by the Department of 
Water Resources or from a book. And I think we have copies that 
are here. And they are slightly more legible in that, Chair 
Napolitano.
    The Department of Water Resources and now almost all of us 
who play in the field talk about three kinds of years in 
California for water; wet years, average years, dry years. So 
just remember this: In any year in California that is wet, the 
Department of Water Resources says ``Well, there is about 331 
million acre-feet of water that comes into the State through 
rainfall, through snowfall and imports.'' Much of that, of 
course, is not captured by anyone because it is absorbed by the 
earth. It does not flow off into rivers. In an average year 
about 200 million acre-feet is available. And in a dry year 
about 160 million acre-feet is available.
    The Delta receives a relatively modest proportion of the 
water that totally comes into the State of California. Fifteen 
percent in a wet year flows through into the Delta. About 13 
percent in an average year. And about eight or nine percent in 
a dry year. And, yes, there are years which are dramatically 
different. 1983 was a whole lot wetter and 1977 was a whole lot 
drier. But on average, that is a pretty good way to measure it.
    When water flows into the Delta, if you ask yourself the 
question, where does it go and what happens to it? And this 
chart points it out.
    The in-Delta users, and that is largely the 1,000 entrance 
points and pumps that Mr. Costa talks about, take about 
1,700,000 acre-feet of water in a wet year, an average year and 
a dry year. They are, after all, in the center of all this 
water so they get their straws in there and they suck out that 
amount of water.
    The thing that is astonishing to a lot of people who do not 
pay attention to it, however, is that historically in these 
figures when water is exported from the Delta for urban uses, 
people and for businesses and industry, it remains relatively 
the same in a wet, average and dry year. Now, yes, there are 
variations. You can see in a dry year only about 80 percent of 
the water seems to be available to urban uses.
    Agricultural uses in a year like this are, in fact, 
slightly increased compared. It ranges from 27 million acre-
feet to about 34 million acre-feet.
    And then there is one of the old arguments about water. 
What's left? And the old style was well anything that goes into 
the ocean is waste, and therefore it should be used and so on 
and so forth. And the fact of the matter is now people are 
starting to talk about, although it is controversial, that the 
rest of that water is sort of environmental water. And I say 
sort of because the science cannot tell you with great clarity 
what is around.
    Now, the Delta environmental water, whatever is left over 
that flows through the Delta and then out the Bay, that is the 
one source of water which has decreased substantially as you go 
from a wet year to a dry year to an average year.
    The second chart talks about the Delta water balance. It 
explains where it comes from. It's in support of the last 
chart, and in my final 36 seconds, is a terrific one from the 
Status and Trends report. It's an illustration of what happened 
from 1923 to the current time. And essentially if you step back 
and look at this as a historian, not all but much of the growth 
of water usage in California since World War II has been 
attributable to growing Delta exports. Sure, they fluctuate 
from year-to-year. But average it out, the Delta has been a 
primary source of the growth.
    So, what does all that mean as you try to figure out what 
smelt mean and agency responsibility and so on. And I will just 
give you my own kind of fast summary.
    The first is as you do water policy the most important 
thing to remember is the Delta is important, but it is not the 
only part of the water supply in California. In public policy 
we always argue an issue as if there was nothing else on the 
table when in fact there is much else on the table.
    Number two, water is in limited supply in California. If we 
do not get it from other states, and they seem increasingly 
reluctant to give it to us or sell it to us, if we do not have 
a miracle breakthrough on desalinization or something like it, 
we are all of us, Northern, Central and Southern California 
going to have to live with less water. I mean, it is 
inescapable as population grows.
    Third, we have to get over the mindset that says everybody 
is entitled to keep what they have now even if the supplies are 
not available. This is like so much as a state, or I presume, 
Federal budget discussion where you have entitlements and you 
just do not have the money to pay for them, what do you do? 
Well, you go borrow money.
    OK. Madam Chair, I will stop.
    [The prepared statement of Mr. Isenberg follows:]

               Statement of Phillip L. Isenberg, Chair, 
                  Delta Vision Blue Ribbon Task Force

    Good morning Chair and Members of the Subcommittee. My name is Phil 
Isenberg, and I currently chair the Governor's Delta Vision Blue Ribbon 
Task Force. You asked me to discuss the general history of water 
disputes in California, and the role of the Bay-Delta in those battles. 
It is a pleasure to be here.
    The Sacramento Bay-Delta is a key focal point for any discussion of 
California water policy. Although the Delta is a unique place, with 
unique problems, it is the demands placed on the Delta by the rest of 
California--for water and for environmental protection--that drives 
your hearing today. While your current focus is on the falling number 
of Delta smelt, a protected species, battles in and about water and the 
Delta are nothing new.
A Brief History of Water Development in California: Mining for gold, 
        flood control, agricultural levees and water exported for use 
        elsewhere.
    When California became a state in 1850, our small population was 
mostly concentrated in San Francisco and the Sacramento region. 
Discovery of gold near Sacramento fueled the first of our population 
spurts, and one of the most important of our water battles.
    By the mid-1860s, thousands of miles of privately-developed canals 
and water ditches had been constructed to assist in the mining of gold. 
At the same time, residents in Sacramento discovered to their dismay 
that living at the confluence of the Sacramento and American rivers was 
a prescription for being flooded. As miners built canals, residents 
along the Sacramento River started to build levees to protect against 
floods.
    It takes no genius to figure out that building a levee to protect 
one small community might move the flood threat across the river, or 
downstream to another, less protected community. The battle of small 
towns, and individual farmers and property owners to protect their own 
land, continued for many years.
    At the same time mining debris was pouring out of the foothills, 
and appearing on the board plains of the Sacramento Valley. This debris 
started to fill parts of the river system, increasing flood threats, 
and irritating downstream residents.
    Add the use of large hydraulic mining equipment to the equation, 
and you see the parameters of the first major struggle over water in 
the northern part of California. State government intervention soon 
occurred, as did the start of federal intervention
    To complicate things, individual farmers in and near the Delta 
began to build their own system of levees, allowing the development of 
agriculture in the Delta. The legacy of this activity remains today, 
with many Delta islands far below water level and their levees out of 
compliance with current safety requirements. Some critics note that 
government aid to restore breached levees and flooded islands costs 
more money than the value of the land being protected.
    If mining debris, flood threats, and the growth of Delta 
agriculture was not enough, as early as the 1870's, Californians 
contemplated plans to move water from the Sacramento River to the San 
Joaquin Valley. In the early 1900's, several reports and investigations 
culminated in the first State Water Plan.
    You know the history of what would become the Central Valley 
Project. In 1933 the California Legislature approved the project, but 
the Great Depression made it impossible to be financed by the state 
alone. The federal government provided the funds through the Emergency 
Relief Appropriation Act--the first of many controversies surrounding 
this project.
    The Central Valley Project provided much needed jobs in the 
Depression Era, and the water it eventually delivered helped to 
maintain California's status as a prime agricultural producer. 
Likewise, the State Water Project provides agriculture and urban areas 
with a significant proportion of their water. The bulk of the urban 
population that depends on Delta water supplies are in just nine of the 
State's 58 counties--but they are the most populous counties--
representing 25 million of the 36 million people who live here. These 
counties get anywhere from approximately 20 percent to 50 percent of 
their water supply from the Delta.
    Two other historic battles over water should be noted. The effort 
of the City of Los Angeles to move water from the Owens Valley has 
become legend. Most notable, this dispute has festered for almost 100 
years, and led to an impressive modern effort to save Mono Lake (in the 
Owens Valley), limit the amount of water taken by Los Angeles, and 
ratify the legal principal that environmental protection is one of the 
foundations of water policy in California.
    Another hoary political battle was the effort of the City and 
County of San Francisco to dam Hetch Hetchy, and transfer much of the 
water directly to the San Francisco Bay Area. John Muir, America's 
preeminent symbol of environmental protection, led and lost the battle 
to save Hetch Hetchy (located near Yosemite, and often called equal in 
beauty and environmental values).
    I mentioned these two regional battles only because they tend to 
color the water debates in California to this day, and their history is 
often cited by one interest or another to illustrate various alleged 
sins and the imperfect solutions that followed.
The dream of endless water supplies meets the reality of environmental 
        protection.
    California battles about water have, over many years, led to an 
array of statutes, both federal and state, and endless court decisions 
that compose what the California Water Atlas called ``Legal 
Constraints'' (see pp 64-66) on water use. Equal in importance to the 
physical construction of the Central Valley Project and the State Water 
Project has been the growth of environmental protection as one mark of 
modern California society.
    A simple listing of some of the major environmental laws or court 
decisions affecting water is instructive:
      Article X, section 2 of the California Constitution of 
1878 (requires that all uses of water in California be reasonable and 
beneficial [1928 amendment])
      Public Trust Doctrine (dates back to ancient Rome; not 
specifically in statute but recognized by tradition and court cases)
      Area of Origin Laws (in various sections of the 
California Water Code dating back to 1927)
      Migratory Bird Treaty Act of 1918
      Wild and Scenic Rivers Act of 1968 (federal)
      National Environmental Policy Act of 1969
      Porter-Cologne Water Quality Act of 1969
      California Environmental Water Quality Act of 1970
      California Wild and Scenic Rivers Act (1972)
      Endangered Species Act of 1973 (federal)
      Safe Drinking Water Act of 1974 (amended in 1986 and 
1996)
      California Endangered Species Act (1984)
      Natural Community Conservation Planning Act (state) 
(1991)
      Central Valley Project Improvement Act (1992)
      Delta Protection Act of 1952 and the Delta Projection Act 
of 1992
      National Audubon Society et. al. vs. Superior Court of 
Alpine County/Department of Water and Power of the City of Los Angeles 
(Mono Lake Decision [1983])
      United States vs. State Water Resources Control Board 
(Racanelli Decision [1986])
      Natural Resources Defense Council vs. Rogers, et. al. 
(The San Joaquin River Decision regarding Friant Dam [2006])
      State Water Resources Control Board Cases(relates to 
State Water Resources Control Board's Decision 1641 regarding Delta 
water quality [2006])
    There are several pending lawsuits in the courts today that may 
also have a profound impact on water supply and delivery in the State, 
including a challenge to the State Water Project's ability to continue 
pumping water because it may not have permits to legally take fish at 
the pumps.
    As a practical matter, the desire of the American and California 
public to ``protect the environment'' inevitably means that water use 
may be limited or restricted to achieve that goal.
A Question of Supply and Demand: Limited quantities of water; unlimited 
        demands.
    For much of our history, California's assumed that water was 
available in unlimited supply of water, if we could just move it from 
one place in the state to another. Something about this is ironic, 
since California is classified as an arid region of the world, and 
shortage of water is nothing new. Let me outline a few of the basic 
facts of our water supply.
Our available water supply and the proportion going through the Delta
    In California, our major supply of water is from rain and snow that 
falls north of the Delta, and a relatively small amount is imported 
from other states. The major demand for water is south of the Delta.
    Please remember these numbers: 330, 200 and 145.
    These figures represent the total water available in the State in 
wet, average and dry water years. These are millions of acre feet of 
water.
    The 2005 California Water Plan, our state's ongoing water strategy 
document, likes to talk about water supply in three categories: wet 
years (1998 is the example), an average water year (2000 is the 
example) and a dry water year (2001 was selected).
    In a wet year, about 330 million acre-feet of water pours into 
California from snow, rain and imports from other states and about 15 
percent of that amount eventually flows through the Delta.
    In an average water year, about 200 million acre-feet comes into 
California, and roughly 13 percent of that flows through the Delta.
    In a dry water year, about 145 million acre-feet of water comes 
into the State and about 9 percent of that flows through the Delta.
    When we discuss the Bay-Delta it is useful to remember the 
relatively small proportion of total state water that flows into the 
Delta: 15 percent in a wet year, 13 percent in an average year and 9 
percent in a dry year.
    The Delta is an important part of the State water supply, but it is 
not the total amount of the state's total water supply. It is 
important, especially in a time of crisis, not to overemphasize an 
aspect of the situation if we are to make wise and useful choices.
    For detailed figures see the charts on pages 18 and 19 of the 
Status and Trends of Delta-Suisun Services (2007), published by the 
Department of Water Resources.
Where does the water that flows to the Delta actually go?
    Whether it is a wet, average or dry water year, the water use in 
the Delta remains remarkably the same: about 1.7 million acre-feet.
    Astonishing to some, even in average or dry water years, the amount 
of water exported from the Delta increases over what is exported during 
wet years. In wet years, about 4.8 million acre-feet of water is 
exported from the Delta; in average and dry years, water exports are 
about 6.3 million and 5.1 million, respectively.
    After water that comes to the Delta is taken by in-Delta users, or 
exported to urban and agricultural water interests, some always flows 
to the San Francisco Bay and the ocean. In wet years that amounts to 
about 43.4 million acre-feet, in an average year about 18.1 million 
acre-feet and in a dry year, about 6.9 million acre-feet.
How is water exported from the Delta used?
    The simple answer is that we all do, in one form or another. The 
typical distinction is between urban water uses, agricultural water 
uses, and environmental water uses. At the present time I can find no 
current, published data that breaks down how exported water from the 
Delta is used, but we can look at statewide water use for some insight.
    Statewide urban water uses change little regardless of rainfall or 
snow melt. Urban users receive an average of 7.8 million acre-feet in 
wet years, 8.9 million acre-feet in average water years and 8.6 million 
acre-feet in dry years.
    Statewide agriculture uses are significantly higher than total 
urban use. In a wet year, agricultural use is about 27.3 million acre-
feet; in an average year it is 34.2 million acre-feet and in a dry 
year, it is 33.7 million acre-feet. Again, there is relative stability 
of exported agricultural water in wet, average and dry years.
    Statewide environmental water, if you accept the much disputed 
position that everything left over is for the environment, does not 
appear to be protection against reductions. Add together instream 
flows, wild and scenic river flows, Delta outflow and managed wetlands 
water use and you find the following: In a wet year, the environmental 
use is 59.4 million acre-feet. In an average year, it is 39.4 million 
acre-feet; and in a dry year it is 22.5 million acre-feet.
    Attached to this presentation is Table 1-1 from the California 
Water Plan Update, 2005, illustrating these facts. One conclusion seems 
inescapable: we have developed a water transfer system that 
fundamentally protects urban and agricultural users in dry years. It is 
a serious question--and the Delta smelt dispute illustrates this 
point--whether this can continue to occur.
If we don't build dams and water facilities, how do new people and 
        businesses get their water?
    California has developed all the best hydrologic resources. There 
is a dam in almost every location where it is feasible to build one. 
The sites left for building dams are ones that have very high 
environmental impacts (like Auburn Dam), or have a very high cost (like 
off-stream reservoirs). Therefore, in recent years, there have been few 
major dams or water projects constructed in California. Whatever the 
cause of not building new water projects, an interesting trend has 
developed in Southern California. Water interests there say that they 
have increased their population by 3 million over the past 15 years, 
but are still using the same amount of exported water from the Delta. 
Although figures differ, many suggest that conservation, local sources, 
and water system efficiencies have made this possible.
    The Delta Vision. The Governor's Delta Vision Initiative involves 
far more than our own Delta Vision Task Force. I have attached to this 
statement a copy of his Executive Order, a list of the members of the 
Task Force, and our charging document from Resources Secretary Mike 
Chrisman, and finally, a flow chart of our work, and that of about 14 
other entities working on Delta-related issues.
    The Task Force is charged to give their independent views regarding 
a vision for the Delta and we intend to do that. We have two work 
products: in November of this year we must present a vision--a Delta 
vision--that takes a long perspective of the Delta and not simply a 
vision of the operational details. Once the vision proposal is 
presented to the Delta Vision Committee, chaired by Secretary Chrisman, 
they present it to the Governor and he will do what he chooses with it. 
By the end of 2008, the Task Force will develop a strategic plan to 
implement the vision; after that the Task Force will be out of 
business.
    To accomplish this, the Task Force is working with a 43 member 
Stakeholder Coordination Group, appointed by Secretary Chrisman, who 
advises and makes recommendations to us. Our focus is to look at the 
major subject areas of the Delta:
      the environment, including aquatic and terrestrial 
functions and biodiversity;
      land use and land use patterns, including agriculture, 
urbanization, and housing
      transportation, including streets, roads, highways, 
waterways, and ship channels
      utilities, including aqueducts, pipelines, and gas/
electric transmission corridors
      water supply and quality, municipal/industrial discharges 
and urban and agricultural runoff
      recreation and tourism, including boating, fishing and 
hunting
      flood risk management, including levee maintenance
      emergency response, and local and state economies
    In the short period of time we have been working a few themes are 
coming into sharper focus.
    First, the Delta is an important part of the water puzzle of the 
State; it is not the entire puzzle. How could it be when less than 20 
percent of all the water available to us in any given year flows 
through the Delta?
    Second, water is in limited supply and short of a miracle, or some 
unanticipated advance of science, that is unlikely to change. Which 
means that all of us have to live with limits on our use of water.
    Third, California seems to view a promise to deliver water as a 
magically enforceable contract--even if the water is not available. 
Reality seems to be catching up with this notion.
    Fourth, the Delta is a mess. The ecosystem is deteriorating, and 
nothing in the past 30 years has given much hope of rapid improvement.
    Fifth, if you add up all the federal and state statutes, water 
contracts, lawsuits and settlements, you rapidly see that every section 
of society has been promised or guaranteed whatever they want. Since 
environment protection has also received protected status, it does not 
take a genius to figure out that all of these promises for endless 
supplies of water--cheap water--cannot be kept.
    The Task Force has been told by every interest that the Delta is in 
trouble, and there is a growing risk of catastrophic failure to the 
Delta, whether by earthquake (the most likely threat), global warming, 
continuing levee failures and land subsidence or urban encroachment. 
The lessons learned from Hurricane Katrina, and other research, 
suggests that catastrophic failure would not be good for the Delta 
ecosystem, the State's economy, or the water exported either.
    If we should not continue to promise everything to everyone, then 
some tough choices have to be made about water use and the Delta. What 
are the most important statewide interests in the Delta? Can they be 
identified? And can we avoid the current practice of pretending to 
honor the ``want list'' of every interest group, geographic region and 
economic group?
    Finally, a major problem with the status quo is the almost total 
lack of trust that all the aging water warriors have with each other. 
There is nothing new about the lack of trust--the North doesn't trust 
the South, the South doesn't trust San Diego--and on and on. The 
absence of trust means it is almost impossible to take an area like the 
Delta and manage it in a coherent way that tries to answer--whatever 
the priorities are--the issues or solve the problems because we cannot 
delegate authority to anyone to do that.
    The America tradition of having divided government, and allowing 
every level of society to ``have a piece of the action'', means that as 
far as the Delta is concerned, everyone is involved; no on is in 
charge.
    The choices that we need to make over the course of this year, next 
year and the coming decades, are difficult. Many of those choices will 
be unpopular, and challenge deeply-held convictions about how the world 
ought to be. If we do not make these difficult choices, then 
extinction--whether of a species or a way of life--may be the water 
policy of California.
    Thank you again for inviting me to speak today.
Selected Sources of Information about the Delta and California Water:
Battling the Inland Sea: Am3erican Political Culture, Public Policy & 
        the Sacramento Valley, 1850-1986 (1989) Robert Kelley, 
        University of California Press, Berkeley, CA
The California Water Atlas (1978) Department of Water Resources.
The California Water Plan Update (2005), Department of Water Resources. 
        Available online at: http://www.waterplan.water.ca.gov/
Delta Vision: http://www.deltavision.ca.gov/
The Great Thirst: Californians and Water, 1770s-1990s (1992) Norris 
        Hundley, Jr., University of California Press, Berkeley, C A.
Status and Trends of Delta and Suisun Services (2007), Department of 
        Water Resources. Available online at: http://
        www.deltavision.ca.gov/DeltaVisionStatusTrends.shtml
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    Mrs. Napolitano. Thank you, Mr. Isenberg.
    I was hoping you would be able to wrap it up in the last 
minute.
    I would like to move on to Jim Crettol from Shafter. Sir?

  STATEMENT OF JIM CRETTOL, FARMER, SHAFTER, CALIFORNIA, AND 
               SEMITROPIC WATER STORAGE DISTRICT

    Mr. Crettol. Madam Chairman, thank you for inviting me to 
be here today.
    I am part of a family farmer operation in the Shafter area 
with my father and brother. And my grandfather immigrated in 
1914 and started farming in 1920. We have been farming 
continuously since then.
    We grow a variety of crops on our 2,000 acres. We utilize 
flood, furrow, sprinkler and drip irrigation to irrigate our 
different crops.
    I'm also here representing the Semitropic Water Storage 
District. Congressman Miller and Congresswoman Tauscher have 
had presentations. And Jim Costa is my Congressman. He knows 
thoroughly what goes on in Semitropic. We provide water to 
farmers and we also provide storage for our groundwater banking 
partners throughout the State.
    Our banking involves in-lieu banking as well as direct 
recharge. Our initial program was a 1 million acre-foot 
groundwater banking program. Our partners are the Metropolitan 
Water District of Southern California, Santa Clara, Alameda, 
Zone 7 up in this area. And we have capacity of storing 1 
million acre-feet in the initial program. As of the beginning 
of this year, we had 800,000 acre-feet in storage. We are being 
requested from our banking partners to have a maximum 
withdrawal this year of 160,000 acre-feet of water. We intend 
to honor that commitment.
    In addition to our initial program we have what's called 
our stored water recovery unit. It is a 650,000 acre-foot 
groundwater storage program that is under construction as we 
speak. We just finished completing a seven mile ten foot 
diameter pipeline to move water in and out of our district in 
large volumes. Our initial program can return water at 90,000 
acre-feet per year. Under the new program with the large 
pipeline we can enhance that by an additional 200,000 acre-
feet. We're operating like a very large reservoir.
    The impacts of the Delta smelt on the pumps this year on 
our farming operation resulted in our having to move from 
taking surface water to pumping from the underground, which we 
did not want to do but it was necessary, so we did. Because of 
the shortage of water that was forecast with potential cut offs 
at the pumps, we are holding wells in reserve. We're not 
planting 80 acres of carrots. We are not going to plant 160 
acres of corn silage.
    We had a couple of employees that terminated employment 
with us. One of them chose a job somewhere else and another one 
retired. We have seven permanent employees--we have five now. 
We are not going to be replacing those two with the 
uncertainties in the water situation going on. We are just to 
hire temporary workers as needed.
    The maximum request of 160,000 acre-feet, we are going to 
return 90,000 acre-feet through direct pumping later on in the 
year to our banking partners and 70,000 acre-feet will be what 
is done through what is called in-lieu exchange. We let our 
banking partners have our entitlement from the State Water 
Project and we pump from the underground to replace that. And 
we totally intend to do that.
    Our program was designed to return water over a ten month 
period. And with emergency shutdowns in the Delta due to smelt 
populations and takes, or whatever, it totally wreaks havoc. 
Water that was designed to be returned over a long period of 
time is being sucked out prematurely so that in drought years 
the water that was there will no longer be there. So it is 
impacting things off in the future.
    Our farming operation is not necessarily idling land and, 
you know, having our crops go by the wayside. But I know in 
Westland's Water District crops are being devoid of water. I 
know of cotton crops that are just going idle to save water for 
permanent crops. So there is a fairly large amount of land that 
is going idle as a result of the takes in the Delta.
    Immediate solutions could include screening in Delta 
diversions, preventing toxic events from occurring, start a 
fish breeding program. I do not know that much about the fish 
in the Delta, but it seems plausible.
    As an intermediate solution there is a program called the 
Eco-Crescent of installing a siphon at Old River at Clifton 
Court Forebay to connect the forebay to Middle River. It sounds 
like a good intermediate solution. But in the long term if take 
at the pumps is causing problems in the Delta and moving water 
south, build a canal to route water around it.
    If levee failure due to earthquakes, as Congressman Costa 
alluded, is a problem, build a canal to help enforce our water 
supply.
    If continuing declining water quality is a problem at risk 
in the Delta, a canal is needed in addition to the potential 
for global warming and the increase in sea level, which could 
entirely inundate the Delta.
    Do not jeopardize long-term solutions with only 
intermediate fixes. Commit to long-term solutions in the Delta. 
That is very critical.
    Where is the money going to come from? From the State. 
Recently the Governor voiced his support of conveyance 
facilities through the Delta--also from the Federal Government 
and all the agencies, we hope. From then Delta water users, 
from exporters south of the Delta and Kern County and the 
Semitropic Water District. We are committed and we are ready 
and willing and able to pay our fair share of facilities 
through the Delta.
    With that, we the municipal and agricultural water users of 
California need your help. We totally bought in to prop 13, 
prop 50, prop 204, me and along with Congressman Costa. Well, I 
helped him out whenever I could making phone calls and 
participating and giving money toward restoration in the Delta. 
We put up a lot of money. But we need better results for 
ourselves and for the general population and municipal 
interests that are our banking partners here in California.
    Thank you.
    [The prepared statement of Mr. Crettol follows:]

                     Statement of James A. Crettol

I. Background
    My name is Jim Crettol. I am a third generation California farmer, 
born, raised and live in Wasco, California. I appear here today 
representing my family, Crettol Farms, which I am a partner of, and the 
Semitropic Water Storage District, for which I serve as a Board member 
and Secretary.
    We appreciate the subcommittee holding this hearing in California 
on the very important and much misunderstood topic. I appreciate the 
opportunity to provide this testimony.
    Despite the best efforts of the various federal and state agencies, 
and the efforts of water agencies throughout the State, I am here today 
to inform you what you already know--the Delta is in Crisis.
    My family primarily grows almonds, carrots, cotton, and wine 
grapes. Our farm is located in the Semitropic Water Storage District 
and the Shafter-Wasco Irrigation District (a Friant Division CVP 
contractor). I have been involved in various agriculturally related 
organizations and from 2000 to 2004 was a board member of the 
California Workforce Investment Board.
    Semitropic is the second largest member unit of the Kern County 
Water Agency (KCWA), contracting for a portion of its contracted water 
supply with the California Department of Water Resources (DWR). In 
addition to its long standing program to import water form the State 
Water Project (SWP) and thereby attempt to stabilize groundwater 
conditions, Semitropic has developed what I believe is the largest 
water banking project in the State, and probably the world, in 
conjunction with various ``Banking Partners'' throughout the State. 
These urban and agricultural partners have recognized the benefits of 
banking available water supplies, generally in wet years, in 
Semitropic, and in turn having access to banked water returned from 
Semitropic, generally in dryer years. This program has also provided 
benefits to Semitropic farmers. We long ago recognized the benefits of 
working with partners to improve water management throughout the State.
    KCWA is the second largest SWP contractor. KCWA contracted with the 
DWR for delivery of approximately 1 million acre-feet of SWP water. 
KCWA contracts with thirteen local water districts, including 
Semitropic, which provide water for domestic purposes and approximately 
675,000 acres of irrigated farm land in Kern County. On June 13, KCWA 
declared a water supply emergency because of concerns about likely 
impacts to the Kern County economy if pumping at the State Water 
Projects' Banks Pumping Plant was shutdown. KCWA staff, working with 
its local water districts, estimated the economic impact of a 30-day 
shut down of Banks Pumping Plant could be over $400 million.
II. Impacts on operations of the SWP
    On May 31, DWR voluntarily stopped pumping water at the Banks 
Pumping Plant and immediately began using water that had been 
previously stored within the SWP storage facilities to meet delivery 
requests of the SWP contractors. By June 13, when KCWA declared a water 
supply emergency for Kern County, DWR was struggling to meet all of the 
SWP contractors' delivery requests. Both the CVP and SWP were 
withdrawing water from San Luis Reservoir (San Luis) at an alarming 
rate. In fact, the amount of water that could be released from San Luis 
had to be curtailed to ensure continued safe operation of the 
reservoir. DWR was so concerned with the drawdown rate that they 
informed KCWA that they would not be able to meet all of its 
contractors' water needs. These ``shortage allocations'' would have 
resulted in a significant reduction of water to Kern County. KCWA staff 
estimated the shortage to be about 1,000 cubic feet per second (cfs), 
or one-third of KCWA's total demand.
III. Potential impacts to Kern County
    Following, I will describe the potential impacts in Kern County of 
shut downs of the Banks Pumping Plant. This information is provided 
only to illustrate the problem--other water agencies throughout the 
State have and would be suffering similar or even more severe 
consequences. Probably the areas most significantly impacted are (1) 
CVP agricultural contractors South of the Delta, which for the most 
part have little groundwater resources and unlike Semitropic and Kern 
County, generally have limited access to water banks, and (2) CVP and 
SWP urban contractors located north of San Luis Reservoir, including 
the greater Bay Area, where storage is limited.
    KCWA staff analyzed the potential impacts to Kern County that would 
result from a 30-day shut down at Banks Pumping Plant. The analysis was 
based on information provided by Kern County farmers and DWR of impacts 
in Kern County overall. These impacts would primarily occur on the 
Westside of Kern County where groundwater is not available and where 
significant portions of irrigated lands are planted to permanent crops. 
Areas such as Semitropic, with groundwater resources, would be less 
impacted, but as discussed below, our ability to meet the needs of our 
banking partners will be curtailed. From the analysis, KCWA concluded 
the following:
      A 30-day shut down of Banks Pumping Plant in July would 
reduce delivery of water to KCWA, and its local water districts 
including Semitropic. By the start of July, releases from San Luis 
would be limited to about 15,000 acre-feet (af) per day due to the 
drawdown criterion which limit the amount of water that can be taken 
out of the reservoir to a drawdown rate of 2 feet per day. By the 
middle of July, drawdown would be limited to about 11,000 af per day. 
Assuming that 11,000 af per day would ultimately be the average San 
Luis Reservoir release rate for July, and understanding that DWR would 
prorate deliveries to the SWP contractors based upon their individual 
contractual rights, KCWA would receive less than 1,600 af of SWP water 
per day for delivery to Kern County during the height of the irrigation 
season. The amount of this shortage was reduced by supplementing the 
water supply with groundwater withdrawals from our groundwater banking 
programs. However, even with those extraordinary efforts KCWA staff 
estimates the shortage in deliveries to KCWA would be about 3,000 af 
per day.
      These severe shortages would result in immediate crop 
loss in Kern County. KCWA staff worked closely with its local water 
districts to determine how a reduction in SWP deliveries would impact 
local crop yields. Based on the water supply analysis, KCWA concluded 
that water deliveries to local water districts would immediately be 
reduced by about 25%. A reduction of this magnitude at the height of 
the irrigation season would impact permanent crop yields by about 10%. 
The 10% reduction in crop yield would have varying economic impacts 
based upon the type of crop and how the quality of each crop would be 
affected. For example, grapes would suffer about a 75% loss in the 
first 30 days while almonds would suffer about 10% loss. KCWA staff 
also looked at how crops would be impacted next year if a similar 
interruption in irrigation deliveries occurs. For example, while the 
current year economic impact to almonds would not be as great as that 
realized from grapes, almonds would also suffer a similar loss next 
year.
      As noted above, Kern County and Semitropic are well known 
as groundwater banking regions. Semitropic and other Kern County 
districts have groundwater banking programs with other water districts 
from the San Francisco Bay Area to Los Angeles. These groundwater 
banking projects were developed in part to protect their regions from 
drought. As a result, groundwater banking projects are designed to 
store water in wet years and withdraw it in dry years. During those dry 
years water can be withdrawn over a period of eight to ten months and 
the withdrawal capabilities are designed for a rate of withdrawal that 
can last for up to 12 months. However, groundwater banking programs are 
not designed to withdraw very large amounts of water over a short 
period of time. While our groundwater banks were invaluable to us 
during the recent pumping shutdown, they are not designed for emergency 
shutdowns such as what occurred this year because it is not possible to 
withdraw enough water fast enough to meet the shortages. This is 
compared to a surface reservoir where larger quantities can be 
withdrawn quickly.
      Additionally, groundwater banking projects are managed 
conjunctively with diversions from the Delta; therefore, their utility 
to local water districts and out-of-county banking partners may be 
limited when such diversions from the Delta are limited. This is 
certainly true for Semitropic which has banking partners stretched from 
the Bay Area to Southern California. The Semitropic Banking Program is 
an in-lieu and direct recharge program whereby banking partners deliver 
their SWP water for use in Semitropic. This allows farmers within the 
district to use surface water and reduce their reliance upon 
groundwater. During dry years when the banking partners desire to get 
some or all of their water out of Semitropic, the District will make 
water available to them in two ways. First, Semitropic can ``return'' 
banked water by delivering its SWP water back to the banking partners 
and relying upon the water that was left in the ground to meet local 
irrigation demands. To the extent SWP water allocations to KCWA and 
Semitropic are curtailed, the ability to return banked water is 
curtailed. The second way that water is ``returned'' to banking 
partners is for Semitropic to physically pump water from the ground and 
convey it to the California Aqueduct. Once again, the ability to use 
groundwater wells within the district to return water to banking 
partners is limited by the amount of water needed for irrigation 
purposes within Semitropic and the amount of SWP water that has been 
allocated to the district. Regardless of the method for returning 
banked water, the Bay Area banking partners (which include Alameda 
County, Zone 7 and Santa Clara), are particularly vulnerable to 
curtailment of pumping in the Delta because they have no other means 
for receiving their water other than by exchange through the California 
Aqueduct.
      Emergency shutdowns are also a very poor way to manage 
precious water supplies. Kern County's groundwater banking programs 
were developed to protect the region from a drought caused by dry 
hydrologic conditions. When water agencies use water from their 
groundwater banks to make up for shortages that result from regulatory 
shutdowns it significantly reduces the amount of water that will be 
available during an actual drought. Using groundwater supplies to cover 
shortages from emergency shutdowns leave our region and the rest of the 
State at much greater risk during droughts.
IV. Solving the problem--The State of California cannot continue to 
        operate on such an uncertain water supply any more than the 
        Delta environment can thrive on a continued diet of marginal 
        actions. The State, with its federal partner, must take actions 
        on three different levels to restore the Delta ecosystem while 
        providing California's families, farms and businesses with a 
        clean, safe, reliable water supply that meets our State's 
        growing demand.
    Immediate actions--The State can no longer afford to look at 
pumping reductions as the only way to improve the Delta fishery. For 
decades the answer to any ecosystem problem in the Delta has been to 
reduce pumping. This strategy has resulted in a declining Delta fishery 
and increasing economic impacts from Tracy to San Diego. Such a status-
quo-on-steroids approach will neither restore the Delta nor provide the 
water supply the state needs.
    Other factors that stress the Delta species must be addressed. 
Programs must be developed to reduce the effect of invasive species on 
the Delta ecosystem. Invasive species have a dramatic effect on native 
species. The loss of the macro-invertebrate eurytemora, the Delta 
smelt's preferred food is a direct result of the Asian clam, brought to 
the Delta in the early 1980's and which is now one of the most 
pervasive species in the Delta ecosystem.
    The Asian clam is only one example of an invasive species that 
negatively affects the Delta. The striped bass was introduced to the 
Delta ecosystem by humans in the early 1900s to provide a sport 
fishery. Now the Delta is one of the premier striped bass fisheries in 
the world, but it was developed at the expense of the Delta's native 
species. Striped bass eat both juvenile salmon and the Delta smelt. In 
spite of this direct conflict between striped bass and native protected 
species, the State of California continues to foster the striped bass 
fishery. The sport fishing industry is important in California, but its 
contributions to the declining Delta ecosystem must also be weighed.
    During the past year it has become apparent that toxic runoff from 
urban and agricultural areas in and around the Delta play a significant 
role in the declining Delta ecosystem. Earlier this year a series of 
toxic events occurred in the north Delta in areas where the Delta smelt 
are known to spawn and rear. Those events occurred at a critical time 
in the development of the smelt. While it appears likely that the toxic 
events had a significant role in this year's severe population decline, 
it is difficult to verify this because of a lack of scientific data. 
Because we have little factual data about the toxics involved in this 
year's events, officials are unable to quickly develop strategies to 
mitigate the impacts of those events and haven't been able to develop 
strategies to ensure that they don't happen again next year. The State 
must re-double its efforts to understand and respond to the significant 
effect toxics have on the Delta ecosystem.
    Other Delta water diversions also affect the Delta ecosystem. There 
are more than 1,800 water diversions in the Delta that provide water to 
the Delta urban and agricultural water users. The vast majority of 
these diversions are small, but in total they are estimated to be 
comparable to the 4,600 cubic foot per second capacity of the Jones 
Pumping Plant, and virtually all of them are unscreened. Few if any 
studies have been done on these diversions to determine if they draw in 
the Delta smelt when they are operating. But it is easy to understand 
that Delta smelt larvae and juveniles are just as likely to be sucked 
into the in-Delta diversions as they are the larger State and federal 
pumps. The State must examine the effects that in-Delta pumping has on 
the Delta ecosystem and develop actions to reduce the effect in-Delta 
pumps have on the Delta ecosystem.
    Interim Actions--The State must develop a long-term solution to the 
conflict between water supply and the Delta ecosystem. But it is likely 
that such a solution will require ten or more years to implement. In 
the interim the State must develop a strategy for maintaining 
California's water supply while helping to recover the Delta smelt. A 
variety of options are possible but developing these actions must start 
now. One of these ideas being discussed is construction of a small 
siphon under Old River at Clifton Court Forebay that would connect the 
Forebay to Middle River. When paired with rock barriers at strategic 
locations in the Delta the siphon allows the State and federal pumps to 
draw water from the Sacramento River more efficiently without drawing 
in smelt located at the western edge of the Delta. Attached is a map 
(Figure 1) showing in concept how such an interim plan would be 
implemented. It is estimated that this idea, sometimes referred to as 
the ``Eco-crescent'', could be designed and constructed in a relatively 
short period of time, perhaps as quickly as two years, at a relatively 
modest cost estimated to be between $20 million to $40 million. There 
is still a lot of work that needs to be done to analyze this idea, but 
that work must begin now and must be a priority for all of the State 
and federal agencies that would be involved.
    Long-term Actions--The State has made an admirable effort to 
develop a series of processes that if successful will result in a 
decision on a long-term fix for the Delta. Unfortunately the current 
water supply and ecosystem crisis in the Delta do not give us two years 
simply to make a decision. The State must accelerate its decision 
making process and move out of the bureaucratic decision-making mode 
and into a leadership role that makes decisions on the information at 
hand and follows though by implementing those decisions.
    I believe that the State can no longer afford to focus on modifying 
how the State and federal pumps are operated and hope that the 
ecosystem gets better and the economy stays healthy. It is time to act 
based on what we know. If ``take'' at the pumps is causing a problem 
for the Delta smelt then we need to construct a canal and move pumping 
intakes to an area that is less ecologically sensitive and that can be 
constructed using the newest screening technology. If levee failure due 
to earthquakes is a risk then we need to separate the state's water 
supply from those risks by constructing a canal that moves the state 
water supply around the Delta rather than through it. If continually 
declining water quality is a risk for the State's urban water suppliers 
then we need to construct a canal to move a more healthful water supply 
to the State's urban areas from Silicon Valley to San Diego.
    What we cannot afford to do is wait. Constructing a canal around 
the Delta will take years to plan and design and several years to 
construct. There are interim actions the State can take to maintain the 
Delta ecosystem and the State's water supply, but none of them provide 
a long-term solution for the Delta smelt or the State's 25 million 
people that depend on the Delta for some or all of their water supply. 
The time to act to protect the Delta smelt and the State's water supply 
is now.
    I encourage you and other representatives of the Federal government 
to work with the State and water agencies to promptly address the 
crisis in the Delta in a manner that restores the Delta ecosystem and 
provides necessary water supplies for the growing demands of 
California's families, farms and businesses.
    Thank you for your time and consideration.
    [GRAPHIC] [TIFF OMITTED] 36477.005
    
                                 ______
                                 
    Mrs. Napolitano. Thank you, Mr. Crettol.
    Mr. Martin? You have five minutes, sir.

