California’s most important federal water reform law- the Central Valley Project Improvement Act - will celebrate its 25th anniversary on October 30. This landmark law was authored by Congressman George Miller and Senator Bill Bradley, and was signed into law by President George Bush. (Imagine that today – a major environmental reform bill with bipartisan support.) The law was an historic effort to protect and restore California’s wetlands, rivers, migratory waterbirds, salmon and other fish species, and also to promote more sustainable water supplies for a drought prone state.
Before the CVPIA’s passage in 1992, it was clear that California’s Central Valley rivers, wetlands, and salmon runs had been severely damaged by the construction and operation of the dams, canals and pumps that make up the federal Central Valley Project (CVP) - the largest water project in the nation. One clear sign of the CVP’s impacts was the 1989 emergency Endangered Species Act listing of Sacramento River winter-run Chinook salmon, the first of many such listings in the San Francisco Bay-Delta Estuary and its watershed. The CVPIA was an ambitious effort to move federal water policy in a more balanced and sustainable direction. A quarter century later, at this difficult time for America’s rivers, streams, wildlife and natural areas, it’s instructive to step back to review the impact of this key legislation, what we’ve learned, and what these lessons suggest for future efforts to protect America’s wildlife and natural areas.
The CVPIA’s ambitious provisions fall into several categories.
Environmental Policy: The Act included broad reforms to change the approach of the CVP to fish and wildlife issues.
Fish and Wildlife Protection Mandate: Prior to the passage of the CVPIA, the federal Bureau of Reclamation, which dammed the rivers and diverted water to run the CVP, claimed that the agency had no Congressional authority to protect fish and wildlife. This was incorrect, but Congress ended the debate by establishing “mitigation, protection, and restoration of fish and wildlife” as a fundamental “project purpose” of the CVP. Thus, not only did Congress authorize environmental restoration, it directed the Bureau to make this a priority. In 2009, the state followed suit and passed the Delta Reform Act, making water supply reliability and ecosystem health the state’s “coequal goals” for managing the Delta. As outlined below, the Department of the Interior has a spotty record in achieving this fish and wildlife restoration goal, but this remains a landmark policy reform.
Restoration Fund: The CVPIA established a $50 million per year Restoration Fund, supported by fees paid by CVP water and power users to mitigate for the environmental damage caused by the massive project. The State of California still lacks a comparable restoration fund to help pay for programs to reverse the system-wide damage caused by other Central Valley water diverters.
Wetlands and Waterbirds. Prior to the creation of the CVP, Central Valley wetlands were regularly flooded by rivers spilling out of the Sierra Nevada mountain range, attracting one of the nation’s densest populations of waterbirds. By depriving Central Valley wetlands of these natural flows during the fall, winter and spring, the CVP caused enormous damage to these critical wetlands and the millions of waterbirds and other wildlife that depend on them. Congress had created Central Valley wildlife refuges to help offset the damage caused by the CVP, but those refuges lacked reliable water supplies. As a result, prior to the passage of the Act, some Central Valley wetlands were literally dry. The CVPIA established an ambitious program to reverse this damage.
Base Refuge Water Supply: The CVPIA required the CVP to deliver full base water supplies immediately after the Act was signed. These base supplies provided stable, minimum water supplies to prevent further damage to Valley wetlands and wildlife. However, as explained below, these base supplies have never been fully delivered.
Refuge Conveyance: In some cases, in order to deliver full base water supplies, new pipelines, canals and pumping stations were required. The CVPIA directed the Department of the Interior to finance and build this new water delivery infrastructure. Since then, nearly three dozen projects have been built, but some critical facilities remain uncompleted. As a result, from 2008-2012, an average of 33,570 are-feet of base supplies guaranteed by the CVPIA were not delivered. The Department of the Interior has compounded the problems facing wildlife that result from undelivered wetlands water supplies by preventing flexible management of refuge water supplies. For example, Interior has not allowed undelivered refuge water to be transferred to other refuges in need of water. Such transfers are routinely approved for agricultural water contractors.
Full Refuge Water Supplies: Beyond base supplies, the CVPIA directed the Department of the Interior to obtain additional water to provide full refuge supplies by 2002. These full supplies are intended to provide optimal supplies for wetlands management. Progress toward achieving this requirement has been painfully slow. From 2007-2015, deliveries of the increment between base and full wetlands supplies averaged only 32%. Fortunately, two new projects proposed during 2017 represent the two largest blocks of water developed for wetlands since the Act was passed. The first is the North Valley Regional Recycled Water Program, which will deliver recycled water from Turlock and Modesto to wetlands and farms on the West side of the San Joaquin Valley. The project could deliver 6,600 AF of wetlands water supply by 2018 and, ultimately, could deliver 12,600 AF to wetlands. The second breakthrough wetland supply project is the proposed expansion of Contra Costa Water District’s Los Vaqueros Reservoir, which would deliver an average of 46,000 acre-feet of water to South of Delta wetland areas.
