Post Date: August 22, 2005

The following op-ed by Professor Jody Freeman, Why is Arnold afraid of the water?, originally appeared in the Los Angeles Times on August 21, 2005.

Arnold Schwarzenegger thinks he’s an environmental governor. He wants to combat global warming, develop alternative energy sources and protect coastal waters and sea life. But taking on multinational oil companies and auto manufacturers is a lazy man’s environmentalism.

If Schwarzenegger wants to boost his environmental credentials, he will have to fix California’s perennial water crisis. And the key to that is supporting a little-known water-sharing plan that manages the resources in the San Francisco Bay Delta, the switching yard for water channels throughout the state.

For decades, environmentalists, farmers and urban consumers battled for control of the delta’s water. More than a dozen federal and state agencies, each with a different mandate and constituency, wrestled to determine where the water flowed.

For example, water agencies rewarded farmers and cities by channeling more water to them. The fisheries agencies used their legal authority to ensure that delta fish species got their share. At the height of such conflicts in the early 1990s, the pumps that deliver water to Southern California cities and Central Valley growers were annually shut down during the peak growing season, costing the state millions of dollars in revenue and threatening the state’s bond rating.

These feuding federal and state agencies created the CALFED Bay Delta Program in the mid-1990s to end the water wars. They worked with environmentalists, scientists, farmers and urban users to produce a water-sharing plan.

It took five years and the strong support of the Pete Wilson and Gray Davis administrations, along with President Clinton, to agree on one. The plan’s goals are ambitious and comprehensive: to increase the water supply for users, restore the health of the delta’s ecosystem, improve flood protection and upgrade water quality.

The Legislature created the Bay Delta Authority to enforce the plan. Because the authority was an independent body of appointees, it could focus on water-supply problems, not political cycles. It could be an honest broker among water-related agencies and farmers, environmentalists and users. Administrations, state and federal, could come and go, but CALFED and its governing body stayed to keep water supplies stable.

The program’s successes are indisputable. More than $3 billion has bought reliable water deliveries and improved drinking water, and laid the foundation for a healthier delta ecosystem. The annual pump shutdowns no longer occur, an accomplishment vitally important to Southern California, which draws about 40% of its water from the delta.

But success has not muzzled the critics. Environmentalists complain that restoring salmon runs and watersheds throughout the state is not good enough because some delta fish species remain at risk, a mystery to top scientists. Water users grouse that no new reservoirs have been built, ignoring the water-supply benefits of CALFED’s groundwater, recycling and other water conservation projects. In just a few years, these projects have produced the water equivalent of two or three good-sized dams at a fraction of the cost and without stirring up any opposition.

But no one is getting all that the water-sharing plan promised, so no one is satisfied or willing to acknowledge the program’s benefits.

The Schwarzenegger administration joined the discontented last spring when it reneged on a promise to adopt the Bay Delta Authority’s recommendations for new user fees to ensure that all participants shoulder their fair share of the program’s cost. For example, because farmers and cities benefit from a more reliable water supply, they should help pay, in the form of user fees, for storing and diverting the water and for any damage that causes to the ecosystem.

Meanwhile, key legislators blasted the authority’s staff, instead of their own leadership, for not turning fee recommendations into legislation. Neither Schwarzenegger nor the Legislature wants to take the political heat for the new fees, even though the fees were part of the original agreement.

The governor was expected in May to issue his proposals for user fees and defend the water-sharing program. Instead, Schwarzenegger further delayed his proposals and called for the program to be audited and scaled back. Members of the Bay Delta Authority, most of whom were not consulted, got the message: Your role will be reduced. The top staff official and the chief scientist resigned.

Most troubling, state officials and water contractors successfully lobbied for the Department of Water Resources to take over most of the governing body’s operations, thereby compromising some of its best features: independence, innovation, transparency and flexibility. The state water agency is just too cozy with users to be impartial.

How can the department, which runs the State Water Project, simultaneously supply its primary clients — farmers and cities — and satisfy the needs of, say, environmentalists? Remember, the water-sharing plan’s purpose is to end partisanship.

The CALFED program desperately needs a champion. It won’t be the Bush administration, which has resisted any cooperative efforts with the state. Nor will it be the Legislature. Meanwhile, farmers and cities are cutting their own deals with water-related agencies, and environmentalists are suing.

Big problems remain in the delta. Some fish species are disappearing, and people disagree on how to finance the water plan long-term. This is precisely why Schwarzenegger should be a collaborator, not an obstacle. The alternative is lawsuits.

Wilson and Davis knew that their environmental records would be suspect without tackling the state’s water wars — and they delivered. They pushed the water-sharing plan along at great political risk. Now Schwarzenegger must do the same. Only then can he legitimately call himself an environmental governor.

Jody Freeman is a professor at Harvard Law School. A longer version of this article appears in the Duke Law Journal.