             STATEMENT OF CHRIS MARTIN, PRINCIPAL, 
            AC MARTIN PARTNERS, INC. OF LOS ANGELES

    Mr. Martin. Thank you, Chairman Napolitano and Members of 
the Subcommittee. Thank you for this opportunity to testify 
regarding the Bay-Delta crisis and the implications of water 
supply reliability.
    My name is Chris Martin. I am the immediate past chairman 
of the Los Angeles Area Chamber of Commerce.
    Our families immigrated to California in the late 1840s. 
And I'm a fifth generation Californian. Been around here 
thinking about water for a while.
    The Southern California economy relies on many things, but 
most importantly it relies upon its water supplies. That water 
supply comes to us in two ways. Locally from rainfall and 
groundwater and through imports delivered primarily by the 
Metropolitan Water District. Metropolitan delivers its imports 
from two major sources. From Northern California via the State 
Water Project and from the Colorado River. All of these water 
supplies are in peril.
    Metropolitan's ability to deliver water through the 
Colorado River Aqueduct has been severely impacted by the lack 
of surplus water on the Colorado River. The Colorado River 
Basin is entering its eighth year of drought and we are seeing 
some of the driest years ever recorded on the Colorado River.
    Southern California rainfall has been scarce this year. In 
fact, Los Angeles has experienced the driest year on record and 
other parts of the region are recording their lowest rainfalls 
ever.
    Now add to this the stress being placed on Northern 
California water supplies that feed the State Water Project. 
The Sierra Nevada snow pack is 29 percent of normal, the lowest 
amount of snowfall we've seen in nearly 30 years.
    What is comforting to people like me is that our water 
agencies plan for dry conditions. Metropolitan and its member 
agencies have developed plans, built up their reserves and 
taken other conservation measures all designed to cope with dry 
times. But what is unaccounted for is the kind of current 
crisis we now face with the state water system. The 
infrastructure is broken.
    The State Water Project requires conveyance of drinking 
water supplies to pass through the Bay-Delta, where these 
supplies come in contact with endangered fish species and 
pollutants. The process not only derates the quality of water, 
but also puts the entire project in conflict. It is a conflict 
that frequently forces the choice between water for people and 
water for fish.
    Right now because of dwindling populations of the Delta 
smelt, State and Federal courts are curtailing water deliveries 
under the parameters of the California and the Federal 
Endangered Species Act.
    There are upcoming hearings in Federal court over the 
summer as to decide whether the future water deliveries to many 
parts of California should be reduced because of the Delta 
smelt. These potential reductions would have dramatic impacts 
on the South and East Bay Area, Southern California and our 
Central Valley agricultural industry.
    Having a judge decide how much water should be delivered in 
this State is akin to the scenario that faced the California 
prison system. In that instance, our Federal courts were forced 
to run our prisons because the system was in disrepair.
    Having a court decide when our pumps should be turned on or 
off is neither an effective or an efficient way to run the 
system. Now with our pumps being turned on and off, the judges 
deciding on limitations, we can expect to experience rolling 
water blackouts, if there is such a thing, in California.
    Our economy cannot be subjected to this. Water agencies 
cannot plan for meeting the needs of our robust economy if 
there are water shortages in California's future. And we cannot 
be impacted by this kind of uncertainty.
    We have a crisis and long-term fixes are needed. We need 
solutions we can rely upon.
    First, we need to protect the Delta. The ecosystem needs 
comprehensive protections. And further actions are needed to 
protect the Delta smelt.
    It is becoming increasingly clear that water exports from 
the Delta are just one of many factors affecting the smelt.
    Second, we need to fix the water supply infrastructure. We 
need an isolated facility that can separate drinking waters 
from the Delta. We need to protect the supplies that serve two 
of every three Californians so these supplies can remain 
reliable to one of the world's largest and most important 
economies.
    Finally, we need long-term planning and action to address 
the impacts of climate change, specifically the potential 
permanent reductions in California's snowpack and rising sea 
water levels. This means we need to address flood control and 
shortage.
    But today, right now, the immediate need is to fix the 
crisis in the Delta. We need immediate action to address the 
ecosystem and to ensure a stable water supply of California.
    Thank you.
    [The prepared statement of Mr. Martin follows:]

       Statement of Christopher C. Martin, Immediate Past Chair, 
     Los Angeles Area Chamber of Commerce, CEO, AC Martin Partners

    Chairman Napolitano and Members of the Subcommittee, thank you for 
this opportunity to testify regarding the Bay-Delta crisis and the 
implications of water supply reliability. My name is Chris Martin, and 
I am the immediate past chair of the Los Angeles Area Chamber of 
Commerce and the third-generation leader of AC Martin Partners, one of 
Southern California's oldest planning, architecture and engineering 
firms. We celebrated our 100th anniversary in 2005.
    As a business owner, I work in a state that has a $1.2 trillion 
economy, the 6th largest in the world. California's urban coastal plain 
represents 60 percent of that economy with Southern California 
generating more than $800 billion annually. Our architectural firm has 
contributed to the economic vitality of the Los Angeles area and 
throughout the state.
    The Southern California economy relies on many things, but most 
importantly it relies on water. That water comes to us in two ways--
locally from rainfall and through imports delivered primarily by the 
Metropolitan Water District of Southern California. Metropolitan 
derives its water supplies from two major sources--from northern 
California via the State Water Project and from the Colorado River.
    But all of these water supplies are in peril.
    Metropolitan's ability to deliver water through the Colorado River 
Aqueduct has been severely impacted by the lack of surplus water on the 
Colorado River. The Colorado River Basin is entering its eighth year of 
drought. We're seeing some of the driest years ever recorded on the 
Colorado River.
    Southern California rainfall has been scarce this year. In fact, 
Los Angeles has experienced the driest year on record and other parts 
of the region are recording their lowest rainfalls ever.
    Now add to this the stress being placed on Northern California 
water supplies that feed the State Water Project. The Sierra Nevada 
snow pack is 29 percent of normal, the lowest amount of snowfall we've 
seen in nearly 30 years.
    What is comforting to people like me--as both a business owner and 
a resident of Southern California--is that water agencies plan for dry 
conditions. Metropolitan and its member agencies have developed plans, 
built up their reserves and have taken other measures all designed to 
cope with dry times.
    But what is unaccounted for is the kind of current crisis we now 
face with the state water system. The infrastructure is not working.
    The State Water Project requires conveyance of drinking water 
supplies to pass through the Bay Delta, where these supplies come in 
contact with endangered fish and pollutants.
    This process not only degrades the quality of the water, but also 
puts the entire project in conflict. It is a conflict that frequently 
forces a choice between water for people and water for fish.
    Right now, because of dwindling populations of the Delta smelt, 
state and federal courts and curtailing water deliveries under the 
parameters of the California and federal endangered species acts.
    There are upcoming hearings in federal court over this summer as to 
whether future water deliveries to many parts of California should be 
reduced because of the Delta smelt.
    These potential reductions would have dramatic impacts on the South 
and East Bay Area, Southern California and our Central Valley 
agricultural industry.
    Having a judge decide how much water should be delivered in the 
state is akin to the scenario that faced California's prison system. In 
that instance, our federal courts were forced to run our prisons 
because the system was in disrepair.
    Having a court decide when our pumps should be turned on and off is 
neither an effective, nor efficient way to run the state's water 
system.
    You will recall the state's energy crisis of 2001, where California 
suffered massive rolling electricity blackouts.
    Now, with our pumps being turned on and off and judges deciding on 
pumping limitations--we can expect to experience rolling water 
blackouts in California.
    Our economy can't be subject to rolling water blackouts. Water 
agencies can't plan for meeting the needs of our robust economy if 
there are water blackouts. California's future can't be impacted by 
this kind of uncertainty.
    We have a crisis and long-term fixes are needed. We need solutions 
we can rely on.
    First, we need to protect the Delta. The ecosystem needs 
comprehensive protections. Further actions are needed to protect the 
Delta smelt, to restore the habitat and to make the Delta healthy 
again.
    It is becoming increasingly clear that water exports from the Delta 
are just one of many factors affecting the smelt. To give the fish a 
chance, we must address all the issues. These include:
      Increased toxic contamination in the Delta, from sewage 
outflows and pesticide runoff from agriculture.
      Increased presence of invasive species throughout the 
Delta
      Impacts on oxygen levels in the rivers leading to the 
Delta because of deep channels for shipping
      Other water diversions and pumping patterns within the 
Delta itself.
    Second, we need to fix the water supply infrastructure. We need an 
isolated facility that can separate drinking water supplies from the 
Delta. We need to protect the supplies that serve two out of every 
three Californians so these supplies can remain reliable to one of the 
world's largest and most important economies.
    Finally, we need long-term planning and actions to address the 
impacts of global warming, specifically the potential permanent 
reduction in California's snow pack. This means we need to address 
flood control and storage.
    But today, right now, the immediate need is to fix the crisis in 
the Delta. We need immediate action to address the ecosystem and to 
ensure a stable water supply for California.
    California cannot survive with rolling water blackouts.
                                 ______
                                 
    Mrs. Napolitano. Thank you so very much to our panel. And I 
would like to begin the questioning series.
    And, Mr. Martin, I could not agree with you more that 
Southern California has built up storage through the dam, 
conserved and recycled. And I was hoping eight years ago when I 
started on this Subcommittee that a lot of the other 
communities would begin to understand the need to be able to 
prepare for the future. You talk about rolling water blackouts. 
We had them after the last drought, so we are hoping not to go 
there again. And with the help of everybody concerned, I think 
we can be able to manage being able to address that before it 
gets to a critical point.
    But thank you so very much to all of you.
    Mr. Isenberg, you played an instrumental role in drafting 
legislation that would help restore Owen's Valley and Mono 
Lake. What are the lessons learned there that you think might 
help us address the current situation?
    Mr. Isenberg. The battle to save Mono Lake moved into the 
1960s, 1970s, and 1980s. It was preceded by the very important 
California Supreme Court decision that essentially said the 
Public Trust Doctrine, a notion that water supplies in 
California are a public trust, they are not simply an item of 
private ownership, that the Public Trust Doctrine applied to 
water transfers. And accordingly after almost a 100 years of 
battling with the City of Los Angeles, the settlement was 
reached to guarantee a set of lake level, a water level in the 
lake in the Mono Basin.
    I played a relatively small part of that puzzle. Because at 
the time there was a bill floating through the legislature that 
was going to pump some money into Delta levees and, 
coincidentally, forgive the nonpayment of interest from state 
water contractors which had been outstanding for about 25 
years. Since nobody paid any attention to that and the contract 
did not say what the percent rate of interest was or that 
payment was required on a date certain, it was all kind of tidy 
and all the interests were dividing it up.
    To make a long story short, we essentially held all of that 
up and the end result was a $60 million pot of money that was 
used to help pay for conservation efforts in the Los Angeles 
City Department of Water and Power as a way of helping them 
deal with the reduction of transfers that came out of the 
valley. That was successful, and you know, some of our friends, 
one of whom is sitting here, yelled at me once, ``That is just 
paying people money to do the right thing.''
    But whatever your analyses of the situation, it is very 
clear to me that as you make changes in uses of water, whether 
they are driven by catastrophic failures of the Delta or global 
warming, or anything at all, you are probably going to have to 
cushion the impact. That is what we do. But the end result was 
a plausible situation.
    I think Southern California can collectively take some 
legitimate credit for meeting the growth of population down 
there in the last ten or 15 years, primarily through 
conservation, reuse and so on. Up North, we like to be smug 
about it, but we are not that good and we should be.
    Having said that, it does not really matter because the 
supply is still limited, but the demand seems to be growing. 
And the question really is can we make allocations between uses 
that are as intelligent, sensitive to the interests and so on 
but are forward looking.
    Ms. Wolk registered, as others of you did, one of the main 
problems. In the water world nobody trusts anybody except 
themselves, and they are all in favor of changes of governance 
as long as they are given the power to do whatever is done. 
Everybody says that.
    Mrs. Napolitano. Thank you. The sad part is when it goes to 
litigation the only ones that benefit are the attorneys.
    Mr. Costa?
    Mr. Costa. Thank you, Madam Chairperson.
    Mrs. Napolitano. Chairwoman.
    Mr. Costa. Chairwoman. And thank you for all the good work 
you do.
    Mr. Isenberg, you and I have worked together for a long 
time and I want to follow up on the Chairwoman's question to 
you. We have done a lot, and that is why I wanted to go through 
some of the history. Some of it has been successful, some of it 
has not. CALFED over the last seven years we hoped would--or 
many of us hoped through the record of decision would have been 
more successful in addressing the Delta problems. We have also 
applied it, depending upon how you want to split the 
difference, between $5 and $8 billion in State money and not to 
mention a lot of other hundreds of millions of Federal dollars. 
What is different today over the last 25 years that is going to 
allow your blue ribbon commission to give us the holy grail, so 
to speak?
    Mr. Isenberg. You mean what gives us some wiggle room?
    Well, first, compare this to the peripheral canal battle 
where a number of us were involved on that issue, myself 
included. Apart from the absolute regional joy of Northern 
Californians batting around Southern California the fact is we 
all argued that if water continued to flow through the Delta 
before being exported, that the Delta would itself as a system 
be protected. One thing that's startlingly different: No one 
today argues the Delta is better. It is a mess. And it is a 
mess for a variety of reasons. And I find that to be different.
    Number two: The threat of catastrophic failure was probably 
generated by the example of Katrina more than anything else, 
but blended with the fact that the Delta is quite near 
prominent earthquake faults----
    Mr. Costa. You could have the perfect storm?
    Mr. Isenberg. Yes, you could. And I think that is a second 
realization. You might say well it's odd, it is not as if the 
earthquake faults were unknown 20 years ago. But, you know, it 
takes a long time for society to recognize problems. I think 
that's the second thing that is notable.
    Now reading tea leaves beyond that it was not without note, 
it was either late '05 or early 2006, MET issued a policy paper 
on the Delta, which I didn't bring today but you'll have to 
take a look at it. Much like trying to figure out where the 
Chinese Communist Party is moving when you look at who sits at 
the dais, it was notable and people commented that the policy 
position paper did not request additional water supplies from 
the Delta. Now I know enough about the internal workings of MET 
to know that there is vast differences of opinion, but the fact 
of the matter is the success, as Mr. Martin indicated, over the 
last 15 years of accommodating Southern California's growth 
from a mixed water supply with efficiencies has allowed them to 
do that.
    Mr. Costa. Yes. I want to get to that question there, but 
my time is running out as the Chairwoman reminds me. So let me 
ask Mr. Crettol a question. You talked extensively about the 
success of Semitropic's groundwater banking effort. But I want 
to understand, and I think it is important for us to understand 
that this only works in a conjunctive use fashion. I think that 
if you are able to store water during the above average 
rainfall years that Mr. Isenberg spoke of, can you make the 
program work over a long term. Do you want to give any more 
sense of what your time lines are with your own groundwater 
banking facility with high and dry years? Or wet years and dry 
years, excuse me.
    Mr. Crettol. Yes. In wet years we saw that we need a much 
larger capability of bringing water in the district. That is 
why I alluded to the stored water recovery unit and the ten 
foot diameter pipeline that we have just now put in place. We 
are able to take water into the district at seven hundred 
second feet at max flows during wet years.
    So, as a for instance, in a real heavy rainfall year, your 
Februaries and Marches when there is flooding in the Delta and 
whatever, we can take huge gulps of water, bring it in, store 
it. Storage is one of the principal reasons we are doing that.
    I want to comment just briefly on what was brought up 
earlier, the term of trust in the Delta. Our whole groundwater 
banking program and the reason it works so well is because 
there is trust amongst all our other water banking partners and 
water districts in the area. But while we do trust, we verify. 
It is all through contractual arrangements and whatever----
    Mr. Costa. Right. I have heard that before.
    Mr. Crettol. You have to verify.
    Mr. Costa. Yes.
    I got 30 seconds left. Gentleman from Metropolitan Water 
District, could you give a breakdown of your water management 
tools on the conservation that currently met----
    Mr. Martin. I am not Metropolitan Water District.
    Mr. Costa. I am sorry.
    Mr. Martin. I am in the architecture and engineering 
business.
    Mr. Costa. Yes. OK.
    Mr. Martin. I cannot answer that.
    Mr. Costa. All right. I will pass on that question then.
    Thank you very much, Madam Chairperson.
    Mrs. Napolitano. Thank you, Mr. Costa.
    And I can tell you the MET has developed that dam, so we 
have a water supply. We have gone into extensive water 
recycling for many of our communities. They've found extra 
storage to be able to capture rainfall so that we can bank for 
future use. Those were just three of the things that I know the 
MET has done.
    Mr. Costa. Well, I do, too. I just wanted to get the 
percentages for the record. Actually, we helped finance a lot 
of that.
    Mrs. Napolitano. Thank you very much.
    And just as an aside, Mr. Isenberg, when you talk about the 
quake and the intrusion of seawater in Katrina over in 
Louisiana, I visited, some of us did after it happened. I can 
tell you it is a horrendous sight, especially to the residents 
that live right near where the levee broke. When I see what 
California has done in allowing development below some of those 
levees, it is astounding to me that those elected officials 
allow that development and put people at risk. Because they 
will come back to the Federal Government requiring and 
requesting assistance in being able to ameliorate the damage 
and yet whose fault is it going to be?
    Mr. Isenberg. Assemblywoman Wolk is carrying legislation, 
as she has for many years, on this subject. As a matter of 
fact, a couple of bills to try to mitigate that problem.
    Mr. Miller of California. Thank you, Madam Chairwoman.
    Phil, thank you very much for your testimony and even more 
for taking up the cause here in trying to figure this out with 
the commission.
    I want to focus a little bit on one of the last things you 
said in your written testimony. You say that if we should not 
continue to promise everything to everyone, then some choices 
have to be made about water use and the Delta on the theory 
that we have been operating on the idea that everybody gets 
everything they ever had. That, obviously, seems to me to be 
inconsistent with what I think would be one of the goals that 
we would have sufficient water and sufficient flexibility to 
use that water to enhance the economic growth of the State in 
the future. As economies change and go in different directions 
we want to be able to respond to that for the people of the 
State. But it seems to me, you know, we have many old policies 
that impact the situation we are in now. We have the 
continuation of contracts that were written in the 1950s when 
California was a very, very different place. We see parties 
seeking to extend those contracts for another 50 years. So far 
we do not know that any suggestion of reallocation of those 
contracts or diminishment of those contracts or changes in 
those contracts have been made for the most part. Most of them 
have been seeking a simple renewal of those.
    We take water and we subsidize the delivery of that water 
and we put it forth to crops that are also subsidized, that the 
government buys back and sells back at a reduced price at a 
loss.
    So we have this kind of financial incentive to misuse 
water, if you will, if you were looking at the marketplace.
    We have the idea that the Delta is going to continue to 
yield additional water. That somehow there is an ability to 
squeeze additional water through the pumps or even if you look 
at through Delta facility, the idea is that would deliver more 
water out of the Delta. I assume some of that is on the theory 
that the water remaining would be more passive and that might 
work somewhat more for the fish, although we do not know that.
    And I would just like you to comment on that construct. But 
at the same time I want to say that California as it has done 
with energy since the 1970s has been the leader in the 
efficient use of water in the various sectors of the economy, 
whether it is in manufacturing or farming, or what have you. 
But we have these sort of old constraints that are still on our 
ability to redesign this policy.
    Mr. Isenberg. Well, Congressman, we are not a European 
country with thousands of years of history, but we are 150 plus 
years old. We carry on the ship of state the legal barnacles of 
statutes and contracts and constitutional provisions and all of 
it that get imposed at a time when the politics and the public 
mood expressed one opinion. The legacy stays for a very, very, 
very long time.
    The hardest thing, of course, is that somebody's very old 
self-interest protection is somebody else's fundamental right. 
As I wander around talking about water now these days everybody 
says to me ``Well, you know as long as you protect our end 
Delta users, the area of origin protection, the American River 
Basin. You know, as long as you start from where I am, it's OK 
to change.''
    As a matter of fact, Chair, if you would permit me, I'm 
going to give you a great quotation by an American historian 
Van Wyck Brooks----
    Mrs. Napolitano. Go ahead.
    Mr. Isenberg. Oh, good. ``It is a principle that shines 
impartially on the just and the unjust that once you have a 
point of view, all history will back you up.'' And water is 
classically that way. All of us have a point of view. We want 
research that supports the conclusions we have already reached.
    And so one of the challenges I have been making in this 
Delta Task Force to all of the people, environmentalists I've 
been friends with for a very long time and all the other 
interests, I said look, the deal has to be that you have to 
articulate a position that recognizes the legitimate statewide 
interests that are expressed in the Delta. You cannot simply 
walk in, whether you're valley agriculture, Southern California 
or the environmental movement and the Northern California Delta 
region, you can't just walk in and say here's what I want and 
that's the end of it.
    In some sense if we are not all responsible for water the 
fundamental issues, and by the way the statutes do not declare 
fundamental interests. They pile preferences and priorities one 
on top of the other and the Governor has given us 11 things to 
look at. I suspect about seven or eight of those are all kind 
of undifferentiated priorities for someone.
    Maybe the most important thing we could do is if we try to 
identify the smallest number possible of truly statewide 
interest. The problem with that, of course, is some people who 
have spent their lives and careers dealing with this issue 
might not like the list.
    Mr. Miller of California. Thank you.
    Well, a comment. I think the two examples that have been 
brought up here, one is the courts and the law found you didn't 
get to sacrifice Mono Lake. You do not get to create a 
statewide sacrifice area, if you will. The other one is that we 
have seen large projects, central Arizona projects, central 
Utah project and even to some extent the Garrison project; huge 
projects that were designed in the '40s and the '50s, came on 
line and then the economies and the populations of those states 
changed and they reconstituted themselves out of huge 
subsidized agricultural programs into an urban program designed 
for the growth and the change in the states. I'm not suggesting 
anything that radical.
    Mr. Isenberg. Right.
    Mr. Miller of California. But there was a questioning of 
the priorities and the use. A dramatic action, in fact, taken--
--
    Mr. Isenberg. And that time is coming. If I had to guess 
what the next stage in California would be, Mr. Costa would say 
this is my typical cynical nature, it just seems to me the 
legal status of the environmental protections is such that we 
are starting to see a far more elaborate minimum flow guarantee 
in the Delta. Just inevitable. Five, ten years you are going to 
have all the complicated minimum flows. But ironically it is--
--
    Mrs. Napolitano. Time is up.
    Mr. Miller of California. So if you can just complete the 
thought, Madam Chair.
    Mrs. Napolitano. OK. Your thought, sir?
    Mr. Isenberg. Ironically you cannot just guarantee high 
minimum flows for environmental protection and assume you can 
continue every other flow for every other use for every other 
person. You know, I started with a limited water supply for a 
reason; that is all there is. You cannot get anymore. It is 
nuts, it is psychiatrically insane for us to act as a 
government as if we can dictate and guarantee to everyone 
everything when we are sitting on a finite source of water.
    Mrs. Napolitano. Good point. Thank you.
    Ms. Tauscher?
    Ms. Tauscher. Thank you, Madam Chairwoman.
    As I said earlier in my statement, I appreciate you coming 
so quickly after we asked you to, but part of my problem is 
that I already had some meetings scheduled in my district. So I 
will be leaving shortly to go attend to business in my 
district. But thank you again for being here.
    I thank the panelists for your great information.
    And I would like to talk to Mr. Isenberg in your role as 
Chair of the Delta Vision Blue Ribbon Task Force. I guess from 
my point of view, not sitting on the committee, I wanted to 
understand whether the Federal regulators can be working more 
toward a lasting Delta solution? I am very impressed by your 
most recent comments. I wish I could hear more of them. The 
idea that we look at this as a holistic issue. That we look at 
the difficulty in calibrating and dividing up with vastly 
changing circumstances over time, how do you squeeze the last 
drop out of the last drop? And I know it is a challenge, but 
from my point of view I would like to understand the Federal 
regulating role and if there is enough cooperation and if we 
are doing all we can toward delivering a lasting solution?
    Mr. Isenberg. Yes, no I do not know.
    Yes, the feds are involved as are about 140 other 
governmental agencies.
    And, yes, as Ms. Wolk pointed out, nobody is in charge.
    And, yes, it is very clear nobody wants anybody else to be 
in charge. They are not also enthusiastic about assuming any 
financial risk or financial liability by stepping up and saying 
``Hey, I will take over everything.'' I mean, the flood control 
battle with the State, now the deep pocket for flood control in 
spite of independent legal flood control districts not doing 
their jobs is classic.
    So how do you make sense of that? I wish I could offer you 
a real solution.
    The fact of the matter is we are an older society and we 
are tightening up on the water supply. Everyone is tightening 
up. And, you know, it is not all bad. It means that we have to 
be more honest and direct in our public conversations about 
water. It is going to be hard because people are going to have 
to get out of the trenches of the warfare of the past and get a 
little mobile and move around and do things differently.
    I will say to the Governor's credit in his charging 
document, his Executive Order of last year, he added some 
things that have not previously been on the agenda of water 
policy for state officials. Mr. Costa mentioned one, urban land 
use.
    Now I understand there are a lot of local elected officials 
in here who believe that sound urban land use is important and 
no one should interfere with their ability to decide whatever 
needs to be done as to who lives where and what gets built 
where, certainly not an evil state agency or an even worse 
Federal agency. However, there is no doubt about the fact that 
urban land patterns have a direct and tangible impact on water 
quality, and to a certain extent on water supply. They limit 
the ability to manage the system. How do you protect a Delta 
ecosystem if it is surrounded by reasonably significant growth? 
Ironically, that is something where the big three warriors of 
the battle, Southern California interests, the Valley ag 
interest and the environmental community all kind of privately 
at least say yes, something ought to be done about that.
    As you might imagine, within this Delta community they have 
a slightly different view. It's trying to resolve that. There 
is no miracle on this one. No miracle at all.
    Ms. Tauscher. Thank you, Mr. Isenberg.
    Madam Chairman, on a limited basis, may I ask unanimous 
consent to have some of my questions for the other panels 
submitted for the record.
    Mrs. Napolitano. So ordered.
    Ms. Tauscher. Thank you.
    I yield back my time.
    Mrs. Napolitano. Thank you. We will have those questions 
for the record. In fact, we may not be able to go to a second 
round because we have three more panels to go. Any questions 
you might not get to will be requested of them in writing.
    Thank you.
    Mr. Thompson?
    Mr. Thompson of California. Thank you, Madam Chair. I will 
be brief in my questions.
    Mr. Crettol, there has been a lot of discussion prompted by 
the issue that Mr. Isenberg raised, and that's how folks, 
everyone wants to start with what they have and not wanting to 
give anything up. As a farmer do you think that we as 
policymakers should be in the business of choosing agricultural 
winners and losers when it comes to the distribution of water?
    Mr. Crettol. In our particular district we take water in 
large quantities and we are looking to do that more often. How 
we do that is we do it in heavy flow years. The issue of us 
being able to have an adequate water supply for ourselves is 
not assured, like anyone else.
    Mr. Thompson of California. Well, my question is more 
specific than that.
    Mr. Crettol. You mean as a farmer?
    Mr. Thompson of California. Should there be some sort of 
policy decision made that would distribute water based on what, 
for instance, crops you grow? You think we should get that much 
into the weeds?
    Mr. Crettol. No, I do not think so. So if folks--we grow 
crops based on market demand. If there is no demand and there 
is no need for the crop----
    Mr. Thompson of California. Well, Mr. Miller kind of talked 
about that in his opening statement regarding the whole issue 
of some of the subsidies. So there might be----
    Mr. Crettol. The issue of subsidies is a very good one. I 
will be very brief.
    When we go to America supermarkets and we look up and down 
the shelves, you have some of the best quality, the biggest 
variety. I have been in many countries in the world. I have 
been in supermarkets all over the world. We have absolutely the 
most quality at the cheapest price. Americans are getting----
    Mr. Thompson of California. I am not disputing any of that. 
I am just interested in it from a farmer's----
    Mr. Crettol. Particularly in our operation----
    Mr. Thompson of California. Looking at what crops use water 
more or less than other crops, and we should take any of that 
into consideration----
    Mr. Crettol. If you want to be crop specific, like people 
do not grow alfalfa because it uses five acre-feet per acre as 
opposed to wheat which maybe uses 2 acre-feet. Well, cows need 
alfalfa and people need milk and, you know.
    Mr. Thompson of California. OK. Thank you.
    Mr. Martin, one of the issues that I did not hear anybody 
mention, and that is the option of reducing water to the area 
that you are concerned with, the Southern California area. Do 
you see that as a real option or are we going to have a 
continued grow and demand for more and more water?
    Mr. Martin. I think Southern California has been very 
diversified in its way of developing its water resources. I am 
particularly pleased in the way we have increased our ground 
water capacity through salt water barriers and other things. 
Decreasing water supply, it could happen. I mean, it is 
certainly something that is on the table.
    Mr. Thompson of California. So is that an option through 
Delta water----
    Mr. Martin. I think we all have to be reasonable about 
water supply. I would not want to sit here and say no we are 
not going to reduce Southern California's demand. I think we 
are going to learn to be conservative in our use of water. If 
it is our part of the bargain to take some reduction of water 
supply, then let us do it equitably. It does not stop us from 
being more conservative in the way we utilize our water 
supplies.
    Mr. Thompson of California. I am hoping that we are able to 
get more specific on different ways to better reduce our use of 
water in the subsequent panels.
    Mr. Isenberg, Ms. Wolk mentioned the lack of governance. Is 
there anything that you think that could--and I understand the 
difficulties and you articulated them well--is there anything 
that you can think of that may help? Should we try and help 
create a Delta conservancy, for instance?
    Mr. Isenberg. That is one of the many ideas floating 
around. I think that may serve a lot of purposes. I doubt that 
governance per se, particularly governance of complex water 
issues and environmental protection, is totally solved by a 
conservancy in the classic sense of the Santa Monica Mountain 
Conservancy or even the Coastal Conservancy, which is another 
prototype. That is a much more comparable governance 
illustration.
    I should tell you I deliberately thought about that and 
then decided I do not want to get lost in that issue. It is 
altogether too easy for me, an ex-government type, to think 
that you should spend all your time on governance. I think that 
follows some very important policy decisions.
    The history in California is because we do not want to 
acknowledge there is a limit to water, we do not want to choose 
between parties who use water, we always do endless studies and 
talk about a new governance structure as if the decisions 
become easier if you study the hell out of them and let 
somebody else be in charge. The fact is you have to make 
choices, and the choices are difficult, painful generational 
choices.
    Mr. Thompson of California. Should we create agricultural 
winners and losers in regard to distribution of water?
    Mr. Isenberg. I will be direct on this. I have thought 
about it a lot.
    This is the point that Mr. Martin was making, I think 
everybody in the whole state has a duty and an obligation to be 
prudent in the use of water. It is not simply Southern 
California and agriculture. It is all of us, and you know, I 
plead guilty. I come from Sacramento. We had to have shoved 
down our throats the notion of water meters in the state, which 
is as close to indefensible as anything I can think about. When 
I was Mayor I actually put the first residential water meter in 
at Ron Roby's house when he was Director of the Department of 
Water Resources at his request. We did it in the dark of night, 
and it was against the law, but he just wanted to see in the 
middle of one of the droughts how much water he was using.
    We have to pull up our pants and work to help solve the 
problems of the State of California.
    I guess if there is any message I have is we are all in 
this state together. There are choices to be made and, yes, 
there is going to be a lot of change and change can be 
disruptive, but we either make it together where collectively, 
particularly in the area of conservation, collectively we make 
the commitments.
    In some ironic sense, the savings in Northern California 
and the limitation of diverted water may be one of the most 
significant sources of fresh water for the Delta, whether it is 
a through Delta situation on exports as it is now, whether it 
is around the Delta. I mean, where else is fresh water going to 
come from? Because you know one thing you've learned on an 
ecosystem, unless you decide you want an inland salt water sea, 
which as best I can tell nobody does, you are talking about a 
mixture.
    So all of those things mean tough choices. Governance is 
part of it. I think that ought to come to the end. Although if 
you wish to create the situation where the Federal courts 
appoint a receiver of the State of California's water and 
environmental system in the Delta, it sounds like one hell of 
an interesting job.
    Mr. Thompson of California. Thank you.
    Mrs. Napolitano. Thank you. Thank you.
    We move on to Assemblywoman Wolk.
    Ms. Wolk. Very briefly, Madam Chair.
    Mr. Isenberg, I was a little disturbed to hear you say you 
did not want to get lost in the issue of governance. But then I 
heard you say at the end of the process, so I am going to hold 
you to that second part of your statement.
    Mr. Isenberg. Ms. Wolk, all of us on the task force sat 
there and we met at our first couple of meetings. We read the 
Governor's Executive Order and the charging document, and we 
said well for God's sake, all these people have been fighting 
for 150 years on exactly the same kinds of things. Ecosystem 
and environmental protection is the newest issue. How are we 
going to decide it? Let us go talk about what a governance 
structure should look like. Everybody was just about to go run 
off there to the exclusion of the stuff we are supposed to do, 
which is develop a vision of the Delta by the end of this year 
and a strategic plan to implement it by the end of '08. It is 
part of it, but I do not want to get lost there first. It is 
too easy, too attractive and too conventional.
    Ms. Wolk. Interesting, and I would say the most difficult. 
We always tend to----
    Mr. Isenberg. In many ways, the most difficult.
    Ms. Wolk.--work toward the most difficult choices in this 
area.
    Mr. Isenberg. Yes.
    Ms. Wolk. But briefly I am glad you raised the issue of 
land use control. We have been struggling with that in the 
legislature. The State General Fund is entirely responsible for 
flood protection and losses. But the local communities, as you 
know, guard jealously and constitutionally their ability to 
plan and locate houses where they choose.
    One of the opportunities we do have, Mr. Isenberg, I would 
like to comment on this is the fact that the voters did pass 
bonds, $5 billion of which--close to 4 of that will be focused 
on the Delta. That gives us an opportunity to set priorities 
and not do business as usual and make good policy change. What 
kinds of policy change do you think should accompany this kind 
of money----
    Mr. Isenberg. Specifically on flood control issues?
    Ms. Wolk. Yes.
    Mr. Isenberg. One of the members of our task force, a very 
smart engineer named Ray Seed who teaches at Berkeley and was 
involved in the post-Katrina engineers review of their flood 
safety. His Dad is a giant name in the field, and he was 
talking to us about catastrophic failure, the threat of it, 
flood control and all of that and the question of how can 
people live in the middle of land that is 20 to 25 feet below 
sea level, particularly in Sacramento, parts of Stockton. He 
was saying we'll do this, do that. I said come on, Ray, just 
explain to me. Think of some illustrations of what you could do 
that would convince normal people that they have a risk and 
they must pay attention to the risk. To my astonishment he says 
``Mmm, how about this? Every house built in the flood plain has 
to be at least two stories tall?''
    Ms. Wolk. Yes.
    Mr. Isenberg. Well, that is not the conventional thing you 
would think. You know, we look for multibillion dollar programs 
and land use regulations. I said, ``Oh, that is kind of 
interesting and has a trap door so you can get to the roof, 
right?'' ``Right.''
    Ms. Wolk. And a boat.
    Mr. Isenberg. And then I said ``Well, what else?'' And he 
came up with one of the most interesting ideas around. He said 
``Everybody who lives in a floodplain has to own a boat.'' You 
know, there is something remarkably intriguing about trying to 
think of a public policy problem and societal awareness in a 
way that is simply not another gigantic multibillion dollar 
spending program with impenetrable acronyms and details.
    And the conventional thing is the warning in your title 
document has to be 20 point type that you live in a flood zone, 
you may die, you know it is kind of like all of that.
    There is something about thinking of this to me, yes, I 
think you ought to start in the state legislature imposing 
strings, terms, conditions, policy terms on the spending of 
money. I think that is something that is legitimate for 
Congress to consider, too. Particularly to guarantee that flood 
control money is not the horn of the cornucopia endlessly 
rolling out from governmental agencies to reward imprudence. 
That seems to me to make no sense.
    What those terms are, what the conditions are, what the 
restrictions are I do not know. But it ought to be done. The 
State is in a gigantic mess because the State is legally 
obligated now for the flood damage, even if the local entities 
did not do a good job.
    Ms. Wolk. That is correct. That cost us a half a billion 
dollars right out of the general fund last year.
    Mr. Isenberg. Yes, it did.
    Ms. Wolk. Yes. For a relatively small, though certainly not 
small to the people involved or the property owners, amount of 
damage.
    Mr. Isenberg. Yes. Yes.
    Ms. Wolk. Thank you, Madam Chair.
    Mrs. Napolitano. Thank you, Members. With that, we will 
suggest that any other questions be submitted for the record, 
Members.
    And panel, thank you very much.
    Mr. Isenberg, just this little last footnote on the flood 
plain issue.
    Mr. Isenberg. Yes, ma'am.
    Mrs. Napolitano. The concern I have on a personal level is 
that the Army Corps of Engineers may not be allowing for the 
insurance companies to be able to cover those individuals. So 
they may not have insurance to get any recovery should anything 
happen.
    Mr. Isenberg. I do not want to prejudge the testimony to 
come, but one of the great gains for all who live in a 
floodplain is that there is a magic 100-year flood protection 
that sounds so long that, you know, I will be dead by the time 
of the flood comes. The fact of the matter is----
    Mrs. Napolitano. You may be in the 99th year.
    Mr. Isenberg. Look, we have people who live in national 
forests that are subject to fires. We have people in Southern 
California who build houses on hills that get mud slides and 
burn up, too. I mean, that is just the way human beings seem to 
be. The question is can you temper the impropriety of the 
judgment and get some semi-rational activity out of this? And 
it is important for the Delta particularly on flood control 
because we all know that if there are more opportunities for 
flood plains, we get slightly better water quality and we help 
and assist, whether it is environmental protection or the 
quality of water being exported, being served by that approach.
    Anyway, thank you, Madam Chair.
    Mrs. Napolitano. Thank you panel. You are now dismissed. I 
appreciated all your testimony.
    We will call forward the next panel. Mr. Steve Thompson, 
Manager, U.S. Fish and Wildlife Service, California and Nevada 
Operation in Sacramento accompanied by John Davis, Deputy 
Regional Director, Mid-Pacific Region Office of the Bureau of 
Reclamation. Mr. L. Ryan Broddrick, Director, California 
Department of Fish and Game, Sacramento accompanied by Gerald 
Johns, Deputy Director, California Department of Water 
Resources and Dr. Peter Moyle, Associate Director, Department 
of Wildlife, Fish, and Conservation Biology and Center for 
Watershed Sciences at UC Davis, Davis, California.
    Welcome. Gentlemen take your seats and we will begin the 
next round of testimony.
    We have taken an hour and a half in the first panel. I hope 
to be able to move this a little more expeditiously because we 
still have two more panels.
    As we begin, and before I move forward, I would like to 
thank the three individuals in the back of the room who are 
holding up signs for being very unobtrusive, and thankfully you 
are here, you are part of this and welcome. I appreciate that 
you're not distracting. You are really welcome to this hearing.
    Now, Mr. Thompson, I would start with you. I have many 
questions. I probably will have to submit some of them in 
writing simply because my list is too long. Oh, I'm sorry. Yes. 
We start with testimony.
    And Mr. Thompson, you are on, please.

  STATEMENT OF STEVE THOMPSON, MANAGER, CALIFORNIA AND NEVADA 
 OPERATION OFFICE, U.S. FISH AND WILDLIFE SERVICE, SACRAMENTO, 
   ACCOMPANIED BY JOHN DAVIS, DEPUTY REGIONAL DIRECTOR, MID-
PACIFIC REGION OFFICE, BUREAU OF RECLAMATION, AND RON MILLIGAN, 
                     BUREAU OF RECLAMATION

    Mr. Thompson. OK. Thank you.
    Good morning, Madam Chair and Members of the Subcommittee. 
My name is Steve Thompson and I am the Manager for the U.S. 
Fish and Wildlife Service for the California, Nevada and the 
Klamath Falls area in both Oregon and California.
    Accompanying me today are John Davis and Ron Milligan, both 
from the Bureau of Reclamation. And they're with the Central 
Valley Operations Office.
    I have submitted my written testimony for the record. I am 
going to briefly summarize those comments, so we can get back 
on time here.
    Delta pelagic species or the open water species in whole 
are in decline. Not just Delta smelt. Smelt are indicators of 
overall reduced health of the Delta. While export pumping is 
often cited as the reason for the decline of the species, the 
research and what we have heard earlier today of scientists 
strongly suggest that there are a number of factors. Those 
factors including nonnative invasive species such as 
invertebrates, plants and other fish, contaminants and changes 
in the food supply.
    Because it is a listed species, the Delta smelt have been 
the focus of the U.S. Fish and Wildlife Service. However, I 
must remind everyone that single species management of the 
Delta is not a viable long-term strategy. Any long-term 
solution must take into account both the upland and the wetland 
habitat.
    The second point in the testimony is that the adaptive 
management process that both the State and the Federal 
Government have put in place over the last several years is 
working, has worked and has helped us handle the challenges of 
the last two months as they were intended to do.
    Using scientific information the Service works closely with 
our partners and agencies to make real time management 
decisions consistent with our adaptive management approach to 
water operations and for the benefit of stakeholders and for 
wildlife.
    The third point is recovery of the Delta smelt and the 
improving of the overall health of the Delta continues to be a 
high priority for the U.S. Fish and Wildlife Service. We have 
formed a recovery team to update the 1996 Delta Native Fish 
Recovery Plan. We are going to include the new scientific 
information that is a result of the extensive studies now 
underway and other new information.
    We are updating both the recovery criteria and 
implementation strategies for covered species. This plan will 
help guide future recovery actions and will also, hopefully, 
ameliorate the downward trend for Delta smelt. Our current 
schedule calls for the completion of the revised recovery plan 
the summer of 2008.
    I am also encouraged by the growing number of people who 
are discussing new ways of meeting California water and 
wildlife needs other than the current through Delta 
transportation system.
    In addition, the Bay-Delta Conservation Plan, the Delta 
Vision as Phil was talking about and other conservation 
strategies hold tremendous promise for the future.
    Madam Chair, that concludes my oral statement, and I am 
happy to answer any questions that you or the other 
Subcommittee Members might have.
    [The prepared statement of Mr. Thompson follows:]

  Statement of Steve Thompson, Manager, California-Nevada Operations 
   Office, Fish and Wildlife Service, U.S. Department of the Interior

    Good Morning Madam Chair and Members of the Subcommittee. My name 
is Steve Thompson, and I am the Manager of the California-Nevada 
Operations Office of the U.S. Fish and Wildlife Service. I am pleased 
to be here today on behalf of the Department of the Interior to discuss 
the current health of the Upper San Francisco Bay-Delta ecosystem and 
its native fishes, and how the Service is responding to declines in the 
Delta smelt, a pelagic, or open water, fish that is a key indicator of 
the health of the Delta ecosystem.
    I will focus my testimony on three areas--first, an overview of the 
status of the Delta and its species; second, a description of how the 
Service and its partner agencies are working together to meet the 
estuary's scientific, resource, and managerial needs; and finally, the 
extent of challenges the Service faces in restoring the health of this 
ecosystem.
Status of the Delta and Delta Species
    The Delta is California's major collection point for water, serving 
two-thirds of our State's population and providing irrigation water for 
millions of acres of farm land. The region supports wetland and 
riparian habitats, as well as numerous fish and wildlife species. 
However, these wetland habitats, as well as the hydrology of the Delta 
itself, have been greatly altered by over 150 years of settlement and 
development. In recent years, dramatic and unexpected population 
declines have occurred in the delta smelt and several other pelagic 
fish, including juvenile striped bass and longfin smelt. Compounding 
the problem is a decline in the minute aquatic organisms, such as 
zooplankton and copepods, which make up much of the food supply for 
these small fish.
    The delta smelt is one of several pelagic fish species in decline 
in the Delta. The species was listed as threatened under the Endangered 
Species Act (ESA) in 1993. The delta smelt is a key indicator of the 
Delta ecosystem's health, and the Service believes its current decline 
is an indicator that the Delta's health is in crisis. The environmental 
and physical conditions of the Delta are extremely complex and not 
fully understood.
    The Service is actively involved in efforts to identify 
environmental risks and possible corrective actions to recover the 
delta smelt. Although the effects of water project operations may 
result in adverse impacts to delta smelt, it is apparent that other 
factors may play a role in limiting the potential for recovery, 
including competition and predation from exotic aquatic invasive 
species, contaminants, changes in habitat quality and availability, and 
changes in food supply. We are also working to better understand the 
changing climate and to predict and adapt to its effects on the natural 
environment. The only thing we know with certainty is that there are no 
simple solutions to the problems facing the Delta.
    Indices from surveys conducted since 2000 demonstrate a downward 
trend for delta smelt. The indices are the products of four different 
sampling surveys conducted in the Delta in different seasons of the 
water year. Each of these surveys indicates a pattern of decline in 
delta smelt over the past several decades. However, it is important to 
remember that the surveys provide only snapshots from similar vantage 
points over time. Although they provide a good trend analysis, the 
surveys generate an entirely different type of data from that developed 
from the continuous monitoring done at the major pumping plants.
    The most recent data from the spring survey of juvenile delta smelt 
that ended on June 9, 2007, found only 37 juvenile delta smelt (20 mm 
or greater in length). This recent population figure is far below the 
884 found in the 2006 survey conducted during the same season, and much 
fewer than the next worst year of 2002 when 455 juvenile smelt had been 
identified through the same period. The Service is very concerned about 
the data and, although we do not completely understand the reasons for 
the decline, we are working closely with our partners to understand 
what the data means for the delta smelt and we are working to reverse 
these declines.
How the Regulatory Process is Working
    In response to these declines, the Pelagic Organism Decline (POD) 
work team was formed in 2005 to conduct focused and in-depth research 
to investigate causes of the unexpected decline in pelagic organisms. 
This team brought the best scientific expertise together to work on 
this problem, and it is generating a tremendous amount of new and 
potentially useful information. However, it is also essential to 
recognize that the POD work team does not make either decisions or 
recommendations. Instead, it provides scientific information that 
informs a special working group, discussed in detail below, which makes 
the decisions.
    An adaptive management approach is used to rapidly assess new 
information and apply measures intended to address the decline. Created 
pursuant to the Service's 1995 biological opinion on operations of the 
federal and state water projects, the Delta Smelt Working Group 
analyzes the most current data available on delta smelt and physical 
conditions in the Delta and provides real-time recommendations to the 
Service regarding modifications of project operations. The working 
group was specifically set up to review all available information and 
advise the Service on implementation of actions that can be taken to 
minimize effects on the species of pumping water out of the Delta. The 
working group uses information from many sources, including the 
California Resources Agency's 2006 Pelagic Fish Action Plan, which 
describes a suite of possible actions intended to improve habitat and 
minimize entrainment, or the drawing of fish into the pump flow. This 
suite of possible actions includes project modifications to better 
protect adult delta smelt in winter before spawning as well as spring 
modifications to better protect juveniles.
    The Service, and others, assisted the California Departments of 
Water Resources and Fish and Game in preparing the 2005 Delta Smelt 
Action Plan which specifically addresses actions that have been or 
could be taken by resource agencies to further research needs and 
reduce population declines, including restoration projects for the 
Delta, Suisun Marsh, and San Pablo Bay that are intended to improve 
habitat conditions for the delta smelt and other State, federally-
listed, and candidate species.
    Information from the working group is reviewed by the Water 
Operations Management Team (WOMT), which is comprised of management 
level representatives from the Service, the Bureau of Reclamation, the 
National Marine Fisheries Service, the California Department of Water 
Resources, and the California Department of Fish and Game. This team 
has several adaptive water management tools that can be used to help 
protect delta smelt including, but not limited to, water available 
through sections (b)(2) and (b)(3) of the Central Valley Project 
Improvement Act and the Environmental Water Account. WOMT's 
responsibility also involves balancing habitat needs for multiple 
species, including other listed species. WOMT is careful to consider 
the effect of water management operations on these species so that 
actions taken to benefit delta smelt in the spring/summer do not result 
in unintended adverse effects later in the year.
    Under the current adaptive management process for water project 
operations, decisions regarding operation of the pumps in the Delta 
must consider many factors, including public safety, water supply 
reliability, and cost, as well as fish health and status requirements. 
The first step is data collection, including the continued collection 
of hydrologic data by the California Department of Water Resources, the 
Bureau of Reclamation, and the U.S. Geological Survey. The POD work 
team also provides input to the water operations decision-making 
process through regular updates. Using this data, the working group can 
recommend a change in Project operations, which is then forwarded to 
the WOMT.
    The agencies also inform and advise stakeholders who may be 
affected when the agencies make a particularly challenging decision 
about project operations. The WOMT considers recommendations and seeks 
consensus on potential actions, and may adopt or modify a 
recommendation and direct that the Environmental Water Account and 
water available under the Central Valley Project Improvement Act be 
used to implement a reduction in the export of water. For particularly 
controversial recommendations, State and federal agency leaders also 
may engage in the decision-making process. Decisions regarding changes 
to Project operations often must be made quickly if they are to be 
effective.
    The Bureau of Reclamation and California Department of Water 
Resources then implement the reduction in water through the pumps. 
Implementation can occur within three hours of a decision, if 
necessary. If the WOMT does not fully implement the working group 
recommendations, the WOMT must document the rationale for its decision; 
it must also notify the Service if it is not fully implementing the 
working group's recommendations.
    This process, developed over time, is an effective method of 
collecting information, analyzing that information, and making rapid 
decisions about how to help the delta smelt under different conditions. 
The recent management of flows and export facilities to minimize 
impacts on delta smelt has been collaborative and effective. The 
collaborative process among the federal and State agencies is working 
as intended. However, there are still questions and concerns about the 
long-term impacts to the delta smelt.
Addressing the Long-Term Challenges Facing the Ecosystem
    The Pelagic Organism Decline work team, discussed above, is 
generating a significant amount of new information, and the policy and 
regulatory entities ultimately will use that information to make 
decisions about what actions should be taken to protect the species.
    Recently, the Service formed a Recovery Team to update the 1996 
Delta Native Fishes Recovery Plan to include new scientific information 
that is the result of the extensive studies now underway and other new 
information developed since the approval of the current recovery plan 
in 1996. The team is updating both the recovery criteria and 
implementation strategies for the covered species. This plan will help 
guide future recovery actions that will hopefully ameliorate the 
downward trend for delta smelt. The current schedule calls for 
completion of the revised Recovery Plan in summer of 2008.
    In addition, the Service is participating in the development of the 
Bay-Delta Conservation Plan, an effort by the major Delta water users 
that began in 2006. Completion of the plan is scheduled for late 2009. 
The plan is based on the concept of an ESA Habitat Conservation Plan 
and is intended to meet the requirements of the ESA, the California 
Endangered Species Act, and, potentially, the California Natural 
Community Conservation Planning Act. The plan should provide certainty 
for water users, who will, in exchange, commit to a specific set of 
mitigation activities for the benefit of the delta smelt and other 
species.
    Further, the Service is revising the existing biological opinion 
for Delta operations. In May 2007 the Federal District Court for the 
Eastern District of California found the biological opinion's ``no 
jeopardy'' finding arbitrary, capricious, and contrary to law for 
several reasons, among them a failure to adequately consider impacts to 
critical habitat and a failure, when setting take limits, to consider 
take in the context of most recent overall species abundance and 
jeopardy. However, the 2005 biological opinion will remain in effect 
until a solution can be reached in the remedies phase of the trial. A 
hearing on this phase is scheduled for Aug. 21, 2007. In the meantime, 
the Service reinitiated consultation on federal and state water 
projects under the 2005 biological opinion last year and is proceeding 
with that effort, even while it awaits further direction from the 
court.
    The Service is also continuing to develop habitat that will help 
the Delta species, and we are in the early stages of investigating 
other possible helpful activities. Finally, we continue to actively 
participate in the processes begun under the CALFED Bay-Delta Program.
Conclusion
    Recovery of the delta smelt continues to be a high priority for the 
Service. Our knowledge of this species and its needs continues to 
increase. The Service is working closely with partner agencies to make 
real-time management decisions consistent with our adaptive management 
approach to water operations, and we are updating and implementing 
recovery strategies as quickly as the science becomes available.
    Madam Chair, this concludes my remarks. Thank you for the 
opportunity to appear before you today, and I will be happy to answer 
any questions that you or the Members of the Subcommittee may have on 
this important subject.
                                 ______
                                 
    Mrs. Napolitano. Thank you, sir.
    Mr. Broddrick?

