Water reform without the teeth

Posted at 10:31 PM on Sunday, Nov. 15, 2009

SACRAMENTO -- The momentous reform of California's water system signed into law last week is largely toothless where it matters most: action to reverse the Sacramento-San Joaquin Delta's environmental decline.

That decline was a key reason for the long fight that led to the reforms. And indeed the new law puts into writing that the delta's environment is equally important to the enormous water demand straining it. State policy also now requires reducing demand for the delta's water.

Both are important changes that will remain on the state's books, even if voters reject an $11 billion water bond on the November 2010 ballot, designed to fuel the law's provisions.

But many of the changes may not live up to high expectations surrounding the reform package, said Holly Doremus, a University of California at Berkeley professor of environmental law.

For instance, she said, the new government body created to carry out these changes -- the Delta Stewardship Council -- doesn't have the authority to enforce many of its new rules.

The result could be more of the conflict between wildlife and water interests that has long plagued the delta.

"This package does not confront the really tough questions," said Doremus, co-director of Berkeley's Center for Law, Energy and Environment. "It's not going to radically shift anything."

In many important areas, Doremus said, the Delta Stewardship Council is left at loose ends:

The council is charged with creating a "Delta Plan" to balance environmental and water needs, but the reform package sets no path to achieve this tricky balance, or standards to resolve conflict.

The council is empowered to hear appeals of state and local projects alleged to conflict with the Delta Plan, but it has no power to amend or deny projects.

The council has no funding to operate beyond the current fiscal year. A dedicated fee could be proposed in future legislation, but this proved too toxic to be included in the present reform package.

And on the critical question of a controversial delta water diversion canal, the council only can hold hearings on the matter, and must include a canal in the Delta Plan if it's endorsed by the director of California's Department of Fish and Game.

Some supporters of the bill acknowledge the Delta Stewardship Council may be too weak.

"Frankly, in some ways, we would like to have seen a stronger council, but that's what was possible to get through the Legislature," said Barry Nelson, senior policy advocate at Natural Resources Defense Council, one environmental group that supported the bills.