Salmon and Anadromous Fish. The San Francisco Bay-Delta Estuary is the largest estuary on the West Coast of the continent, hosting hundreds of species, including the most important salmon run south of the Columbia River. To reverse the CVP’s devastating harm to Central Valley salmon runs and other fish species, the Act created an ambitious fish restoration program, including the following:
Doubling Goal and Plan: The CVPIA established a goal of doubling the Central Valley’s naturally spawning population of anadromous fish, including four runs of Chinook salmon, steelhead and sturgeon. The CVPIA created an anadromous fish restoration program (AFRP) to achieve this goal of just under a million naturally spawning, returning adult salmon. (This in addition to Central Valley hatchery fish.)
Restoration Actions: The CVPIA also included an extensive set of specific required restoration actions, including the replenishment of spawning gravel below CVP dams, the construction of a device at Shasta Dam to control the temperature of water released to the river below, and modification of the operations of the Delta Cross Channel - a manmade canal that diverts Sacramento River salmon to their death in the interior and south Delta. These actions, as well as those identified in the AFRP, are funded by the CVPIA Restoration Fund.
San Joaquin River Restoration: The CVPIA recognized that operation of the federal Friant Dam dewatered the San Joaquin River and destroyed the second largest salmon run in California. As a result, the CVPIA required CVP contractors receiving water from Friant Dam to pay a surcharge into the Restoration Fund. The Act also required an evaluation of the potential to restore the San Joaquin River – a study that laid the groundwork for the San Joaquin River restoration agreement in 2006.
Restoration Water Supply: Healthy rivers, fisheries and wildlife require adequate freshwater flows. CVP reservoirs and diversions have dramatically modified – or even eliminated - natural flows in Central Valley rivers. To reverse this damage, the Act dedicated 800,000 acre-feet per year to the restoration of fish in the Bay-Delta ecosystem. (See the related discussion below regarding the Bureau’s plans to write contracts for additional water deliveries.) This provision set the stage for the stakeholder-negotiated 1994 Bay-Delta Accord, which facilitated establishment of new water quality standards for the Bay-Delta. Although those standards were an improvement 23 years ago, we now know that they are not adequate to protect declining fish and wildlife. Rather than enhancing water supplies for a full range of adadromous fish, much of this dedicated water is now used to meet Endangered Species Act requirements intended to stave off extinction. In many years much less than 800,000 acre feet of water is provided. In 2015, during the recent drought, that figure dropped to only 224,000 acre feet. Little, if any, of this dedicated water is reserved to provide for the restoration needs of essential species like the fall-run Chinook salmon, which is the backbone of salmon fishing in California and Oregon South of the Columbia River.
The Department of the Interior has been cautious - at best - in implementing the CVPIA. Interior’s slow progress was documented in a 2008 independent review of the CVPIA’s implementation. That report, called Listen to the River, included a scathing review of Interior’s management of the fish restoration provisions of the CVPIA. The report criticized the lack of a vision in the implementation of the CVPIA’s fish restoration program; the lack of solid scientific foundation for planning, monitoring and evaluation; poor structure and management, and, perhaps more importantly; a failure to make full use of the authority included in the CVPIA. The lack of effective management of water reserved to heal the environment received particularly harsh criticism. For example, the reviewers stated that they were “flabbergasted” that “(t)he agencies have not identified a system-wide flow regime and set of system flow objectives. Worse, Reclamation does not dedicate and manage 800,000 acre feet of environmental water from headwaters storage through the Delta. Instead, Reclamation allows water dedicated to fish restoration to be ‘diverted out of the system.’” What that means is that the Bureau allows water dedicated to salmon restoration to be diverted and delivered to other CVP water users. “This approach,” the review concluded “seems fundamentally at odds with the intent and language of the legislation.” Astonishingly nine years after the release of this review, Interior has still not responded comprehensively.
As a result of the poor management of the fish restoration program, it is not a surprise that Interior has fallen far short of the CVPIA’s goals. Shortly after the passage of the CVPIA, restoration actions were producing positive results, including growing salmon returns. However, diversions from the watershed were allowed to increase and the estuary’s fisheries collapsed in what became known to scientists as the pelagic organism decllne. As a result, the California commercial and recreational salmon fishery was closed in 2008 and 2009, for the first time in state history. During the recent drought, populations crashed again, bringing the risk of extinctions and new threats to salmon runs and salmon fishing jobs.
Sustainable Water Policy: Beyond fish and wildlife restoration programs, the CVPIA also included reforms to increase water use efficiency, in order to help meet human needs while reducing environmental impacts. Those provisions remain important today.
Prohibition on New Water Contracts: When Congress passed the CVPIA, the Bureau of Reclamation planned to write contracts for the delivery of 1.5 million acre feet of “new” water. The Bureau claimed that this water was “surplus” to environmental needs and the needs of existing CVP contractors. As discussed above, the Act dedicated approximately half of this water – 800,000 AF – to the environment. It also prohibited new CVP water contracts. Today, the wisdom of both of these decisions – dedicating water to the environment and preventing new contracts to deliver even more water – is very clear.