STATEMENT OF RYAN BRODDRICK, DIRECTOR, CALIFORNIA DEPARTMENT OF 
FISH AND GAME, SACRAMENTO, ACCOMPANIED BY GERALD JOHNS, DEPUTY 
       DIRECTOR, CALIFORNIA DEPARTMENT OF WATER RESOURCES

    Mr. Broddrick. Madam Chair and Members, I am Ryan 
Broddrick, Director of the Department of Fish and Game public 
trust responsibilities for both inland terrestrial and 1100 
miles of coastline. The responsibilities of the Department 
include threatened and endangered species, management of 
endangered species and general wildlife in this State.
    I have been involved in the water management issues since 
1995. Had the pleasure of being with many of your members in 
the discussion, including Post-Bay/Delta Accord, August 2000 
record decision on CALFED. I was subsequently appointed 
Director of Department of Fish and Game.
    I think it is important to highlight, there is great 
testimony that is available here. I submitted seven pages and 
six charts and tables that kind of give you a reflection of the 
decline. I think a key to note is that we saw and had agreement 
that there is a step decline in Delta smelt. A step decline is 
just a statistical analysis, but that statistical decline that 
was agreed to in 2004 and brought to the attention of the Bay-
Delta Authority and the Klamath agencies resulted in 
unprecedented investment in the pelagic organism decline.
    Pelagic organism decline for the first time looked at the 
general ecological health of the Delta, not just individual 
fish species. Instead of counting fish with respect to the 
relative history over 40 years, we started looking at and 
correlating and synthesizing what was happening with the entire 
water column.
    As Mr. Thompson identified, there are more stressors in the 
ecosystem than the pumps. Having said that, this year in 
particular showed lowest record declines in populations both in 
our survey work, understanding that our survey work is a trend 
over time so it is relative, but we took the information and, 
to the unprecedented notice of the Department of Water 
Resources as well as 300 Delta ag diverters, wrote a letter 
that we were concerned and to suspend and reduce pumping and 
retainment wherever possible. This was not pointing a gun at 
individuals. This was an issue of us stating that at this point 
given the low numbers in Delta smelt that each of those Delta 
smelt we believed, instead of looking at it from a population 
dynamic, were important to preserve and conserve as a 
repository for stock recruitment next year. So you had a 12 day 
secession of State Water Project pumping which followed what is 
referred to as the ban period where there was dramatic but 
significant reductions in pumping south.
    So when you take those two periods together, I think we 
have taken fairly significant, I would not say unprecedented, 
but nearly unprecedented reductions in pumping.
    I failed to introduce Deputy Director Gerry Johns to my 
right, who is with the Department of Water Resources who sets 
on the Water Operations Management team.
    But the role between U.S. Fish and Wildlife Service, Fish 
and Game, the Bureau of Reclamation, NOAA and DWR is done on a 
real time basis given the information we do have. Try to 
optimize the protection of the resource while considering the 
demands for deliveries. This summer has been difficult.
    From a historical perspective, we have been blessed since 
the Bay-Delta Accords. We have come close to being pushed 
against the wall on supply. We have been close to being pushed 
against the wall on the endangered species conflict and, 
literally, in every case Mother Nature bailed out the 
governance. So we have made some tough decisions and we have 
been able to defer some tough decisions.
    I think it is important, especially for Madam Chair, the 
Federal Government, and Congressman Miller to know that the 
CVPIA and the investments in integrated water management and 
the development of groundwater banking and the fish screening 
are all critical. We have done some exceptional things in 
California. We have put, just to the Wildlife Conservation 
Board that is set in, in over $1.5 billion in the restoration 
of fish and wildlife resources.
    So I look forward to your questions. I look forward to the 
challenge of reconciling the needs and demand. I think it can 
be done. I think California has done an exceptional job in 
investing with bond monies, especially over the last ten years. 
I look forward to Federal participation to complete some of the 
tasks that we identified as planning document but are not yet 
implemented.
    Thank you for your time.
    [The prepared statement of Mr. Broddrick follows:]

                Statement of Ryan Broddrick, Director, 
                 California Department of Fish and Game

    I appreciate the opportunity to provide input to this Subcommittee 
on the important and urgent matter of declining fishery resources in 
the San Francisco Bay/San Joaquin Delta Estuary. Of particular concern 
to us is the recent serious and unexpected decline (approximately 90%) 
in young Delta smelt produced this season. As alarming as the reduced 
numbers are, this decline is part of a more generally observed decline 
in other important fish and aquatic resources in the estuary. 
Anadromous fish (steelhead and salmon), sport fish (striped bass), 
other native fishes, and some important fish food organisms 
(invertebrates) of the Delta are in serious trouble and have been 
receiving our attention in planning and regulatory activities. The 
California Department of Fish and Game is actively involved in efforts 
to determine causes, implement response measures within our 
authorities, and develop a long-term strategy for Delta sustainability. 
The Federal Government's involvement is crucial to developing a 
comprehensive and long-term solution to fix the ``broken Delta''.
    There are many causes for the fish and invertebrate declines and 
our understanding of these causes is limited. Our cooperative efforts 
to determine the causes of the decline have pointed towards invasive 
species, toxics, predation and water diversions as having primary roles 
in the declining health of the Delta. We continue to monitor, evaluate 
and explore these issues in order to make further scientifically 
justified determinations as to the role of each factor and how issues 
may be addressed in order to ensure future Delta health.
    Governor Schwarzenegger has initiated a comprehensive Delta Vision 
effort to rethink what the Delta should look like in the future. A Blue 
Ribbon task force has begun meetings designed to lead towards 
recommendations for actions by the legislature and Governor. In 
addition, many state and federal agencies, along with a growing number 
of environmental groups, signed a formal Planning Agreement in 
September 2006 and are developing the Bay Delta Conservation Plan 
(BDCP) for at-risk fish species under the provisions of the State 
Natural Community Conservation Planning Act (NCCPA) and Section 10 of 
the federal Endangered Species Act. These efforts will provide a 
framework, plan, and commitment for future action.
Background - The Pelagic Organism Decline
    The Interagency Ecological Program (IEP), a multi-agency state and 
federal group, has monitored and studied biological and hydrological 
resources in the Estuary for almost 40 years. The data set generated by 
the IEP is one of the most complete data sets documenting relationships 
between fish and aquatic resources and water development projects in 
the world. The information developed during this time has provided the 
foundation for our understanding of the ecological implications of 
water resources management in this system. In early 2005, scientists 
from our IEP first observed serious declines in Delta smelt and certain 
other pelagic fish species (see Figure 1). In response, directors of 
the state and federal water and fish agencies directed approximately 
$2.5 million for establishment of a Pelagic Organism Decline (POD) team 
to investigate the reasons for the decline. The POD team developed a 
study plan that identified three likely hypotheses responsible for the 
observed declines and embarked upon an aggressive and comprehensive 
effort to identify and address all likely causes for this decline. The 
three most likely stressors, possibly acting in concert, were 
identified as water diversions, invasive species/food chain changes, 
and toxics.
    One year after the POD studies began, the team presented their 
first Synthesis Report and developed two scenarios among other possible 
causes: winter exports and bad environmental conditions in Suisun Bay. 
Data from the State and Federal water project facilities showed that 
water exports had increased during the winter months of November-March 
during the years of the pelagic organism decline (See Figure 2). 
Salvage data also showed that increased numbers of those fish showing 
the decline (Delta smelt, threadfin shad, striped bass and longfin 
smelt--see Figures 3 and 4) had also been taken in increasing numbers 
during that time. The second most likely hypothesis called the ``Bad 
Suisun Bay Hypothesis'', suggested that conditions in the Suisun Bay 
area, a prime nursery area for young fish, had changed in some way to 
reduce its capability to sustain fish populations. The report suggested 
that some undefined combination of food production, invertebrate 
grazing rates, salinity regime changes, and introduced exotic species 
may be responsible for the declines. At that time toxics were not 
implicated as a major influence in the observed declines.
    During the end of the first year of the POD investigations, 
researchers were beginning to develop information that could be helpful 
in understanding the declines and also for managing conditions to 
potentially reduce impacts. In the fall of 2006, the CALFED Program 
hosted the Science Conference and two significant findings were 
presented. First, a University of California researcher (Dr. Bill 
Bennett) suggested that the delta smelt females that reproduced early 
in the spawning season seemed to be most important in contributing to 
the next generation of smelt. This became known as the ``Big Momma 
Hypothesis''. This suggested that more attention needed to be paid to 
water management earlier in the year than had been done heretofore. The 
second finding, by a USGS researcher (Dr. Pete Smith) suggested that 
there was a significant relationship between flows moving UPSTREAM 
toward the state and federal pumping plants in Old and Middle Rivers 
and fish caught later in the trawls surveys. In other words when flows 
upstream were greater, the negative impacts on smelt populations were 
greater. Both of these findings would play a significant role in how 
fish and water agencies would manage the water projects in 2007.
    During the 2006 water year, conditions were better and greater 
outflows moved the smelt further downstream in the estuary and away 
from the influence of the pumps. The abundance indices reflected a 
positive response and the numbers of Delta smelt increased slightly 
from the previous year. Things were looking slightly better for smelt.
2007 Activities
    Water Diversions-Armed with new scientific findings, the fishery 
and water management agencies began to manage the water projects to 
facilitate protection of delta smelt and other aquatic resources in the 
estuary. The life cycle of Delta smelt (Figure5) was constantly 
considered in this process. Clearly water diversions from the Delta can 
cause direct and indirect mortality of Delta smelt and other aquatic 
organisms. For this reason, the Delta diversions of the State Water 
Project (SWP) and the Central Valley Project (CVP) are some of the most 
carefully regulated and monitored water diversions anywhere. Early in 
January 2007, a team of agency managers (Water Operations Management 
Team - WOMT) began operation of the state and federal pumping plants by 
trying to reduce upstream flows in Old and Middle rivers so that the 
important early reproducing smelt (``Big Mommas'') would not be drawn 
upstream toward the pumps and potentially removed from the estuary. 
Pumping rates were reduced using assets from the Environmental Water 
Account (EWA). By late May, the WOMT used over 300 thousand acre feet 
of Environmental Water Account water to implement fish protection 
actions, primarily protecting the spawning females during January, 
February and March. During winter and early spring the projects reduced 
net upstream flow in Old and Middle Rivers and no delta smelt were 
observed at the State Water Project and only a few at the Federal 
facility. Conditions looked good and the new management tools (reducing 
Old and Middle river flows to protect spawning females) seemed to be 
providing the desired impact avoidance. Field surveys showed the 
spawning smelt still securely distributed in Cache Slough and the 
Sacramento Ship Channel--out of the influence of the pumping plants.
    On about May 15, field surveys (the 20 mm survey) carried out to 
monitor the relative abundance of juvenile smelt produced in the system 
produced alarming results. Numbers of young smelt were about 90 % below 
our previous year's estimates (See Figure 6). More alarming was the 
fact that the young smelt were located in an area influenced by the 
pumps--the lower San Joaquin River! The WOMT immediately took action 
and reduced pumping significantly at the pumping plants. Diversions 
from the SWP facilities were reduced to 350 cubic feet per second 
(cfs), a 90 percent reduction from customary seasonal pumping levels, 
as a precaution. The federal CVP reduced pumping rates to 850 cfs. 
Additionally, WOMT ordered the Head of Old River Barrier culverts 
opened and maintained flows in the Stanislaus River so that flows would 
remain higher in the San Joaquin River to help keep the young smelt 
from the pumps.
    When greater smelt take occurred at the SWP intake facility in late 
May, DWR and the DFG jointly announced further curtailment of SWP Delta 
diversions and asked for voluntary curtailments by other Delta 
diverters. DWR stopped SWP Delta diversions entirely on May 31, 2007 
for 12 days with future protective actions continuing to be guided by 
the best science and adaptive management. Other water diversions from 
the Delta are not monitored or regulated as carefully. Nevertheless, on 
June 1, 2007, DFG wrote to over 300 water diverters in the Delta asking 
them to ``voluntarily cease or substantially reduce your diversions 
from the south delta channels...'' DFG also restricted all non-
essential scientific studies and fish sampling/monitoring that may 
incidentally take Delta smelt. Concurrently, the CVP reduced Delta 
diversions to the operation of a single pump, drawing about 850 cfs. 
After taking no smelt for two weeks, the CVP increased pumping to 2500 
cfs on June 13, 2007. Nine hours later several smelt were taken at the 
Federal pumps, a clear indication that young smelt were still in the 
south delta area and caution regarding increased pumping should be 
used.
    On June 17, 2007, the SWP and CVP increased pumping but still far 
below seasonal normal rates. Agency Directors became directly involved 
and daily operational decisions were made to reduce take of smelt at 
the facilities. As smelt grew and began to move downstream out of the 
influence of the pumps and temperatures approached the lethal limits of 
young smelt, pumping rates were allowed to increase to meet demands for 
water use in the state. As of June 27 some young smelt continued to be 
taken at the SWP.
    Agency biologists studying the population dynamics of smelt now 
believe that the abundance of smelt in the estuary has reached such a 
low level that numbers are now being affected by the ``stock 
recruitment relationship''. In other words, the most important factor 
affecting smelt numbers is the number of juveniles produced by the 
adult females. During other times when populations are higher, this 
relationship is not as significant and other factors contribute to the 
regulation of abundance (these are discussed below). Therefore, it is 
DFG's position that actions must be taken to protect as many individual 
smelt as can be through manipulation of the water projects. Each 
reproducing organism is important to the survival of the species.
    Invasive Species-The San Francisco Estuary has been called the most 
invaded estuary on earth. Among the hundreds of introduced species, 
many cause competition, predation, or habitat modification that are 
detrimental to Delta smelt and other pelagic fishes. Collectively all 
of these species are profoundly affecting the ecological functioning of 
the estuary. For example, the Asian clam Corbula, which became 
established in Suisun Bay in the 1980s is a filter feeder so effective 
and numerous that it can filter the entire volume of Suisun Bay in less 
than a day. This has had a devastating effect on the primary production 
of Suisun Bay. Further upstream the freshwater Asiatic clam, Corbicula, 
can have a similar effect. In the late 1990s a new zooplankton 
Limnoithona invaded the estuary. This new zooplankton may not be a good 
food source for many important pelagic fish like Delta smelt and has 
replaced the smelt's preferred food source. Limnoithona is now the most 
abundant zooplankton in the estuary. This shift at the base of the food 
web may prove to be a major factor affecting Delta smelt. The toxic 
blue green algae Microcystis has increased in abundance in the past 
several years in the interior Delta causing concerns with both fish and 
human toxicity although none has been documented in this system. Other 
introduced species such as striped bass and black bass prey upon smelt 
directly. The Brazilian water weed Egeria, has also proliferated in 
recent years. This aquatic plant not only clogs water ways for boating 
but slows water velocity and allows suspended sediment to settle out. 
It is hypothesized that increased water clarity may reduce Delta smelt 
feeding success and increase predation upon them. Although eradication 
is impossible, DWR and the Department of Boating and Waterways are 
partnering to implement a control program for Egeria budgeted at $3 
million per year.
    DFG and DWR are working aggressively to prevent new invasions. The 
two agencies responded swiftly when the quagga mussel Dreissena was 
discovered in Lake Mead and the Colorado River. If this prolific filter 
feeder were to invade the estuary it would likely cause further 
alteration in the food web. Much more effort needs to be exerted in 
order to deal with the problem of introduced species.
    Toxics-Since 2005, scientists have been conducting toxicity 
screening of the waters in the Delta and Suisun Bay as part of the IEP 
Pelagic Organism Decline (POD) studies. Studies in 2005 and 2006 
focused on the summer months when juvenile smelt are present in the 
Delta. To better characterize toxicity during the smelt spawning 
period, bi-weekly sampling and aquatic toxicity testing was initiated 
in January 2007. Preliminary evidence indicates potential toxicity in 
the Delta this winter and spring. The most troubling fact about these 
detections is that they occurred in the spawning grounds for Delta 
smelt this year when both adults and their young were present. Even 
though the number of adult Delta smelt this year was a little larger 
than last, the number of young smelt collected this year was about 90 
percent less than last year (see above discussion). Although there is 
no evidence of direct toxicity to the Delta smelt, Delta toxicity could 
affect smelt directly or affect food availability for the species.
    Researchers have initiated toxicity testing using cultured Delta 
smelt and are collecting samples upstream of the toxic sites in an 
attempt to identify the source and cause of the toxicity. The State 
Water Resources Control Board (State Water Board) and the Central 
Valley Regional Water Quality Control Board are actively evaluating all 
of this year's information to identify any necessary actions to prevent 
this type of toxic effect on endangered species from happening again 
next year.
    Other new research provides an anecdotal suggestion that episodic 
toxicity could play a role in smelt survival. A study tracking tagged 
salmon in the south Delta collected apparent evidence in May of 
extensive salmon smolt mortality in a single area. This kind of event, 
if proven to be related to toxics, has the potential to seriously 
affect a species such as the Delta smelt and warrants further 
investigation.
    The State Water Board held a workshop on June 19, 2007 to receive 
recommendations, and information to support these recommendations, on 
immediate, short term actions it should consider to slow or stop the 
decline of smelt and to improve fishery resources. The State Water 
Board is looking for information on both water quality and flow-related 
actions. Any increased involvement on the part of the federal 
government in these efforts would be welcome.
Current Restoration Efforts
    In addition to near-real time management of the Estuary through 
processes discussed above, DFG is also involved in larger scale 
ecosystem planning to enhance the estuary. Early implementation of the 
Ecosystem Restoration Program (ERP) began three years prior to the 
signing of the CALFED ROD in August 2000 in recognition that ecological 
systems take time to show change. In the first nine years of 
implementation, ERP has made significant progress in improving the 
natural system. ERP has awarded more than $615 million to 493 projects. 
To date, 276 projects or about 56 percent have been completed. Grant 
recipients reported approximately $285 million in matching funds, which 
resulted in a combined total of about $825 million spent on habitat and 
species associated with the Bay-Delta and its watersheds. Many ERP 
actions addressed priority Multi-Species Conservation Strategy (MSCS) 
species listed in the milestones. Restoration planning for the Suisun 
Marsh through the Suisun Charter process will result in the restoration 
and protection of 7,000 acres of wetlands in San Pablo Bay and Suisun 
Marsh, exceeding the Stage 1 target for tidal marsh restoration in San 
Pablo Bay. Restoration of tidal action to restore brackish marsh 
ecosystems within the next two years on the Blacklock property and 
Meins Landing will aid in the recovery of several listed and special 
status terrestrial and aquatic species. Restoration of tidal action and 
associated wetlands habitat on the 1,166 acre Dutch Slough Tidal 
Restoration Project will improve our understanding of ecological 
processes and how ecosystems function at different spatial scales.
    The ERP has funded 82 fish screen projects to reduce mortality of 
salmonids. The ERP has also implemented channel and floodplain 
restoration projects to improve spawning and rearing habitat for 
salmonids including projects on key tributaries to the Sacramento and 
San Joaquin rivers. Removal of impediments to fish passage on Butte 
Creek, Clear Creek, and other Sacramento River tributaries has 
contributed to the rebounding of spring-run and fall run Chinook salmon 
populations observed in recent years. The Battle Creek Salmon and 
Steelhead Restoration Project is an exceptional conservation 
opportunity to reestablish 42 miles of prime and uniquely reliable 
salmon and steelhead habitat on Battle Creek and its tributaries. 
Successful implementation of this project will help restore populations 
of winter-run Chinook salmon, spring run Chinook salmon and steelhead, 
all of which are in danger or threatened with extinction as defined by 
the federal Endangered Species Act (FESA). Battle Creek offers this 
unique restoration opportunity because of its geology, hydrology, 
habitat suitability for several anadromous species, historical water 
allocation, and land use compatible with a restored stream environment. 
Of these qualities, the area's unique hydrology is perhaps the most 
important Battle Creek feature supporting its restoration potential. 
The Lower Yuba River Accord EIR/EIS was released for public review on 
June 26th. The purpose of the Yuba Accord is to resolve instream flow 
issues associated with the operation of the Yuba River Development 
Project in a way that protects and enhances lower Yuba River fisheries, 
maintains local water-supply reliability and protects Sacramento-San 
Joaquin Delta fisheries. The ERP this year also funded the Narrows 2 
bypass project on the Yuba River to protect habitat for the wild salmon 
and steelhead on the lower Yuba River.
Summary
    This brief discussion of stressors, management actions, and 
organism responses is intended to convey our understanding that the 
pelagic organism decline, including the recent sharp drop in Delta 
smelt abundance, is an extremely complex phenomenon. We do not expect 
that the solution to such a complex problem lies in just one category 
of action. We will continue to be guided by the best science and 
adaptive management as our scientists work to understand the situation 
and our agencies seek solutions to Bay Delta problems both in the near-
term and for the future.
    Whatever actions we may take, we must include interests of all 
parties. As you know, there are no independent actions that can be 
taken in this complex system. Fishery agencies constantly balance needs 
of various listed species, and important non-listed species. Actions 
that affect the water projects also can potentially affect other users 
of water in the State including state and federal wildlife refuges. 
Before any actions are implemented careful consideration of associated 
fish and wildlife impacts is needed.
    DFG is supportive of the federal government taking actions 
necessary to protect and restore the pelagic species and in particular 
the Delta smelt. We will work with you and others to accomplish this 
important result. 
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    Mrs. Napolitano. Thank you, sir.
    Next we have Dr. Peter Moyle

STATEMENT OF DR. PETER MOYLE, ASSOCIATE DIRECTOR, DEPARTMENT OF 
   WILDLIFE, FISH, AND CONSERVATION BIOLOGY, AND CENTER FOR 
       WATERSHED SCIENCES AT UC DAVIS, DAVIS, CALIFORNIA

    Dr. Moyle. Thank you, Madam Chair.
    I want to start by emphasizing that the decline of these 
fishes in the Bay-Delta system is the result in the long term 
of management focusing and minimizing immediate damage to 
populations rather than really trying to take steps to actually 
improve conditions. Even the idea of minimizing damage, it may 
have been thrown out the window recently if you look at the 
fact we are still killing smelt at the pumps as they work 
today. It suggests that our management structure is not working 
very well. If present trends continue, we are going to be faced 
with extinctions of native species, more endangered species 
listings and the disappearance of important fisheries. 
Unfortunately in the near future I think these conditions are 
going to get worse before they get better. Because the estuary, 
as Mr. Costa pointed out, is faced with catastrophic structural 
and ecological changes, especially in the Delta and Suisun 
Marsh.
    But what I want to comment on and what my written testimony 
is mostly about is to emphasize that taking actions to regulate 
ecological change before the disaster could actually improve 
conditions in the system for desirable species while being 
highly compatible with delivering the services the Delta 
provides, such as water supply.
    These comments reflect a study I was part of that came out 
a few months ago. It's the Envisioning Futures for the 
Sacramento San Joaquin Delta written by five faculty at the 
University of California at Davis and Ellen Hammack of the 
Public Policy Institute of California where we had the 
advantage of being independent of many funding sources or 
whatnot, so we could pretty much say what we thought. I think 
this document has been widely read, in part because of that 
independence.
    We present nine scenarios in that document for a future 
Delta and Suisun Marsh, five of which we regard as feasible, 
and I should point out that the five feasible alternatives do 
not include the status quo, the business as usual. Four of the 
five protect water supply while allowing some portion of the 
Delta to remain as habitat for native fish and other desirable 
organisms. The five options provide suggestions for 
significantly improving habitat in the Delta and Suisun Marsh 
provided action is taken before a large scale levee collapse 
occurs. I think that is important to note.
    The options we present are only a tiny fraction of the 
hundreds of permutations and combinations of actions that could 
be taken. They are really designed to represent examples of 
alternatives possible and to provide visualization of the 
management options.
    We have some really good graphs in that report if you are 
interested.
    Rather than get into any of the details of specific 
options, what I would like to do is just emphasize some of the 
areas where we really think that you can do specific things 
that will broadly benefit the system in relative short time 
periods. That is less than 25 years.
    First off, is fixing Suisun Marsh. That is going anyway 
because of levee collapse. It is right at sea level. There is 
enormous potential at Suisun Marsh as a refuge for native 
fishes and other critters.
    The Cache Slough region, which is in the northeast Delta, 
is a region which has tremendous potential to connect to the 
Yolo Bypass. A lot of its natural drainage patterns are still 
there. This is an area we think we can restore fairly readily. 
It is also one of the most important spawning areas for Delta 
smelt today. The Yolo Bypass itself, which is this gigantic 
flood plain that protects Sacramento, is partly in the Delta. 
About half of it is in the Delta. Changing the operation of the 
bypass and installing a gate on one of the weirs has a 
tremendous potential. Having the floodplain bypass in the San 
Joaquin River in the upper Delta has a lot of interesting 
possibilities for improving conditions for fish.
    Then getting down to the individual Delta islands, managing 
islands in the Delta, Central Delta for fish and ecological 
purposes could be done in various ways. These include, of 
course, taking a lot of the islands out of production and 
turning them into aquatic systems. That is going to happen. 
Nature is going to do it to us anyway. We should get ahead of 
the curve and create islands that actually have beneficial 
characteristics to the fish in the Delta.
    So thank you.
    [The prepared statement of Dr. Moyle follows:]

  Statement of Peter B. Moyle, Professor of Fish Biology, Center for 
 Watershed Sciences and Department of Wildlife, Fish, and Conservation 
          Biology, University of California, Davis, California

