On “regulatory assurance” in the Sacramento Delta

Jeff Michael did a pithy job Thursday of untangling the snag of old fishing line that is “regulatory assurance”, the Endangered Species Act and the proposal to build giant tunnels beneath the Sacramento-San Joaquin Delta to get water from California’s wet north to its thirsty south with, it is hoped, minimal disruption to the delta through which the water would otherwise travel.

The core of Michael’s argument is that the real value (in dollar terms) for water users is “regulatory assurance” – the knowledge that they’ll get the water they expect without unexpected supply interruptions because of endangered species problems. But why, Michael asks, must that regulatory assurance come from the tunnels, rather than the habitat work that is also part of the project. If they could get that regulatory assurance at lower cost by fixing the delta rather than tunneling beneath it, Michael asks, would that not be a win for all?

I’ve been arguing that water policy planning driven by the ESA is what led the delta to the political and policy mess we’re in. But if Jeff’s line of argument is right, then my argument about the ESA may not be.

It may simply be that the BDCP process got headed down the big conveyance path not because it was constrained by the requirements of the ESA policy process, but rather because that’s the path they wanted to be on. There is some evidence to support that in the November 2007 “Bay Delta Conservation Plan: Points of Agreement” (pdf):

Under a Planning Agreement dated October 6, 2006, the Steering Committee worked over the course of this year on developing an overall approach to the BDCP. We have chosen to concentrate initially on different approaches to conveyance and how they would likely contribute to achieving the planning goals and conservation objectives of the Planning Agreement and affect habitat restoration opportunities across the Delta.

A conveyance is what they seem to have been looking for, and a conveyance is therefore what they found?

One Comment

  1. While I gave up being a water lawyer when the development industry collapsed, this is something I still know a fair bit about.

    The regulatory agencies have no authority to set the terms of the project; they only get to evaluate proposed projects. Since the reason that the SWP Contractors are at the table in the first place is to get water out of the Delta, a conveyance was always on the table.

    If you honestly believe at the end of the day that the Brown administration is going to allow the Central Valley farmers to shift mitigation costs to the taxpayer, I have a tunnel to sell you.

    One final point: while Jeff is following this issue far more closely than I am, his posts appear to suggest that doing nothing is a viable alternative. It’s not. So figuring out the marginal cost of the water delivered by the project cannot be measured against the current cost of water, because the current price reflects an unsustainable condition.

    ps: While it’s been a while since I’ve commented, I love the blog and read it religiously.

    pps: Regarding changing from a canal to a tunnel, I believe the expression I’m looking for is “Told you so.”

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