Pricing Reforms: The Bureau of Reclamation provides highly subsidized water deliveries to CVP agricultural water contractors. In fact, the majority of the true cost of the CVP has been paid by taxpayers, not water users. This policy encouraged inefficient water use and promoted bringing new lands into agricultural production. During droughts, this additional acreage puts more strain on overtapped aquifers. To move away from these damaging subsidies, the Act included a tiered pricing requirement that reduces subsidies on the last 20 percent of CVP water delivered to agricultural contractors. This was an important step toward the “beneficiary pays” approach to financing that was adopted in the Delta Reform Act, requiring the beneficiaries of the proposed Delta tunnels to pay for the full costs of planning, permitting, mitigation, construction and operation. When water users pay the full cost of water, they have more incentive to use it wisely.
Water Transfers: Prior to the Act, it was illegal to move water from the Central Valley to some parts of California. The CVPIA authorized voluntary water transfers around the state for the first time. Since that time, water transfers have emerged as a critical tool during droughts. Although poorly documented, transfers from one farmer to another are increasingly common, and have become a critical water management tool to increase the flexibility farmers have and to improve their ability to purchase needed supplies when water is scare.
Land Retirement: The CVPIA authorized the retirement of drainage-impaired agricultural land. That program has retired thousands of acres of unproductive land, assisting in efforts to address contamination caused by agricultural drainage from land tainted with high mineral content in the soils. Overall, however, the amount of land retirement to date falls far short of what is required to solve the drainage problem.
Water Conservation: The Act created a water conservation program at the Bureau of Reclamation. Since that date, California has undertaken extensive agricultural and urban water conservation efforts. As Governor Brown now states, California must make water conservation a “way of life.”
Conclusions and Recommendations: The complex history of this legislation suggests several important lessons.
First, even on the most challenging water management issues, solutions that benefit both wildlife and human uses are possible. In the American West, water is limited, overtapped and subject to frequent and extended droughts. This water is the life blood of cities in America's most populous state, of the nation’s most extensive irrigated agricultural economy, and of California’s critical wetlands, rivers, fish and wildlife. Yet even here, the CVPIA shows that it is possible to craft solutions that can benefit people and wildlife. The most popular quote about California water issues is an alleged (and apocryphal) quip from Mark Twain: “In California, whiskey is for drinking and water is for fighting over.” There’s certainly some truth to that, as shown in California’s contentious water history. Yet the CVPIA represents a balanced package of policies and programs to help restore salmon runs and habitat for millions of migratory waterbirds, as well as to help ensure that California’s cities and farms use water efficiently, strengthening the Golden State’s economy. This lesson can be applied across the nation, wherever we find difficult wildlife management challenges.
Second, the Department of the Interior should take steps to improve implementation of the CVPIA in response to the Listen to the River report. Additional independent reviews could be critical to continuing to improve this and other federal fish and wildlife programs.
Third, despite the balanced approach included in the CVPIA, Congress and federal agencies are pursuing policies that represent dramatic threats to California's wetlands, wildlife and salmon. A quarter century after the passage of the CVPIA, Central Valley agricultural interests continue to seek to repeal key parts of the Act, as seen in H.R. 23 (Valadao), which passed the House of Representatives earlier this year. Today, David Bernhardt, a former lobbyist for the Westlands Water District, the largest CVP water contractor, serves as the Deputy Secretary of the Interior. Perhaps not coincidentally, Interior has begun weakening protections for ESA listed species in the Bay-Delta.
In the next few years, we will need to redouble our efforts at the federal level to protect the CVPIA’s balanced policies and programs.
Finally, and most promisingly, California is pursuing the type of balanced approach embodied by the CVPIA. In several areas, California is stepping up to achieve the co-equal goals included in both the CVPIA and state law. Approved and pending state actions to protect Bay-Delta and Central Valley wetlands, rivers and wildlife include:
- The draft State Water Resources Control Board policy to clarify its authority to protect the waters of the state under state law.
- State funding for the North Valley Regional Recycling Project and the proposal to fund the expansion of the Los Vaqueros Reservoir.
- State CVPIA “matching funds” dedicated to completing the most important remaining conveyance projects to deliver base supplies to wetland areas that lack access to water.
- The introduction of SB 49, which would provide a state-law backstop to protect against rollbacks of federal environmental standards
- The State Board’s process to establish new water quality standards for the San Francisco Bay Estuary and its tributaries.
This final lesson is particularly timely. It shows that we can make progress in protecting our wildlife even in the most difficult political circumstances. Ultimately, the fate of California’s natural resources is in the hands of Californians.
Meghan Hertel is Audubon California's director of land and water conservation. John McManus is executive director of the Golden State Salmon Association.
By Meghan Hertel and John McManusOctober 30, 2017
Your gift goes farther, now through #GivingTuesday
Thanks to a generous matching gift, your gift will be matched now through #GivingTuesday, November 28th. Please make a gift now to protect birds and habitat throughout the Golden State.