    Summary. The San Francisco Estuary supports a diverse fish fauna in 
which key species are in severe decline. The estuary is faced with 
catastrophic structural and ecological changes, especially in the Delta 
and Suisun Marsh, as the result of anticipated levee failure caused by 
the combination of earthquakes, land subsidence, sea level rise, and 
increased high outflows events (from climate change). The resulting 
flooding of Delta islands and Suisun Marsh is predicted to disrupt 
California's water supply system and, consequently, the state's 
economy. From a fish perspective, the changes are likely to create 
conditions in which desirable species can persist at least at present 
low levels, after a period of possible high mortality created by the 
initial flooding events. Taking actions to regulate ecological changes 
in the estuary before the disaster could actually improve conditions 
for desirable fishes while being highly compatible with delivering 
services the Delta provides, especially water supply. Specific actions 
include improving habitat for fish in Suisun Marsh, Cache Slough, the 
Yolo Bypass, and the San Joaquin River, while creating islands in which 
flooding can be managed. The key is increasing habitat heterogeneity 
over present and now-likely future conditions. No matter what actions 
are taken there will be a high degree of uncertainty as to their 
ecological benefits but the present situation in estuary represents an 
unprecedented opportunity to reverse the impacts of over 150 years of 
negative ecological change.
Introduction
    The San Francisco Estuary (SFE) is the largest estuary on the west 
coast of North America and one of the most altered (Nichols et al. 
1986). It is highly urbanized but contains extensively diked 
agricultural lands and marsh habitats. It is also highly invaded by 
alien species, especially the aquatic habitats. Not surprisingly, the 
native species of plants and animals have declined in abundance; 
several are extinct and others are listed as threatened or endangered 
under state and federal laws (Herbold et al. 1992). Human caused 
changes to the SFE are still taking place at an accelerated rate and 
there are strong indications that major, catastrophic changes to the 
SFE are imminent (Mount and Twiss 2005; Lund et al. 2007). The changes 
are likely to be most dramatic in the upper part of the estuary, the 
Sacramento-San Joaquin Delta (the Delta), where large-scale levee 
failure can seriously disrupt local, regional, and state economies. A 
principal concern is disruption of California's water distribution 
system. Much of the fresh water used by San Joaquin Valley farms and 
the vast urban areas of southern California originates (directly or 
indirectly) from the estuary's inflowing rivers. This water is pumped 
from the Delta by the State Water Project and the federal Central 
Valley Project. Additional water is removed to supply aqueducts to 
cities around San Francisco Bay and to water farms in the Delta. Large 
scale flooding could also eliminate farming in thousands of acres of 
island land, threaten urban areas, and disrupt railroads, pipelines, 
and other infrastructure (Lund et al. 2007, available on line at 
PPIC.org). Likewise, a sudden catastrophic change to the Delta and SFE 
will affect already declining native species and encourage the further 
spread of alien species.
    A major question being asked by management agencies and regional 
stakeholders is ``how can we prevent large-scale change from taking 
place in the SFE, especially the Delta?'' Answering precursors to this 
question (mainly, how do we protect endangered fish and fisheries?) was 
one of the reasons for the establishment of CALFED in 1996, a massive 
joint state-federal management and research effort (http://
calwater.ca.gov/) which has been criticized for not quickly solving the 
problems of the SFE (Little Hoover Commission 2006). A report produced 
by the University of California, Davis and the Public Policy Institute 
of California (Lund et al. 2007) turned the original question on its 
head, asking instead ``How can the Delta be managed to accommodate 
large-scale change before undesirable changes are forced by 
catastrophic events?'' In this essay, key findings of Lund et al. 
(2007) are summarized in relation to aquatic organisms, especially 
fish. I first describe the SFE, provide a brief introduction to the 
fish fauna, and then discuss the major drivers of change. I then 
describe what is likely to happen to key fish species if present 
management trends continue, followed by suggestions for major actions 
that could be taken to improve the SFE for fishes even in the face of 
large-scale change.
The San Francisco Estuary
    The SFE is the outlet of the Sacramento and San Joaquin Rivers, 
which in turn drain much of central California. A primary source of the 
water for the rivers is the Sierra Nevada, which intercept moisture-
laden clouds coming off the Pacific Ocean. The estuary has three 
distinct segments, San Francisco Bay (including San Pablo Bay), Suisun 
Bay and Marsh, and the Sacramento-San Joaquin Delta (Figure 1). Each 
segment has a confined outlet through which the tides surge back and 
forth, creating complex hydrodynamics: the Golden Gate (San Francisco 
Bay), the Carquinez Straits (Suisun Bay), and the river confluence at 
Sherman Island (Delta), respectively. These narrows have allowed the 
three regions to have distinct identities, emphasized by human 
modifications to them. The Delta is perceived as region where fresh 
water from the rivers tidally sloshes back and forth in leveed 
channels, flowing between islands of agricultural fields. The islands 
are highly subsided (many are 5+ m below sea level), surrounded by 1800 
km of fragile levees made of local materials, often peat. Historically, 
the Delta was a vast marshland that was flooded annually by undammed 
rivers (Lund et al. 2007).
    Suisun Bay, in contrast was, and still is, a large area of open 
water that is transitional between the fresh waters of the Delta and 
the salt waters of San Francisco Bay; it is a shallow region of wind-
stirred, brackish water, lined with tidal marshes. The largest of these 
marshes, in fact nearly as large as Suisun Bay itself, is Suisun Marsh. 
This 30,000+ ha marsh is largely managed today as freshwater marsh, 
mostly for duck hunting in both private duck clubs and public wildlife 
areas. The key for maintaining its freshwater character is inflow from 
the Sacramento River via Montezuma Slough. Montezuma Slough has large 
tidal gates on its upper end which control salinity in the marsh by 
allowing fresh water to flow in but prevent the tides from pushing it 
back out again. Over 360 km of levees separate the marsh islands from 
the tidal channels, in which water is still seasonally brackish. The 
channels are highly productive of fish, however, which are a mixture of 
freshwater and marine species (Matern et al. 2002).
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    The marine species in Suisun Marsh come from San Francisco Bay, 
which is largely a saltwater system, with variable but high salinities; 
the actual salinity value depends on location and season. San Francisco 
Bay is ringed by cities and its fringe marshes are fragments of its 
original tidal marsh system.
    All three parts of the SFE were once more variable in their 
salinities and river-driven hydrodynamics than they have been for the 
past 50-60 years (Bay Institute 1998). During wet years, the spring 
snow-melt from the Sierra Nevada could temporarily make fresh the 
surface waters of San Francisco Bay, while during late summer of 
drought years ocean salt could be detected at the upper ends of the 
Delta (DWR 1993), especially once agriculture diverted large amounts of 
water. The advent of the federal Central Valley Project and the State 
Water Project, however, allowed the system to stabilize, so that, for 
the purposes of policy and public perception, the Delta and Suisun 
Marsh became permanent freshwater systems, Suisun Bay became a brackish 
water system, and San Francisco Bay became an exclusively marine 
system. The two water projects (and other related projects) constructed 
huge dams on the Sacramento and San Joaquin rivers and all their major 
tributaries in the 1930s-1960s, with such perverse consequences as 
increasing the summer flows of the Sacramento River and drying up the 
San Joaquin River. The dams allowed for the regulation of salinity in 
the upper SFE. By releasing large quantities of water, especially in 
the summer, the dam operators could both keep salt water out of the 
Delta and Suisun Marsh and permit the pumping of the water, from the 
southern edge of the Delta, for agricultural and urban use.
    For further information on the environmental and ecological history 
of the SFE see Herbold et al. (1992), Hollibaugh (1996), Bay Institute 
(1998), and Lund et al.. (2007) or see http://www.deltavision.ca.gov. 
The rest of this essay will focus primarily on the Delta and Suisun Bay 
and Marsh, because the lowermost part of the SF Estuary, San Francisco 
Bay, has a whole additional set of problems related to its intense 
urbanization.
The Fishes
    SFE has a high diversity of fishes, representing marine, 
freshwater, anadromous, and estuarine species, as well as native and 
alien species (Matern et al. 2002, Moyle 2002). About 75 species, 
largely marine, are known from SF Bay in recent years, of which only 5 
are alien species. In Suisun Marsh and Bay, 53 species are known, a 
mixture of marine, freshwater, and anadromous (sea-run) species. They 
represent 28 native species and 25 aliens (Matern et al. 2002). In the 
Delta, there are about 46 regularly occurring species, a mixture of 
freshwater and anadromous fishes, of which 27 are aliens. The total 
fish fauna consists of about 120 species that can be found in one 
environment or another on a fairly regular basis, of which about 30 
(25%) are aliens, mostly in fresh and brackish water. The invasion of 
alien species has accompanied past large-scale environmental change and 
has been a driver of declines of native species, including extinctions 
of native species such as thicktail chub and Sacramento perch (Moyle 
2002, Marchetti and Light 2007). Changes over the past 50 years, since 
the advent of the major water projects, have led to severe declines of 
most native species, including four runs of Chinook salmon and the 
delta smelt. This result has been that five fishes, including delta 
smelt and two runs of Chinook salmon, are currently listed as 
threatened or endangered by state and federal governments (Moyle 2002). 
In more recent years, declines in fisheries have also been of major 
concern, especially of fall-run Chinook salmon, white sturgeon, and 
alien striped bass. Some of the fishes most likely to affected by 
future large scale changes to the SFE and also likely to drive policy 
decisions are listed in Table 1.
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Drivers of Change
    The major drivers of change in the SFE that are together or 
individually likely to result in major shifts in environmental 
conditions, including catastrophic shifts are: earthquakes, island 
subsidence, sea level rise, climate change, and invasions of new alien 
species (Lund et al. 2007). Human land and water use could arguably be 
listed as another driver of change but these uses are strongly affected 
by the first five drivers (i.e., are the reason the first five are of 
concern) so will not be treated further as drivers here. The major 
catastrophic consequence of the five major drivers is extensive levee 
failure in the Delta and Suisun Marsh. From an ecological perspective, 
the consequence is sudden change of in the hydrodynamics of the two 
regions as the islands fill with water, creating new habitat 
conditions, followed by invasions of undesirable species into the new 
habitat space.
    Earthquakes. There are at least five faults in the Delta region but 
there have been no major earthquakes in the region since the great 1906 
San Francisco Earthquake. This means that pressure is building up on 
the faults, steadily increasing the probability that one will move as 
time goes by (Mount and Twiss 2005). The major impact likely from 
earthquakes is collapse of levees in the Delta and Suisun Marsh because 
of their poor foundation soils and weak construction.
    Island subsidence. The islands of the Delta were originally 
marshlands on a thick base of peaty soils. Over 182,000 ha of islands 
were diked and drained for farming in the 19th century and soils were 
typically burned annually to release nutrients from the peat, causing 
the interiors of the islands to subside rapidly. Even after burning 
stopped subsidence continued through oxidation of plowed soils and dust 
carried off by the frequent winds. As a result, all islands with peat 
soils used for farming have subsided, with subsidence greatest (3-7 m 
below sea level) in west and central Delta (Figure 2). Subsidence 
continues as long as farming continues. The effect of subsidence is to 
create a series of depressions surrounded by water, which will pour in 
if given the chance to break through the levees.
    Sea level rise. Sea level is rising in the SFE and has been for at 
least thousands of years. Because of global warming, the rate of rise 
is accelerating. There is scientific debate about how rapidly and how 
much sea level will continue to rise, but a 30-50 cm rise in the next 
50 years is plausible. The higher mean sea levels result in much higher 
high tide levels, increasing the probability that levees in the Delta 
and Suisun Marsh will overtop and then collapse, especially if combined 
with flood flows coming down the rivers.
    Climate change. The climate of California is becoming significantly 
warmer, a trend that is likely to continue for some time (Dettinger 
2005). While average precipitation is not expected to change much, more 
will fall as rain and less as snow in the high mountains. Year to year 
variability in rainfall is also expected to increase, as will the 
frequency of extended droughts and big floods. Once result of this 
change is increased hydrostatic pressure on levees during storms and 
floods and increased likelihood of failure.
    Invasive species. The SFE has the reputation of being the most 
invaded estuary in the world and new invasions continue at a high rate 
of frequency (Cohen and Carlton 1998). Recent invaders (e.g.,overbite 
clam, Brazilian waterweed) have already had major impacts on ecosystem 
structure and function. New invaders or expanding populations of 
existing invaders are likely to take advantage of the new habitats 
created by large-scale levee failure (Marchetti and Light 2007), 
further exacerbating the effects of levee failure and increasing the 
difficulty of protecting native species.
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Ecological effects of large-scale change
    The likelihood is high that two or more of the above drivers of 
change will act together to create catastrophic levee failure and other 
changes within the next 50 years (Mount and Twiss 2005; Lund et al. 
2007), assuming the SFE continues to be managed as it is today. The 
probability of such an event is high enough so that it is presumably 
more a matter of ``when'' and ``how much'' rather than ``if.'' In 
recognition of this, the Delta Risk Management Strategy (DRMS) team of 
the California Department of Water Resources has modeled the effects of 
up to 50 simultaneous levee breaches on Delta islands (http://
www.drms.water.ca.gov). Other signs of high levels of interest include 
(1) the appointment by Governor Arnold Schwarzenegger in February 2007 
of the Delta Vision Committee with a Blue Ribbon Task Force to find 
ways to prevent or reduce the impacts of the impending disaster, (2) 
the recent passage of bond issues to fix levees and other 
infrastructure affecting urban areas,(3) the establishment of a Bay-
Delta Conservation Plan process and (4) numerous other actions and 
processes by agencies at all levels of government. The scenario of most 
concern is simultaneous and cascading failures of levees throughout the 
Delta because of the impact of such failures on southern California's 
water supply, on agriculture and other uses of Delta islands, and on 
urban areas in and around the Delta (Lund et al. 2007). Here, however, 
we discuss mainly the impacts on the ecosystems of the Delta and Suisun 
Marsh, especially with respect to fish.
    Delta. For the central and western Delta, the basic ``disaster'' 
scenario is that following multiple levee failures, water would rush 
in, filling as much as 2.5 billion cubic meters of space in the island 
basins. If the levee collapses occurred as the result of the 
combination of high outflows and high tides, the islands would likely 
fill mostly with fresh water. If the levee collapses occurred as the 
result of an earthquake during a low-flow period, much of the water 
filling the islands would be drawn up from Suisun Bay and even San 
Francisco Bay creating lagoons with varying degrees of salinity
    The open-water habitat thus created would be up to 10 m deep and 
subject to strong tidal currents, as well as mixing from frequent 
winds. The hydrodynamic and salinity regimes of each flooded island 
would depend on the number and location of levee breaches, closeness of 
the area to Suisun Bay (source of salt water) and to inflowing rivers, 
and relationship to infrastructure such as the ship canal that goes 
through the system. As levees continued to erode, many of the flooded 
islands would presumably come to resemble Frank's Tract, a large island 
in the central Delta that flooded in the 1930s and was left that way. 
It is currently freshwater lagoon with complex hydrodynamics that is 
dominated in summer by dense growths of Brazilian waterweed, Egeria 
densa.
    Presumably, the flood water would initially be highly turbid from 
the disturbance of peat and sediment on the islands (DWR 2007) but once 
the suspended material had settled there would be massive blooms of 
algae because of the release of nutrients from the soils and the 
increased water transparency. Depending on the species making up the 
algal blooms (diatoms vs green algae vs cyanobacteria), a bloom of 
zooplankton should quickly follow. Within a year, island lagoons with 
brackish water lagoons would be heavily colonized by the overbite clam, 
an alien species which currently dominates the benthos of Suisun Bay. 
Presumably, the clams would then consume much of primary production and 
carbon of the new lagoons, as they do in Suisun Bay, reducing 
zooplankton populations. Island lagoons that contain fresh or low 
salinity water, would likely be colonized in 1-2 years with the species 
that dominate similar areas in the Delta: Brazilian waterweed and, in 
areas with sufficient flow, Asian clams. The combination would result 
in lagoons choked with weeds, with low zooplankton populations (like 
Frank's Tract today). It is possible that flooded islands located close 
to both sources of freshwater inflow (Sacramento River) and tidal 
sources of salt water could maintain a pool of water that would 
fluctuate enough in salinity on either an annual or interannual basis 
to keep either the overbite clam or Brazilian waterweed-Asian clam from 
becoming dominant. Biomass production in such lagoons would be 
concentrated in a pelagic system of phytoplankton, zooplankton, shrimp, 
and fish, such as was the case of Suisun Bay before the invasion of 
overbite clam in the 1980s. Obviously, these scenarios can all be 
strongly affected by local conditions of wind, tide, and river, as well 
as the diverse configurations of the lagoons (which will change 
constantly as levees deteriorate after the initial breeches).
    Suisun Marsh. Suisun Marsh, for the most part, is not subsided as 
much as the Delta, although much of it is 0-2.3 m below sea level 
(which is rising) and some (ca. 16%) is more than 2.3 m below sea level 
(C. Enright, DWR, pers. comm.). Before European settlement it was high 
marsh, mostly flooding on high tides and high river flows. A scenario 
of wide-scale levee failure in the Delta is likely to include Van 
Sickle Island, located at the entrance to Montezuma Slough, the main 
artery of the Marsh. Van Sickle Island is already subject to frequent 
levee failures, although failures are quickly repaired. The rapid 
repair response (by public agencies) occurs in good part because if the 
island floods, the entire freshwater distribution system of the central 
Marsh (Roaring River Slough) ceases to work efficiently and the 
southern third of the Marsh (between Montezuma Slough and Suisun Bay) 
becomes tidal and brackish. Future failure will likely make much of the 
central Marsh tidally brackish. Less dramatically, increasingly high 
tides (from sea level rise) and increasingly large flood events (from 
climate change) are likely to cause levee over-topping and failures 
within the Marsh at increasing rates. Thus the ultimate fate of much of 
Suisun Marsh is to be inundated with tidal waters and to become a tidal 
brackish-water marsh, with seasonally higher salinities in many areas 
than were historically present. Much of it is likely to be permanently 
inundated. How the future marsh will actually look will depend on the 
interactions of a number of factors: (1) the rapidity and extent of sea 
level rise, (2) the depth of tidal and other flooding, (3) the 
residence time of the water in different areas i.e. the relationship 
between the flooded areas and the deeper channels/sloughs that drain 
them, (4) response of the natural vegetation to the inundation and 
salinity gradients, and (5) the influence of existing artificial dikes 
and channels, including railroad and road beds. This future Marsh, 
however, will certainly have a mosaic of habitats including, most 
importantly, extensive tidal brackish water marsh areas. These areas 
will be drained by channels that should gradually recover their 
historic dendritic nature and be kept open by strong tidal action.
Effects on fishes of large-scale change
    In the broadest sense, the creation of more aquatic habitat in the 
Delta and Suisun Marsh will be good for fish, resulting in a net 
increase in numbers and biomass, once the initial flooding period is 
past. The important question is what will happen to the species that 
people care most about (Table 1). These are native species that are 
listed as threatened or endangered or are in severe decline or fishes 
that support fisheries. The effects suggested in the following accounts 
are highly speculative, but based on extensive knowledge of the fishes, 
which are well studied (Moyle 2002, see also recent review papers by 
various authors in the on-line journal San Francisco Estuary and 
Watershed Science).
    Delta smelt. The single most important species from the viewpoint 
of affecting management of water in the Delta is the delta smelt, which 
is listed as threatened by both state and federal governments and is on 
the verge of extinction (Bennett 2005). It has a one-year life cycle, 
is a pelagic planktivore, and is endemic to the SFE, spawning in the 
Delta and rearing in Suisun Bay and Marsh (Moyle 2002, Bennett 2005). 
It is highly likely that most delta smelt will be sucked into the 
rapidly filling islands under multiple levee breach scenarios, whether 
they were upstream spawning in the upper Delta, downstream rearing in 
Suisun Bay, or moving between the habitats. A few smelt might be able 
to avoid the displacement if they were located in the distant 
peripheral habitats such as the mouth of the Napa River, Montezuma 
Slough, or Cache Slough in the north Delta. The DRMS study (DWR 2007) 
predicts that many, if not most, fish sucked into the flooding islands 
will die of stress, especially that created by particulate matter in 
the water abrading gills and creating high turbidity. The delta smelt, 
as a small (< 9 cm TL) delicate, mid-water, visual feeder, would seem 
especially vulnerable to these conditions. Unfortunately, data is 
lacking to support the high turbidity mortality hypothesis. Previous 
levee breaches on single islands have not been accompanied by reports 
of fish kills, but no one was looking in the haste to repair the levees 
and pump out the islands. It seems unlikely, however, that a complete 
fish kill would result from filling process, given the volumes of water 
involved and the nature of the matter (organic matter, mainly peat 
particles) most likely to be suspended. The filling would be most 
disastrous for Delta smelt if they were spawning because it would suck 
them away from suitable spawning areas and would likely create 
hydrodynamic conditions (diminished tidal range in channels) that would 
make return difficult. Likewise, surviving larval smelt would likely 
find unfavorable conditions for feeding in the newly filled islands and 
could starve before large populations of microzooplankton (especially 
rotifers) developed.
    Assuming massive blooms of toxic algae (e.g., Microcystis) do not 
occur, a month or so after island filling and hydrodynamic 
stabilization, conditions for plankton feeding fish such as smelt 
should start becoming favorable with the development of blooms of one 
or more species of small food organisms. Delta smelt that survived up 
to this period in the islands should then find conditions extremely 
favorable for growth and survival, especially in islands that 
maintained salinities of < 2 mg/l and temperatures of <20+C. Thus 
impact of a large-scale levee breach event on delta smelt depends in 
good part on the timing of the event. Presumably, a higher proportion 
of the population would be able to survive an event in July-November, 
than in December-June.
    In the long run, however, permanently flooded islands in the right 
place could increase the amount of favorable habitat for delta smelt. 
If a flooded island had conditions (mainly fluctuating salinity) that 
excluded dominant invasive benthic species, it would likely become 
highly productive pelagic habitat, habitat which is apparently in short 
supply for smelt at times today (Bennett 2005, Hobbs et al. 2006, 
2007). Delta smelt would presumably also benefit from a flooded Suisun 
Marsh as rearing habitat, if flooding increased productivity of 
intersecting channels, especially Montezuma and Suisun sloughs, and 
salinity fluctuations reduced the impacts of invasive species.
    One indirect positive effect for smelt of large-scale island 
flooding would be that the large pumps of the State Water Project and 
the federal Central Valley Project in the South Delta would be shut 
down for long periods of time because of salty water at their intakes. 
Because in some years pumping from the two plants can negatively affect 
delta smelt populations through entrainment and other effects (Bennett 
2005), shutting down the pumps will remove one potential major source 
of mortality, perhaps compensating for some of the flooding mortality.
    Longfin smelt. Longfin smelt have a 2-3 year life cycle, much of 
which is spent in San Francisco Bay and/or the Gulf of the Farallons, 
outside the Golden Gate (Moyle 2002, J. Rosenfield, unpublished 
analysis). They spawn in the western Delta in winter and often spend 
the first year of their life in Suisun Bay and Marsh. Being anadromous 
and iteroparous with multiple age classes, they are less vulnerable to 
extirpation by a large-scale event than are delta smelt. Like delta 
smelt and other planktivores, however, longfin smelt have suffered a 
large decline in their population in recent years. Thus large scale 
levee collapse in the Delta could initially harm longfin smelt, as 
indicated above for delta smelt, although a least a portion of the 
longfin smelt population would have reduced vulnerability because of 
distance from the flooded islands. For over half the year (May-
November), most of adult smelt would be beyond the likely reach of a 
flooding event.
    Permanently flooded islands in the western Delta could ultimately 
become important rearing habitat for larval and juvenile longfin smelt, 
depending on whether or not large zooplankton populations developed. 
Increased productivity of sloughs/channels in Suisun Marsh would 
presumably also benefit these smelt.
    Striped bass. With high fecundity, interoparity, large size, and a 
life span of 40+ years, non-native striped bass have a high capacity to 
survive environmental disasters. Nevertheless, they have suffered a 
long-term decline in the SFE, although they still support a valuable 
fishery (Moyle 2002). In the SFE, striped bass migrate 125-200 km 
upstream to spawn in the Sacramento River in late April-early June. The 
embryos drift downstream and hatch about the time they reach Suisun 
Bay, where the larvae rear at low salinities. Juveniles rear throughout 
the estuary but seem to be most abundant in Suisun Marsh and Bay, where 
they feed on zooplankton. By the time they are 10 cm TL, they have 
largely switched to feeding on small fish. Adult striped bass are 
largely piscivorous and a major prey in the SFE is small striped bass. 
Adults will spend their entire life in the SFE, especially in San 
Francisco Bay, but when ocean conditions are right, some will go out 
into the ocean as well (Moyle 2002).
    Overall, striped bass seem relatively immune to long-term effects 
of large-scale levee breaching. If the breaching occurred in early 
summer, then large numbers of larvae and juveniles could die, but in 
following years they could benefit from increased pelagic habitat, 
especially if portions of it were highly productive of zooplankton and 
small fish. Larger juveniles and adults are strong swimmers and could 
presumably quickly leave a submerged island after the initial event, 
assuming they survived the flooding event itself.
    Sacramento splittail. Splittail are largely confined today to the 
SFE, where they rear in Suisun Marsh and other places with fresh to 
brackish water sloughs (Moyle et al. 2004). A separate population lives 
in the Petaluma River estuary, tributary to San Pablo Bay. Adults, 
which live up to 9 years, migrate up river to spawn (mostly) on 
floodplains in or just above the Delta (Moyle et al. 2004). Timing of 
spawning depends on timing of natural flooding, sometime between 
January and May. Juvenile splittail rear on the floodplain for a month 
or so and then migrate rapidly downstream to rearing areas, where they 
feed on benthos.
    During a major island flooding event, many splittail are likely to 
be drawn in, although it is also likely that many others would remain 
in place because of living in small sloughs distant from the event and 
also being strong swimmers. If the levee breaching occurs in 
conjunction with natural high flows in January-May, large number of 
migrating adult or juvenile splittail could be captured. Although 
sudden entrainment on the flooded islands could result in high 
mortality, the high tolerance of splittail for poor quality (low 
dissolved oxygen, high turbidity, variable salinities, etc.) suggest 
adults and large juveniles are likely to survive the experience. The 
flooded islands are not likely to be great habitat for splittail until 
significant benthic fauna develops, especially amphipods and mysid 
shrimp. However, permanently flooded islands that remain brackish 
enough to exclude Brazilian waterweed should ultimately become suitable 
habitat for splittail, especially shallower areas.
    Chinook salmon. Four runs of Chinook salmon pass through the SFE on 
their way upstream to spawn in the Sacramento River: fall run, late-
fall run, winter run, and spring run (Moyle 2002). All runs are 
depleted from historic numbers and the winter and spring runs are 
listed as endangered and threatened species, respectively. The fall run 
is supported in good part by hatchery production and occurs in 
tributaries to the lower San Joaquin River, as well as the Sacramento 
River. Fry and smolts of the salmon are found seasonally in the 
estuary, on their way downstream to the ocean. When the Delta was a 
giant tidal marsh, it was likely a major rearing area for fry before 
they moved out to sea as smolts. At the present time, rearing habitat 
for fry in the SFE is minimal and fry survival is low; higher returns 
of adults from hatchery fry generally occurs when the fry are planted 
in the SFE below the Delta (Brandes and McClain 2001, Williams 2006). 
Highest survival of fry and smolts in the SFE occurs in years of high 
outflow in both the Sacramento and San Joaquin rivers, suggesting that 
it pays the fish to move through the Delta rapidly. Survival of fry and 
smolts is also highest when the fish are largely confined to the main 
river channels and do not get moved into the Central Delta (Brandes and 
McClain 2001). Although juvenile salmon can be captured in SFE at 
almost any time of year, most movement is in December through April.
    As with other fish, the immediate effect of a major levee failure 
in the Delta depends on the time of year in which it occurs, with the 
greatest impact likely to be in February ``April, assuming migrating 
juvenile salmon, especially fry, sucked into the flooded islands would 
mostly die. The effect would be greater for San Joaquin River salmon 
than for Sacramento River fish because there would more likely be a 
continuous river channel for the fish to follow on the Sacramento side, 
due to location and greater flows. Once the island lagoons had become 
established, they would generally be unfavorable habitat for juvenile 
salmonids because they would contain little of the shallow water edge 
habitat preferred by juvenile salmon. Instead, they would be open water 
or weed-choked and contain fairly high densities of predators such as 
striped bass or largemouth bass. The effect would be determined in 
large part by how easily it would be for juvenile salmon to be carried 
into the lagoons from the rivers and how easy it would be escape from 
them. High outflows down both rivers should minimize the effects of the 
lagoons, while low outflows should increase the likelihood that 
juvenile salmon would wind up in them, especially on the San Joaquin 
side of the Delta. It is possible that Suisun Marsh will be heavily 
used by juvenile salmon once it floods, because much of it will be 
productive shallow water habitat, if saline.
    Effects on adult salmon would presumably be small because of their 
focus on swimming upstream through the Delta, although there would no 
doubt be some mortality if the breaches occurred during a period of 
significant migration.
    Largemouth bass. Largemouth bass are introduced piscivores that 
have greatly expanded their populations in the Delta following the 
invasion of Brazilian waterweed. The waterweed provides habitat for the 
bass by creating cover for juvenile and adult bass, reducing flow rates 
through channels, and causing sediment to settle from the water, 
resulting in clearer water. It is only the most visible species of a 
complex of alien ``pond'' species that thrive in waterweed dominated 
freshwater sloughs, including redear sunfish, bluegill, white catfish, 
black bullhead, and common carp. By and large these are the same 
species that are dominant in upstream reservoirs (Moyle 2002).
    Largemouth bass and associated species would expand their 
populations further in flooded freshwater islands, once the Brazilian 
waterweed became established. While these species can survive in 
brackish water habitat, most of them avoid it and will probably be 
present in only low numbers in brackish lagoons without dense beds of 
waterweed.
    Marine fish. San Francisco Bay supports a diverse fauna of marine 
fishes that includes most of the common species found along the central 
California coast. The abundances of different species fluctuate both in 
response to ocean conditions and to freshwater flows into the Bay. Not 
surprisingly, some of the most abundant species are species that can 
tolerate moderately low salinities (euryhaline), such as Pacific 
herring, northern anchovy, staghorn sculpin, yellowfin goby, and starry 
flounder. Juvenile of these forms frequently appear in the upper 
estuary, especially in Suisun Bay and Marsh, usually during periods of 
low river flows. Thus, the expanded brackish water habitat in the upper 
estuary is likely to increase habitat space for euryhaline marine 
species, especially during dry years.
    Overall fish responses. It should be evident from the above 
descriptions that responses of fish species to large-scale island 
flooding will be highly variable, a reflection of the complex habitat 
and the complex fish fauna. Unanticipated responses are also likely to 
the changed conditions. For example, inland silverside are now abundant 
in the shallow flooded areas of Sherman Island in the western Delta (W. 
A. Bennett, pers. comm.) and it is possible that it could colonize some 
of the newly flooded areas, depressing other fishes through predation 
and competition (Bennett and Moyle 1996). In addition, new alien 
invaders could cause major shifts in abundance of established species. 
For example, two piscivores are poised to invade the SFE: northern pike 
and white bass (Moyle 2002, Lund et al. 2007). However, the general 
patterns of fish response to sudden large scale flooding would roughly 
be the following:
    1. Fishes within the suction zone of Delta levee breaks (which 
could be a large area, given the capacity of the islands to accept 
large volumes of water) would be sucked into the island with some 
mortality from sediment in the water column, sudden changes in water 
quality (salinity, temperature, etc.), and other factors associated 
with the sudden movement of large volumes of water. The species 
affected would depend on time of year of flooding and the location of 
the flooded islands.
    2. Once the waters had settled down, there would be an initial 
period of low plankton densities, followed by blooms first of 
phytoplankton, then zooplankton, perhaps within a period of 1-3 months.
    3. In the longer term (1-5 years), the new lagoons would assume the 
character of areas in the SFE with similar depths, flows, and 
salinities. Thus, those in the more eastern and central parts of the 
Delta would likely become dominated by Brazilian waterweed and a 
variable assemblage of alien freshwater fishes. Lagoons in the western 
Delta that maintained low (2-10 mg/l) salinities most of the time would 
have conditions similar to those in Suisun Bay. Planktonic productivity 
is greatly reduced in Suisun Bay by the filter-feeding overbite clam, 
but it still serves as an important rearing area for pelagic fishes, at 
least in some areas (Hobbs et al. 2006). These areas would provide 
expanded habitat for species such as striped bass, longfin smelt, and 
delta smelt, as well as additional feeding areas for sturgeon, 
splittail, and other benthic feeders that can consume clams and their 
associated faunas. A few lagoons that were created in intermediate 
locations, where salinities and other conditions would become highly 
variable among years and seasons because of the combination of river 
inflow and tidal exchange, could be highly productive systems that 
would support dense populations of plankton and planktivores, including 
delta smelt and striped bass. Such areas could become a source for 
enhanced populations of euryhaline fishes.
    4. Over a longer term (5+ years), conditions in the lagoons would 
change further as levees continued wash away, parts of the lagoons 
filled in with sediment, and islands not flooded previously gave way to 
new hydraulic forces created by the lagoons (waves, changed current 
patterns, etc.), assuming most levees were not repaired. Essentially, 
much of the Central and South Delta could become one large embayment, 
similar to Suisun Bay, but fresher on its upper end. By size alone, 
this area would increase the amount of habitat for fishes. Presumably, 
the increased habitat would increase populations of some of the 
desirable open-water species although much of it would be dominated by 
waterweed and alien pond fishes or by relatively low productivity 
habitat dominated by overbite clam. In this period, Suisun Marsh would 
also have become at least partially flooded, with the potential for 
large increases in tidal brackish water habitat, favorable (depending 
on salinity regime) to desirable species such as longfin smelt, delta 
smelt, spittail, striped bass, and possibly juvenile Chinook salmon.
    Thus the overall effect of massive flooding would likely to be to 
increase the populations of at least some desirable species while 
greatly increasing the abundances of less desirable aliens, such as 
largemouth bass and common carp. While there are fisheries for such 
species, they are deemed less desirable because the fish are non-native 
and have large populations outside the SFE, unlike the species deemed 
desirable.
Improving the estuary for fish
    The above speculative discussion is based on the scenario that 
California will continue on its present track of managing the Delta 
environment through a combination of applying band-aid levee repairs, 
poorly regulating invasive species, removing large quantities of fresh 
water, managing Suisun Marsh as freshwater marsh, and monitoring 
desirable species as they decline. In short, the status quo consists of 
continuing business as usual until large-scale levee collapse forces 
large-scale action, much of it likely to be poorly planned and futile 
in the long run (Lund et al. 2007). As indicated above, the massive 
collapse of levees in the Delta and Suisun Marsh would not be a long-
term disaster for fish and fisheries and could even be a slight 
benefit. The collapse could be a disaster for the California economy, 
however, mainly because it would disrupt the state's water supply 
system and other infrastructure (Lund et al. 2007). Thus a movement to 
actually ``fix'' the Delta and Suisun Marsh before the inevitable 
disaster is highly desirable and several processes are underway at the 
state level to determine options. Lund et al. (2007) present nine 
scenarios for a future Delta and Suisun Marsh, five of which they 
regard as feasible. The four of the five protect water supply while 
allowing some portion of the Delta to remain as habitat for native fish 
and other desirable organisms. The five options provide suggestions for 
significantly improving the habitat in the Delta and Suisun Marsh for 
desirable species, provided action is taken before large-scale levee 
collapse occurs. The options of Lund et al. (2007) are only a tiny 
fraction of the hundreds of permutations and combinations of actions 
that could be taken; they are designed to represent examples of the 
reasonable alternatives possible to provide a visualization of 
management options.
    Here I will not go through the alternatives but instead discuss 
actions that will allow fish-friendly habitat to develop while not 
necessarily reducing most of the services to humans that the SFE 
provides. These actions could be part of any scheme that seeks to 
modify the Delta to improve or protect its water supply functions as 
well its ecological functions. The general approach towards creating an 
environment in the SFE that is more friendly to desirable fish species 
(and other biota) presented here is to increase habitat heterogeneity. 
The basic concept is as follows: as much area as possible should 
support conditions resembling those of the historic SFE, especially in 
the Delta and Suisun Marsh, because these are the conditions to which 
the native fishes are adapted. However, the improved habitats are 
likely to be in different locations than they were historically because 
of changed elevations due to subsidence and sea level rise. Thus 
habitats once present in the deeply subsided center Delta will have to 
be located in the less-subsided peripheries.
    A key part of a habitat creation program will be to have as much 
area as possible that fluctuates in salinity enough so freshwater and 
brackish water benthic invaders are discouraged while desirable (mainly 
native) pelagic species are favored. The exact extent, frequency, and 
range of salinity fluctuation needs to be determined by further studies 
of key organisms (both desirable and undesirable species), but present 
distributional limits of the organisms suggest that fluctuations 
required are likely to be in the range of 0 to 12 mg/l over 1-2 years, 
with high and low values sustained for 4-5 months at a time.
    The following are some general, large-scale actions that could 
improve habitat heterogeneity and create areas with desirable 
conditions of water quality, including fluctuating salinity. This list 
is neither complete nor inclusive (Lund et al. 2007).
    1. Suisun Marsh. This region of the SFE is headed inexorably to 
becoming brackish tidal marsh, unless huge amounts of money are spent 
on raising levees; such action may not even be possible as a permanent 
solution, given the compressibility of the marsh soils underlying the 
levees. Most of Suisun Marsh is currently intensely managed in diked 
sections, principally as freshwater habitat for waterfowl. Even under 
these conditions the intervening sloughs, especially in the few undiked 
areas, provide good, often brackish, habitat for desirable fish (Matern 
et al. 2002, R. E. Schroeter, unpublished data). Improving the Marsh 
for fish will require systematically breaching or removing levees, 
initially in the areas most vulnerable to flooding and preferably after 
reconstruction of the original marsh drainage system and removal of 
infrastructure. Models for the creation of the new tidal (and subtidal) 
marsh areas can be found in the currently undiked section of marsh 
(Rush Ranch) that is part of the San Francisco Bay National Estuarine 
Research Reserve (http://rtc.sfsu.edu/nerr/sf_bay_reserve) and by an 
on-going experimental levee breach at Blacklock (http://
www.iep.water.ca.gov/suisun/restoration). Even after radical 
restructuring of the Marsh, it may be desirable to continue to operate 
the large salinity control gates at the upstream end of the Montezuma 
Slough. This slough and Suisun Slough are the deep (2-6 m) main 
arteries of the Marsh and are the principal habitats of pelagic fishes 
such as delta smelt and longfin smelt, so it may be possible to operate 
the gates to increase the ranges of salinity that favor these species 
and discourage undesirable alien species.
    2. Cache Slough. Cache Slough and adjoining areas make up 
essentially the northwest corner of the Delta. The region is of high 
restoration potential as tidal freshwater marsh and slough because (1) 
island subsidence is low compare to other parts of the Delta, (2) it 
maintains much of its original drainage pattern, even though most of 
the channels are leveed and artificial cross channels exist, (3) it is 
a major spawning and rearing region for delta smelt, (4) it has strong 
tidal currents that move water from the Sacramento River in and out of 
its channels, (5) it drains the lower end of the Yolo Bypass (next 
section), and (6) it contains the large recently (1998) flooded Liberty 
Island that is being used as an example of a ``passive'' restoration 
project (http://www.delta.dfg.ca.gov/jfmp/libertyisland.asp). The 
region can be relatively easily converted into an expanded version of 
the favorable tidal habitat for desirable fishes (as well as waterfowl 
and other biota) through levee breaches, elimination of cross channels, 
and other projects that improve circulation. It is also a region where 
it should be possible to create favorable habitats for delta smelt, 
mainly spawning beaches and productive rearing areas for larvae, that 
also discourage their egg and larval predators, especially inland 
silverside.
    3. Yolo Bypass. To keep Sacramento from flooding, an artificial 
floodplain, the Yolo Bypass, was constructed in the 1930s. Essentially, 
when the Sacramento River reaches a certain stage of flow, it spills 
over two low barriers (Fremont Weir, Sacramento Weir) and into the 
24,000 ha, 64 km long bypass (Sommer at al.2001a, b). The flood waters 
flow down the bypass and re-enter the Sacramento River via Cache 
Slough. The principal permanent water in the Yolo Bypass is the Toe 
Drain, which runs along the levee on eastern edge. About half the 
bypass is in the Delta; the Toe Drain in this region is essentially a 
leveed tidal slough, a branch of Cache Slough. The land in the bypass 
is a mixture of farmland and wildlife areas but when it floods it is 
high quality rearing habitat for Chinook salmon fry and splittail, as 
well as other fishes. The flood waters may also mobilize nutrients from 
the bypass, helping to support Delta food webs. From an ecological 
perspective, a problem with the Yolo Bypass is that is does not flood, 
even partially, every year. Construction of a gate on the Freemont Weir 
would permit limited controlled flooding from the Toe Drain every year, 
improving growth and survival of salmon and splittail and improving 
flows through Cache Slough to benefit delta smelt.
    4. San Joaquin floodplain. The channel of the San Joaquin River 
above and through the Delta is highly channelized, and provides little 
favorable habitat for desirable fishes: the water tends to be deep and 
polluted in places (e.g., Stockton Ship Channel) and dominated by 
invasive aquatic plants and invertebrates in others. One way to improve 
the habitat for fish is to create one or more bypasses like the Yolo 
Bypass. This would involve removing or breaching levees from islands 
(e.g., Stewart Tract) that border the river to promote annual flooding. 
Such floodplain habitat is likely to be especially beneficial as 
rearing habitat for juvenile salmon coming from the San Joaquin River 
basin. An example of the benefits of restored floodplain in the Delta 
is provided by the small restored floodplain along the lower Cosumnes 
River, on the eastern fringe of the Delta, which has proved to be 
beneficial to several native fishes and provides experience in methods 
of modifying agricultural lands into fish-friendly floodplains (Moyle 
et al. 2007).
    5. Managed Delta islands. The previous four actions have focused on 
areas at the edges of the upper estuary because of assumption that the 
subsided islands of the Delta will fill with water and together will 
become a large open-water system over which little control can be 
exerted, aside from regulating freshwater inflow under some conditions 
(Lund et al. 2007). However, with some foresight, it may be possible to 
retain the levee integrity of some islands, by making them into islands 
of regulated aquatic habitat. Essentially this concept follows the lead 
of Delta Wetlands, a private group that has sought to use Delta islands 
for water storage and wildlife habitat (http://www.deltawetlands.com/). 
The levees of habitat islands would be reinforced on the inside by 
having gradual slopes towards the interior, which would be planted with 
native vegetation to stabilize the soils. Gates on the upper and lower 
ends of the islands would be used to regulate water quality on the 
islands, including salinity. This concept would be especially useful 
for islands (e.g., Twitchell Island) in the western Delta located close 
the Sacramento River so that salinity could be manipulated by trapping 
either river or tidal water in the island as needed (as is currently 
done with tidal gates in Suisun Marsh). The islands of water could then 
be managed as nursery areas for desirable fishes. Ideally, the gates 
would also allow an island to be dried out completely on occasion to 
control undesirable alien species.
Invasive species
    A major uncontrolled (for now) factor that can negatively affect 
efforts to create a more desirable, diverse (heterogeneous) ecosystem 
in the Delta is the invasion of new alien species that become agents of 
ecosystem change, such as the overbite clam or Brazilian waterweed have 
in the past. There is an identified queue of harmful invaders that are 
likely to arrive in the near future (Lund et al. 2007). Thus part of 
any program of ecosystem creation must include vigorous efforts to 
exclude new invaders from all sources, including the shipping, 
horticultural, pet, and aquaculture industries. There should also be in 
place a mechanism that allows quick action to eradicate a new invader 
before it spreads from the site of an invasion.
Conclusions
    The San Francisco Estuary, especially the Delta and Suisun Marsh, 
is predicted to undergo drastic change in the next 50 years, with the 
probability of a major ``disaster'' increasing through time, just on 
the basis of earthquakes and land subsidence alone (Mount and Twiss 
2005). When sea level rise and increased frequency of flooding due to 
climate change are factored in, major change in this period seems 
inevitable. The disaster scenario, however, is mainly for human goods 
and services, especially water supply to urban and agricultural areas. 
From a fish perspective, the ecological changes resulting from flooding 
of numerous Delta islands and Suisun Marsh are likely to create 
conditions that should be at least as favorable for desirable species 
as present conditions, after a period of possible high mortality 
created by the initial flooding events. Potentially more favorable 
habitat will result from a disaster scenario simply because there will 
be increased area of open water and tidal marsh, some of it with enough 
fluctuation in salinity to be especially favorable to delta smelt, 
striped bass, and other pelagic species now in decline. There is much 
uncertainty, however, about how much favorable habitat will be created 
under disaster scenarios because of the tendency of alien invaders to 
quickly dominate so many habitats. Thus, making efforts to control the 
way the habitat changes, as suggested above and in Lund et al. (2007), 
could have major benefits while being highly compatible with changing 
the ways in which services the Delta provides are delivered, especially 
water supply. The principal basis for action is to increase habitat 
heterogeneity over present and likely future conditions, as well as to 
increase the total amount of aquatic habitat. No matter what actions 
are taken there will be a high degree of uncertainty in the ecological 
benefits but the present situation in the estuary represents an 
unprecedented opportunity to reverse the impacts of over 150 years of 
negative ecological change.
Acknowledgements
    The ideas expressed in the essay come from discussions with my co-
authors on the UCD-PPIC report: Jay Lund, Ellen Hanak, William Fleenor, 
Richard Howitt, and Jeff Mount, as well as with the many friends and 
colleagues who work in the San Francisco Estuary, but especially 
William Bennett, John Burau, Christopher Enright, and Robert Schroeter. 
This essay has not been peer-reviewed. Any mistakes and misconceptions 
are entirely my own.
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                                 ______
                                 

              Supplementary testimony of Peter B. Moyle, 
                    University of California, Davis

    1. In their testimony before the Subcommittee, Mr Steve Thompson 
(US Fish and Wildlife Service) and Mr. L. Ryan Broddrick (California 
Department of Fish and Game) indicated that their agencies had done 
everything in their power to protect the delta smelt, through adaptive 
management and other means. I respectfully disagree. As I indicated in 
my verbal testimony, most steps taken to protect the smelt were made 
only to minimize damage to the population rather than to actually 
improve conditions (as would seem to be necessary for recovery). Even 
actions to limit damage seemed to currently be in abeyance given the 
extremely low numbers of smelt taken in sampling programs and the 
numbers of smelt taken by the state and federal export pumps. As the 
result of increasing export of water from the SWP pumps at Tracy, in 
the two days before the hearing 390 and 258 smelt (data presented by 
Mr. Johns at the hearing), respectively, were entrained (killed) at the 
pumps. On the day of the hearing, 311 delta smelt were entrained. Since 
May 10 of this year nearly 2500 delta smelt have been taken at the 
pumps. Numbers are certainly higher because only smelt greater than 20 
mm long are counted. Actions that could have been taken to protect the 
smelt this year, but were largely not performed were recommended in two 
letters by myself and Dr. Christina Swanson that were sent to the five 
agencies directly involved with smelt management on March 14 and June 
1, 2007. These recommendations were not original with us but stemmed 
from recommendations by the agencies' own biologists.
    2. Mr. Thompson and Mr. Broderick indicated that changing the 
status of the delta smelt from Threatened to Endangered, as requested 
in an emergency petition filed over a year ago (March 8, 2006), would 
not have affected management of the species. Again, I respectfully 
disagree. Endangered listing would be dramatic acknowledgement of the 
critical state of the smelt population, with the potential to mobilize 
additional resources for protection of the smelt, as well as public 
support for actions taken. If the smelt was listed as endangered under 
the federal Endangered Species Act, it is highly likely that the 
continued mortality of smelt at the SWP pumps not would be allowed to 
continue.
    3. Mr. B. J. Miller presented testimony in which he stated that 
there is no linear relationship between the amount of exports and delta 
smelt numbers. He further stated that because of the lack of a 
relationship, agency and other biologists never show graphs relating 
exports to smelt numbers even though they claim a relationship exists 
(i.e., are in denial about the lack of a relationship). There is 
evidence to the contrary. Attached to this submittal is a graph showing 
a negative relationship between exports and smelt numbers that was part 
of the emergency listing petition submitted in 2006. The relationship 
is weak but present. In any case, a direct relationship is not needed 
to show that the pumps in the south Delta can impact smelt populations. 
In a recently published, peer-reviewed paper (unlike Mr. Miller's 
analysis), Dr. William Bennett has provided some strong indications 
that the increase in early season pumping has impacted smelt because it 
kills the biggest, most fecund smelt (and probably their offspring), 
which contribute the most to future generations. This is the ``big 
mama'' hypothesis mentioned at the hearing. Exports from the Delta are 
clearly not the only cause of smelt decline but there is every reason 
to thing they are an important contributing factor, especially when 
populations are as low as they are today.
    4. It is not at all certain that the delta smelt will make it 
though another year. If it does survive, it will be again in record low 
numbers. This crisis emphasizes the need not only to take actions to 
improve conditions for delta smelt as much as possible but to start 
taking large-scale actions to make sure smelt habitat is present in the 
future, as suggested in the UCD-PPIC report and indicated in my 
previous written testimony.
 From: Emergency petition to list the delta smelt (Hypomesus 
        transpacificus) as an endangered species under the endangered 
        species act, submitted to the U.S. Fish and Wildlife Service by 
        the Center for Biological Diversity, The Bay Institute, and the 
        Natural Resources Defense Council, March 8, 2006
        [GRAPHIC] [TIFF OMITTED] 36477.015
        
    Figure 6. The relationship between winter (December-March) export 
amounts and subsequent abundance of delta smelt. a) sub-adult and adult 
delta smelt as measured by the FMWT Index (using data from 1967-2004); 
and b) juvenile delta smelt as measured by the TNS Index (using data 
from 1969-2004). For each graph, the regression, 95% confidence limits 
and the prediction limits are shown calculated for the entire datasets. 
The open symbols and the dark gray regression line highlight the years 
since the delta smelt was listed under the ESA (1994-2004). Data 
Sources: California Department of Fish and Game, California Department 
of Water Resources, Dayflow.
    Large scale ecological changes have occurred in the Delta during 
the past 30 years, such as the establishment of the invasive clam 
Corbula amurensis and its impacts on the planktonic food web, but they 
do not strongly affect the results of these types of correlation and 
regression analyses. For example, the significant relationship between 
winter exports and the subsequent population abundance of adult delta 
smelt was apparent in the 20 years prior to the clam's invasion (1967-
1985, Equation 5).
    Adult delta smelt (1967-1986):
        Log FMWT = 3.109--0.353(Dec-Mar exports, MAF) (Equation 5)
        n=18; p=0.013; r\2\=0.0329, SEE=0.308
    Linear regression using smaller subsets of more recent years (e.g., 
post-Corbula invasion, 1987-2004 or 2005; post-ESA listing, 1994-2004 
or 2005) were not statistically significant but both the slopes and 
intercepts of the relationships were very similar to those generated 
using the entire dataset (e.g., 1994-2004(5): open symbols and grey 
regression line in Figure 6). The significant relationship between 
winter exports and abundance was not ``driven'' by the low abundances 
measured during the past three or four years. For example, after 
excluding the three most recent years for the FMWT abundance indices 
(2002-2004) from the dataset, the regression was still significant 
(p=0.02) and the slope and intercept were similar to those generated 
with the entire dataset. Given that the significant relationship 
between winter exports and adult abundance was detectable by 2002 (and 
before), this indicates that the low abundances measured during the 
past three years, a period during which winter exports were at near 
record high levels, were predictable as early as three years ago.
    The abundance of juvenile delta smelt was also significantly 
affected by spring-summer exports (March-July). The linear regression 
for this relationship is:
        Log TNS = 1.429--0.369(Mar-July exports, MAF) (Equation 6)
        N=36; p=0.047; r\2\=0.111; SEE=0.462
    In 1993, the USFWS (1993) identified 21 major federal, state, local 
or private organization proposals for increased exports. Since that 
time, Delta water exports and corresponding impacts on delta smelt have 
increased and they are projected to continue to increase in the future. 
The recent 5-year review (USFWS 2004b) noted that the potential threat 
of increased demands on surface water resources in the Central Valley 
and Delta was growing, citing planned or proposed new water diversion 
projects such as the Freeport Regional Water Project, increases in 
pumping capacity at the SWP pumping plant as part of the South Delta 
Improvement Project, the California Aqueduct/Delta-Mendota Canal inter-
tie to allow increased pumping at the CVP pumping plant, Empire Tract 
on the San Joaquin River; and potential expanded water storage capacity 
projects at Los Vaqueros, north of the Delta off-stream storage, Shasta 
Reservoir, in-Delta storage, and south of the Delta surface and 
groundwater storage projects. The USFWS (2004b) concluded that the 
increased storage and diversion capacity would likely result in lower 
freshwater outflows to the estuary, higher water exports from the 
Delta, and greater entrainment of delta smelt.
                                 ______
                                 
    Mrs. Napolitano. Thank you, sir. We will start off with the 
questions and each Member has five minutes. Hopefully, we will 
be able to move forward.
    Mr. Thompson, one of the things that I have been noticing 
in reading a lot of the background information is that the fish 
was listed as threatened back in March '06 and then again in 
March '07 there was a request to upgrade it. That has not been 
done. Why?
    Mr. Thompson. Well, there is actually very little 
difference in the protection between the status of threatened 
or endangered. We have very limited resources in both staff. We 
spend a great deal of time in courts right now. We spend a 
great deal less time than we should on recovery and in 
initiatives.
    The actual status change will do absolutely nothing as far 
as the political or biological or legal consequences to the 
Delta smelt.
    Mrs. Napolitano. It does with this Committee, sir.
    Mr. Thompson. Yes.
    Mrs. Napolitano. I do not think that we want to use it as a 
copout to be able to have the true status of that endangered 
species be not listed as endangered. So we will talk to you 
about that later.
    Then I have a couple of other questions. I am trying to 
keep mine to a minimum because we will put it in writing. But 
the current biological opinion you are operating under allows 
you to take what? Am I right in understanding that in his May 
24th decision U.S. District Court Judge Wanger deemed that the 
2005 biological opinion was unlawful and inadequate? Am I 
further correct that he specifically cited that your approach 
to take limits fails to consider the most recent overall 
species abundance in jeopardy? Then third have you changed your 
operation to address this criticism in the biological opinion?
    Mr. Thompson. We are currently under consultation with the 
Bureau of Reclamation to address Judge Wanger's concerns. We 
were doing that ahead of the court case already also. We are in 
constant communication with DWR and the Bureau of Reclamation 
and California Fish and Game and NOAA Fisheries attempting to 
balance the water demands for smelt, salmon and all the other 
uses that are out there. So we are in constant dialogue and 
conversation.
    Mrs. Napolitano. Well, that is not very reassuring to me. I 
tell you why. Back when I first started in this Subcommittee 
there was a request for a survey paid for by several of the 
Southern California agencies on water that took almost 12 years 
to render to those parties, and only after constant haranguing 
by me to the Department did we finally get a draft. Then the 
draft was changed after the final came out. So I have very 
little, I am sorry, support for that kind of an attitude or an 
answer.
    I certainly hope that this will be a much faster, since 
that was just a report on the status of Southern California 
water, this; we are talking about a crisis. We need to ensure 
if you need the help, to ask this Committee or at least some of 
its Members to be able to advocate and try to get you support, 
whether it is increasing the budget or being able to take steps 
to help address the issue. California depends on it, sir.
    Mr. Thompson. Yes, ma'am.
    Mrs. Napolitano. Now one of the other questions that I 
have, and I only have a small amount of time and then we will 
pass it on. I read with interest and having worked at the State 
level and the Federal level, do the agencies talk to each other 
about working collaboration?
    Mr. Thompson. Yes, they do, ma'am. There are phone calls 
going back and forth between Ryan, Lester, the Bureau of 
Reclamation and myself. Then there is at the WOP, the Water 
Operations Team talk to each other all the time.
    Mr. Napolitano. That is what brought it to mind. I was 
reading the report.
    Mr. Thompson. Then we also get advice from the Delta 
technical folks that are scientists that give us advice.
    There is constant communication both daily and weekly.
    There are conflicting laws and statutes and obligations and 
contracts that force us to deal with the situation and balance 
it the best we can.
    Mrs. Napolitano. I can understand that. But unfortunately 
talking about it and taking action are two different things. 
Now if talking over the phone means you are getting things 
done, I could accept that. But if it means that all you are 
doing it and discussing it and not really sitting together and 
working out a solution that is going to be able to address the 
issue. That is my concern.
    Mr. Thompson. Yes, ma'am, we do. We not only talk, we also 
take actions on an either hourly, daily or weekly basis.
    Mrs. Napolitano. Do you have the ability to tell this 
Committee whether any of that indicates of what the outcome has 
been to be able to address this crisis?
    Mr. Thompson. Yes, we can. But it would take much longer 
than the time. I guess all of us could----
    Mrs. Napolitano. No, I would like to have that in writing, 
if you would. We will share it with the rest of the Members.
    Mr. Thompson. OK.
    Mrs. Napolitano. I will now stop and hand it over to Mr. 
Costa.
    Mr. Costa. Thank you very much, Madam Chairwoman.
    I spoke in my opening comments about the efforts in 2000 
with the CALFED agreement and it speaks to the heart of what 
the Chairwoman and her last question--and disappointment. I do 
not think I am giving my own perception, but I think there has 
been a disappointment throughout the environmental community, 
urban water users as well as agricultural water users, that by 
this time we have not made more progress, especially after the 
record of decision had been signed and the efforts to implement 
it.
    I would like to ask all of you, and there is not a lot of 
time so I would like a succinct statement in less than a 
minute, of why you think over the last five years we have not 
been able to implement the record of decision. I understand 
there is not different statutes, state and Federal statutes. I 
understand that there are differences on the science, but we 
have provided a whole lot of money.
    Who wants to start off first? Mr. Moyle? Less than a minute 
response.
    Dr. Moyle. That is a difficult question. There is so much 
going on. I think the knowledge base is there now to make 
decisions.
    Mr. Costa. People just do not want to make tough decisions?
    Dr. Moyle. I think that is a part of it, yes.
    Mr. Costa. OK.
    Dr. Moyle. It is difficult to make those tough decisions, 
especially when you are choosing between what seems to be water 
and fish. I personally think there are lots of ways to make 
these things work. But----
    Mr. Costa. Well, maybe we ought to change the paradigm, as 
I said in my opening statement.
    Mr. Johns, you want to comment?
    Mr. Johns. Yes. Actually, I would take some exceptions. I 
think CALFED did work. I think part of the CALFED was a seven 
year experiment to see if through Delta could actually be made 
to work effectively. I think what we are seeing now is that the 
Delta is not sustainable.
    Mr. Costa. Under the current uses?
    Mr. Johns. Right. Exactly. But the assumption in CALFED was 
that the Delta would stay about the way we see it now. I think 
what we are seeing, as you alluded in your testimony, that----
    Mr. Costa. Almost $8 billion in water for fish, and it has 
not worked.
    Mr. Johns. You have a Delta that probably does not meet the 
kind of tests that were assumed in the CALFED days.
    Mr. Costa. Mr. Broddrick, you want a try at this?
    Mr. Broddrick. The CALFED process was blessed with a lot of 
bond money following your initiation of 206 and CVPIA. There 
was an incredible amount of information developed. The science 
got galvanized, I believe, two years ago when folks took the 
individual parts and said we need to synthesize. Now the head 
focus of that was $2.5 million put into the pelagic organism 
decline.
    I think we accomplished a lot in CALFED. We did not meet 
some of the objectives with respect to water supply, obviously, 
levees. We did come to the conclusion that I think we had to 
come to post-record decision in August of 2000. Before we went 
to that record decision, we met with the Secretary of Interior 
in a transition of Governors between Pete Wilson and Davis. 
They have challenges put to the biologists. We said, very 
briefly, the biologists will figure out how to take care of the 
Delta smelt and the fishes of the Delta.
    Mr. Costa. So have you and your partner next to you with 
U.S. Fish and Wildlife Service figured out what the answer is?
    Mr. Broddrick. The response at the time was with all due 
respect, Mr. Secretary, the biologists told you that the simple 
issue with respect to Delta smelt and their entrainment is that 
you need not convey so much out of the South Delta. We are at 
that point now. I wish that was not the case.
    Mr. Costa. You would concur, Mr. Thompson?
    Mr. Thompson. Yes.
    Mr. Costa. You want to elaborate at all?
    Mr. Thompson. No. I think the only thing I might add was 
that, you know, we have converted a historical tidal wetland to 
what we have today.
    Mr. Costa. You have converted a what?
    Mr. Thompson. A tidal wetland.
    Mr. Costa. I see.
    Mr. Thompson. To what we have today. We are convinced that 
this will----
    Mr. Costa. Yes. I am glad you made that statement. Because 
people talk about historic nature of the Delta, and it is any 
given person's chosen time in history that they want to choose 
historic. But you are referencing the real history is a tidal 
wetland?
    Mr. Thompson. Yes. With wide fluctuations in both fresh 
water and salt water. That's what the native species adapted to 
and that----
    Mr. Costa. Before people ever came here?
    Mr. Thompson. Before we came here.
    Mr. Costa. There were Native Americans here, of course.
    Mr. Thompson. Yes, and before Europeans.
    Mr. Costa. Mr. Davis, you care to comment at all? Only 
because of time, I am sorry, Mr. Thompson.
    Mr. Davis. Yes, sir, I would. I think that CALFED has 
worked. I agree with the statements made by my colleagues here. 
I think there has been some achievements and there has been 
some disappointments.
    I think CVPIA has worked. There again has been some 
achievements and disappointments. It is a lot harder than 
people thought.
    Mr. Costa. That was the most historic reallocation of water 
in the history of the State?
    Mr. Davis. Exactly, between going from Delta 1485 to 1641 
and then CVPIA has been significant changes.
    Mr. Costa. My time has expired. But, Madam Chairwoman, I 
would like to submit a question that they can answer in a 
written statement and that is, where do you think we as Federal 
partners in this process need to go next to help the State in 
its efforts as we address not only the Delta but the other 
regional impacts that will exist? I will submit that as a 
written question.
    Mrs. Napolitano. Thank you, Congressman Costa. So without 
objection we will accept them, as I stated in the beginning.
    I am sorry, CALFED was supposed to be a help in getting 
solution to some of these problems. Apparently it is not.
    I would like to now turn to Mr. Miller.
    Mr. Miller of California. Thank you, Madam Chairman.
    Thank you all for your testimony.
    I find it rather interesting that the suggestion is here 
that we have gone through the CALFED process and that tells us 
that the through Delta operation no longer works and we have to 
jump to, I guess, around the Delta facility of peripheral canal 
or some similar operation, probably renamed and rebranded, but 
in any case. But I also find it interesting that at that same 
time that this was taking place both the state legislature and 
the courts decided that this operation was not attending to the 
law with respect to Endangered Species Act and the fact that 
the science that was being built upon was in fact flawed. We 
had political people walking through the agency on some of 
these decisions affecting the Delta changing the outcome of 
science.
    So I do not quite get how we arrived at what appears to be 
a very confident decision that we have exhausted the CALFED 
process. This is not a plea for the CALFED process. But if the 
end result is that somehow now there is really no option to 
entraining the Delta smelt or other species, therefore we have 
to go elsewhere when in fact the basic law that was there to 
provide for the protection of these species was ignored in that 
process? That is kind of what you are doing in court now is 
sorting that out, is that not right? Mr. Thompson?
    Mr. Thompson. I was hoping you were going to Ryan there.
    Well, we are going through that process right now with the 
biological assessment from the Bureau of Reclamation and the 
coverage for Department of Water Resources on the Delta smelt 
portion in the Federal court with Judge Wanger. We are also in 
the consultation process right now actively with everybody 
trying to figure out the complex answers to the biological 
assessment and what the biological opinion would be.
    Mr. Miller of California. Well, I find it kind of 
interesting because we have been put on notice now for several 
years with drastic decline in the Delta. Now we have decided 
that there are multiple reasons for that, and that may in fact 
turn out to be valid, but because there are so many reasons, 
there is sort of no reason. So at this time we have the State 
engaging in discretionary pumping of water. We acknowledge 
surplus water and then we pump that water out of the Delta, 
last year in the spring, this year again, in light of this 
information.
    That very same period of time we did not introduce invasive 
species. When you say all this has some discretionary invasive 
species thrown into the system. You know, we did not do that. 
But what we did do is continue to export water out of the Delta 
at a time when we may have been able to see if we reduced those 
water flows, if you did not have that surplus water leaving the 
Delta, maybe it would have changed.
    So I do not understand how we arrive at this conclusion all 
of a sudden that that is it folks, we have to abandon the 
Delta.
    Mr. Thompson. Well, I do not think we are saying that. I 
think we are saying that that is one of the important things is 
the Delta pumps and how they affect the Delta. That is 
certainly important. There are many, many other factors there.
    The invasives you talk about are increasing and some are 
taking hold and some are--you know, they go up and down in the 
Delta system.
    We have a contaminant situation that we did not have 
before, and we cannot quite figure out exactly what that is. 
But it seems to be an important situation on toxins.
    So I do not think it is any one, Congressman. I think it is 
a combination of things that are in the Delta.
    We are struggling as a group of agencies to figure out how 
to balance solutions the best we can.
    Mr. Miller of California. But, again, you were looking at 
all this while not meeting the basic law for the protection of 
the species and the condition of the Delta, the Endangered 
Species Act.
    Mr. Thompson. The Endangered Species Act only has so much 
influence and power that it can do in the Delta situation. We 
are applying the biological----
    Mr. Miller of California. But if you ignore it, how will 
you know what that is?
    Mr. Thompson. We are not ignoring it. We are doing the 
biological----
    Mr. Miller of California. Well what are you telling the 
judge?
    Mr. Thompson. We are telling the judge the same thing I am 
telling you. We are doing a biological assessment. We will do a 
biological opinion based on all the best scientific information 
we get together to determine whether the species is in jeopardy 
or not.
    Mr. Miller of California. That is the State's position 
also?
    Mr. Broddrick. Congressman Miller, maybe I gave you the 
wrong impression when I gave the answer with respect to August 
of 2000. I did not expect isolated conveyance or peripheral 
canal or whatever term of art is being as the immediate 
response. But the response was the entrainment on the Delta 
fishes as it relates to State Water Project is if you remember 
the CALFED objectives, there was also water supply objectives 
and there were Delta levee and water quality objectives.
    On the simple issue of the difficulty of reducing 
entrainment on fishes the Delta is just a bad geographical 
location. It is very difficult to get the fish out of the 
system. Tides can overwhelm inflow from the San Joaquin. So----
    Mr. Miller of California. How many are we entraining now?
    Mr. Broddrick. Pardon?
    Mr. Miller of California. How many are we entraining now 
since you turned the pumps back on?
    Mr. Broddrick. As of yesterday afternoon, I cannot give you 
the actual numbers, but this weekend there was entrainment of 
Delta smelt. That was after----
    Mr. Miller of California. How close of an actual number can 
you give me?
    Mr. Broddrick. Exact. Gerry's got them written down. I have 
them partially in my mind, but my mind is not that accurate.
    Mr. Johns. Some good news if there is good news here, is 
that the level of fish per acre-foot that we take has dropped. 
But on Saturday----
    Mr. Miller of California. You give up the per acre-foot 
with all the respect of the pumping?
    Mrs. Napolitano. Just get to the numbers, please.
    Mr. Johns. OK. But in terms of the numbers, on Saturday it 
was 390 and on Sunday it was 246 Delta smelt.
    Mr. Miller of California. So this illegal take sort of 
continues?
    Mr. Johns. I would not characterize illegal take. The court 
has said--both the state and the Federal courts--that these are 
within the take authorizations currently in place. They have 
not removed our take authorizations.
    Mr. Miller of California. They have not. But the take 
authorizations were based upon the science that is in question, 
correct?
    Mr. Johns. We are working with the agency to try to work 
out different standards, different take numbers to reflect the 
better science.
    Mrs. Napolitano. Are we going to wait until----
    Mr. Miller of California. Well, I would just say, Madam 
Chair, that it is incredible that we are basing a series of 
decisions based upon science that apparently was flawed, maybe 
even intentionally, at the beginning of this process. Again, 
the species that is in question here is continuing to be taken 
in this process. So we have ramped the pumps back up to their 
historic levels, is that correct?
    Mr. Johns. Not historic levels, but levels that we would 
expect at this time of this year.
    Mr. Miller of California. I meant I guess I should say your 
ordinary operating procedures, what you're allowed to take?
    Mr. Johns. For this year that is correct, yes.
    One point if I may, the temperature conditions in the Delta 
are such that we think that those fish in the South Delta are 
probably at risk in any event.
    Second, we think that the data would indicate that most of 
these fish if not all these fish are in the forebay already and 
probably will not survive that experience this summer.
    Mrs. Napolitano. Thank you.
    Mr. Miller of California. It does not sound like the 
protection level envisioned for that threatened species which 
we were told earlier is the same as an endangered species when 
answering the Chairwoman's question.
    Mrs. Napolitano. Thank you, Mr. Miller.
    Mr. Johns. Thank you.
    Mrs. Napolitano. Point very well taken.
    Yes, Mr. Thompson?
    Mr. Thompson of California. Thank you, Madam Chair.
    I, too, am pretty troubled by what seems to be or what 
sounds sitting up here to be a foregone conclusion that none of 
this stuff is working, therefore we need to go back to 
peripheral canal discussions.
    Mr. Miller mentioned that--or somebody has mentioned there 
are multiple reasons and Mr. Miller suggested that equated to 
the same as no reason. I would just for the record state that 
there is one reason for sure that things are not improving, and 
that is not because we are getting too much water going into 
the Delta. The idea of moving it around the outside I find 
troubling in this discussion.
    I want to focus a little bit on the whole issue of the 
science and how we got to where we are and how we did not get 
to where we should be. In my opening comments I talked a little 
bit about the problem upriver, the Klamath problem and how the 
science was intentionally altered in order to provide a water 
decision that was in line with what this Administration's 
Federal Administration wanted to see. So I guess my question is 
to you, Mr. Thompson. Have there been any--and I want to limit 
it to Vice President Cheney and Karl Rove as what has happened 
up in the Klamath but I want to be a little broader. I do not 
want you to answer based on those two individuals and maybe not 
tell me something I want to know. But have there been any 
communications between the White House and Interior on the 
issue of science in the Delta and water flows?
    Mr. Thompson. Between the White House and Interior? Not 
that I am aware of.
    Mr. Thompson of California. You know, that sounds like you 
are trying to split hairs.
    Has there been some political influence that has been 
focused toward you folks and what we should be doing there?
    Mr. Thompson. I get political influence from everyone. If 
you are asking me----
    Mr. Thompson of California. Steve, we go back a long time.
    Mr. Thompson. Yes.
    Mr. Thompson of California. OK. You know what I am getting 
at and you know what happened in the Klamath. You know the 
direct influence that the White House exerted in order to get 
their water policy put in place. Has there been anything 
similar to that in regard to the Delta?
    Mr. Thompson. Not similar to Klamath, but we have had 
interest from the Assistant Secretary's office on a regular 
basis on Delta smelt.
    Mr. Thompson of California. What sort of influence is that? 
Has there been a direction that they want, an outcome that they 
want to see and are they hoping to influence scientific 
decisions or even not just scientific, maybe avoidance of the 
laws that pertains to the Endangered Species Act?
    Mr. Thompson. That currently is under an active IG 
investigation. I feel it would be inappropriate to talk about 
at this time.
    Mr. Miller of California. If the gentleman would yield?
    Mr. Thompson of California. I yield to Mr. Miller.
    Mr. Miller of California. The Assistant Secretary there, 
you are referring to whom?
    Mr. Thompson. Deputy Assistant Secretary that is no longer 
there would be Julie MacDonald.
    Mr. Thompson of California. Mr. Davis, could you tell me 
does the Bureau intend to approve any interim water contracts 
south of the Delta or extend contracts in the next year?
    Mr. Davis. We will be approving interim contracts under the 
Central Valley Project Improvement Act of 1992. We were 
directed, the law says that when contracts expired the first 
interim renewal contract is for three years--up to three years. 
Subsequent contracts will be up to two years. It was the 
intention of the law at the time that this process be in place 
until all appropriate environmental documentation.
    Mr. Thompson of California. So there will be new contracts?
    Mr. Davis. There will not be new contracts.
    Mr. Thompson of California. Just extended contracts?
    Mr. Davis. Well, there will be existing contractors whose 
long-term contracts expire. We will enter into an interim 
renewal contract similar to the contracts that we have started 
in the mid-1990s.
    Mr. Thompson of California. So is it safe to say that all 
expiring contracts will be renewed, interim or otherwise?
    Mr. Davis. Under the statute they will be renewed on an 
interim basis. And then----
    Mr. Thompson of California. My time is running out. But I 
would like to get an idea of how many of these contracts, how 
big they are and you will comply with all of the laws and 
rules, including NEPA, ESA and the CVPIA requirements in 
extending those interim contracts?
    Mr. Davis. We do NEPA and ESA and both with the National 
Marine Fisheries Service and with the U.S. Fish and Wildlife 
Service.
    Mr. Thompson of California. If you could put that together 
with an inventory of those contracts and the amount of water 
that we are talking about?
    Mr. Davis. Absolutely.
    Mr. Miller of California. I guess under the rules here, the 
gentleman's time has expired.
    Mr. Thompson of California. I was going to keep going.
    Mr. Miller of California. It has expired. I was going to 
let you keep going.
    Mr. Miller of California. Assemblywoman Wolk.
    Ms. Wolk. Now is our chance.
    Mr. Thompson and Mr. Broddrick----
    Mr. Miller of California. May I just assume that the answer 
to the question is you will compile the information?
    Mr. Davis. Yes, sir.
    Mr. Miller of California. Congressman Thompson will submit 
that to you in writing. Thank you.
    Mr. Davis. For the record, yes, we will.
    Mr. Miller of California. Thank you.
    Assemblywoman Wolk?
    Ms. Wolk. Mr. Thompson and Mr. Broddrick, you need to help 
me here. Millions of acre-feet of water are in an average year 
in the Delta. You get a report, it says there are 37 smelt. 
Could they fit in here? Maybe two cups.
    Dr. Moyle. Maybe two cups.
    Ms. Wolk. To me this is a crisis. To me this conveys a 
sense of urgency. Mr. Thompson, Mr. Broddrick, and I will quote 
from you, Mr. Thompson, you state that the adaptive management 
strategies that were agreed to are somehow working. Mr. 
Broddrick, there is a declaration that we can continue the 
pumping, that there is surplus water and therefore continue the 
pumping. I do not understand how the process among Federal and 
state agencies involving the recent management of flows is 
working as intended. I need your help with that. People in my 
district do not understand that.
    Mr. Broddrick. Assemblywoman Wolk, Ryan Broddrick. I will 
start off.
    First of all, a lot of what we do on a day-to-day 
operation, it is perspective based on the information that we 
have and comparing it against 40 years of history. 
Unfortunately, it seems like each day creates a new history 
point for us.
    When we on the adaptive management this year, a lot of the 
work that came out as a result of the CALFED and pelagic 
organism declined science was to look at natural dispositive 
flows or less than negative flows on the Old Middle River. It 
also shifted the focus, I think, toward fish that were--the 
big--I hate to use the term. It is not mine. It was actually 
developed I think by Dr. Moyle. The big mama theory. That was 
to protect a component of fish that in the past we had not 
focused on with the pumping that occurred November through 
March.
    So we made those adjustments. The fish continued this year 
to spawn in the area in that was up in the deep water ship 
channel, something that was very unusual for a large pod fish, 
at least the one that we identified. Then we had a very high 
mortality, as best we could establish, of the juveniles that 
were essentially all the eggs in that basket.
    So, yes, we adaptively manage. We try to use a temperature 
criteria and we try to look at the flows. As you and I have 
discussed, I am concerned about Steelhead and I am concerned 
about spring run salmon and fall run salmon, and I am 
interested and concerned about the other 295 threatened and 
endangered species that exist north and south of the Delta that 
rely on water supply. So we make our best management and 
sometimes we fail. But it is an honest judgment.
    With that, I will be quiet.
    Ms. Wolk. Mr. Thompson?
    Mr. Thompson. We are also very concerned about the Delta 
smelt and the condition of the smelt. In this job you find 
yourself with over 300 endangered species in the State of 
California. Some species, like California condor, sea otter, 
others have been very, very low.
    The one thing I know is that people working together saves 
species. The part I was talking about what is working is the 
heads of each of the agencies. All the way up and down through 
their staff are working as hard as we know how to find 
solutions and try to balance the endangered species issues with 
all the other legal and other requirements we have. So that is 
the part I meant about what is working.
    Ms. Wolk. I just have one more question. And that is about 
CALFED. I have attended several meetings of CALFED and was a 
strong supporter at its genesis. I thought that it was 
essential and it was in fact a dramatic step forward in 
partnership between the Federal, state and local entities.
    I think it has done all it can do that is not 
controversial. It has been successful in the areas where there 
is consensus. The difficult decisions are the ones that have to 
be made, and they cannot be made in CALFED the way CALFED is 
currently structured.
    I am curious as to whether you agree with that statement or 
not.
    Mr. Thompson. I think maybe the question in my mind is 
where we would be if we did not have CALFED, and it has done 
remarkable things. There are things that worked very, very 
well.
    As we sent through a Little Hoover Commission, and I 
testified at that also, there were serious challenges. Things 
that did not work very well. So to me it is a mixed blessing.
    The part, again, that is working, the fallout of that was 
that agency heads and their staff are all working together to 
try to solve this problem.
    The litigation has not been helpful. There is a continuous 
litigation that takes time, valuable time from our staff who 
are always going to court.
    So parts of it worked very well. Other parts need help.
    Ms. Wolk. Thank you.
    Thank you, Mr. Chair.
    Mr. Miller of California. Excuse me. I have been elevated 
to Chair.
    Assemblywoman Wolk, on CALFED I think just very briefly, 
the Bay-Delta Authority and the governance and what they had 
available for governance, I think we will come back to your 
question later as it is yet to be resolved.
    The CALFED process, I think it is very important to 
remember that it was a framework that we structured a lot of 
bonds, state bonds in particular and integration with CVPIA and 
integration with Federal funding. That was a very good thing. 
We have also accomplished some dramatic things for the 
environment, for the public and for California.
    We also committed in the process to a lot of planning 
documents. Those planning documents are now documents that are 
ready for implementation that do go to improving water quality, 
that do go to diversifying water supply, that do go to 
conjunctive water use. I think it is very important that we not 
throw away those two and three and four years worth of work and 
community consensus and ground up grassroots integrated 
regional water management plans, for example, with the general 
CALFED inability to take care of Delta smelt. I think that 
would be a mistake.
    Ms. Wolk. Madam Chair, could I just make a comment?
    Many of my colleagues up here were and remain leaders and 
were leaders at that time. There was also leadership at the 
highest levels. We are talking about the President and the 
Governor. That is something that we need again because the 
challenges and the issues that have to be decided, the 
decisions are difficult and it is time once again I think for 
that kind of leadership, which we do not have. Congressman 
Miller and Congressman Thompson have highlighted the political 
issue of the biological opinion and conflicts of interests and 
how these decision--the basic information that we are relying 
on is suspect-- perhaps worse--and that is a terrible, terrible 
situation we have to do something about.
    Mrs. Napolitano. Thank you. We are running a little bit 
behind. We still have two more panels, which I am combining 
into one panel. But if you will, make a real question.
    Mr. Costa, you have a real question? Then we will move on.
    Mr. Costa. Yes. I just want to put in context, because we 
were talking about the current challenge with the below average 
water year.
    The last two years if I do remember correctly, were above 
average and the third year was average. So I am wondering if 
you will answer in the context of how you try to manage all of 
the species including the Delta smelt, why did we not see 
improvement when we had the above average rainfall in which we 
had during the key months during the entrainment issues and 
such a lot of water on average and yet we did not see a 
noticeable change?
    Mr. Johns. Last year, as you know, was a really wet year. 
Classically, Delta smelt do not do real well in wet years. They 
do pretty well in moderate years.
    Last year we took as combined between the State and the 
Federal projects, a little less than 400 fish the entire year. 
We have not taken any Delta smelt from April of 2007 to May of 
this year. So in terms of project impacts on Delta smelt, you 
would think that it would be an all time low. If it was truly a 
driver, you would see increases, dramatic increases. But we did 
not see huge increases. As I recall the numbers of adult smelt 
were about the same this year as last. As Dr. Broddrick talked 
about, we did have this tenfold decrease or basically about a 
90 percent drop in the number of young smelt that we expected 
this year, likely due to a toxic event in the Sacramento Cache 
Slough area. Because we have talked there are a lot of things 
going here in the system. We keep turning the one knob, the 
project knob because we have it, we can turn it. But there are 
other things we need to be addressing here and we are not 
addressing those based on the science we have. It is improving, 
and we need additional resources and knowledge to do those more 
effectively.
    Mr. Costa. Thank you. I think that is a good answer.
    Mrs. Napolitano. Thank you much.
    Mr. Miller?
    Mr. Miller of California. Thank you.
    I just want to go back, because I think it is critical. 
Congressman Thompson has referred to the intervention of the 
Vice President that was painstakingly documented this last week 
and the catastrophic situation that his intervention set up, 
not only the loss of the salmon but it turned out we spent $60 
million of taxpayer monies and people lost their businesses, 
some people lost their boats, their livelihoods and others all 
because they made a political decision to intervene and to whip 
out the science that would not have allowed that to happen.
    We now have the situation where, what is she, Assistant 
Secretary? Mr. Thompson, what's the title?
    Mr. Thompson. Her last title was a Deputy Assistant 
Secretary.
    Mr. Miller of California. Her last title is going to be 
convict, but as Deputy Assistant Secretary was wandering around 
in the science changing these reports, changing language to the 
opposite of whatever the finding was, and in dealing with the 
species that is absolutely key to how we try to figure out the 
operation of the Delta. What assurances can you give this 
Committee that those scientists whose work was overridden, if 
they are still with the agency, and the other scientists will 
be immune from this kind of activity as we now respond to the 
court decision that these biological opinions are flawed? You 
know, we have contract negotiations going on based upon 
science. We have all of these other decisions based upon 
science. Now we find out that people were wandering around 
there with no scientific background, but with a political 
agenda. How do we now know that we are going to get the free 
thinking and the best thinking of those scientists without that 
political interference.
    Mr. Thompson. Well, I think that is a great question, 
Congressman. We met with our, what I will call our project 
leaders, the people that run our field offices and ecology 
series and endangered species around the middle of May. I had 
Dale Hall, our Director, come out. We asked our project leaders 
to review all the decisions since I have been here in 2001, 
asking them some key questions about the science and the 
biology and did they feel that the Deputy Assistant Secretary 
interfered with any of their decisions as we found out new 
information through the press and everything else. So that 
evaluation I just signed on Friday----
    Mr. Miller of California. The Secretary told these people 
that they will be allowed to do their jobs without political 
interference.
    Mr. Thompson. The Secretary has not talked to them. No. But 
Director Dale Hall and I have talked to them.
    Mr. Miller of California. You have told them exactly that?
    Mr. Thompson. Yes.
    Mr. Miller of California. That they will be free to pursue 
the evidence where it takes them?
    Mr. Thompson. I told them exactly that. I also asked them 
for an evaluation of any decisions that have been made in the 
past since I have been here that they felt were interfered with 
or the science was manipulated to come to a different decision 
than they would have come up with.
    Mr. Miller of California. We simply cannot proceed with 
trying to solve what we all agree is a very complex problem if, 
in fact, we have this kind of intervention and we in fact have 
science that is invalid and tainted by those activities. As we 
know, this is a layering effect. You start to build upon what 
you know and what you have learned to try to make other 
decisions. If the fundamental decisions are being undermined 
and the information is being undermined, there is no chance for 
success at the preservation of the Delta system.
    Mr. Thompson. I agree.
    Mr. Miller of California. Thank you.
    Mrs. Napolitano. Mr. Thompson?
    Mr. Thompson of California. Thank you, Madam Chair.
    I appreciate Mr. Miller's last question and statement. I 
would hope, Madam Chair, that maybe we could do something as 
the Members in attendance of this Committee and a letter to the 
Secretary wanting this information out, and the fact that it is 
going to take the Secretary coming forward to make a statement 
to these different professionals who have not been allowed to 
do their work.
    Mrs. Napolitano. We will so entertain it.
    Mr. Thompson of California. Thank you.
    The question I had to Mr. Thompson and Mr. Davis, I believe 
it is related but it is a shift from where we were. On the San 
Luis drainage proposal, and I am assuming that you folks were 
at the table or at least would have been in the discussion on 
this. I am very concerned as to how that is handled and the 
impact that is going to have on the record of decision on the 
Trinity River. I would like to hear some comment from you as to 
how we can be assured on the Trinity, again going back to the 
link, that is the direct flow into this Delta system. I also 
want to make sure that our restoration efforts and the much 
time and many dollars that we spent up there are not wasted. 
That is a critical component of bringing back the fish in the 
Klamath. Can you comment on that briefly?
    Mr. Thompson. Well the first thing on the Trinity part, as 
you know and you are well aware we have made tremendous 
progress on the bridge removal and habitat restoration----
    Mr. Thompson of California. Notwithstanding that, I am 
concerned about the specific San Luis drainage proposal and the 
Westlands interest in their trying to get additional or I guess 
permanent water rights and what the potential impact that may 
have on the ROD on the Trinity?
    Mr. Davis. Well, Congressman, the answer there is that the 
Trinity water is staying on the Trinity side and it will be 
used for the flows.
    We are negotiating----
    Mr. Thompson of California.--the water comes from, that 
they get what they want of the drainage----
    Mr. Davis. In the drainage proposal, and again it is still 
in discussions and the details have not been worked out, 
environmental documents have not been worked out. But in theory 
we are talking appropriated----
    Mr. Thompson of California. Details notwithstanding, we 
have heard testimony ad nauseam as to the zero sum game they 
are working with, where there is only so much water. We are not 
making anymore. In drought years it is worse than nondrought 
years, obviously. But to suggest that we are going to increase 
and make permanent someone's water right it is going to have to 
be at the expense of someone else.
    Mr. Davis. Well, what we are doing is taking one of the 
water rights, in theory they have not been finalized yet, 
taking one of the water rights for San Luis, which is a direct 
diverse right in the Delta and then subject it to the water 
that is available in the Delta. If the water is not there, they 
are not going to be able to appropriate it.
    Mr. Thompson. Well, how do we make sure that the Trinity 
water and the provisions of the ROD are protected in that area?
    Mr. Davis. Well, the Trinity water is Central Valley 
Project Water. We are going to protect that, the United States 
is protecting that.
    What we are doing is we are slicing off one of----
    Mr. Thompson of California. And one point. A lot of the 
Trinity water was Central Valley Project water.
    Mr. Davis. Absolutely. Absolutely.
    Mr. Thompson of California. What finally grew back into 
where the science, among other things, dictate we need to be.
    Mr. Davis. Yes. Absolutely. Most of that water now is 
staying on the Trinity side. Might even be coming over to be 
considered party of the CVP yield. It is being reserved for the 
Trinity flows in the restoration. So there is the difference. 
It is just going to be a direct diversion right in the Delta 
that we are talking about transferring.
    Mr. Thompson of California. Well, I am very concerned that 
we have protections, appropriate protection in place for the 
Trinity. Before anything further happens south that may 
obligate other water to other places, I think we need to have 
that.
    I'd like, Steve, for you to work with my office to figure 
out how we can guarantee that protection is in place.
    Mr. Davis. Well, we are working with Senator Feinstein and 
congressional members right now. We will be sure to add your 
office on that notification.
    Mr. Thompson of California. Well, I am talking about one 
very, very specific sliver. That is the protection, broad 
protection----
    Mr. Davis. The Trinity? Yes.
    Mr. Thompson of California. Thank you.
    I yield back.
    Mr. Miller of California. Would the gentleman yield for a 
second?
    Mr. Thompson of California. I yield, Mr. Miller.
    Mr. Miller of California. We have a divergence of interest 
here, obviously, because we come from different parts of the 
State. But it seems to me we have a full blown crisis going in 
the Delta. I was just wondering how much manpower or person 
power you are diverting to this question of Westlands draining 
as opposed to working the Delta issue? I mean, Senator 
Feinstein's office I think there was discussion about the 
allocation of resources here. You have one place that is a 
three alarm fire going on and we are trying to sort it out; and 
the other one, with all due respect, is manageable for a 
foreseeable period of time.
    Mr. Davis. Congressman, that is correct. We have resources, 
we have a lot of balls in the air. We have the drainage issue. 
We have the ESA issue here. We have the salmon issues we are 
dealing with. We have Klamath we are dealing with.
    We have separate teams working on this and we are looking 
at a workload. In some lower priority work, we are not going to 
do anymore. That is just a natural evolution of things.
    We are working on--well, Steve talked about Klamath. We 
have resources working on the Truckee. We are participating in 
the CALFED storage issues.
    Mr. Miller of California. And we got the green sturgeon.
    Mr. Davis. Green sturgeon. We are waiting for National 
Marine Fishery Service to give us the proposed 4D rule on that. 
We have notified the National Marine Fishery Service we want to 
consult.
    Mr. Napolitano. Go ahead, finish your thought.
    Mr. Davis. We want to consult with them on that.
    Mrs. Napolitano. Thank you much. I think we need to move 
on. We have another panel, we are already at 11:30.
    Any questions, please submit them in writing, and I am sure 
that we will get them to you, and would request that you answer 
them expeditiously, if you will.
    The statement, and I did not get a chance to speak on this, 
is maybe the CALFED that was created 13 years ago, the 
expectations might have been a little too high. It has done 
well in the ecosystem restoration, but less of a success in the 
framework of the Delta. Is that because CALFED was never 
intended as a regulatory program and do we need more regulation 
of the activities that impact the Delta or do we seem to need 
better leadership to guide us into a sustainable Delta? Those 
are questions that I am going to be asking of you and would 
appreciate your coming back with an answer.
    For the record, all testimonies submitted are going to be 
posted on my website on www.house.gov/Napolitano. So if you are 
wanting to go and read some of this, you can access through the 
website.
    Ms. Wolk, do you have another question real quickly?
    Thank you very much.
    Panel, thank you very much for your presence and your 
testimony. Again, I would request that you reply to us as fast 
as you can once you get the questions. Thank you for taking the 
time.
    I would like to move on to--yes, please take your jackets 
off. If you have noticed, I am fanning up here. It is warm.
    I would like to call the two panels. David Nawi, attorney, 
Environmental Mediation, Sacramento; Heather Cooley, Senior 
Associate, Pacific Institute of Oakland; William Stelle, 
Partner, K&L Gates in Seattle, Washington.
    On panel 4, B.J. Miller, Consulting Engineer in Berkeley 
and The Honorable Phil Larson, Fresno County Supervisor in 
Fresno.
    Thank you for being here.
    We will proceed with Mr. Nawi. Mr. Nawi, your testimony, 
please?

              STATEMENT OF DAVID NAWI, ATTORNEY, 
              ENVIRONMENTAL MEDIATION, SACRAMENTO

    Mr. Nawi. Thank you very much, Madam Chair, Members of the 
Committee. Thank you for the opportunity to appear before you 
today.
    As you have recognized the issues you are dealing with 
regarding the Bay-Delta are at a critical stage. The crisis is 
reflected in the decline of the Delta smelt and in litigation 
based on the State and Federal Endangered Species Acts that has 
the potential to directly affect the operations of the Central 
Valley Project and the State Water Project.
    It is deeply disappointing that despite the tremendous 
efforts of so many people, I was one of them up until 2001, 
that has gone into the creation and implementation of the 
CALFED program, and despite the enactment in 1992 of the 
Central Valley Project Improvement Act authored by Congressman 
Miller we are now at such a critical stage.
    Institutionally we are at a point, as we have been in the 
past, where litigation has ousted collaboration as the dominant 
means of addressing water issues in California and especially 
the Bay-Delta. As a consequence, the courts are on the verge of 
becoming directly involved in overseeing, if not dictating the 
operations of the projects. Because the Bay-Delta is a uniquely 
valuable ecological resource that at the same time serves as 
the heart of the State's water supply and delivery 
infrastructure, it is perhaps inevitable that the factors 
affecting the Bay-Delta would be a source of conflict.
    There has long been a recognition that long-term solutions 
must be developed to comprehensively address the numerous and 
complex factors that address the Bay-Delta and the totality of 
the State's water supply and delivery system. Among other 
things, a comprehensive approach must assure compliance with 
the Federal Endangered Species Act, California Endangered 
Species Act, water quality requirements and State water law. In 
recognition of the need for a comprehensive long-term approach, 
the Governor and the Legislature have established Delta Vision 
to address the full array of issues to achieve a sustainable 
Delta. However, any long-term solutions will take time to 
develop, fund and implement and action cannot be prudently be 
delayed.
    In the early 1990s we were faced with a situation that has 
many features in common with what we are facing today. Fish 
species were in sharp decline and ESA requirements caused 
unpredicted reductions in project pumping and consequent 
uncertainty and cutbacks in water supply for agricultural and 
municipal and industrial uses south of the Delta. Actions of 
the State and Federal agencies were not coordinated and often 
were at cross purposes.
    To remedy this situation the leadership at very high levels 
of the State and Federal Governments became actively and 
intensely engaged and took a series of actions to create a 
sound coordinated and collaborative approach to moving forward. 
From Club FED through the 1994 Framework Agreement and the 
December 1994 Bay-Delta Accord to the August 2000 CALFED record 
of decision substantial and tangible progress was made toward a 
less adversarial and more collaborative science-based approach 
that fully involved stakeholders.
    The enactment in 1992 of the CVPIA was also intended to 
help ensure the health of the Delta and the species dependent 
on it. Unfortunately, despite the implementation of CVPIA, 
despite the benefits of the collaborative process established 
by CALFED and despite the Environmental Water Account and other 
achievements of CALFED, an indicator species listed by the 
State and Federal Governments is now in grave peril, and once 
again conflict and litigation have come to dominate Bay-Delta 
issues. In the absence of a sound collaborative scientifically 
based process for operating the projects in a manner that 
provides needed water supply and at the same time maintains 
clear compliance with statutory mandates that are unforgiving, 
and deliberately so, litigation and an increased roll of the 
courts is likely if not inevitable.
    Courts have not been created with the intent that they 
operate water projects, and they are not well-equipped to make 
the scientific and biological judgments involved in assuring 
consistency between project operations and the requirements of 
the State and Federal ESAs. But if they find that environmental 
statutes have not been complied with, they will have little 
choice but to order such compliance. There is no small 
potential that courts will have to make their own determination 
of the actions needed for compliance.
    No one wants the Delta smelt or other species dependent on 
the Delta to become extinct. No one wants the massive 
disruptions and hardships that drastic reductions in water 
supply would cause. Critical decisions that will affect project 
operations are now before the courts in the context of 
adversarial litigation. The only alternative to the courts 
making these decisions will be agency actions that will assure 
compliance with statutory mandates and especially the mandate 
of both the Federal and State ESAs to avoid jeopardy, and even 
more critically from preventing species from becoming extinct.
    The agencies must take effective actions to this end and 
their actions must be comprehensive and must be based on 
collaboration, balance and transparent and scientifically based 
decision making. Based on recent history, this will occur only 
if the political leadership of both California and the Federal 
Government take an active role and provide strong support and 
clear and unambiguous direction to the agencies to assure 
statutory compliance.
    That concludes my statement. Thank you very much.
    [The prepared statement of Mr. Nawi follows:]

                        Statement of David Nawi

    Madame Chair, Members of the Subcommittee. Thank you very much for 
providing me this opportunity to appear before you today.
    As you have recognized [and heard from previous witnesses today] 
the issues you are dealing with regarding the Bay-Delta are of vital 
importance and are at a critical stage. Federal and state court judges 
have found of violations of both the federal and California Endangered 
Species Acts, and current information indicates that the federal and 
state listed Delta smelt may be on the verge of extinction. Depending 
on the outcome of appeals and further rulings, the courts may be in the 
position of determining how the Central Valley Project (CVP) and the 
State Water Project (SWP) will be operated.
    I will briefly describe relevant legal provisions at issue in 
current litigation and regulatory proceedings and then offer some 
thoughts on the possible future course of events.
The Federal Endangered Species Act
    I will begin with the federal Endangered Species Act (ESA). 15 
U.S.C. Sec. Sec. 1531 et seq. Section 9 of the ESA prohibits any person 
from ``taking'' a species listed as threatened or endangered. 15 U.S.C. 
Sec. 1538. The statute defines ``take'' to mean, among other things, to 
harass, harm, wound or kill a species. Section 3(18), 15 U.S.C. 
Sec. 1532(18). Section 10 of the Act provides that take of a species 
may be permitted if it is incidental to an otherwise lawful activity 
and is authorized pursuant to an approved conservation plan, known as a 
habitat conservation plan, or HCP. Of relevance to the CVP and SWP, 
take may also be authorized by an incidental take statement included in 
a biological opinion issued pursuant to section 7 of the Act.
    Section 7(a)(1) directs all federal agencies to utilize their 
authorities in furtherance of the purposes of the ESA by carrying out 
programs for the conservation of listed species. 15 U.S.C. 
Sec. 1536(a)(1). Section 7(a)(2) directs any federal agency proposing 
to carry out an action authorized, funded or carried out by the agency 
to insure that that the action is not likely to jeopardize the 
continued existence of a listed species or result in the destruction or 
adverse modification of designated critical habitat. 15 U.S.C. 
Sec. 1536(a)(2).
    The directive in Section 7(a)(2) to avoid jeopardizing the 
continued existence of a species was the basis of the seminal Supreme 
Court case of TVA v. Hill (1978) 437 U.S. 153, a 1978 decision that 
enjoined a federal agency from constructing a dam that would have 
eradicated a tiny fish, the snail darter. Referring to the statutory 
directive in Section 7(a)(2), the court wrote, ``This language admits 
of no exception.'' 437 U.S. 153, 173. (Shortly after the decision in 
TVA v. Hill, supra, Congress amended the ESA to allow the so called 
``God Squad'' to exempt federal actions from Section 7(a)(2). Section 
7(h), 15 U.S.C. Sec. 1536(h). This exemption process has rarely been 
used.)
    Section 7 also specifies the procedure pursuant to which federal 
agencies must consult with either the Fish and Wildlife Service (FWS), 
in the Department of the Interior, or the National Marine Fisheries 
Service (NMFS), in the Department of Commerce, to assure that covered 
actions comply with Section 7(a)(2). (Administration of the ESA is the 
responsibility of the Secretary of Commerce and the Secretary of the 
Interior, depending on the species. Section 3(14), 15 U.S.C. 
Sec. 1532(14).) The statute provides for a biological opinion to be 
issued on a finding that the agency action will not violate section 
7(a)(2), i.e., not result in jeopardy or adverse modification of 
critical habitat, and that sets forth the impacts of the taking, 
reasonable and prudent measures to minimize the impacts, and mandatory 
terms and conditions that must be complied with by the federal agency.
    Section 7(d) prohibits a federal agency, after the initiation of 
consultation, from making any irreversible or irretrievable commitment 
of resources with respect to the action that would foreclose the 
formulation or implementation of reasonable and prudent alternative 
measures that would not violate section 7(a)(2). 15 U.S.C. 
Sec. 1536(d). Section 7(o) exempts from the take prohibition of Section 
9 take that is in compliance with the terms and conditions of a 
biological opinion. 15 U.S.C. Sec. 1536(o). Pursuant to his provision, 
biological opinions generally contain an incidental take statement that 
has the effect of authorizing take.
    In addition to provisions for civil and criminal penalties, the ESA 
contains a provision allowing suits by citizens to enjoin violations of 
the Act or implementing regulations. Section 11(g), 15 U.S.C. 
Sec. 1540. Courts have held that a biological opinion may be challenged 
under the Administrative Procedure Act (APA) on the grounds, among 
others, that it is arbitrary, capricious or an abuse of discretion. 5 
U.S.C. Sec. 706(2)(A). Bennett v. Spear (1997) 520 U.S. 154.
    The Fish and Wildlife Service and NMFS issued separate biological 
opinions under ESA Section 7 regarding the Bureau of Reclamation's 2004 
Operating Criteria and Plan (OCAP), a document that describes the 
coordinated operations of the CVP and SWP. Both biological opinions 
have been challenged in court. In Natural Resources Defense Council v. 
Kempthorne, E. D, Cal. No. 1:05-CV01207 OWW (TAG), Judge Oliver Wanger 
issued an order on May 25 finding the 2005 FWS OCAP biological opinion 
to be in violation of the APA and unlawful. The court has requested 
that the parties submit briefs on the question of remedy and has 
scheduled a hearing on the issue in late August. Presumably the court 
will consider and rule on the manner in which the projects may operate 
pending the completion of a new biological opinion, expected some time 
in 2008.
    A second case before Judge Wanger challenges the NMFS biological 
opinion. Pacific Coast Federation of Fishermen's Associations v. 
Gutierrez, E.D. Cal. No C-06-0245. While the court in this case issued 
a ruling in June dismissing claims under the National Environmental 
Policy Act, the ESA claims have yet to be briefed or considered by the 
court.
The California Endangered Species Act
    I will briefly turn next to the California Endangered Species Act, 
or CESA. CESA prohibits the taking of state-listed threatened or 
endangered species. Cal. Fish and Game Code (``FGC'') Sec. 2080. CESA 
contains provisions that allow the take of listed species through 
various mechanisms.
    Take is allowed if a person has obtained an incidental take permit 
or incidental take statement allowing take of the species under the 
federal ESA, and the incidental take permit or statement is determined 
by the Director of the Department of Fish and Game to be consistent 
with the relevant provisions of the Fish and Game Code. FGC 
Sec. 2080.1. The Department may issue an incidental take permit if 
certain criteria are met, including minimization and full mitigation of 
the impacts of the authorized take. FGC Sec. 2081. Take is also allowed 
if it was authorized through a plan or agreement entered into by the 
Department of Fish and Game in a specified time period, a so-called 
``grandfather'' provision. FGC Sec. 2181.1
    A lawsuit recently decided at the trial level claimed that pumping 
by the SWP was taking state-listed species (Winter Run Chinook Salmon, 
Spring Run Chinook Salon and Delta smelt) without incidental take 
authorization from the Department of Fish and Game and therefore in 
violation of CESA. Watershed Enforcers v. Department of Water 
Resources, Alameda County Superior Court No. RG06292124. In ruling for 
the petitioners, the trial court rejected the claim by the DWR that a 
series of five documents served to bring DWR's take of the species 
within the coverage of the grandfathering provisions of section 2181.1 
The court issued a judgment on April 17 of this year ordering that DWR 
cease pumping within sixty days unless DWR had received authorization 
from the Department of Fish and Game for the incidental take of the 
three species. DWR has appealed the ruling, and it is currently stayed 
pending appeal.
California Water Law
    In addition to the federal and state ESAs, both projects are 
subject to the regulatory authority of the Sate Water Resources Control 
Board (State Board). Under the state's Porter-Cologne Water Quality Act 
(Water Code Sec. Sec. 13000 et seq.), the State Board is charged with 
adopting water quality control plans, including a plan for the Bay-
Delta, to meet the requirements of section 303 of the federal Clean 
Water Act. (Federal Water Pollution Control Act, 33 U.S. C. Sec. 1313). 
Section 303 provides the water quality control plan must meet specified 
requirements and is subject to approval by the federal Environmental 
Protection Agency. Water quality control plans are not self-
implementing and do not contain regulatory requirements applicable to 
water rights holders, whose diversions are subject to water rights 
permits issued by the State Board.
    Both the state and federal projects are required to obtain and 
comply with the water right permit requirements of state law. The 
applicability of these requirements to the CVP was the subject of the 
1978 decision of the U.S. Supreme Court in California v. U.S., 438 U.S. 
645, which held that under section 8 of the Reclamation Act of 1902, 43 
U.S.C. Sec. 383, a federal project must comply with state requirements 
that are not inconsistent with clear congressional directives regarding 
the project.
    The State Board has broad authority and responsibility in 
administering water rights permits. If the Board finds a violation or 
threatened violation of any term or condition of a permit, it may issue 
a cease and desist order. Water Code Sec. 1831. The Board also has the 
authority, and in fact is directed, to take action to prevent waste, 
unreasonable use, or unreasonable method of use of water. Water Code 
Sec. 275; Cal. Constitution Article X, section 2. Water rights permits 
are also subject to review and modification pursuant to the public 
trust doctrine. National Audubon Society v. Superior Court, (1983) 33 
Cal.3d 419.
    The State Board held a workshop on June 19 to receive 
recommendations on short term actions it should consider to improve 
fishery resources, including actions to slow or stop the decline of 
Delta smelt, improve water quality conditions, and reduce impacts 
resulting from water diversion and use in the Bay-Delta. The workshop 
notice stated that the Board sought formation on, among other things, 
reducing diversions, for export or in-Delta use, from Delta channels; 
requiring releases from upstream storage; requiring waste dischargers 
to provide monitoring reports; and requiring measures to ease potential 
dry year conditions to ensure reasonable protection of water quality 
and beneficial uses in the Delta. Following the workshop, the State 
Board has not indicated what actions it is considering.
Looking to the Future
    What can we say about the future? For the long term, it is apparent 
that solutions must be developed that comprehensively address the 
numerous and complex factors that affect the Bay-Delta and the totality 
of the state's water supply and delivery system. Among other things, a 
comprehensive approach must assure compliance with the statutory 
regimes discussed above--the federal ESA, the California ESA, and state 
water law, including provisions to comply with the federal Clean Water 
Act. In recognition of the need for a comprehensive long-term approach, 
California's Delta Vision has been established to address the full 
array of issues to achieve a sustainable Delta.
    However, any long-term solutions will take time to develop, fund, 
and implement, and at least until there is a long-term solution, 
litigation almost certainly will continue to be a way of life for water 
issues in California and especially the Bay-Delta. The Bay-Delta is a 
uniquely valuable ecological resource that at the same time serves as 
the heart of the state's water supply and delivery infrastructure. 
These two functions seem inevitably to lead to conflict.
    In the early 1990s we were faced with a situation that had many 
features in common with what we are facing today. Fish species were in 
sharp decline, and Endangered Species Act requirements caused 
unpredicted shut-downs of the project pumps and consequent uncertainty 
and cut-backs in water supply for agricultural and municipal and 
industrial water users south of the Delta. Actions of state and federal 
agencies were not coordinated and often in conflict.
    To remedy this situation, the leadership of state and federal 
governments became actively engaged and took a series of actions to 
create a sound, coordinated and collaborative approach to moving 
forward. From Club FED (the Federal Ecosystem Directorate), through the 
July 1994 Framework Agreement, and the December 1994 Bay-Delta Accord 
(``Principles for Agreement on Bay-Delta Standards between the State of 
California and the Federal Government''), to the August 2000 Record of 
Decision (ROD) on the CALFED Bay-Delta Program, substantial and 
tangible progress was made toward a less adversarial and more 
collaborative science based approach that fully involved stakeholders. 
The enactment in 1992 of the Central Valley Project Improvement Act, 
Pub. L. No. 102-575, Title XXXIV (CVPIA), was also intended to help 
assure the health of the Delta and the species dependent on it.
    Unfortunately, despite implementation of the CVPIA, the benefits of 
the collaborative process CALFED created, and the Environmental Water 
Account other substantive achievements of CALFED, an indicator species 
is in grave peril, and once again conflict and litigation have come to 
dominate Bay-Delta issues. In the absence of a sound, collaborative, 
scientifically based process for operating the projects in a manner 
that provides needed water supply and at the same time maintains clear 
compliance with unforgiving statutory mandates, litigation and an 
increased role of the courts is likely if not inevitable.
    Courts have not been created with the intent that they operate 
water projects, and they are not well-equipped to make the scientific 
and biological judgments involved in assuring consistency between 
project operations and the requirements of the state and federal ESAs. 
But if they find that environmental statutes have not been complied 
with, they will have little choice but to order such compliance, and 
there is no small potential that courts will have to make their own 
determinations of the actions needed for compliance.
    No one wants the Delta smelt or other species dependent on the 
Delta to go extinct. Avoidance of species extinction is the most 
essential goal of the state and federal ESAs, the primary purpose for 
which they were enacted. And no one wants to see the massive 
disruptions that drastic reductions in water supply would cause. 
Critical decisions regarding these goals are now being made by the 
courts in the context of adversarial litigation. The only alternative 
to the current situation will be coordinated and effective agency 
action to comply with statutory mandates based on collaboration, 
balance, and transparent and scientifically based decision-making. And 
this will occur only as a result of strong, positive and far-sighted 
political leadership of both California and the federal government.
    Thank you again for this to opportunity to appear before you. I 
would be glad to answer any questions you may have.
                                 ______
                                 
    Mrs. Napolitano. Thank you, sir.
    We now have Heather Cooley.
    Ms. Cooley?

        STATEMENT OF HEATHER COOLEY, SENIOR ASSOCIATE, 
                  PACIFIC INSTITUTE OF OAKLAND

    Ms. Cooley. Thank you for the opportunity to testify today. 
I have submitted more detailed comments and will touch on the 
major points here.
    We have heard much today about the many problems plaguing 
the Delta. While there is no single solution, reducing water 
exports from the Delta must be a fundamental element of any 
sustainable water management strategy. We know that the 
physical barriers and the huge pumps that move water south 
directly kill fish and also radically alter flows in the Delta, 
thus altering water quality, water temperatures and access to 
habitat vital for fish survival. Yet the economic and political 
pressures to maintain water exports remains high. In part, 
because water planners assume that economic and population 
growth will lead to increases in water demands and that to meet 
this demand we must build more infrastructure to extract more 
water.
    These assumptions are false. I have submitted--I would like 
to draw your attention to Figure 1 that I submitted. A total 
water use in California is less than it was in 1975. Today is 
less than it was. I repeat that. Many people do not believe 
that, but despite population growth and growth in the economy, 
water use is less today.
    Forty years ago we used nearly 2,000 gallons of water per 
person per day. We are now down to half that amount. This has 
been achieved in part by transitions in our economy from a 
manufacturing base to a more service oriented sector. But it 
has also been driven by conservation and efficiency 
improvements.
    In many of the discussions today, I have heard conservation 
and efficiency come up. It is quite heartening. However, we 
have made improvements in the past, current water use still 
remains wasteful.
    Studies indicate that installing water efficient appliances 
and figures could reduce urban use by an additional 30 percent. 
These numbers have also been adopted by the State, 
incidentally.
    Savings from the agricultural sector are also possible. 
Inefficient sprinkler and flood systems are still used on 65 
percent of the crops irrigated in California. Given that 
agriculture consumes 80 percent of the water in California, 
even small improvements can yield big savings.
    In addition, many conservation and efficiency studies we 
have done at the Pacific Institute indicate that conservation 
and efficiency improvements can help meet demands for decades 
to come. Installing efficient technologies, including drip 
irrigation, can reduce total demand by 20 percent with a 
growing population and economy by the year 2030.
    In addition to conservation and efficiency a number of 
other options are available to augment existing local supplies, 
including recycling and reuse, better management of our ground 
water resources and desalination.
    Today's Delta crisis is unfortunate, but it provides an 
opportunity to work toward a more sustainable path that 
includes more efficient use of our existing resources. Waiting 
another five to ten years will make solving these challenges 
more difficult and expensive.
    Thank you.
    [The prepared statement of Ms. Cooley follows:]

   Statement of Heather S. Cooley, Senior Research Associate at the 
                 Pacific Institute, Oakland, California

Summary
    Scientific evidence indicates that the health of the Sacramento-San 
Joaquin Delta is unstable and rapidly deteriorating. While there is no 
single solution to the problems that plague the Delta, reducing Delta 
water exports must be a fundamental element of any sustainable 
management strategy. The economic and political pressures to maintain 
water exports to urban and agricultural users remain high, and exports 
from the Delta continue to increase. Yet research shows that our 
current water use is wasteful. Conservation and efficiency improvements 
can provide substantial water savings and allow us to reduce Delta 
exports. Furthermore, local resources, such as recycled water and more 
effective groundwater management, can provide a reliable new supply of 
water. It is critical that we move toward a more sustainable management 
strategy today; waiting another five to ten years will make solving 
California's complex water challenges more difficult and expensive.
Current State of the Delta
    The Sacramento-San Joaquin Delta provides a number of key services 
to California, including drinking water for 18 million Californians, 
water for agricultural uses, recreational opportunities, and habitat 
for 500 species. The Delta also serves as a hub for electricity and gas 
transmission and numerous transportation lines.
    Scientific evidence indicates that the health of the Delta is 
unstable and rapidly deteriorating. The recent collapse of the Delta 
smelt is of particular concern because it is an indicator species whose 
survival is a reflection of ecosystem health. Instead of pursuing an 
effective management strategy, state and federal agencies apply a Band-
Aid and simply wait for the next crisis. This pattern of crisis 
management is proving to be both expensive and largely ineffective.
    While there is no single solution to the problems that plague the 
Delta, reducing Delta water exports must be a fundamental element of 
any sustainable management strategy. Scientific evidence shows a clear 
relationship between increasing water exports from the Delta and its 
declining ecosystem health. We know that the physical barriers and huge 
pumps in the delta that permit massive exports of water to farms and 
cities in the south kill fish directly and radically change flows in 
the delta, affecting water quality, water temperatures, and access to 
habitat vital for fish survival.
    The economic and political pressures to maintain water exports to 
urban and agricultural users remain high, and exports from the Delta 
continue to increase. In addition, some members of the water community 
are calling for increased surface storage and conveyance to meet 
growth-related needs and address potential impacts associated with 
climate change. This approach is merely a continuation of traditional 
water planning, which has brought tremendous benefits to California in 
the past, but has also wrought unanticipated social, economic, and 
environmental costs, as evidenced by the current status of the Delta. 
Strategic planning and management can help California reduce Delta 
withdrawals without the need for additional surface storage.
Traditional Water Planning Assumptions are Incorrect
    Water planning, as practiced in the 20th century, is based on two 
assumptions:
      First, that the economy, population, and water use are 
inextricably linked such that economic and population growth will 
result in increases in water demand and any reductions in water 
availability will hurt the economy.
      Second, that meeting the needs of a growing population 
requires building more physical infrastructure to take water from 
rivers, lakes, and groundwater aquifers.
    Today, these assumptions are outdated and inaccurate.
    Over the past 30 years, the economy and population have grown while 
water use has declined. Figure 1 shows California's gross state 
product, population, and water use between 1975 and 2001. Total water 
use in California was less in 2001 than it was in 1975, yet population 
increased by 60% and gross state product increased 2.5 times. In 1975, 
we produced only $3 in goods and services for every 100 gallons of 
water we used. Today we produce $9 for every 100 gallons used, in 
constant dollars (Figure 2). Forty years ago we used nearly 2000 
gallons for every person in the state every day. Today we use half that 
amount (Figure 3). We can break, and in fact, have broken the link 
between growing water use, population, and economic well-being. This 
has been achieved in part by improvements in conservation and 
efficiency, as well as the changing nature of our economy.
Conservation and Efficiency Can Meet California's Water Needs
    Although Californians have improved efficiency of our water use 
over the past 25 years, current water use is still wasteful. The 
Pacific Institute's 2003 report, ``Waste Not, Want Not,'' provides a 
comprehensive statewide analysis of the conservation potential in 
California's urban sector. This study finds that existing, cost-
effective technologies and policies can reduce current (2000) urban 
demand by more than 30 percent.
    Substantial savings are available from the agricultural sector as 
well. More than 65% of all crops in California are still grown with 
inefficient flood or sprinkler irrigation systems. Studies have shown 
that installing efficient irrigation technologies, such as drip system, 
can reduce water use and increase agricultural yield. Given that the 
agricultural sector uses 80% of California's water supply, or about 34 
million acre-feet per year, even small efficiency improvements can 
produce tremendous water savings. Additional water savings are possible 
if farmers continue the trend of moving away from water-intensive crops 
like cotton, pasture, rice, and alfalfa in favor of more valuable low-
water crops like vegetables, fruits, and nuts.
    Conservation and efficiency can meet our needs for decades to come. 
In the 2005 report ``California Water 2030: An Efficient Future,'' the 
Pacific Institute presents a vision of California in which improvements 
in water-use efficiency are considered the primary tools for reducing 
human pressures on the state's water resources. This study finds that 
California's total water use in 2030 could be 20% below current levels 
while still satisfying a growing population, maintaining a healthy 
agricultural sector, and supporting a vibrant economy. Some of the 
water saved could be rededicated to agricultural production elsewhere 
in the state; support new urban and industrial activities and jobs; and 
restore California's stressed rivers, groundwater aquifers, and 
wetlands--including the Sacramento-San Joaquin Delta.
    Research shows that significant water savings can be found for much 
less than the cost of building new supply or expanding our current 
supply. These savings are real and represent a tremendous amount of 
untapped potential in California's urban and agricultural sectors. This 
suggests that improved efficiency and conservation are the cheapest, 
easiest, and least destructive ways to meet California's water supply 
needs.
    Water conservation and efficiency has the additional benefit of 
producing significant energy savings. Capturing, treating, 
transporting, and using water require a tremendous amount of energy. 
This is particularly true in California, where water supplies and 
population centers are separated by hundreds of miles, requiring a 
tremendous amount of infrastructure to move water from where it is 
available to where it is needed. As a result, California's water-
related energy consumption accounts for roughly 19% of all electricity 
used in California, approximately 32% of all natural gas, and 88 
million gallons of diesel fuel. Thus improving statewide water 
conservation and efficiency can achieve substantial energy savings.
Additional Water Supply Options Are Available
    In addition to conservation, communities throughout California have 
a number of other options available to augment their existing supplies. 
These options include:
    Recycled Water: Reclamation can augment water supplies, as well as 
provide a means to treat wastewater and reduce environmental discharge. 
Water agencies in California currently produce about 500,000 acre-feet 
of recycled water, the majority of which is used for agricultural and 
landscape irrigation. Expanding current efforts could produce a 
substantial amount of new water. For example, the Irvine Ranch Water 
District, in Southern California, meets nearly 20% of its total demand 
with recycled water. A new residential community in Ventura County, 
California has decided to use recycled water for all of its landscaping 
needs at an estimated cost of $200 per acre-foot, far below the cost of 
new surface storage. This suggests that significant opportunities exist 
to increase recycling and reuse throughout the state, effectively 
lessening the need to identify and develop new water supplies.
    Conjunctive Use: Surface water and groundwater are hydrologically 
linked. Conjunctive use takes advantage of this connection by storing 
excess surface water, including stormwater, in groundwater basins for 
later use. This option can improve supply reliability and flexibility, 
reduce land subsidence, and minimize the impacts of urban runoff on 
local steams and the marine environment.
    Desalination: Appropriately designed and sustainably managed 
desalination (both seawater and groundwater) can provide a reliable, 
high-quality water supply that is independent of weather conditions.
Conclusions
    Today's Delta crisis is unfortunate, but it provides an opportunity 
to work towards a new path. Smart management and efficiency 
improvements can enable us to meet current and future water needs more 
sustainably. Waiting another five to ten years will make solving 
California's complex water challenges more difficult and expensive.
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                                 ______
                                 
    Mr. Napolitano. Thank you, ma'am.
    And moving on to our next witness Mr. Stelle.

             STATEMENT OF WILLIAM STELLE, PARTNER, 
                 K&L GATES, SEATTLE, WASHINGTON

    Mr. Stelle. Thank you, Madam Chairwoman and Members of the 
Subcommittee. My name is William Stelle. I am here representing 
the California Resources Agency.
    I have a written testimony which I have submitted to you, 
and I will summarize it.
    Madam Chairwoman, you run a tight ship. That's is well 
understood.
    By way of a little background, I have been either 
privileged or cursed to be involved in Endangered Species Act 
issues for over two decades, plus both on the legislative side 
and on the Executive Branch side.
    I was the original Administrator for the National Marine 
Fishery Service during the Clinton Administration up in the 
Pacific Northwest where I did all the salmonic listings under 
the Endangered Species Act. Prior to that I worked for 
Secretary Babbitt to do the Northwest Forest Plan that was 
itself quite difficult. Before that I worked as Chief Counsel 
of the Fish and Wildlife Subcommittee for then Congressman 
Gerry Studds. So I come at this with a lot of cherished scar 
tissue.
    Much of what I have heard today is very familiar to me. 
Some of it is unique to the Delta, some of it is not.
    Let me describe for you, before getting into the heart of 
my testimony which is the Bay-Delta Conservation planning 
effort that is underway now. Let me just describe to you some 
of the complexity of what is going on. Because there is a lot 
going on.
    We have litigation and we have the Federal and State water 
operators and fish and game agencies in Federal court over the 
course of this summer talking about what to do over the next 
period of time and how to operate over the next period of time 
to try to mitigate some of the risks in the system as it is 
currently configured. That is the inner circle.
    Next concentric circle out is an anticipated completion of 
the consultation process that Ryan and John described to you 
earlier in response to the invalidation of the earlier 
biological opinions by the Federal court. That should be 
completed by sometime Spring 2008. That should lay out our sort 
of interim strategy of, say, three to five years. Again, how to 
operate, what kind of an early initiatives can be put into 
place.
    The next concentric circle is the Bay-Delta Conservation 
Planning effort, of which I am affiliated. It is intended to 
answer the longer term question of what biologically should we 
be doing to provide for or contribute to the conservation of 
listed species and their habitats in the Bay-Delta region in 
order to secure legally defensible and scientifically sound 
incidental take authorizations for the long term. That is what 
California Bay-Delta effort is all about.
    The fourth concentric circle out is the Delta Visioning 
process. It is absolutely part and parcel, of which the 
conservation planning effort must be a part. But that is 
intended to articulate a longer term social vision for what, 
you, the State of California and your people should be doing 
with the Bay-Delta over the long term.
    So, again, it is quite difficult to understand how these 
individual pieces of the puzzle fit together. It is vital that 
they fit together. They have to be mutually reenforcing because 
if they will not, they will fail.
    Turning now toward the issue of Bay-Delta conservation 
planning. What is it and what is different now, to get to 
Congressman Costa's question, between 1995 and 2000?
    Fundamentally in my view what is different now is the risk 
meters have been turned up. The biological risk meters, the 
political risk meters, the legal risk meters and the economic 
risk meters for everybody are way up there. They are kind of in 
an untenable circumstance. Because of that, there is a 
convergence of perspective of all of the principal parties that 
it is not working and we need to do something different. That 
convergence has led the parties, a broad coalition of water 
users, State and Federal water agencies, State and Federal fish 
and game agencies and the NGO community to enter into a 
planning agreement last fall that said we are going to try to 
figure out to do something better over the long term in a way 
that is scientifically sound and legally defensible because if 
it is neither, it is a waste of time. That is the California 
Bay-Delta Conservation Plan led by the Resources Agency and a 
Steering Committee comprised of all of those different 
communities. Again, they are not there because they love each 
other. They are there because there is mutual shared 
substantial risk. In the face of that risk, they have a choice. 
They can choose to develop a plan that will be defensible and 
that they will support or they can choose not to. What will 
they choose? I do not know. We will see.
    But we have a very aggressive planning schedule. This 
Subcommittee will be able to see, and so will everybody else, 
how they make those choices through the course of 2008. Because 
our objective is to complete a legally defensible conservation 
plan under both Federal and State laws by the end of 2009. That 
will be the longer term reliable plan.
    One quick observation, and that is----
    Mrs. Napolitano. You are 50 seconds over, sir.
    Mr. Stelle. We need to be comprehensive to be successful. 
To be comprehensive, we need the Feds and we need solution 
people to come to that table, not problem people. That covers 
the field of sector.
    Thank you. I look forward to your questions.
    [The prepared statement of Mr. Stelle follows:]

   Statement of William W. Stelle, Jr., Assistant to the Chairwoman, 
             Bay Delta Conservation Plan Steering Committee

    Good morning, Madame Chairwoman and members of the Subcommittee. I 
want to thank you for being afforded an opportunity to appear before 
you today on behalf of the California Resources Agency on this 
important topic.
    Before I begin my testimony, I would like to also express the 
appreciation of California Secretary for Resources Mike Chrisman for 
the time you have afforded us. Both he and the Resources Undersecretary 
Karen Scarborough regret that scheduling conflicts prohibited their 
ability to appear here today.
    My comments will summarize the current Resources Agency efforts and 
those of other participants to develop a long-term, sustainable 
conservation plan for California's Bay Delta. We believe that this kind 
of effort, if successful, will hold substantial long-term benefits from 
both an ecological and water supply perspective. I hope today to not 
only explain the basis for this fundamental conclusion, but to 
encourage the support of this Subcommittee in helping us succeed.
    A good and instructive starting point is today. You have heard this 
morning of the deepening problems associated with current approaches to 
Delta conservation and restoration and of the fisheries and other 
species which are Delta dependent. These problems are by no means new, 
and the many participants in the Delta have been wrestling with them 
for decades in many different forms and phases, spanning a full 
spectrum from consensus-based approaches to hard-ball litigation. 
Despite these good efforts and well-meaning intentions, we are not 
succeeding, and the risks of catastrophic failure from a biological, 
water supply and economic perspective are increasing. Put simply, the 
Delta is in crisis.
    This view is shared by a wide variety of interests, and it is 
precisely that confluence, of a Delta in crisis, which has led the 
parties to take a fresh start, searching for a new way, even amid the 
tumult of the day-to-day activities.
    Perhaps a thorough and authoritative way to understand the context 
is to refer you and the Subcommittee members to the report of the 
California Public Policy Institute entitled ``Envisioning Futures for 
the Sacramento San Joaquin Delta'', which was released in February of 
this year. It may be found at www.ppic.org. It is an elegant analysis 
of how the current model of how the Delta operates is not working, and 
how we all might envision a new future that embraces an altogether 
different approach. Its message is quite straightforward: we can 
capture success only if we are bold enough to think big and think 
differently: the ingredients for success do not lie in merely 
incremental turns in the knobs of the current system.
    On October 6, 2006, after several months of deliberation, a broad 
Delta constituency came together and entered into a planning agreement 
to develop a roadmap to that new future. Entitled ``Planning Agreement 
regarding the Bay Delta Conservation Plan'', it is signed by state and 
federal water and fishery agencies; the major water suppliers for 
agricultural and municipal interests, and a wide array of conservation 
organizations--in short, all the interests that have been dueling about 
the Delta for decades.
    I will submit to the Subcommittee this Planning Agreement since it 
is the best and most concise statement of what the Bay Delta 
Conservation Plan is all about. The Agreement describes the intentions 
of the parties to develop a conservation plan over the next three 
years. It is intended to serve as a scientifically sound and legally 
defensible strategy for the ecological restoration of the Bay Delta and 
it will provide for the long-term conservation of at risk species and 
their habitats. It is also intended, from a legal perspective, to lead 
to the issuance of incidental take authorizations for listed species 
associated with the water supply, habitat restoration and other 
activities covered by the plan under the Federal and state engendered 
species statutes. Thus, it is intended to answer the question of what 
we need to do to address the challenge of the Delta's biological needs. 
More broadly framed, it is intended by the parties to serve as a 
reliable strategy to get us from the turmoil of the present to a more 
scientifically robust future that will provide a far higher degree of 
reliability and stability for both biological and water supply 
objectives.
    There are several attributes of the Bay Delta Conservation Plan 
that deserve mention. First, it is a voluntary, collaborative effort 
among an impressive breadth of Delta players, reflecting a common 
vision noted above. Second, it is extremely open and transparent, with 
all of the materials and meetings open and available for all to review, 
apprise, and critique. Third, it will be informed by an independent 
scientific panel that is, as we speak, being convened to provide 
independent scientific advice to the parties on the plan and its 
components.
    Organizationally, it is led by a Steering Committee in which all of 
the plan participants are represented. The Steering Committee is 
chaired by California Resources Undersecretary Karen Scarborough. The 
group meets regularly and works by consensus.
    The Steering Committee, in turn, has commissioned several 
workgroups that carry out the day to day tasks for the planning effort 
and forward their work products to the Steering Committee for approval.
    The planning process envisioned by the Steering Committee entailed 
a phased, tiered approach. Through the course of 2007 will are 
examining a wide range of conservation strategy options focused around 
alternative water conveyance designs since the choice of which 
conveyance option to pursue is so central to the overall conservation 
strategy. The Steering Committee is currently winnowing down those 
options from an initial ten to four, and through the summer and fall it 
will further narrow the field. In the late fall of this year, the 
Committee intends to select one or two conveyance options to pursue in 
far greater detail in the planning process itself. The idea will be to 
use these options as a centerpiece around which a broader, more 
comprehensive conservation strategy for the Delta will be constructed. 
It will be a strategy that will embrace all of the main limiting 
factors for restoring the ecological productivity of the Delta.
    The Steering Committee anticipates that this broader conservation 
strategy will and must address a number of fundamentals to be 
successful: water conveyance strategies; habitat protection and 
restoration strategies; water management and water quality strategies; 
invasive species strategies; strategies to address toxic stressors in 
the system, and very importantly, disciplined science and adaptive 
management strategies to enable us to stay smart and nimble as we 
learn.
    The schedule is both ambitious and essential because we have an 
unacceptable status quo. By years end the Steering Committee will have 
winnowed down the initial choices of conveyance options to at most two. 
It will then devote 2008 to the construction of the components of a 
broader conservation strategy around these one or two options that will 
then constitute its proposed plan. That plan, in turn, will be 
submitted to state and federal fishery agencies and other relevant 
authorities for their approval. As part of that approval process, it 
will be analyzed under both state and federal environmental statutes 
over the course of 2008 and 2009 to evaluate its effect and to provide 
open and continual opportunities for broad public review and 
participation. It will also undergo a focused evaluation of its ability 
to contribute to the conservation of listed species under federal and 
state endangered species acts. The Steering Committee intends that this 
entire planning process will result in a scientifically sound and 
legally defensible plan for the Delta by the end of 2009, leading 
immediately to aggressive implementation.
    The Steering Committee is comprised of people who are experienced 
and sophisticated. They undertake this effort well informed about its 
challenges and risks, but also disciplined by the turmoil which 
abounds. Yes, this is a tall order, but this path may well be the best 
of several roads the Delta could travel. Fundamentally, the Bay Delta 
Conservation Plan represents a collective judgment of the parties to 
seek a new way out of our current crisis, and to fashion that new way 
to resolve Delta issues in an affirmative manner.
    Do the parties have the enormous discipline to stay focused and on 
track? Time will tell. The State of California is itself deeply 
committed to the success of this effort, believing a Delta in crisis is 
simply not acceptable from an ecological, water supply, and economic 
perspective.
    In closing, I would like to offer several observations to the 
Subcommittee.
    The parties recognize that we have a collective problem and 
avoidance is not a winning strategy. But this is also very hard.
    We need the federal government to help. We need the Bureau of 
Reclamation and the Fish and Wildlife Service in particular, to 
dedicate their best and brightest people to this effort. If it is 
business as usual at the usual pace, we will not succeed. We must be 
comprehensive to be successful, and to be comprehensive we must have 
firm, active and reliable federal participation.
    We need experienced agency people who recognize and understand the 
problems and figure out how to solve them. We need people to have a 
sober assessment of what the real issues are and how to deal with them. 
We need solution people.
    We need a focus on the Delta and solutions, and not avoid hard 
choices. We need each other; we need to work together for the Bay Delta 
Conservation Plan to work.
    Fundamentally, we need trust. This is the most important criterion 
for success. Anything that this Subcommittee can do to improve the 
prospects that we have with these essential ingredients would be most 
welcome and encouraged. These difficult decisions are not made in a 
random way, but rather with an iron will to succeed.
    That concludes my testimony. I again appreciate the privilege of 
appearing here this morning, and I welcome your questions.
    Attachment: BDCP Planning Agreement
    [NOTE: The attachment, ``Planning Agreement regarding the Bay Delta 
Conservation Plan,'' dated October 6, 2006, has been retained in the 
Committee's official files.]
                                 ______
                                 
    Mrs. Napolitano. Thank you, sir.
    Mr. Miller?

  STATEMENT OF B.J. MILLER, CONSULTING ENGINEER, SAN LUIS AND 
      DELTA-MENDOTA WATER AUTHORITY, BERKELEY, CALIFORNIA

    Mr. Miller. Madam Chair, Members of the Committee, my name 
is B.J. Miller. I am a consulting engineer. I am here today on 
behalf of the San Luis and Delta-Mendota Water Authority, which 
is an organization of about 30 public agencies that export 
water from the Delta. It is a Federal pumping plant. Includes 
the Westlands Water District and the Santa Clara Valley Water 
District that serves much of Silicon Valley.
    I have a written testimony I have submitted and I will just 
briefly summarize that.
    I want to direct your attention first to the third page 
that shows a graph abundance. I will be focusing on Delta 
smelt, and I want to point out a couple of things about this 
graph.
    First, I want to point out the decline. This is the most 
official abundance index. It is sub-adults just before they 
migrate upstream to spawn in the winter. There are a number of 
other indexes of abundance, but this is the most official one. 
You can see it reached an all-time low in 2005 and in 2006 
stayed there at the very low level. So one thing to note about 
the graph is the decline.
    The second thing to note is that since 1996 the average 
abundance of Delta smelt has changed about 60 percent a year up 
or, unfortunately in recent years, down. So if we are looking 
for something that affects Delta smelt, we need to look for 
something that is changing at about 60 percent a year that is 
capable of causing that sort of effect.
    This is a data rich estuary as estuaries go. We have a lot 
of data on everything. If somebody comes to you and says A 
affects B, I am sure of it, they should be able to produce some 
sort of analysis that shows a relationship between A and B.
    In this case, A is exports and B is Delta smelt abundance. 
A lot of people are so sure about that that we are spending $50 
to $100 million a year based on the assumption that exports is 
the key to Delta smelt. The data do not support that 
assumption.
    The most definitive analysis of this was done by Dr. Brian 
Manley, the author of seven books, and one of the world's 
foremost statistical ecologists. I will read what Brian Manley 
said. ``I can sum up my conclusions from the analysis I have 
done over the past few years by saying that so far it appears 
that river flows and exports cannot account for most of the 
downward trend in Delta smelt numbers in recent years. Some 
other change to the system seems to have happened in about 1999 
that caused the decline.''
    That is a very important analysis because Manley found an 
effect. If he had not found an effect, you could conclude that 
he had not done the right analysis. But he found an effect. It 
was statistically significant. It was just so small that he 
concluded that in another email that he sent on this, he 
concluded it was wiggles on the trend line. Something else is 
dominating Delta smelt abundance.
    I was concerned that Manley and the others, he did that for 
the pelagic organism design studies that there was a mistake in 
that analysis that Delta smelt migrate upstream to spawn and 
some years they migrate close to the pumps and some years they 
do not. So maybe there was only an effect in the years when 
they were close to the pumps. So I did an analysis that Manley 
confirmed only looking at it for export effects in years they 
were close to the pumps, we found nothing.
    So I am pretty sure that exports are not the cause of the 
Delta smelt decline. Managing exports is not the way to save 
the Delta smelt, or to prevent their extinction for that 
matter.
    What is causing the decline in Delta smelt? What happened 
to them? Well, we listened to what the biologists said. They 
had autopsied some smelt and found that they were severely food 
limited in the summer and possibly in the spring. So my 
associates and I set about with this wealth of data to see if 
we could find some connection between food availability and 
Delta smelt abundance. Delta smelt eat zooplankton, which are 
little small floating animals about three levels up on the food 
chain. Almost all of the ones they eat, incidentally, are 
aliens, not natives that were probably introduced from ballast 
water of ships that have sailed up into the Delta.
    We found two excellent relationships, one in the summer, 
one in the spring. The second to last page shows a graph that--
I did this graph--and I have to say I think it is remarkable, 
modest as I usually am.
    The only Delta smelt abundance number on this graph is the 
water trial abundance of 1996. All of the rest of these values 
on the gray line were predicted using only two factors. Where 
the smelt were, not how many, where they were in their habitat 
and what the density of their favorite food was in that habitat 
in late April. With those two things alone, you predict Delta 
smelt abundance. You predict the decline that we have seen.
    So my conclusion from the data, actually, is that this is 
not exports. This is all about food.
    Now what has caused the food decline? That is another 
mystery.
    Mrs. Napolitano. Wrap it up.
    Mr. Miller. I will wrap it up.
    As to how this could possibly have happened, I mean this 
hearing is based on the assumption that the exports are 
controlling Delta smelt abundance, I will just point on the 
report on the second to last page from the review panel of 
outside exports. ``This program relies too heavily on local 
perspectives and resources for problem analyses, research and 
solutions. This can give rise to a culture of common 
assumptions that impeded alternative possibilities.''
    Well, if that is not a story of the Delta smelt problem in 
the Delta, I do not know what is.
    Thank you.
    [The prepared statement of Mr. Miller follows:]

   Statement of William J. (BJ) Miller, Ph.D., Consulting Engineer, 
                San Luis & Delta-Mendota Water Authority

Introduction
    Madam Chairman and members of the Subcommittee, my name is BJ 
Miller, and I am a consulting engineer working on behalf of the San 
Luis & Delta-Mendota Water Authority. I appreciate the opportunity to 
testify today regarding ``Extinction is not a Sustainable Water Policy: 
The Bay-Delta Crisis and the Implications for California Water 
Management.''
    For the past 26 years I have been a consulting engineer focusing on 
California water problems. Prior to becoming a consulting engineer I 
was a member of the California State Water Resources Control Board from 
1978 to 1980. For many years I have taught a one-day course, ``The 
Management of Water in California'' for the UC Berkeley Engineering 
Extension and elsewhere on request. My primary focus has been on the 
Sacramento-San Joaquin Delta because of its importance for California 
water management.
    Since approximately 1992 I have worked primarily on issues related 
Delta fisheries because of the relationship between actions to protect 
Delta fisheries and operations of the State Water Project (``SWP'') and 
Central Valley Project (``CVP'') operations. With my colleague, Thomas 
Mongan, Ph.D., a licensed civil engineer with a doctorate in physics, 
and others, including Bryan Manly, Ph.D., one of the world's foremost 
statistical ecologists, I have conducted numerous analyses of factors 
affecting fish in the Delta. Most of our efforts have focused on delta 
smelt, the small, native fish listed as threatened under both the State 
and Federal endangered species acts.
Summary
    To date, virtually the entire effort to recover the delta smelt has 
been focused on operations of the SWP and CVP. However, there are no 
valid statistical analyses showing that exports from the Sacramento-San 
Joaquin Delta or entrainment of delta smelt at the export pumps have 
important effects on abundance trends of delta smelt. Several analyses 
show a strong relationship between the decline in delta smelt abundance 
and significant declines in the densities of the zooplankton (small 
floating animals) delta smelt prey upon, especially in spring. Reliable 
analyses indicate routine management of Delta exports to minimize 
entrainment (``take'') of delta smelt is a futile attempt to prevent 
extinction or achieve recovery. Certainly exports should be managed to 
prevent the rare, unusually high incidences of take. Beyond that, the 
key to saving the delta smelt is to find out what affects their food 
supply and, if possible, do something to address those limiting 
factors.
Decline of the delta smelt
    As you know, the abundance of delta smelt has declined sharply in 
recent years. The graph below shows the key measurement of smelt 
abundance, the Fall Midwater Trawl index. This index measures abundance 
of sub-adult delta smelt. I compared this index to the population index 
for spawning adults in winter, derived from the highly efficient Kodiak 
trawls that began in 2002. There is an excellent relationship, 
indicating the FMWT index is not only useful because of its length of 
record (since 1967), but also because it appears to be a good indicator 
of the following winter's spawning adult population.
[GRAPHIC] [TIFF OMITTED] 36477.019

    The hearing today is largely because of this graph, so I would like 
to point out a couple of things about it. First, there has obviously 
been a decline in delta smelt abundance. It began in 1999 and was 
especially sharp after 2001. The 2005 index was the lowest of record. 
The 2006 index was higher, but still very low. Second, note the 
variation from year to year. Since 1996, the average change (up or 
down) in this index has been about 60%. So, if we want to figure out 
what happened to delta smelt, and possibly a few other pelagic fish 
whose abundance has declined, we should look for factors capable of 
causing a change of about 60% per year. We should also look for factors 
that changed at about the same time as delta smelt abundance did, that 
is, factors that changed for the good from 1996 to 1999, and for the 
bad thereafter.
    It is possible that factors with subtle, long-term effects control 
delta smelt abundance in complicated ways. However, most (about 95%) 
delta smelt live for only one year. For a fish with a one-year life 
cycle, the most likely factors controlling abundance are those with 
important effects each year.
    This is a data-rich estuary, so we have long-term data on many 
factors that might affect delta smelt. For example, we have long-term 
data on exports from the southern Delta, daily flows into and through 
the Delta, salvage of delta smelt at the export pumps, distribution and 
abundance of delta smelt throughout their one-year life, densities and 
location of delta smelt prey, and turbidity, salinity, and temperature 
of Delta water. We also have data on the prey found in the guts of 
delta smelt. We have long-term data on the zooplankton (small floating 
animals) on which delta smelt feed, as well as on the phytoplankton 
(small, floating plants) consumed by zooplankton. That is not to say we 
have all the data we need, but as estuaries and fish problems go, we 
have lots of data.
Searching for export effects
    Numerous analysts have worked for years to determine if there is a 
relationship between delta smelt abundance and operation of the SWP and 
CVP export facilities. I'll summarize the analyses most relevant to the 
delta smelt question.
      Dr. Bryan Manly (independent consultant) and Dr. Mike 
Chotkowski (Bureau of Reclamation) searched for river flow and export 
effects on delta smelt abundance. They found a statistically 
significant relationship between rates of exports and delta smelt 
abundance, but they concluded that this relationship could account for 
a very small percentage in the variation of smelt abundance. In other 
words, the effect was small and unimportant relative to the trend in 
delta smelt abundance. Dr. Manly summarized the relationship as 
follows: ``I can sum up my conclusions from the analyses that I have 
done over the past few years by saying that so far it appears that 
river flows and exports cannot account for most of the downward trend 
in delta smelt numbers in recent years. Some other change to the system 
seems to have happened in about 1999 to cause the decline. What is 
therefore needed now is further work to better understand the system 
and to identify any important variables that are not currently being 
considered to account for the decline.'' This finding is important for 
two reasons: First, an effect of exports was found. This indicates the 
analyses were capable of finding such effects. If no effect at all were 
found, one might wonder if the proper analysis had been carried out. We 
would expect some effect of exports. After all, delta smelt are 
entrained at the export pumps, and because of the fragile nature of 
this fish (unlike salmon and striped bass), few of those salvaged can 
be returned to the Delta. Second, the effects turn out to be 
unimportant relative to the changes in abundance of delta smelt. Manly 
characterizes the effects as one percent or so per year.
      Subsequently, I analyzed whether export effects were not 
found because exports only affect delta smelt abundance in some years 
but not in others. If this were the case, analyzing data from all years 
could obscure effects only occurring in some years. Delta smelt spend 
most of the year near the confluence of the Sacramento and San Joaquin 
Rivers, 30+ river miles from the export pumps. Smelt migrate upstream 
to spawn in winter. Sometimes a significant fraction of their 
population migrates toward the export pumps, and sometimes they do not. 
So, I searched for export effects only in years when delta smelt were 
closer to the export pumps. I (and Manly) found no such effects.
      Pelagic Organism Decline (POD) studies noted that salvage 
of delta smelt was high in the years of the decline. They assumed this 
coincidence (high salvage, low delta smelt abundance) indicated 
entrainment of delta smelt at the export pumps could be an important 
cause of declining delta smelt abundance. However, finally, POD 
analysts checked for statistically significant relationships between 
any measure of salvage and the subsequent FMWT. They found no 
statistically significant effect. I conclude from this that high 
salvage and low delta smelt abundance were coincidences, rather than 
indication of a cause and effect relationship. This conclusion is 
reinforced by the importance of food limitation to delta smelt 
abundance, described below.
      Drs. Wim Kimmerer (SF State University), Pete Smith 
(USGS), Mongan and I all independently estimated the percent of the 
total population of delta smelt entrained each year at the export 
pumps. All of us estimated percentages in the range of 30-40% in one 
year. However, no one has been able to find statistically significant 
relationships between annual estimates of percent entrainment and 
subsequent FMWT index or annual changes in the index. These analyses 
suggest two conclusions: First, the estimates may not be correct. There 
are uncertainties inherent in each of them. Second, because they might 
be correct, it would be prudent to assume high entrainment events, 
although unusual, can occur and should be prevented.
      Several representatives from environmental organizations 
and state and federal resource agencies have presented analyses 
purporting to show a relationship between exports and the subsequent 
FMWT abundance index. All of these correlations are spurious for the 
same reason: They do not consider the important effect of ``regime 
changes'' affecting delta smelt abundance. These correlations result 
from stretching the analysis over all years, both before and after the 
delta smelt decline that occurred in 1981. Such analyses violate a 
fundamental assumption in regression analysis. The fundamental 
assumption necessary to draw reliable conclusions from regression 
analyses is that the models considered include all of the important 
variables in the system, with no important hidden variables. If there 
is a change in the system at some point in time due to unknown causes, 
the effects of known variables can be analyzed either by fitting 
separate models before and after the change, or by including terms for 
changes in the mean level of the response variable and changes in 
regression coefficients. Clear change points can be detected from 
patterns in regression residuals. Failure to allow for change points 
can lead to spurious conclusions about the effects of variables. In 
other words, if delta smelt abundance underwent a step decline in 1981, 
for reasons having little or nothing to do with exports, and if this 
step change is not accounted for in the regression analysis, any factor 
that tended to be high (or low) before the step change and low (or 
high) after the step change may show a correlation with delta smelt 
abundance, even if this factor had little or nothing to do with 
abundance of delta smelt. Exports were generally low before 1981 and 
generally higher after 1981. Hence, the spurious correlations.
      Dr. Bill Bennett (UCD) proposed a ``Big Mama'' theory 
hypothesizing that high exports before mid-April entrain early hatching 
delta smelt larvae that, if not entrained, would grow into larger 
spawners the next winter. Larger female delta smelt produce more and 
better eggs. This theory has been popular among those who believe 
exports must have important effects on delta smelt abundance. However, 
the theory has two problems. First, long-term data on delta smelt size 
in December show a step decrease in size that has no relationship with 
the recent decline in delta smelt abundance. It occurred around 1990; 
the smelt decline began in 1999, when the December size was level. 
Second, the theory does not account for the demonstrated importance of 
food limitation in determining the size of spawning delta smelt. Put 
another way, there are two ways to become a Big Mama: hatch early and 
grow for a longer time or eat well after you hatch. Well-fed delta 
smelt at the delta smelt culture facility grow so fast that they spawn 
in October rather than waiting until March. So, besides the evidence of 
food limitation discussed below, we know from actual data on delta 
smelt that food is important to spawning size.
      Dr. Ted Sommer, and associates (Department of Water 
Resources), in a study conducted for the Pelagic Organism Decline 
effort, looked for declines in residence time of water in the Delta 
during the period of the recent decline in delta smelt abundance. 
Residence time could be affected by exports. They did not find evidence 
of a major shift in residence time. In fact, they observed that 
residence times may have increased slightly in the San Joaquin River.
Implications for managing exports
    Taken together, these analyses indicate the following principles 
for managing exports with regard to delta smelt:
    1.  No rigorous scientific analysis indicates entrainment of delta 
smelt at the export pumps caused the recent decline in delta smelt 
abundance. Moreover, there is no scientific analysis that demonstrates 
that controlling exports will contribute to the prevention of 
extinction or achievement of recovery of the species. Therefore, 
routine management of exports or river flows to minimize entrainment 
(or take) of delta smelt as a means of preventing extinction or 
achieving recovery is futile.
    2.  Because analyses indicate that unusually high entrainment 
events have occurred in the past, exports and other water project 
operations should be managed to prevent such occurrences in the future. 
This should be done by real-time monitoring of the distribution of sub-
adult, spawning adult, and larval-juvenile delta smelt, coupled with 
judicious use of mathematical Particle Tracking Models and close 
monitoring of river flows and turbidity related to entrainment.
The importance of food
    If exports or entrainment did not cause the decline in delta smelt 
abundance, what did? I summarize below recent analyses related to this 
question.
      Dr. Bill Bennett ``autopsied'' 100+ delta smelt and found 
most of them were food limited in the summer.
      Mongan and I, keying on Bennett's finding, analyzed the 
co-occurrence of delta smelt and their primary prey (the two alien 
zooplankton, Eurytemora affinis and Pseudodiaptomus forbesi) in July. 
We found a good correlation for the period 1981-2006 between, on the 
one hand, July co-occurrence of delta smelt and density of the two 
zooplankton and, on the other hand, the subsequent FMWT abundance 
index. This was the first correlation with an obvious explanation 
(delta smelt must feed to survive) ever found between any factors and 
the subsequent FMWT.
      Dr. Anke Mueller-Solger, Department of Water Resources, 
noted that after 1996, the FMWT index depends solely on July delta 
smelt abundance. That is, the co-occurrence with prey was not necessary 
in recent years. She concluded from this and other analyses that food 
limitation was not the problem. However, this conclusion rests on the 
questionable assumption that delta smelt feed equally well on yet 
another recently introduced alien zooplankton, Limnoithona tetraspina, 
as they do on their established favored prey, Eurytemora and 
Pseudodiaptomus. Without this assumption, there is a clear drop in prey 
densities. Limnoithona now occur at extraordinarily high densities in 
July in delta smelt habitat. However, Limnoithona were not found in the 
guts of delta smelt examined in 2005, when Limnoithona levels were 
merely high, but were found in 2006 when they were extraordinarily 
high. Individual Limnoithona are much smaller than both Eurytemora and 
Pseudodiaptomus, so more energy is required by delta smelt to capture 
Limnoithona. It is possible that, rather than being a good source of 
food for delta smelt, Limnoithona are starvation rations that may 
interfere with survival by being so numerous and requiring so much more 
energy to capture.
      We attempted to find out what determined delta smelt 
abundance in July. We discovered an even better correlation between 
late-April co-occurrence of delta smelt and their primary springtime 
prey, Eurytemora, and the subsequent FMWT abundance index for 1997-
2005. This is the period when July abundance determines the FMWT index. 
As mentioned above, the FMWT index is closely related to subsequent 
winter spawning abundance. Using the relationship developed for 1997-
2005, we can predict the FMWT abundance index from the previous year's 
index and the co-occurrence of delta smelt and Eurytemora in late 
April. Predicted and actual FMWT index values are shown below. The 
predicted line uses only one estimate of delta smelt abundance, the 
FMWT index of 1996. From that index and annual late-April densities of 
Eurytemora and distribution of delta smelt (not their abundance), the 
next nine years of FMWT indices can be predicted. Exports and 
entrainment of delta smelt at the export pumps is not a factor in this 
prediction. It is solely determined by Eurytemora densities in areas 
where delta smelt are in late April. I conclude from these analyses 
that the problem with delta smelt is a significant drop in the 
densities of their prey, initially in the summer and, in recent years, 
in the spring. Why this drop occurred is a mystery. If it were caused 
by exports, exports would show up as an important factor affecting 
delta smelt abundance, but the data do not support that possibility. 
Something else must be affecting the zooplankton that delta smelt prey 
on. If we could identify those factors and do something about them, we 
might be able to save the delta smelt. No reliable, statistically 
significant analyses suggest we can save delta smelt or cause their 
recovery by managing exports or entrainment.
[GRAPHIC] [TIFF OMITTED] 36477.020

Conclusion
    One might reasonably ask how it is possible that so much emphasis 
is put on exports as the cause of the delta smelt abundance decline if 
there are no reliable analyses supporting this belief and several 
analyses indicating that food is the problem. An answer can be found in 
the report of outside experts, the Review Panel for the Pelagic 
Organism Decline Program. These panelists are listed below.
        Mark D. Bertness, Brown University
        Stephen M. Bollens, Washington State University Vancouver
        James H. Cowan, Louisiana State University
        Ronald T. Knelb, University of Georgia Marine Institute
        Parker MacCready, University of Washington
        Russell A. Moll, California Sea Grant College Program
        Paul E. Smith, Scripps Institution of Oceanography
        Andrew R. Solow, Woods Hole Oceanographic Institution
        Robert B. Spies, Applied Marine Sciences
    Their first conclusion concerning ``weaknesses'' of the Pelagic 
Organism Decline Program in their December 2005 report is as follows:
        ``The program relies too heavily on local perspectives and 
        resources for problem analysis, research and solutions. This 
        can give rise to a culture of common assumptions that impedes 
        alternative possibilities.''
    I agree with this conclusion. The belief that exports have 
important effects on delta smelt and other fish has been a fundamental 
tenet of Delta water project management for years. It has proven to be 
an unfounded belief for striped bass and salmon, and many analyses of 
the wealth of data in this estuary indicate it is also unfounded for 
delta smelt. Nevertheless, as evidenced by the title of this hearing, 
it remains a powerful paradigm, contrary to the science, and to the 
detriment of delta smelt.
    [NOTE: A letter dated July 16, 2007, submitted for the record by 
Mr. Miller has been retained in the Committee's official files.]
                                 ______
                                 
    Mrs. Napolitano. Thank you, sir.
    Mr. Larson?

            STATEMENT OF THE HONORABLE PHIL LARSON, 
          FRESNO COUNTY SUPERVISOR, FRESNO, CALIFORNIA

    Mr. Larson. Madam Chairman and Members of the Committee, my 
name is Phil Larson. I am a member of the Board of Supervisors 
of Fresno County, and I really appreciate being here today with 
my neighbor and friend, Mr. Jim Costa, and again to testify 
before Mr. Miller, to whom I testified before in 1992 on the 
Committee he chaired--so strongly chaired, I should say.
    I speak with unanimous support of my colleagues on the 
Fresno County Board of Supervisors. This crisis is commonly 
seen as a very costly and damaging collision between the 
environment and the water management system. It is key to the 
future of California's rural or urban economies.
    Indeed, the future of our way of life is at stake. This 
crisis should be viewed as first of many conflicts in the Delta 
where the dream that is California hangs in the balance.
    I was elected to represent District of Fresno County in 
November of 2002 and was reelected in June 2006. The District 1 
included a rich and productive farmland in the western portion 
of Fresno County on the way to the San Benito County line. As a 
lifelong farmer and former president of the Fresno County Farm 
Bureau, I continue to fight for safe and secure water supplies 
in our region because I know without additional water supplies 
the social, cultural and economic impacts to our region could 
be devastating.
    Fresno County is blessed in having rich soils and the 
climate ideal for irrigated agriculture. The hard work of the 
farmers who come to Fresno County from all over the world has 
made the county the richest and most productive agricultural 
county in America.
    The county leads the Nation in the number of farms, 6592 
farms with sale to 100,000 or more, 2,320 in harvested crop 
land of 1.16 million acres.
    Water in western Fresno County is delivered through the 
Westlands Water District via the Central Valley Project. 
Westlands encompasses more than 600,000 acres of farmland in 
western Fresno County.
    The Westlands farmers produce more than 60 high quality 
commercial food and fiber crops sold for the fresh, dry, canned 
and frozen food markets, both domestic and export. In addition, 
more than 50,000 live and work in those communities depending 
on the agricultural commodities.
    The communities near the District's boundaries include 
Mendota, Huron, and Tranquility. You will visit Mendota 
tomorrow, Madam Chairwoman. Tranquility, Firebaugh, Three 
Rocks, Cantua Creek, Helm, San Joaquin, Kerman, Lemoore and 
Coalinga, most of which are in my district.
    The water provided by Westlands is conveyed through the 
Sacramento-San Joaquin Rivers Delta and pumped from the Delta 
at the C.W. ``Bill'' Jones Pumping Plant. When diversions at 
the pumping plant are reduced to avoid the take of listed 
species like the Delta smelt the effects on farming and the 
economy of Fresno County are dramatic and devastating. As an 
example, there are farmers on the west side of Fresno County 
who this year have plowed under their growing crops because 
they lack supplies of water to irrigate those crops to 
maturity. The shortage of water, if it is not due to the 
drought or other climatic conditions, although 2007 has been a 
dry year, the two preceding years were wet and storage in 
Central Valley Project reservoirs north the Delta at the 
beginning of the water year was about average--rather the water 
shortages that have caused farmers to plow under their crops 
was caused by restrictions on the operations of the Delta 
export pumps, including the complete shutdown of the Harvey O. 
Banks Pumping Plant to protect the Delta smelt.
    Immediate action must be taken to prevent the economic 
disaster this can bring, and we must work together to find a 
long-term solution that will help us avoid similar crises in 
the future.
    The consequences of such action affect more than just the 
farmers who have lost their crops and their investment in those 
crops. Such actions affect farm workers who will not be 
employed to complete the production and harvest of those crops, 
and small businesses that exists to provide goods and services, 
to provide the activities of farms in western Fresno County.
    While recognizing the importance of maintaining a healthy 
ecosystem, it must be balanced with the economic impacts. There 
is a very human face to the decisions that are made.
    Last winter Fresno County's agriculture was impacted by a 
naturally occurring disaster, the freeze of 2006. The impacts 
on people were real and I believe that it will mirror the 
potential impacts of limiting water flow through the Delta. 
Fresno freeze related agricultural losses were over $111 
million, but the real story is how those losses directly 
impacted families. Freeze-related unemployment claims in Fresno 
County were 1,805 and 3,168 in Tulare County, and that does not 
account for those who did not file because of legal status 
concerns.
    Assistance provided by La Cooperativa Campesinos de 
California via the Employment Development Department (EDD) 
grants serviced 1,114 participants, utility payments of 
$50,152, rental of $260,602 and mortgages of $55,679 for a 
total of $366,443. The total for Tulare County exceeded $1.1 
million and the State total was over $3 million. Since January 
the Fresno County food bank has served approximately 64,359 
individuals, a total of 689,841 pounds of food distributed.
    To put a clearer face on what impacted agricultural losses 
have on real families, the Cornerstone Church in Fresno County 
EOC still distributed on May 27th more than 4,000 pounds of 
food.
    My testimony is on your record and there are some 
substantial anecdotes to go with it. I would submit those to 
you as my testimony. I am ready for any question.
    Thank you, Ma'am.
    [The prepared statement of Mr. Larson follows:]

    Statement of John P. (Phil) Larson, Supervisor, County of Fresno

    Madam Chairwoman and members of the Subcommittee, my name is Phil 
Larson, and I am a member of the Board of Supervisors of the County of 
Fresno. I appreciate the opportunity to testify today on the current 
crisis in the Delta. I speak with unanimous support from my colleagues 
on the Board of Supervisor, as evident in a letter we submitted to Gov. 
Schwarzenegger regarding this issue (attachment A). This crisis is 
commonly seen as a very costly and damaging collision between the 
environment and the water management system that is the key to the 
future of California's rural and urban economies. Indeed, the future of 
our way of life is at stake. This crisis should be viewed as the first 
of many conflicts in the Delta where the dream that is California hangs 
in balance.
    I was first elected to represent District One of Fresno County in 
November 2002 and was re-elected in June of 2006. District One includes 
the rich and productive farmland in the western portion of the county 
all the way to the San Benito County line. As a lifelong farmer and 
former president of the Fresno County Farm Bureau, I continue to fight 
for safe and secure water supplies in our region because I know without 
additional water supplies the social, cultural and economic impacts to 
our region could be devastating.
    Fresno County is blessed to have rich soils and a climate that is 
ideal for irrigated agriculture. The hard work of farmers who came to 
Fresno County from all over the world has made the County the richest 
and most productive agricultural county in America. Our gross 
agriculture production value in 2006 exceeded the four billion-dollar 
mark for the fifth consecutive year. The County leads the nation in 
number of farms (6,592), farms with sales of $100,000 or more (2,321) 
and harvested cropland (1.16 million acres).
    Water in western Fresno County is delivered through the Westlands 
Water District via the Central Valley Project. Westlands encompasses 
more than 600,000 acres of farmland in western Fresno and Kings 
Counties. The District serves approximately 600 family-owned farms that 
average 900 acres in size. Westlands' farmers produce more than 60 high 
quality commercial food and fiber crops sold for the fresh, dry, canned 
and frozen food markets, both domestic and export. In addition, more 
than 50,000 live and work in the communities dependent on the 
District's agricultural economy. The communities in and near the 
District's boundaries include Mendota, Huron, Tranquillity, Firebaugh, 
Three Rocks, Cantua Creek, Helm, San Joaquin, Kerman, Lemoore and 
Coalinga, most of which are in my district.
    The water provided by Westlands is conveyed through the 
Sacramento--San Joaquin Rivers Delta and pumped from the Delta at the 
C. W. ``Bill'' Jones Pumping Plant. When diversions at the Jones 
Pumping Plant are reduced to avoid the take of a listed species like 
the Delta smelt the effects on farming and the economy of Fresno County 
are dramatic and devastating. For example, there are farmers on the 
westside of Fresno County who this year have plowed-under their growing 
crops because they lack adequate supplies of water to irrigate those 
crops to maturity. The shortage of water is not due to drought or other 
climatic conditions. Although 2007 has been a dry year, the two 
preceding years were wet and storage in Central Valley Project 
reservoirs north of the Delta at the beginning of the water years was 
above average. Rather, the water shortages that have caused farmers to 
plow-under their crops was caused by restrictions on the operations of 
the Delta export pumps, including the complete shut down of the Harvey 
O. Banks Pumping Plant, to protect the Delta smelt. Immediate action 
must be taken to prevent the economic disaster this can bring and we 
must work together to find a long-term solution that will help us avoid 
a similar crisis in the future.
    The consequences of such action affect more than just the farmers 
who have lost their crops and their investment in those crops. Such 
actions affect farm workers who will not be employed to complete the 
production and harvest of those crops and small businesses that exist 
to provide goods and services to support the activities of farms in 
western Fresno County. While recognizing the importance of maintaining 
a healthy eco-system, it must be balanced with the economic impacts. 
There is a very human face to the decisions that are made. Last winter, 
Fresno County's agriculture was impacted by a naturally occurring 
disaster--the Freeze of 2007. The impacts on people were real and I 
believe that it will mirror the potential impacts of limiting the water 
flow through the Delta.
    Fresno County freeze related agricultural losses were over $111 
million. But the real story is how those losses directly impacted 
families. Freeze related Unemployment claims in Fresno County were 1805 
matched with Tulare County 3168--we had 5000 Unemployment claims 
filed--and that does not account for those who did not file because of 
``legal status'' concerns. Assistance provided by La Cooperativa 
Campesinos de California via Employment Development Department (EDD) 
Grants serviced 1,114 participants, utility payments of $50,162, rental 
$260,602, and mortgage $55,679 for a total of $366, 443. The total for 
Tulare County exceeded $1.1 million and the state total was over $3 
million (attachment B). Since January, the Fresno Community Food Bank 
has served approximately 64,359 individuals, a total of 689,841 pounds 
of food distributed (attachment C).
    To put a clearer face on what impact agricultural losses have on 
real families, the Cornerstone Church and Fresno County EOC were still 
distributing on May 27, 2007 more than 4,000 boxes of food to the 
freeze impacted community of Orange Cove. This was a continuation of 
the more than 10,000 boxes of food distributed in three other efforts 
(attachment D). On the Westside of Fresno County, the communities and 
residents of Firebaugh, Mendota, Tranquillity, San Joaquin, and Huron, 
are directly impacted by agriculture. These communities are 
predominately Hispanic and already live below the poverty line. Mendota 
is a city with a 7,800 population and average household size of 4.32. 
Many of these families struggle to survive off an annual median 
household income of $23,700 (attachment E). The surrounding cities and 
unincorporated communities in my district share similar demographics 
and economic hardships.
    As water reductions have occurred--quality of life has been 
impacted. Most of the folks that live in the region are agricultural 
workers. Many have been employed by the same farming operations for 
generations. I wish I could have you meet some of them. They are 
hardworking and proud people who love working the land, provide for 
their families, and are living the challenges of the changes that are 
impacting agriculture. I hope that you can understand that the answer 
to serving their needs is not moving them to cities--placing them 
within our over burdened social welfare system. It is providing them 
with the opportunity to earn a living, allowing them to maintain their 
family structure so that they can educate their children and prepare 
for the changes that will occur in farming. It has always struck me as 
ironic that groups who advocate for ``environmental justice'' support 
reduced diversions from the Delta to protect fish species without 
regard to the effect inadequate water supplies have on the low-income, 
minority population of western Fresno County.
    By my comments I do not want to suggest that protecting the Delta 
smelt from extinction is unimportant. Rather, I mean to convey that we 
must find the means to provide adequate water supplies to support the 
agricultural economy of the San Joaquin Valley that does not conflict 
with efforts to protect this and other species of concern in the Delta. 
Such means do exist. For instance, I have read many comments from 
experts like Dr. Peter Moyle that one way to avoid the conflict between 
protecting fish and supplying water for agriculture is to move the 
intakes of the State Water Project and the Central Valley Project out 
of the southern Delta, to an area along the Sacramento River south of 
the City of Sacramento. I am afraid that if something like this is not 
done, the prediction of Lester Snow, the Director of the California 
Department of Water Resources will come true. He has stated as recently 
as mid-June that if we do not find some means of fixing the Delta 
conveyance problem, we fill face on an annual basis water supply 
shortages of the type that caused farmers in my supervisorial district 
to plow-under their growing crops.
    The leadership of the federal and state governments is faced with a 
fundamental question: Do we want to preserve the agricultural economy 
of this state? As you probably could guess, my answer to that question 
is yes. From my perspective, protecting our ability to produce domestic 
food supplies rises to the level of a national security interest. 
Difficult decisions, which may be unpopular in some quarters, will have 
to be made if we are to protect a safe and reliable food supply, while 
providing jobs and serving as the economic engine of our state. While 
we all agree that extinction of species like the Delta smelt is not a 
sustainable water policy, we must work together to find a solution that 
supports the economy of California and the ability of our farmers to 
feed and cloth the nation and the world, while preserving our 
ecosystem.
    Again, thank you for the opportunity to testify. I would be happy 
to respond to questions.
    [NOTE: Attachments have been retained in the Committee's official 
files.]
                                 ______
                                 
    Mrs. Napolitano. Very much appreciate it. Thank you.
    We want to be out of here by 12:00, and obviously we are 
not. So that is one of the reasons I have been trying to move 
it right along.
    I appreciate all your testimony. There were a couple of 
things that came to mind as I listened to the testimony, one of 
them being, and I am sorry I did not ask the question of the 
Bureau when they were here, but you realize there are major 
issues in California on water. Of course, water recycling which 
the Administration does not view as essential, the Salton Sea 
which is in decline, the San Joaquin Restoration, the San Luis 
drainage and the Bay-Delta. So what are California's 
priorities? I think either you are going to have to make some 
tough decisions and the funding is going to have to be 
committed by everybody, and the support has to be from all 
involved.
    I am making that statement because when I listen to what is 
so important at the time we are talking to the issue, and yet 
there are other areas who feel they are just as important to 
them and to their economy and to the welfare of the State. So I 
just make that point because those are the things that we face 
in our Committee with regard to the California economy and the 
California water delivery system.
    I am very much concerned because I am criticized by my 
colleagues on the other side that I am running a dog and pony 
show. That is furthest from our mind. We need to get at the 
truth. We need to get as much information, share it, make it 
open, transparent so that we know where we are leading. 
Unfortunately, we don't need to be finger pointing, but rather 
we need to try to reach decisions that are going to help us 
make the right solution possible.
    So with that, I do have some questions but I will begin 
with Ms. Cooley. You mentioned that developing alternative 
water resources, such as water recycling and desalination--both 
good subjects to raise--are options for a new reliable water 
supply. Why do you think the Bureau is so reluctant to fund 
water recycling projects? They left them out of their water 
2025 plan and they normally allocate $11 million for the whole 
nation to invest into recycling water. Can you give us some 
concrete examples of communities that have tried to develop 
alternative water supplies but have been inhibited due to lack 
of funding?
    By the way, may I state that the Bureau has almost $400 
million of backlog of water projects approved by this Committee 
that they have not moved on.
    Ms. Cooley. OK.
    Mrs. Napolitano. Yours.
    Ms. Cooley. I think part of the problem with the recycling 
is the public perception issue in that recycling is cost 
effective relative to other supply options, but many agencies 
are having to kind of put in a dual plumbing system. I do not 
know of any particular agencies that have held back because of 
a lack of funding. I do know of agencies that have proceeded. 
Irvine Ranch Water District, for example, meets 20 percent of 
their needs by recycling water. So I know that there is a 
tremendous amount of interest right now.
    I also understand that you are putting through a bill that 
looks at making additional funding available. I am sure 
agencies would welcome that with open arms. That might be a 
better question for the Bureau as to why they withheld that 
financing.
    Mrs. Napolitano. Thank you.
    You have advocated elimination of water subsidies. What do 
you a consider a water subsidy and how would doing so help 
environmental conditions in the Delta?
    Ms. Cooley. OK. In part, some of the water subsidies are 
via pricing policies, inexpensive water. We can look at the 
Central Valley Project, for example, and how the rates that 
farmers are paying for that water is very, very low.
    Mr. Thompson had asked earlier about the various contracts 
that are under review and that they are thinking of increasing. 
It might be interesting for them to look at what farmers are 
being charged for that water. Because of the cheap water, it is 
actually a disincentive for conservation and it is encouraging 
them to grow low value water intensive crops.
    Mrs. Napolitano. Thank you.
    Mr. Stelle, you and many of the witnesses who testified 
today have said that there is unacceptable status quo. What 
would you consider acceptable and how would we be able to 
achieve that?
    Mr. Stelle. Acceptable to my view is when we get sued, and 
you can count on it. We are standing before a Federal district 
court. We make our case as to why the conservation plan we 
developed is scientifically well grounded and legally 
sufficient, and he or she agrees. We are then free to proceed 
to implement it in a manner that is reliable, both from a 
biological perspective and a water supply perspective. That is 
success.
    Mrs. Napolitano. Thank you, sir.
    I will call Mr. Costa.
    Mr. Costa. Thank you very much, Madam Chairman. I have a 
number of questions so I want to go quickly here, starting with 
Mr. Miller.
    First of all, the issue of the take, Mr. Miller, that we 
are talking about that one of my colleagues stated is a three 
alarm fire, this is not the first time we have had a take issue 
due to my recollection, is it not?
    Mr. Miller. That is correct.
    Mr. Costa. Can you cite just quickly offhand the last time 
we have had take issues in the last 10, 15 years?
    Mr. Miller. You mean the years?
    Mr. Costa. No, not the years. Just the crises and the time 
and how that----
    Mr. Miller. Well, I think anytime a lot of smelt show up at 
the pumps there is a perception of a crisis.
    Mr. Costa. I think there is a problem. But the point I am 
trying to make is this is not the first time we have had a take 
issue.
    Mr. Miller. Right. Right. I think the problem with the take 
issue is that take goes up, take goes down, Delta smelt go up, 
Delta smelt go down, but they do not do that together.
    Mr. Costa. Yes. OK. Let me ask you another question. Mr. 
Johns made a comment in the previous panel that we are using 
one knob and you relate it to your own study and other studies 
to try to deal with the issue, and that is the export of water. 
What are the other knobs out there that you would describe that 
are available that we are not utilizing right now?
    Mr. Miller. I do not have a great----
    Mr. Costa. Besides trying to find more food for the smelt.
    Mr. Miller. That is where I do not have a great answer to 
that question. I do think that turning the knob--if turning the 
export knob were free, turn it. But it is not free. It is 
extremely expensive turning that knob, especially if you are 
not----
    Mr. Costa. So in terms of the 1,800-plus acre-feet of water 
that is extracted within the Delta, in terms of the 
organization, in terms of the urban waste and pesticide use 
none of those are knobs?
    Mr. Miller. They might be knobs. I would be all over this 
food issue. I would be trying to do toxicity studies, for 
example, on these zooplankton. I would be studying them to 
death. Instead, we have three or four meetings a week on 
exports. We got a lot of talent and brain power focused on 
exports.
    Mr. Costa. OK. I need to go because we have time issues.
    Ms. Cooley, I appreciate your acknowledgement about the 
conservation and as I said in my opening statement, there has 
been a lot of conservation done. We can do a lot more and I am 
all for putting incentives and carrots as it relates to those 
incentives.
    Let me ask you a simple question. Should we stop exports 
today or should we transition at some point in time, stopping 
all of the water exported south of the Delta in your opinion?
    Ms. Cooley. I do not think it is necessary to stop all of 
the export, but I do think we need to----
    Mr. Costa. You know about 10 to 12 million acre-feet per 
year on the average goes through the Delta?
    Ms. Cooley. Yes.
    Mr. Costa. We have contracted for 6.2 million acre-feet. 
This year we will probably do a little less than 5 million 
acre-feet. Last year we had almost 15 million acre-feet of 
water go through the Delta.
    Ms. Cooley. Yes, and so I do not think it is necessary to 
stop all of the exports. However, I do believe we need to start 
working in that direction. Exports have been increasing since 
the 19----
    Mr. Costa. Well, I think that is an important question that 
the environmental community needs to raise as we try to, 
frankly, look for solutions. I am always trying to look for 
solutions. Is the goal to stop all exports south of the Delta? 
Now that is the goal. I may disagree with it, but then I want 
to know that is the goal. If that is the goal, do we do it in a 
transitional phase or do we do it in five or ten years? I think 
those are important responses.
    Mr. Larson, I am running out of time here. I want to go 
quickly. The subsidized crop issue, you subsidized water and in 
certain cases it had a lot more application 15 or 20 years ago. 
First of all, we had 1.5 million acre-feet of cotton grown in 
the Valley as little as 12 years ago. Today we have what? About 
500,000 acre feet?
    Mr. Larson. Five hundred thousand acres.
    Mr. Costa. Five hundred thousand acres.
    Mr. Larson. Most of that is Pima cotton----
    Mr. Costa. Not subsidized.
    Mr. Larson. Not subsidized.
    Mr. Costa. Right. Are there any other crops besides the----
    Mr. Larson. In the Westlands----
    Mr. Costa. In the Valley?
    Mr. Larson. Oh, yes, in the Valley. There is wheat and 
there is some rice.
    Mr. Costa. A little wheat?
    Mr. Larson. Yes, a little bit.
    Mr. Costa. Rice?
    Mr. Larson. Rice. We have a little rice in Westlands.
    Mr. Costa. They have more water?
    Mr. Larson. Yes. They have all the water.
    Mr. Costa. What was the price of water prior to 1992 in 
Westlands?
    Mr. Larson. Well, they had to pump the water from deep 
wells.
    Mr. Costa. I know, but----
    Mr. Larson. 1992?
    Mr. Costa. Right.
    Mr. Larson. It was about $47 an acre-foot.
    Mr. Costa. What is it today?
    Mr. Larson. Today if you farm 900 acres or less, it is $70 
an acre-foot. If you need more water than that, it is at the 
market demand, and some of it went as high as $500 a month 
ago----
    Mr. Costa. So in 15 years the price of water has doubled 
and beyond your 900 acres it has tripled.
    Mr. Larson. The interesting thing, Congressman Costa, is 
the fact that when you take $70 an acre-foot and a normal crop 
4 acre-feet----
    Mr. Costa. Even with drip?
    Mr. Larson. Even with drip. The plant takes whatever it 
takes; drip, flood or however you put it on. When it takes it 
that way, that is the same as five houses per acre would be.
    Mr. Costa. Let me just close, because my time has expired 
almost.
    Members, I have provided billions of dollars of money in 
water bonds when I was in the State legislature. I just want to 
provide sensitivity, that is all. Sensitivity. We have to fix 
these problems in the Delta, and I want to work with all of you 
to do it. But doing it at a subzero scorecard, zero scorecard 
where there is no impacts to any other region in California I 
find personally objectionable.
    I mean, we are all in this together. I really believe that, 
and my course in history as a legislator on these issues has 
always indicated my desire to help every region of this State. 
I would just hope and pray that you would provide the same sort 
of sensitivity to the challenges that we have in the Valley.
    Mrs. Napolitano. Thank you, Mr. Costa. I might add in 
Southern California I think we pay about $600 an acre-foot. So 
there is a big difference for the consumer, the household 
consumer.
    Mr. Larson. Well when you look at urban and agriculture, 
there is a delivery system----
    Mrs. Napolitano. Precisely. That is what sometimes gets in 
the way.
    Mr. Miller?
    Mr. Miller of California. Thank you, Madam Chair.
    The question here I think is--I do not know. I have been at 
this 35 years and nobody has ever said we are going to cut off 
all exports from the Delta. Nobody that I know of. But the 
question is now whether or not, we are in a situation where we 
are in court, where we are being sued, the three alarm fire was 
to the collapse the Delta that goes beyond the smelt and what 
are we going to do about it?
    Ms. Cooley suggested you might not want to put subsidized 
water on a subsidized crop that the government then buys back 
with the taxpayer money. So that over 2003 and 2005 in 
California with $600 million in cotton that the taxpayer put 
into that system. If that subsidy was not available, they might 
think of some other crop and some other use of that water.
    As high as the price of water has gotten, it continues to 
be subsidized. You know, if you look at the cotton crop in 
California, this does not make them the sole problem with 
respect to the Delta, but they kind of look like the SUVs of 
the energy crisis, you know. That may not be where you want to 
be in this day and age.
    Mr. Stelle has been through a series of these crises. I 
have been through most of them with him. The fact of the matter 
is until you come to this kind of event do people start to 
realize the misplaced priorities. The question is recycling. 
The question is use conservation. All of these go together. So 
you start to ask your questions.
    Should we continue the massive subsidization of water in 
California? You know, in the urban areas, I do not know, all I 
hear from my wife is how much our water bill keeps going up and 
we are using less and less every year. That is going on all 
over.
    There has been dramatic improvements in the agriculture 
community in the use of water and the conservation of water, 
and the rest of that. That is all good, but we are still not 
out of the woods. As we all know, we like to say we do not want 
the courts to run this system, but you know it was the courts 
that straightened out the Trinity River. It was the courts that 
straightened out the Northwest Woods. It was the courts that 
straightened the salmon problems. The fact of the matter is 
sometimes when systems get in front of the court they start to 
think about the realities of what is taking place as opposed 
to, as Mr. Isenberg said, how do I hold on to what I have. That 
is really a decision.
    I hope we can avoid the courts. But I do not know that we 
are going to make it because if we are going to have an 
agriculture bill that comes to the Floor and it is going to 
suggest that we just do business as we have been doing it the 
last couple of years. I do not think that is sufficient for 
California. I do not think that is going to work for 
California. That is why we are raising these issues.
    Listen, when nobody would join us we built--out of the 
ratepayers of Contra Costa County. We could not get the Federal 
Government to join us. We could not get other people to join 
us. Now people want to expand it, they want to participate. We 
welcome them, and I am excited about that proposal. That will 
help with some of the flexibility that I keep talking about.
    You know, Mr. Miller, let me just say as I understand it--I 
appreciate all these things that you cited about pumping. I am 
not suggesting that that's a sole determinant at all. But when 
Fish and Wildlife reviewed your report, they concluded the 
study was on questionable science, unacceptable procedures and 
that it was ``a serious flawed analysis of a limited set of 
selectively chosen data designed to support a predetermined 
conclusion.''
    Mr. Miller. Which report is that?
    Mr. Miller of California. Well, that is apparently the 
analysis, as I understand it, of the U.S. Fish and Wildlife 
Service of your reports----
    Mr. Miller. No, no, no. That was--that was three years 
old----
    Mr. Miller of California. Another one of your reports?
    Mr. Miller. There was no estimate of the population of 
Delta smelt. A bunch of us thought there should at least be 
some sort of estimate. So I put one together and they did not 
like the idea that I estimated the population.
    Mr. Miller of California. The analysis was not solid.
    Ms. Cooley, let me ask you, if I might----
    Mr. Miller. They can check this analysis if they want.
    Mr. Miller of California. Ms. Cooley, if I might, the 
Chairwoman has talked about recycling. We saw what California 
did both with energy in the 1970s and with water in the 1970s 
as we started to change direction. Is there a sense of what the 
real potential is there? Again, none of these are silver 
bullets but at this stage of the game it would seem to me that 
we would really start to focus on some of these that provide a 
real yield, if you were, in terms of the water world where 
yield is very important.
    Ms. Cooley. Right. In terms of recycling and reuse, I have 
not seen a good study to look at the actual potential. I 
believe current use is about 500,000 acre-feet, mostly for 
irrigation, agriculture and landscape. But I have not seen a 
thorough analysis of what the actual potential is.
    My sense is that it is large and to be used for outdoor 
irrigation needs, also for agriculture and also for some 
commercial and industrial.
    Mr. Miller of California. I mean if we are doing 500,000 
acre-feet of water, the consumption of the State of California 
de minimis?
    Ms. Cooley. It is small, yes. If we look at say what Irvine 
Ranch and some other agencies are doing where they are using up 
to 20 percent, it shows that there is a huge amount of 
potential.
    Mr. Miller of California. Mr. Stelle, is your group looking 
at this, these other alternatives in terms of water----
    Mr. Stelle. Yes, we will be.
    Mr. Miller of California. You will be?
    Mr. Stelle. Yes.
    Mr. Miller of California. Let me ask you something, if I 
might, and Madam Chairwoman I will stop here.
    You talked about the time line going back to the court on 
the biological opinions and you thought that would be resolved 
when? You said something middle of 2008?
    Mr. Stelle. Yes. The judicial concentric circles are--I 
believe that the State and Federal water agencies will be in 
front of the court next week with some proposals on how to 
operate through the course of 2007 and early 2009. There will 
be hearings on that in the middle of August, and then the judge 
will do what the judge will do.
    The second circle is meanwhile back at the ranch, the 
Federal and the State are in consultation on how to operate 
over the longer term, say three to five years, and that 
consultation should be completed by spring of 2008.
    Mr. Miller of California. Are those two things inconsistent 
with one other, are they complementary of one another?
    Mr. Stelle. Well, I do not know. I do not know the content 
of either. But if the answer to your question is no, we are not 
in good shape. There has to be a high degree of interdependence 
and consistency among those things, otherwise they will not be 
very defensible.
    Mr. Miller of California. OK.
    Mrs. Napolitano. Stop?
    Mr. Stelle. For the moment.
    Mr. Thompson of California. Thank you, Madam Chair.
    I want to just touch on one issue that is somewhat related 
or very related to the conservation issue, and I am not sure 
who can best answer it. But I think Mr. Larson you mentioned 
the different types of irrigation that agriculture does in your 
area.
    Mr. Larson. That is correct.
    Mr. Thompson of California. You mentioned drip irrigation. 
I was involved at one time when I was in the State Senate on 
trying to figure out how to remove the penalty from farmers who 
go from flood to drip irrigation, now they are reassessed, 
their property tax is reassessed and they have to pay more. So 
it is somewhat a disincentive to do that.
    Is it your understanding that more people would do more 
projects such as this if they did not have that penalty?
    Mr. Larson. I think the disincentive for drip irrigation, 
although it is very good, the disincentive for irrigation is 
the $1,000 an acre it costs to install it.
    Mr. Thompson of California. Well but it is a greater 
disincentive if you pay the $1,000 an acre to install it, then 
you turn around and your property is reassessed----
    Mr. Larson. I understand that was the case, and is still 
the case. That is still the case.
    Mr. Thompson of California. The Fresno Bee was one of two 
papers that editorialized against my effort, which I thought 
was somewhat curious. They did not think that farmers should 
get more help from----
    Mr. Larson. Well, the Fresno Bee is sometimes curious.
    Mr. Thompson of California. They were way off base on that 
one.
    Mr. Stelle, I asked the earlier panel about the idea of 
creating a conservancy for the Delta. You have done extensive 
work throughout the country here on these sorts of things. But 
would something like that help?
    Mr. Stelle. I think I would align myself with Phil's 
comments earlier. Maybe over the long term, yes. But getting 
wrapped around the axle on governance issues in the middle of 
the wild fire we have now that is the Bay-Delta I think is not 
placing the right priorities on the subject matter.
    The subject matter needs to be--the focus needs to be on 
the content of what are we going to do and when are we going to 
do it. I would, therefore, defer on governance a little bit 
with all due respect to those who have spent a lot of time on 
it.
    Mr. Thompson of California. Then a question for anyone who 
wants to take a shot at it. Is there anything that we should 
learn from what happened up in the Klamath that would allow us 
to be a little bit more proactive, a little less contentious 
that you would recommend?
    Mr. Stelle. I have been through several Endangered Species 
Act wars. I am totally convinced that if it is not 
scientifically robust and entirely transparent, it will not be 
defensible. If it is not defensible, it is not worth a whole 
lot in terms of reliability.
    The notion that you can monkey around with this stuff, you 
cannot monkey around with it and get away with it.
    So I think a real touchstone for the Bay-Delta Steering 
Committee is the touchstone of scientific robustness and 
transparency because people will disagree with what the 
Committee decides and does not decide. We will be in court. We 
need to defend it if we are going to achieve our reliability 
objectives.
    Mr. Thompson of California. Anybody else?
    I yield back, Madam Chair. Thank you.
    Mrs. Napolitano. Ms. Wolk.
    Ms. Wolk. Very briefly, Madam Chair. I wanted to speak to 
the smelt issue, Mr. Miller. When we had our hearing at the 
Water, Parks, and Wildlife Committee in August of '05, the 
science was pretty clear and seemed to be fairly established 
that there were connections between the exports and the smelt.
    I am curious you are not a biologist, and I respect that. 
That does not mean you cannot do the research. But the 
biologists who study this issue, those who are not local, 
seemed to agree with this. I just need to know what other peer 
review have you undergone?
    Mr. Miller. Well, I think the question that you ask the 
biologist is to show you the graph. Show you the graph, any 
graph, that has smelt abundance on the Y axis and some version 
of exports on the XX. You will not see that graph. So what you 
will get are opinions and this is a long--Congressman Costa 
talked about the paradigm. There is a very powerful paradigm 
that has been in place all my career that the exports have a 
significant effect on fish populations. It was first for 
striped bass, turned out to be ocean conditions. Then it was 
for salmon, and they have actually measured it and found out 
that it was less than a one percent effect of the exports on 
salmon.
    Now we are at Delta smelt. Somebody from the U.S. Fish and 
Wildlife Service said the other day, ``Gee, if you are right 
about Delta smelt, how are we going to control exports?''
    Yes, ask them for the graph. Ask them for the graph. You 
will not get it.
    Ms. Wolk. Ms. Cooley, a brief question about the 
alternatives to the current desire to build concrete dams, 
which seems to be making a comeback.
    Since the current water plan for the State of California 
shows that in the past, I think 15 years since the year 1990, 
1.5 million acre-feet of water has been added to California's 
water supply through groundwater storage. Could you talk a 
little bit about that and the relative differences between that 
and the above-ground dams construction?
    Ms. Cooley. OK. Generally for groundwater management in 
conjunctive use, which we heard someone from Semitropic today 
talking a little bit about, generally those are less expensive 
with fewer social and environmental impacts. So they generally 
take high flows and store them underground. They take advantage 
of the fact that we have overdrafted much of our reservoirs and 
what we are seeing today, even during this crisis, that 
agencies are able to use that water to meet their demands. 
There is a tremendous amount of potential left for that, in 
part, because again we have overdrafted our reservoirs quite a 
bit and we have a huge underground reservoir that we can take 
advantage of.
    Ms. Wolk. Thank you, Madam Chairman.
    Mrs. Napolitano. Thank you.
    With that, we are getting to the very end of it. I would 
like to again state that the testimony will be available on the 
House Committee on Natural Resources website at: http://
resourcescommittee.house.gov. We can get that information to 
you.
    As a wrap up, I would like to accept into the record a 
letter received on June 29th from the State Water Contractors, 
General Manager Terry Irvine for the record.
    Last, I have really enjoyed, and I thank my members for 
staying as long as you have, to the panelists, to the people 
out in the audience who are listening to this, maybe not for 
the first time, and to my staff, our staff who is putting all 
these together. It takes an exorbitant amount of time and 
effort to put them together.
    Yes, Mr. Miller? OK.
    To the city for allowing us to use this nice, beautiful 
facility. But I would like to put out something to all of the 
people who were either on the panel who are still around, but 
to those that are still here is that what I am listening to is 
that we need a lot more communication and networking, and 
working together to get to the solution. Because everybody 
seems to be doing their own thing. I am not kidding when I am 
saying that the agencies do not talk to each other. Because 
when I was in the State House I had to actually physically 
bring agencies, sit them next to each other and say OK now 
talk. This was just at the State level. Never mind at the 
Federal level. That is a whole different----
    Mr. Larson. Try county to county government.
    Mrs. Napolitano. Try county government? No, thank you.
    The other area I would like to bring out and put into 
everybody's mind is that all elected officials at every level 
should begin to educate and inform their constituency about 
what we are facing; the shortages, the drought--and begin a 
process of asking them to start conserving.
    People are not dumb. They get it. But you need to remind 
them and you need to be able to put before them something 
tangible that they can put to our surroundings, say I can do 
this to save water.
    Recycling has always been an issue that I have advocated 
way back in my City Council days in the '80s. Now that is 
beginning to be talked about a lot more.
    The connotation was that is used water. Ladies and 
gentlemen, we have no new sources of water. It is the same 
water God has given us that this Earth continues to recycle. 
How we use it, how we protect it and how we get the pollutants 
to clean it up is part of the solution for what we are facing. 
And until we all get together on the same page, I do not think 
we have an answer that we can provide to my great 
grandchildren. I already have a great grandson. But I want to 
ensure that my great grandson's grandchildren are able to have 
clean water when they need it, and not have to buy it out of a 
bottle.
    So with that, I thank you very much. This wraps it up.
    Mr. Miller?
    Mr. Miller of California. Thank you, Madam Chair.
    I would ask unanimous consent to include as part of the 
record two graphs from Department of Fish and Game on the 
decline of the fisheries and the increase in pumping as we have 
gone from a million four to six million three hundred thousand 
acre-feet of water.
    Mrs. Napolitano. Without objection, so ordered.

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    [GRAPHIC] [TIFF OMITTED] 36477.033
    
    Mr. Miller of California. I would like very much to thank 
you again, Madam Chair, for taking your time and the time of 
the Committee to come to my district to have this hearing and 
to listen to the witnesses.
    Mrs. Napolitano. I thought it was his district.
    Mr. Miller of California. No, I think you are headed there 
tomorrow, unless there is something in this map that I have not 
seen. So what do you think about pumping now?
    Mrs. Napolitano. All right. Children, children, children.
    Mr. Miller of California. Now, I want to thank you very 
much. I know that this was a very, very fast response by the 
Committee to the request from me and my colleagues for this 
hearing. Clearly the staff had to do a lot of work because you 
also had a backlog of legislation that was reported out last 
week from the full Committee. So I really appreciate all of 
their effort on making this a successful hearing.
    Thank you very much to my colleagues who came here. Lois, 
thank you so much.
    Mrs. Napolitano. Thank you, Lois, for being with us and 
staying the course and being able to shed a little more light 
from the State perspective.
    I am serious when we say we need to communicate more.
    Ms. Wolk. Madam Chair, I look forward to it.
    I want to thank the leaders in the water area. I really 
appreciate your allowing me to join you.
    I want to thank the Chair for coming to Solano County. I 
look forward to working in a partnership way to solve the 
problems of the Delta. Thank you.
    Mrs. Napolitano. So with that, we have somebody who would 
like to stand up and speak up? Would you mind coming up and 
taking a mike, sir. You have five minutes, sir. Five minutes.
    Sir, let me clarify something. Because one of the things 
that again I was criticized for is that we did not have a pro 
and we did not have a con. There was a reason for that. We 
needed to get a picture of what was important. So if it is a 
pro, I am sorry, sir. If it is a con, same difference.
    What we are trying to do is shed light and be able to get 
information for this Committee to then move forward.
    You are on. Five minutes.
    Mr. Franco. Yes, ma'am. I appreciate the opportunity. I 
come here with no agenda other than to ask that when these 
Committees meet----
    Mrs. Napolitano. Your name, sir.
    Mr. Franco. My name is Mark Franco. I am the head man of 
the Winnemem Wintu Tribe of Mount Shasta and down into the town 
of Redding.
    When we have these types of meetings, and we respect the 
government agencies, it is important that to have all of the 
voices represented to give you a full picture of what is 
happening within the Central Valley.
    I have no pro or con in regard to what we have been 
discussing today. My only concern is in the protection of the 
water and the protection of my relatives who live in the water 
and fly above it, and walk on the land. We have asked for 
additional hearings at which time the tribal concerns can be 
presented. One of them was to ask for a hearing on the Central 
Valley Project Indian Land Acquisition Act on which all of the 
keystone projects of the Central Valley were built, but which 
the government has never completed, and of which my tribe is 
the beneficiary.
    So I come here, and I appreciate the words of all of those 
who spoke and all of those who patiently waited. I do 
appreciate the work that you are doing and your Committee is 
doing, but I just ask that you keep the original people of this 
State in mind when you make decisions on how you are going to 
handle our relative, the water.
    I thank you very much for my opportunity.
    Mrs. Napolitano. Thank you for your statement, sir.
    Again, this Committee hearing was put together in 3 weeks, 
so it really was a very short window. I have only been chair 
since January. I have yet to see anything in writing requesting 
that. So if you will put it in writing, it will be taken under 
consideration.
    With that, this hearing is adjourned.
    [Whereupon, at 12:30 p.m. the Subcommittee was adjourned.]

    [Additional material submitted for the record follows:]

    [A statement submitted for the record by The Honorable 
Jerry McNerney, a Representative in Congress from the State of 
California, follows:]

Statement of The Honorable Jerry McNerney, a Representative in Congress 
                      from the State of California

    I would like to thank Chairwoman Napolitano for holding this 
hearing today and for her attention to this important issue. I would 
also like to thank the other Members of Congress who are here today and 
the panelists for their efforts and for lending their expertise.
    The dramatic decline of the smelt population in the San Joaquin 
Delta is cause for concern, not only for the future of this species but 
also for the health of the Delta and the effect of degraded water 
quality on businesses, particularly agriculture. Scientists believe 
that the plight of the smelt is indicative of considerable future 
challenges in California, and it is clear that the current 
infrastructure used to manage the state's water supply, and maintain 
water quality, cannot adequately balance the array of stresses on the 
system.
    While many have debated the cause of the decline in smelt 
population, one thing is clear: action is needed, and we must have the 
best science available to make an informed decision about how to solve 
water issues in the Bay-Delta. We cannot afford to lose sight of the 
idea that improving water quality is vital for both environmental 
protection and also for maintaining healthy water for agriculture and 
drinking. Although water rights issues have been contentious throughout 
California's history, all Californians recognize that action is 
necessary.
    We should also recognize that the challenges facing the Delta will 
only become greater with time. Climate change will cause sea levels to 
rise and will reduce runoff from melting snow, thereby increasing 
salinity in the Delta. Levees in the Delta are in critical need of 
repair, and natural processes outside of our control, such as 
earthquakes or floods, could devastate the Delta with severe 
consequences for the entire State.
    Fundamentally, in order to deal with water issues in the Delta we 
should address how to improve water quality, prevent an increase in 
salinity, and ensure a clean supply of water for drinking and 
agriculture. To achieve these objectives, it is essential that enough 
fresh water enter the Delta to preserve the health of this essential 
water system.
    Pumping operations have already reduced the amount of fresh water 
entering the Delta, which in turn reduces the dilution of the 
pollutants that threaten the ecosystem. Plans to divert more water 
around the Delta will increase salinity and have harmful consequences 
for potable drinking water and aquatic life.
    Declining water quality and availability also has negative 
consequences for agriculture, the economic backbone of the Central 
Valley and a critical industry statewide. Farmers depend on a stable 
supply of clean, fresh water for their crops. California's economic 
future depends on our ability to effectively solve Delta challenges for 
farmers; the availability of clean water should be one of our foremost 
concerns.
    It is crucial for federal, state, and local policymakers to come 
together to address this growing problem. As we work to restore the 
Delta we will have to answer tough questions about sustainable 
development and how to balance appropriately the myriad concerns of 
stakeholders who are vested in this complex issue. And we will have to 
make sure that the decisions we make take into account the diverse 
water use needs of our citizens.
    While the situation facing the Delta is serious, there is reason 
for optimism. Local authorities, the state government, and now Congress 
are hard at work bringing concerned parties together and developing 
plans of action based on sound science. Conservation and reclamation of 
water has shown great promise, as have conjunctive use projects and 
desalination. These efforts should be encouraged and expanded 
statewide.
    The long-term solution to Delta challenges is collaboration and 
innovation, and I believe that federal, state, and local policymakers 
are up to this task.
    I would like to thank the Chairwoman again for holding this 
hearing, and I extend my appreciation to the witnesses for their expert 
testimony.
                                 ______
                                 
    [A letter submitted for the record by Terry Erlewine, General 
Manager, State Water Contractors, follows:]

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    [A letter submitted for the record by Bert Michalczyk, 
General Manager, Dublin San Ramon Services District, follows:]
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    [A statement submitted for the record by Felix E. Smith, 
Carmichael, California, follows:]

          Statement of Felix E. Smith, Carmichael, California

    To Chairwoman-Representative Napolitano and other members of this 
subcommittee.
    My name is Felix E. Smith. I appreciate the opportunity to provide 
these comments. Please include these comments into the record of this 
hearing.
    I held the first deformed migratory bird, an American coot 
hatchling, found at Kesterson NWR in 1983. At that time I was a U.S. 
Fish and Wildlife Service biologist recently assigned to look into the 
emerging issues involving agricultural drainage and wastewater. That 
experience impacted my life. Some of my concerns regarding Selenium 
contamination of the lands and waters and associated resources, uses 
and values are described in my article, ``The Kesterson Effect: 
Reasonable Use of Water and the Public Trust'', published in the San 
Joaquin Agricultural Law Review, Volume 6, Number 1 - 1996. I submit 
this article for the hearing record by this reference.
    Water is the environment in which fish and other aquatic resources 
must carry on all their life processes. Such resources, associated uses 
and values are inextricably tied to the physical, chemical and 
biological aspects of that aquatic environment. Healthy and diverse 
aquatic populations are indicative of good water quality conditions 
(flow, temperature, oxygen and chemical parameters). Good water quality 
allows for near optimum use of water as an M & I supply, an irrigation 
supply and as an environment for fish and other aquatic life. For 
healthy and sustainable fish populations to exist (also wildlife 
populations), the total aquatic environment (the water, the bed, the 
riparian vegetation and associated insect life, the food web) all 
interact and therefore must be suitable for aquatic life at the 
individual, population and community levels.
    The Federal Clean Water Act, as amended, and the Public Trust 
embrace affirmatively and positively that the people are to be 
protected against all unwise and unreasonable uses of Federal and State 
waters. Uses of water can be considered unreasonable because they 
pollute; because they offend our sense of aesthetics or natural beauty; 
because they interfere with the right of the public to enjoy a natural 
resource of state or national significance; because they threaten in a 
harmful way to upset the ecological balance of nature, or because to 
allow this unreasonable use confers a valuable privilege which is 
inconsistent with protecting the public trust.
    Agencies like the Federal Environmental Protection Agency (EPA) and 
California's EPA were established to protect the public interest and 
quality of the Nation's lands and waters. Such agencies are not to 
squander clean air, allow the pollution of our rivers, streams and 
groundwater, allow the pollution or other degradation of our land 
leaving a degraded legacy for our grandchildren or allow the pollution 
of the body's of our children, our fish and wildlife resources or our 
food supply. These same agencies should not look like shills for 
corporate farms or massive water districts (Boswells Farms, Westland 
Water District).
    Any effort at maintaining sustainable water quality, agriculture 
and wetland ecosystems (fish and wildlife resources) must involve an 
understanding of the interaction between the soil and the flow of water 
over, through, and under the soil well beyond the point of application. 
Preserving soil fertility is critical to sustaining its productivity. 
Preserving and maintaining water quality is critical to the 
productivity of water as an ecosystem and as a commodity for domestic 
and industrial uses. Unlike soil, which can be built up over time, 
water can't be built or enhanced. A river can be lost to a farmer; to a 
species of fish or to fish resources; lost as a place to recreate or as 
a water supply. It can be diverted, polluted, misused or over 
appropriated. Aldo Leopold's Round River makes the principles of 
ecology clear and vivid, suggesting that nature is a ``Round River'', 
like a stream flowing into itself, going round and round in an 
unceasing circuit, going through all the soils, the flora and fauna of 
the earth while supporting many resources, beneficial uses and values. 
Destroying one part can destroy it all and all its benefits to society.
    A use of the lands and waters of a watershed that so degrades the 
sustainability of a downstream ecosystem or a component of that 
ecosystem to make it unsuitable for sustaining viable agriculture, 
wildlife, fish and other aquatic life, or which makes fish unsuitable 
for human consumption, or which is a hazard to other fish and wildlife, 
or which degrades ecological, aesthetic, recreational uses, small craft 
navigation, and scenic values, is inconsistent with public trust 
protection, the reasonable use of water is therefore a nuisance. When 
chemicals enter the bodies of children, or enter the domestic or 
wildlife food supply to toxic levels without our consent, it is a 
trespass.
    Here is an example brought to you in part by the Federal Bureau of 
Reclamation and the Central Valley Project.
    It was known for a long time that the soils of the Westside of the 
San Joaquin Valley were derived from parent material formed in an old 
seabed. The California Department of Water Resources Bulletin No. 89, 
Lower San Joaquin Valley Water Quality Investigation--1960, discusses 
concerns about the chemicals and various salts in the soils and 
drainage from the area. The soils and parent material extend throughout 
the Westside, south to the end of the Valley. The sodium ion was a 
major concern along with a variety of sulfates, boron and numerous 
trace elements. Even at that time drainage was believed to be a serious 
and emerging problem. Drainage from the Panoche area was highly 
concentrated from a quality standpoint and ``unusable for beneficial 
purposes'' (see pg. 95 of DWR ``Bull. No 89). At that time the San 
Joaquin River was already seriously polluted from agricultural drainage 
and wastewater.
    The observation ``that the drainage was highly concentrated from a 
quality standpoint and unusable for beneficial purposes'', sparked 
little attention. With the application of vast quantities of Bureau of 
Reclamation water to the highly saline / seleniferious soils, the need 
for drainage works quickly become apparent. Surface waters and the San 
Joaquin River showed additional evidence of pollution.
    By 1982 some people, including a few Grassland duck club owners, 
believed that something was wrong in the northern Grasslands. They had 
noticed sick and dead birds in 1981 and 82. In 1983 the first deformed 
young of migratory birds were found on Kesterson NWR by researchers 
from the U.S. Fish and Wildlife Service. Kesterson Reservoir (NWR) was 
the then terminus of the San Luis Drain. People were disturbed by the 
pictures of dead and grossly deformed waterfowl and shorebirds obtained 
from Kesterson Evaporation Ponds that were appearing on the nightly 
television news at dinnertime. Selenium (Se) in the agricultural 
drainage accumulated via the food chain to high levels in their tissues 
resulted in dead adults, dead and deformed young. Several species of 
fish had elevated Se levels in their tissues.
    In September 1984, California's State Board, in its Agricultural 
Water Management Guidelines for Water Purveyors, stated, ``Failure to 
take appropriate measures to minimize excess application, excess 
incidental losses, or degradation of water quality constitutes 
unreasonable use of water''  (Emphasis added).
    The State Board followed with its Order WQ 85-1(February 1985). The 
State Board found that agricultural drainage and wastewater reaching 
Kesterson Reservoir ``is creating and threatening to create conditions 
of pollution and nuisance'' (Emphases added). The Order then warned 
``If the Bureau closes Kesterson Reservoir and continues to supply 
irrigation water to Westlands Water District without implementing an 
adequate disposal option, continued irrigation in the affected area of 
Westlands Water District could constitute an unreasonable use of 
water'' (Emphasis added).
    From 1986 to today (2007), Selenium contamination is sufficient to 
cause deformities and threaten reproduction of key species within the 
area of the greater Grasslands, in the San Joaquin River to the Bay-
Delta estuary. Deformed migratory birds have been found in every year 
field investigations were conducted for such evidence. Selenium 
concentration was also high in eggs that were sampled, which in turn 
could have lead to deformities. Fish resources continue to show high 
levels of Se because of a Se-contaminated food chain. Selenium has been 
found in what is usually called edible tissues and in reproductive 
organs of birds and fish.
    Human health advisories have been issued against consuming Se 
contaminated edible tissues of fish (bluegill and largemouth bass) and 
of migratory birds (ducks and coots). Women of childbearing age and 
children are cautioned against eating such tissues. State Board reports 
indicate that in the Bay-Delta, surf scoter, greater and lesser scaup 
and particularly white sturgeon appear to be the most at risk to Se 
toxicity because they feed on filter feeders (i.e. bivalves). 
Concentrations Se found in 62 white sturgeon muscle samples and 42 
liver samples far exceed tissue thresholds for reproductive effects. 
Recent findings add the Sacramento splittail to the list of species 
exhibiting elevated Se levels.
    The USGS report (Report) ``Forecasting Selenium Discharges to the 
San Francisco Bay-Delta Estuary; Ecological Effects of a Proposed San 
Luis Drain Extension'' by Drs. Samuel N. Luoma and Theresa S. Presser 
``2000), indicates that the reservoir of Se on the Westside of San 
Joaquin Valley is sufficient to provide loading at an annual rate of 
about 42,500 pounds of Se to the Bay-Delta disposal point for 63 to 304 
years at the lower range of its projection. This is with the influx of 
Se from the Coast Range curtailed.
    Selenium bioaccumulation is a major water quality problem. The 
combination of California's climate, hydrology, Se loading, Se 
reactivity, and Se bioavailability poses a significant threat to the 
aquatic ecosystem of the Lower San Joaquin River and Bay-Delta. 
Selenium contamination is damaging beneficial uses, degrading food 
sources of humans and wildlife, aesthetic, recreation and ecological 
values. Risks to fish and bird reproduction could lead to extinction 
via contamination of the invertebrate food supply. Filter feeders are 
great concentrators of Se. Aquatic insects were the primary food item 
of shore birds. The Report concludes that bivalves appear to be the 
most sensitive indicator of Se contamination in the Bay-Delta. In the 
Bay-Delta and the lower San Joaquin River tidal action will increase 
the resident time of Se, exposing all aquatic organisms and increasing 
the ability of food organisms to accumulate greater amounts of Se and 
pass it up the food chain to predators.
    Studies indicate that the highest concentrations of Se (12 to 23 
ppb) were measured in green sunfish (lepomis cyanellus) from the San 
Luis Drain where seleniferous drainage is most concentrated. The second 
highest concentrations of Se (7.6 to 17 ppb) were measured in green 
sunfish (lepomis cyanellus) and 14 to 18 ppb Se in bluegills (Lepomis 
macrochirus) taken from North Mud Slough. The high levels (body burden) 
of Se could be related to the Se sequestered in the sediments and 
benthic organisms that are mobilized by the detritus-based food chain. 
(USGS, Biological Resources Division ``Effects of an Agricultural 
Drainwater Bypass on Fishes Inhibiting the Grassland Water District and 
the Lower San Joaquin River, California'' by Saiki, Michael J., Barbara 
A. Martin, Steven E. Schwarzbach, and Thomas W. May. In North American 
Journal of Fisheries Management, Vol. 21:624-635, 2001.
    One can conclude that water borne Se is the single most predictor 
of pollution, that it can and continues to have an adverse affect on 
the aquatic ecosystem, associated fish and wildlife resources, uses and 
values (Saiki, et al-2001)
    The bottom line is that saline / seleniferious soils of the 
Westside of the San Joaquin Valley contain a reservoir of Se, other 
trace elements and a variety of salts, that with irrigation, will 
continue to leach from the soils to the shallow groundwater for years 
and years to come. This Se leachate / drainage will continue to degrade 
down slope lands, surface and groundwater, fish and wildlife habitats 
and other beneficial uses of the receiving waters including the San 
Joaquin River and Delta.
    Today we have the longest Selenium hazardous waste site know to 
man, extending from at least the Mendota pool and the Grasslands (near 
Los Banos), downstream via the San Joaquin River to the Delta, Suisun 
Bay and adjacent marshes. This involves 130 miles of San Joaquin River, 
miles of waterways in the Delta and 1,000s upon 1,000s of acres of San 
Joaquin Valley lands and aquatic ecosystems.
    With the above information one could allege that the continued 
irrigation of saline / seleniferious soils of the Westside of the San 
Joaquin Valley and Se contaminated discharges to the San Joaquin River 
constitute a waste and unreasonable use of the State's water, and a 
nuisance. All of this is not within the meaning of beneficial use of 
Section 8 of the Reclamation Act of 1902 and the contemporary equal 
priority setting of CVPIA, Section 3406 (a) (3) and the Clean Water 
Act, as amended.
    This Committee or a court should review the drainage issue and 
associated impacts to determine if such a use of water is both 
beneficial and reasonable within the context of continuing shortage of 
water, the broadened meaning of beneficial use of Section 8 of the 
Reclamation Act of 1902 and the contemporary equal priority setting of 
CVPIA, Section 3406 (a) (3) and the Clean Water Act, as amended.
    To me this irrigation use of water, associated drainage, Selenium 
and other impacts is just as inconsistent with reasonable use and 
public trust protection as is the filling of tidelands (Mark v. Whitney 
6 Cal, 3d 251 - 1971); as is allowing mining waste and debris that 
impacted water quality and impede navigation (Woodruff v North 
Bloomfield Gravel Mining Co. (Fed Rpt. Vol. 12--1884) and People v Gold 
Run Ditch and Mining Co. (4 Pac Rpt at 1152--1884); as is a ranch or 
farm which allows animal wastes and other filth to contaminate the 
waters of a stream which impacts the water supply and beneficial uses 
of downstream users (People ex rel Ricks Water Co. v Elk River Mill and 
Lumber Co. (40 Pac Rpt 486 ``1895); as is the deposition of mill wastes 
and other debris which destroys aquatic life and a fishery ( People v 
Truckee Lumber Co.(16 Cal 397, 48 Pac 347 - 1897) , and as is the 
diversion of water which destroys numerous uses and values protected by 
the public trust reaffirmed or clarified in Audubon (National Audubon 
Society v Department of Water and Power, City of Los Angeles (33 Cal 3d 
419, 658 P 2d 709, 189 Cal Rpt.346; cert denied 464 U.S. 977--1983).
    The point made by the Elk River Court that if the conformation of 
the defendant's land is such that he cannot carry on a dairy without 
putting such filth directly into the water, then he must find some 
other use for the land (emphases added). This rational thinking of over 
110 years ago is particularly relevant to today's Se, salt, drainage 
and wastewater issues associated with the irrigation of selected lands 
in the San Joaquin Valley. Following the thinking of the Elk River 
Court, if the Westside farmers cannot carry on their operations without 
polluting the local ground and surface waters, then they must find some 
other use for the land. And there is no taking issue for a use that is 
deemed unreasonable and a nuisance (Audubon).
Some Suggested Actions
    Control of agricultural pollution also might be achieved by 
instituting best management practices, land retirement, and by economic 
incentives (substantial fines, forfeiture of all or a portion of 
appropriated water rights or contract allotments). Land retirement is 
an important option. Removing Federal irrigation water from being use 
on the Se source lands. Taking the land out of production that is the 
source of the majority of the salt and selenium problems should have 
quick and positive results and many public benefits. This can be 
attained by direct purchase of land or the irrigation rights, leasing 
land, purchasing the irrigation water allotment to such lands while 
prohibiting the use of groundwater on those lands.
    Retiring lands containing significant levels of selenium or other 
toxic materials would have just a one time cost. A long-term lease 
might also work, for there would be little if any maintenance costs. 
Land not needed for conservation purposes such as restoring native 
grasslands and related fauna of the San Joaquin Valley, could be sold, 
with title restrictions, for selected compatible uses such as dry land 
farming, grazing, etc. Within the Westlands Water District problem 
soils have been estimated at 100,000 to 275,000 acres (USBR, April 
1991).
    At a cost of $1,000.00 per acre it would cost $100,000,000.00 to 
retire 100,000 acres or $275,000,000.00 for the 275,000 acres. Lands 
acquired should be purchased with today's realities in mind. This 
includes limited or poor ground water, extensive selenium and sodium 
sulfate problems. Any value added to the price of land should not be 
based on speculation, the availability of Federally subsidized water, 
or on the potential construction of a Federal drainage facilities. A 
reality is that problem soils without water are just about worthless.
    For each acre of irrigated land retired, there would be 
commensurate saving of about 2.0 to 3.5 acre feet of water per acre 
(depending on crop) or about 200,000 to 350,000 acre feet for each 
100,000 acres taken out of irrigation. This water is firm yield water 
imported from northern California. For each irrigated acre taken out of 
production there would be a reduction of 20 to 60 pound of pesticides 
(active ingredients) plus 80 to 250 pounds of carrier materials, (oils, 
etc.) not applied to the soils. There would be a reduction of the 
amount of drainage and wastewater generated of about .6 to .8 acre feet 
per acre of land retired or 60,000 to 80,000 acre-feet for each 100,000 
acres retired. There would be a saving in electrical energy by not 
having to pump water from the Delta. There should be benefits to fish 
resources and associated fisheries as up to 600,000 to 900,000 acre-
feet would not have to be pumped from the Delta.
    The water savings could be used to restore or otherwise benefit 
fish resources and fisheries throughout the waters of the Bay-Delta 
watershed. Any remaining water could be sold for municipal uses.
    Economic incentives may be effective because of the existence and 
potential threat of law suits using the public trust doctrine, waste 
and unreasonable use, and the State's enforcement powers. A finding of 
a waste and unreasonable use of water by a court or the State Board or 
a finding based on the public trust could bind all entities discharging 
selenium, boron and sodium sulfate laden drainage and wastewater in to 
state waters.
    Based on the State Board's 1984 (Agricultural Water Management 
Guidelines for Water Purveyors) and 1985 State Board Order WQ 85-1 
definition of what constitutes an unreasonable use of water, the 
effects from irrigating saline, seleniferious soils are such that this 
use must be considered a waste and unreasonable use of water and the 
resultant drainage and wastewater a nuisance. This violates Article X, 
Section 2, of the State Constitution. The premise of the Federal Clean 
Water Act, as amended, is violated. The impacts violate Section 8 of 
the 1902 Reclamation Act, which requires compliance with State laws. 
Section 8 also says; Provided, That the right to the use of water 
acquired under the provisions of this Act shall be appurtenant to the 
land irrigated, and beneficial use shall be the basis, the measure and 
the limit of the right.
    Thank you.
                                 ______
                                 
June 25, 2007

To: SARA Board and other interested parties

From: Felix Smith

Subject:  The Lower American River, the FMS and temperature criteria

    Over the past several years the consulting firm SWRI (now HDR-SWRI) 
developed for the Water Forum, the best flow management option for the 
American River given the constraints of Folsom Reservoir, and the 
Bureau of Reclamation's integrated operations of the CVP through the 
OCAP. This operation will be much better than the Bureau's pre-CVPIA 
operations and will improve on the Bureau's post-CVPIA operations. 
However, the controlling factor is really the lack of cool water to 
meet temperature needs of the flows in the LAR. There just is not 
enough cool water in Folsom storage for blending with massive amounts 
of release (up to 4,000 cfs during June and July) and still attain the 
desired flow and temperature criteria to meet salmonid needs during 
late summer and fall months.
    Water is the environment in which fish and other aquatic life carry 
on all their life processes. Healthy and diverse aquatic populations 
are indicative of good instream conditions (water quality, temperature, 
oxygen and chemical parameters). Good water quality allows for near 
optimum use of water as a domestic and industrial supply, an 
environment for fish and other aquatic life, and as a recreational and 
esthetic resource. In this situation, the LAR environment must include 
the timing and amount of instream flow, the temperature and water 
quality and flow conditions necessary for adult migration and holding, 
spawning, egg incubation, rearing of fall -late fall run Chinook 
salmon, steelhead and American shad and their dependent food web.
    HDR-SWRI developed the Flow Management Standard for the LAR. The 
FMS mirrors the purpose and intent of Judge Hodge decision in EDF v 
EBMUD of 1990. His decision was based on the best information available 
to him, his understanding of the Audubon decision (Mono Lake decision) 
of 1983, the Cal Trout v SWRCB decision of 1989 and California Fish and 
Game Code Section 5937. The basic meaning of Section 5937 and the Cal 
Trout decision, is protecting and managing aquatic ecosystems, 
associated resources, uses and values covered by the State's public 
trust protection comes first in any appropriation and use of water. 
Judge Hodge has stated that the public trust doctrine occupies an 
exalted position in any administrative or judicial determination of 
water resource allocation and use.
    Judge Hodge physical solution contains a flow pattern that amounts 
to about 1.7 to 1.8 MAF out about 2.7 MAF, or about 66 percent of an 
average annual runoff of the American River Basin. Hodge flow schedule:

[GRAPHIC] [TIFF OMITTED] 36477.029


    An additional 60,000 acre-feet was to be maintained in reserve in 
Folsom Reservoir from mid October thru June 30 for release when 
recommended by the CDFG.
    The Hodge decision, in essence, established a water right 
allocation for the Lower American River ecosystem, its resources, uses 
and values irrespective of those operating the Folsom / Nimbus project, 
water right holders or the needs of downstream contractors. The 
released flows would extend throughout the LAR from point of release at 
Nimbus Dam to the Sacramento River.
    Water temperature plays a critical roll in the conservation and 
protection of salmon and steelhead. At some life history stages water 
temperatures can vary quite a bit, while at other times water 
temperature is critical to life requirements. Such temperatures are 
fairly defined and should be met if there is to be good survival and 
growth of salmonid fishes. Temperature criteria, however, was not a 
component of the Hodge decision.
    Water temperature targets / objectives to be attained at the Watt 
Ave gage.

[GRAPHIC] [TIFF OMITTED] 36477.030


    Evidence indicates that spring and summer releases warm up as they 
progress downstream from Folsom Reservoir through Nimbus Reservoir as 
measured at the Fair Oaks and Watt Ave gages. In the fall flows 
released from Nimbus Reservoir cool as they progress down stream. It 
takes about 24 to 30 days for water temperatures of 58 to 60 FD 
measured in the North Fork American River to reach the Chinook salmon 
spawning grounds.
    It has been long realized the Folsom Reservoir is cold water 
deficient. Under the Bureau's operation of Folsom Reservoir, this cool 
water deficiency is acerbated when releases of 3,500 to 4,000 cfs draw 
on the cool water to meet export needs south of the Delta. This cold 
water deficiency will in time impact the LAR ecosystem and several life 
stages of the Chinook salmon and steelhead utilizing the LAR as well as 
the operation of the Nimbus Salmon and Steelhead Hatchery (NSSH). The 
American River is also the water supply for the American River Trout 
Hatchery (ARTH).
    Based on Bureau data (April 25, 2007) for the years 2001 to 2007, a 
Folsom Reservoir pool greater than of 600,000 acre-feet of storage end 
of September does not guarantee sufficient cold water to meet the needs 
of the anadromous fishes of the LAR. In some years there will be 
insufficient cold water during the summer hold over of steelhead young. 
This could easily stress the 2-year classes of steelhead both in the 
LAR and being reared at the NSSH.
    The minimum amount of water needed to meet the SWRI / Water Forum's 
Flow Management Standard of 1,500 to 2,000 cfs is about 1,282,000 acre-
feet. Because there are temperature objectives / targets to be met, the 
flows released from Folsom Reservoir may have to be increased above the 
minimums during the summer and fall months in order to maintain 
adequate water temperature to keep the holding adult Chinook salmon and 
summering over steelhead young in good condition. These flows would 
extend throughout the LAR from Nimbus Dam to the Sacramento River.
    From the Bureau's end of May (web) data, June releases were 
forecasted at 3,000 cfs, at 3,292 cfs for July and at 3,049 cfs for 
August. The amount of water involved in these three months is about 
568,000 acre-feet. End of September storage was listed at 359,000 acre-
feet. In the past several years Folsom releases in August are frequent 
cut back by mid August. Therefore the releases could be considerable 
higher than forecast for July and August to meet Delta export 
contracts. The released water will have to be blended to meet the 
temperature criteria for steelhead in the LAR. Even at 68 DF the 
salmonid population in the LAR will be under considerable stress.
    At the May 31, Fish Working Group meeting, Bureau and FWS 
representatives presented DRAFT operational data for the Folsom Project 
through the summer and early fall months. They expounded on how the 
operation and flows would be under historical baseline operation, or 
about 3,200 cfs during July, instead of 4,000 cfs in the baseline 
conditions. Can you imagine 4,000 cfs of natural summer flow in a low 
runoff year? This amounts to 7,932 acre-feet a day and 237,960 acre-
feet for 30 days. There goes much of the cool water pool and once it is 
gone there is little chance to get it back.
    For most of the month of May and the first 10 days of June the 
Folsom/ Nimbus release was about 1,500 cfs. Delta CVP export was about 
850 cfs through the Tracy Pumping plant during this same period. Flows 
released from Folsom were increased to 2,000 cfs for 3 days to meet 
Delta Water Quality. On June 12 the flows were reduced to 1,500 cfs to 
conserve water. On June 15, flow was increased to 3,500 cfs toping out 
at 4,000 cfs on June 16, 2007. The Bureau has scheduled an increase to 
4,500 cfs on June 26, 2007. This is 8,923 acre-feet per day and 267,705 
acre-feet for 30 days. The duration of such release is unstated. The 
reason given by the Bureau was to ``meet Delta requirements''. Unstated 
purpose is to ``meet export contracts''. CVP Tracy pumping plant is 
scheduled to pump 4,200 cfs on June 25.
    From the Bureau's June 19, 2007 (web site), June releases were 
forecast at 3,305 cfs, July at 2,774 cfs and 2,082 cfs for August. The 
amount of water involved in these three months is about 496,000 acre-
feet. End of September storage was listed at 420,000 acre-feet or about 
60,000 acre-feet more water in storage than the May forecast. Releases 
to the LAR are forecast at 1,285 cfs for October, 994 cfs for November 
and 800 cfs for December. The 800 cfs is the minimum flow of the Flow 
Management Standard except during extreme drought conditions. The 
Bureau's June 19, 2007 web site forecast was already out of date and is 
far from reality.
    The massive summer transfer of water draws heavily upon Folsom 
storage, greatly reducing the cool water pool. This reduced cool water 
storage will in turn impact the LAR ecosystem. It will extend to any 
holding over young Chinook salmon, the summering over of young 
steelhead and early arriving run fall adult Chinook salmon that must 
hold in the LAR for water of spawning temperature. We could see water 
temperatures into the upper 60's, i.e. 68 DF with excursions into the 
low 70's DF this summer. Since the American River is also the water 
supply for the NSSH, the Hatchery's mitigation function could be 
impaired. The Hatchery's function is to mitigate the impacts to salmon 
and steelhead resources (lost spawning and nursery grounds) resulting 
from the construction and operation of the Folsom / Nimbus Unit of the 
CVP. This mitigation function is equal to a contract and carries with 
it a perpetual obligation.
    What is the Bureau's Plan to offset or lessen the impacts to public 
trust resources, uses and values in the Lower American River under its 
operating scenario for 2007,or 2008 and 2009? Under the public trust 
doctrine, I do not believe the Bureau of Reclamation can walk away from 
the problems it has to a significant degree created. It is the 
responsibility of the owner of a dam to comply with Fish and Game Code 
Section 5937, whether or not it is specifically stated in a water right 
permit or license issued by the State Board. Therefore the Bureau has 
an obligation to protect the resources of the LAR under any operational 
plan for the Folsom / Nimbus project.
    Under the CVPIA, Section 3046 (b) (1) has a target of doubling the 
natural production of anadromous fish relative to the average level 
attained during 1967-1991. As a part of the doubling program, the CVP 
operators are to give first priority to measures that protect and 
restore natural channels and riparian habitat values through 
restoration actions and through modifications to CVP operations.
    The (b) (1) (A) water is re-operation water and is to meet 
regulatory and project needs. The effort here is to re-operate the 
Folsom / Nimbus project to best meet the needs of fish / aquatic 
resources in the LAR and meets Delta water quality objectives. The 
operators of the CVP are to provide flows of suitable quality, quantity 
and timing to protect all life stages of anadromous fishes. The Section 
3046 (b) (2) water is not to be used until all aspects of CVP re-
operation have been undertaken to meet the doubling plan using re-
operation water.
    The Bureau representatives expounded during the May 31 Working 
Group meeting about how this years flows were under historical baseline 
operations. However the Bureau has not presented a progress report on 
the development of the base case scenario. This project re-operation 
and baseline / accounting must be transparent. It is from this base 
case (flow / ecological conditions) that all other stream flow actions 
/ releases will be based and from which benefits (improved stream flow, 
temperatures and timing of flows) or liabilities (impacts to stream 
flows, temperatures and timing of flows) are or can be measured. 
Without a transparent base case, the FWS can be accused of camping with 
the Bureau and managing the LAR with smoke and mirrors.
    The basic meaning of Code Section 5937 and the Cal Trout decision 
is that protecting and managing aquatic ecosystems, associated 
resources, uses and values covered by the State's public trust 
protection comes first in any appropriation and use of water. The State 
Board acted that way with its implementation of the Mono Lake decision.
    One must be aware that the Supreme Court Decision in S.D. Warren Co 
v. Maine Board of Environmental Protection, et al, (No. 04-1527, May 
15, 2006), a case involved water released from a dam for generating 
electrical energy. The Court indicated that because there are inherent 
risks in limiting, modifying the movement and circulation of a river, 
it is within the State's legitimate business to regulate. State 
Certification under Section 401 of the Clean Waters Act is required for 
discharges from dams. The operation of the Folsom / Nimbus Reservoirs 
store and modify the flow of the American River and generates 
electrical energy while doing so. This manipulation can and does impact 
water quality character (temperature); therefore a 401 CWA 
certification by the State Board may be required. A CWA Section 401 
certification by the State Board could include the purpose and intent 
of CDFG code section 5937, and temperature criteria to protect the 
LAR's salmon and steelhead fishes. Measures could become a part of the 
Bureau's modified water use permit for the operation of the Folsom / 
Nimbus facilities.
    The Audubon Court effectively tied the protection of public trust 
assets to the perpetuation of the natural and ecological aspects of 
Mono Lake for their innate values, not the private off-site uses of 
water.
    Now may be the time and the occasion for a court or massive public 
opinion to demand that the Bureau operate the Folsom / Nimbus project 
in such a way to meet the Water Forum's Flow Management Standard (as a 
minimum flow standard) with its temperature component to conserve and 
protect the salmonid populations of the Lower American River. The plan 
could be called the ``ESA fish protection / public trust protection and 
operations plan'' for the LAR. Some questions however should be 
investigated as a part of this plan. For example:
    What would happen to Folsom Reservoir's cool water pool and the LAR 
salmonid resources under a Bureau's plan of operation that is limited 
to meeting the FMS and temperature criteria in the LAR?
    Would the Water Forum's FMS meet Delta Water Quality Standards? If 
not, how much water is needed to meet such standards? How much of the 
released water could be exported and still meet Delta Standards?
    The Bureau should model such a plan of operation and report back to 
the Water Forum, the Fish Working Group, and report the results for 
public review and comment.
    The Water Forum through SWRI should model such a plan of operation 
for so it and the Fish Working Group can remain well informed.
    I believe that mitigating the impacts of the construction and 
operation of the Folsom / Nimbus project is a first priority and 
continuing obligation of the Bureau. Protecting the people's public 
trust interests in the area of origin should be at a higher priority 
than meeting water contracts south of the Delta. This is especially so 
when such water is used to produces subsidized crops or contributes 
additional salts and trace elements like selenium to the wetlands and 
waters of the San Joaquin Valley.
    One thing is certain, the greater the uncertainty is the protection 
of the Lower American River resources, uses and values, including its 
Chinook salmon and steelhead, the greater the uncertainty of the Bureau 
of Reclamation's ability to continue to take water from the American 
River.
                                 ______
                                 
July 18, 2007

To: SARA Board and other interested parties.

From: Felix Smith

Subject:  The Lower American River, the FMS, Temperature Criteria and 
Call

    This is an addendum to my memo on subject dated June 25, 2007. This 
should help clarify some of the thinking behind that memo.
    The Central Valley Project Improvement Act (CVPIA) was passed in 
1992. The first two purposes of the CVPIA as set forth in the statute 
(Section 3402 (a) and (b)) are to protect, restore, and enhance fish, 
wildlife and associated habitats in the Central Valley and Trinity 
River Basins, and to address impacts of the CVP on fish, wildlife and 
associated habitats.
    It is now time (2007) for the Water Forum and the people of the 
greater Sacramento Region to see the purpose and intent of the CVPIA 
become a reality on the American River. If the collective Water Forum 
and other interested parties do not continue to ask how much flow and 
temperature stress, harm and other mortality Chinook salmon and 
steelhead resources of the Lower American River (LAR) can be prevented 
by the Bureau of Reclamation's operation of the Folsom / Nimbus 
facilities, I doubt we will ever see the Bureau take the first step to 
correct an ecological problem.
Question
    Is it the broad public interest to make trade-offs, go along with 
or approve a new or modified Bureau of Reclamation water right permit 
for the operation of Folsom / Nimbus facilities that does not meet the 
flow and water quality (temperature) needs of Chinook salmon and 
Steelhead of the LAR?
    To say it another way; how can the stress, harm and mortality to 
Chinook salmon and steelhead from flow fluctuations and elevated water 
temperatures in the LAR be prevented? Or the question is; what is 
needed to prevent damage to the sustainability of such public trust 
resources on a year in and year out basis? Asking what is an acceptable 
risk for public trust resources, uses and values to endure for the sake 
of out-of-basin agricultural benefits should not be a part of the 
trade-off?
The GOAL
    Operate Folsom / Nimbus Reservoirs and associated facilities to 
protect and foster public trust and ESA purposes (Chinook salmon and 
steelhead resources) until adequate temperature, flow regimen and 
perceived / necessary facilities and operational criteria are put in 
place. The goal is to ensure the restoration and sustainability of the 
LAR ecosystem, associated Chinook salmon and steelhead resources, uses 
and values. While not attainable, we must strive for 100 percent 
reliability and sustainability of such resources.
    This effort may require operational or structural modifications to 
Folsom / Nimbus facilities to ensure successful holding, spawning of 
adult Chinook salmon, successful egg incubation, and safe rearing and 
downstream passage of young salmon and steelhead. This could include 
maintaining specific daily average water temperature goal of 65 FD with 
the upper range not to exceed 68 FD in the LAR between Nimbus Dam and 
the Sacramento River during the summering over period and reducing flow 
fluctuations. Temperatures of 58 FD or less are needed for successful 
Chinook salmon and steelhead spawning and egg incubation. Flow without 
meeting temperature criteria is not habitat of Chinook salmon and 
steelhead.
Call to Action
    Now is the time for the Water Forum and the people of the greater 
Sacramento Region to demand that the Bureau operate the Folsom / Nimbus 
project in such a way to meet the Water Forum's Flow Management 
Standard, with its continuous flow and temperature component, to 
conserve and protect the Chinook salmon and steelhead resources of the 
Lower American River.
      Now is the time for the Bureau to institute an ESA fish / 
public trust protection and operations plan for the LAR based on the 
flow and temperature criteria of the FMS. The Bureau should report 
annually to the public on the success of the plan and ways to improve 
it to better serve fish conservation needs of the LAR.
      Now is the time to require the Bureau to modify Folsom 
Dam's powerhouse intakes (at least one) to access the coldest water in 
Folsom Reservoir.
      Now is the time for the Bureau to construct an automated 
and temperature activated shutter system on at least one powerhouse 
intake.
      Now is the time for the Bureau to modify the daily / 
weekly operation of Nimbus Reservoir. Nimbus Reservoir is a heat sink. 
This may require modifying the intake structure to the Nimbus Dam power 
generating facilities (it pulls from surface water). Another 
modification may require a continuous flow equal to a run of the river 
situation during periods of high temperature and low flow releases.
      Now is the time to require the Bureau operate the Folsom 
/ Nimbus project in such a manner to meet the Water Forum's Flow 
Management Standard with its continuous flow and temperature component 
to conserve and protect the Chinook salmon and steelhead resources, 
uses and values of the Lower American River.
    There may be other operational changes or structural modification 
that should be made to help bring greater control (operational 
flexibility) over the temperature of water released by the Folsom / 
Nimbus project to the LAR.
    This all may take Congressional encouragement and action. Now is 
the time for the Bureau to do everything necessary to protect the 
public trust assets of the Lower American River. The Bureau and the 
Greater Sacramento Community needs all the help they can get.
Background material and reasoning
    The construction and operation of the Central Valley Project (CVP) 
reworked the natural flows of the Central Valley. This massive 
undertaking was largely to help the eastside San Joaquin Valley farmers 
who had seriously over drafted their groundwater. The Sacramento Basin 
water covered the needs of the Lower San Joaquin River water rights 
holders (riparian and adjudicated) so the eastside farmers could be 
served water from the San Joaquin River via Friant Reservoir and the 
Madera and Friant--Kern Canals. The needs of the fish resources 
(riparian needs) were not incorporated into the Friant project. Folsom 
Reservoir on the American River quickly became and is the Bureau's 
safety valve to get water to the Delta ASAP to meet export needs and 
water quality standards until water released from Shasta Reservoir 
arrives in the Delta.
    The CVP has benefited the farming economy of California and 
probably the U.S. balance of payments. However the CVP unquestionably 
has had a devastating environmental legacy. The negative impacts 
include dewatering reaches of a major river system--the San Joaquin 
River with it spring-run of Chinook salmon now extinct. The Sacramento 
River's Winter-run Chinook salmon was bought to near extinction. On the 
Trinity River after years of abuse there was Congressional action to 
bring back the Trinity River ecosystem to support the salmon and 
steelhead runs of yesteryear. Flow reversal in the south Delta. Much of 
the agricultural drainage in a major portion of the Westside of the San 
Joaquin Valley was discovered to be toxic with disastrous environmental 
consequences to wetlands, migratory birds and resident wildlife, and 
surface and groundwater supplies. The drainage problem was greatly 
magnified and expanded with the imported of Sacramento and Trinity 
Basin water. (Dunning, Harrison C. - 1993 - Confronting the 
Environmental Legacy of Irrigated in the West, the Case of the Central 
Valley Project, in Environmental Law, Volume 23 at 942--1993, Northwest 
School of Law, Lewis and Clark College.) This agricultural drainage (a 
variety of salts) plus 49 agricultural pesticides and other chemicals, 
some banned in 1970 (DDT, toxaphene and chlordane) are still found in 
mud and in clams and fish tissue samples from the San Joaquin River and 
Delta (USGS 1998). Such a chemical soup could be a contributor to the 
Delta's Pelagic Organism Decline. On the San Joaquin River, after more 
than 50 years, a Court settlement to restore the San Joaquin River with 
releases from Friant Dam and Reservoir has been accepted by the parties 
pending Federal Congressional action and financial support.
    The CVPIA calls for bold moves to address the severe environmental 
impacts caused by past operation of the CVP. The results could be 
downsizing the safe yield of the Project, downsizing irrigated 
agriculture on the Westside of the San Joaquin Valley as a result of 
economics, salt intrusion, continued drainage problems; selenium 
toxicity to wetland biota, including fish, resident and migratory 
wildlife; the need to provide and protect urban supplies, and the need 
to correct and provide for improved instream environmental conditions. 
It could include facilities like automated shutters; modifying the 
intake structures to access the coldest water in reservoirs; modifying 
the reservoir release to better meet the needs of Chinook salmon and 
steelhead. All of this could come by deliberate Bureau action, 
Congressional action, change in policy, or by a court order (Dunning, 
Harrison C. ``1993). There have been some corrective actions put in 
place. However, the jury is still out regarding the success of such 
actions.
    As recently as July 3, 2007, Representative George Miller said that 
there is water that is used in large quantities that brings relative 
little economic return to the state. Water could be shifted away from 
cotton and alfalfa farms in the San Joaquin Valley, by changing subsidy 
policies or if government decides not to renew contracts from the 
Federally owned Central Valley Project. (Contra Costa Times, July 3, 
2007)
    Adolph Moskovitz in a March 3, 1994 presentation to the Sacramento 
Area Water Forum emphasized the importance of the Public Trust. He 
stated the Public Trust cannot be diluted by treating it as merely 
another beneficial use under Article X, Section 2 of the California 
Constitution, co-equal with irrigation, power production and municipal 
water supply. The Public Trust Doctrine occupies an exalted position in 
any judicial or administrative determination of water use allocation. 
He went on to say that the Public Trust Doctrine applies to the 
American River water stored in Folsom Reservoir as well as natural 
flow, so that instream standards (requirements) are to be met by stored 
water releases in addition to restrictions on diversions. (This 
restriction could apply to Delta diversions) Also protection of public 
trust resources may prevail over the constitutional requirements to put 
the State's waters to their fullest beneficial use, when the two are 
irreconcilable.
    The State Board's 1994 decision regarding Mono Lake shared the 
water with out-of-stream uses only after the instream resources, their 
uses and values were protected and assured a great chance of long-term 
sustainability.
    The Water Forum's Flow Management Standard (FMS) including 
temperature criteria was modeled by SWRI. The conclusion was that the 
flows and temperature would be met about 65 to 70 percent of the years 
modeled. SWRI came up with the best management option for the American 
River given the constraints of Folsom Reservoir, and the Bureau of 
Reclamation's OCAP for integrated operations of the CVP. There will be 
years when protection will be less, may be marginal or simply not 
available because of the lack of Folsom storage and cold water to meet 
temperature criteria of flows released. The Chinook salmon will have to 
wait the arrival of fall rains and cooler temperature. This could delay 
Chinook salmon spawning until late November and into December. Adult 
salmon holding in water that in the mid 60 DF would be expected to 
suffer high mortality, with their eggs suffering lower survival rates. 
This is what happened in the 2001spawning year. The Water Forum's FMS 
will be better than the Bureau's pre CVPIA operations and should 
improve on the Bureau's post CVPIA operations. However, the controlling 
item will be lack of cool water or access to the coldest water in 
Folsom Reservoir for blending to attain the desired stream temperature 
without by passing power generating facilities. Flow fluctuations of 
the LAR could continue to be a problem during spawning and rearing 
periods.
    All of this may take Congressional encouragement and action. Now is 
the time for the Bureau and the Greater Sacramento Region to do 
everything necessary to protect the public trust assets of the Lower 
American River.

                                 
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