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The environmental injustice behind the Oroville Dam crisis.
One of the least discussed issues in California environmental politics – and one of the most crucial to understanding Governor Jerry Brown’s Delta Tunnels Plan – is the clear connection between the Marine Life Protection Act (MLPA) Initiative and the California WaterFix, formerly called the Bay Delta Conservation Plan (BDCP).
At a time when local, national and international mainstream media are focusing on the Oroville Dam crisis, it’s important for reporters to dig deeper and understand the context that the emergency, which spurred the evacuation of over 188,000 people in Butte, Yuba and Sutter counties, occurs within.
It’s crucial to understand that these two neo-liberal processes, the MLPA Initiative and the California Water Fix, are the environmental “legacy” that two Governors, Arnold Schwarzenegger and Jerry Brown, have devoted their energy, staff and money to, rather than doing the mundane but necessary process of maintaining and repairing the state’s water infrastructure, including Oroville Dam.
The privately-funded MLPA Initiative and the California WaterFix at first may appear to be entirely different processes.
The MLPA Initiative, a process begun in 2004 under the Schwarzenegger administration, purported to create a network of “marine protected areas” along the California coast. The network was supposedly completed on December 19, 2012 with the imposition of contested “marine protected areas” along the North Coast under the Jerry Brown administration.
On the other hand, the Bay Delta Conservation Plan process began under the Bush and Schwarzenegger administrations to achieve the so-called “co-equal goals” of water supply reliability and Delta ecosystem restoration. In 2015, the state and federal governments divided the BDCP into two projects, the California WaterFix, the conveyance component and the California EcoRestore, the habitat “restoration” component.
But in spite of some superficial differences, the two processes are united by their leadership, funding, greenwashing goals, racism and denial of tribal rights, junk science and numerous conflicts of interest. When people educate themselves on the links between the two processes, I believe they can more effectively wage a successful campaign against the Delta Tunnels and to restore our imperiled salmon and San Francisco Bay-Delta fisheries.
Mike Carpenter, a sea urchin diver and organizer of a fundraiser for the California Fisheries Coalition in Albion on the Mendocino coast, made the vital connection between the MLPA Initiative and Schwarzenegger’s campaign to build a peripheral canal back in 2009 when the battle against the creation of questionable “marine protected areas” on the North Coast was amping up.
Carpenter emphasized that the MLPA Initiative was just a “cover-up” for the Governor’s plans to build a peripheral canal or tunnel, potentially the most environmentally destructive public works project in California history, through the Sacramento-San Joaquin Delta, the largest estuary on the West Coast of the Americas, through the Delta Vision and Bay Delta Conservation Plan (BDCP) process. Carpenter’s words have proven very prophetic, considering what has happened since that time.
How are the Delta Tunnels plan and MLPA process linked by leadership, funding, conflicts of interest, greenwashing goals, racism and denial of tribal rights, and junk science?
1. Leadership: Phil Isenberg, a former Sacramento Mayor and Assemblyman, chaired the MLPA Blue Ribbon Task Force to create faux “marine protected areas” on the Central Coast from 2004 to 2007. Isenberg then went on to Chair the Delta Vision Blue Ribbon Task Force that advocated building a peripheral canal or tunnel.
After that process was finished, he went on to chair the Delta Stewardship Council created under the water policy/water bond legislative package of 2009. He recently retired from the Council.
Under his leadership, the Council released a Delta Plan that creates a clear path to the construction of the Delta Tunnels. The deeply-flawed plan has been contested by 7 lawsuits from a diverse array of water contractors, agribusiness interests, urban water agencies, environmentalists, Indian Tribes and fishing groups.
Likewise, John Laird, former State Senator and the current Natural Resources Secretary, is the Brown administration’s key cheerleader for both the MLPA Initiative and the Delta Tunnels. He oversaw the completion of the faux “marine protected areas” for both the South Coast in January 2012 and the North Coast in December 2012, in spite of overwhelming opposition by fishermen, Tribal leaders and grassroots environmentalists.
Laird also promotes the construction of the tunnels at virtually every conference and media event he participates in, along with writing frequent op-eds in mainstream media portraying the WaterFix as the “solution” to water supply and ecosystem problems.
2. Funding: The Resources Legacy Fund Foundation and David and Lucille Packard Foundation both funded the MLPA Initiative, along with giving millions of dollars to the “environmental” NGOs that supported both the MLPA and BDCP processes.
For example, five non-profits, including the Packard and Gordon and Betty Moore Foundations, donated a total of $20 million for hearings for the creation of “marine protected areas” under the Marine Life Protection Act Initiative. The Packard Foundation, the biggest contributor to the hearings process, contributed $8.2 million to the Resources Legacy Fund Foundation to fund MLPA hearings.
The Gordon and Betty Moore Foundation also contributed a total of $18,086,716, through the Resources Legacy Fund Foundation, to the MLPA Initiative in California from 2004 to 2012. The foundation gave the first grant of $2,714,946 to fund the MLPA process in 2004. The foundation then contributed $3,305,628 for Phase 2 of the MLPA Initiative Phase in May 2007, $7,066,142 for Phase 3 in July 2008, and $5,000,000 for Phase 4 in February 2012.
The Packard Foundation and Resources Legacy Fund also helped fund, along with the Stephen Bechtel Foundation, several Public Policy Institute of California (PPIC) reports advocating the construction of the Delta Tunnels as the “solution” to California’s water problems and ecosystem restoration.
For example, the PPIC in 2011 published a 500 page book, “Managing California’s Water: From Conflict to Reconciliation,” designed to greenwash the construction of a Peripheral Canal or Tunnels. The book was funded by the S. D. Bechtel, Jr. Foundation, the David and Lucile Packard Foundation, the Pisces Foundation (funded by the Fisher family that owns the Gap, Mendocino Redwood Company and Humboldt Redwood Company), the Resources Legacy Fund, and the Santa Ana Watershed Project Authority.
3. Conflicts of Interest: The Blue Ribbon Task Forces to create “marine protected areas” under the MLPA Initiative were filled with individuals with numerous conflicts of interest, including a big oil lobbyist, a marina corporation executive and a coastal real estate developer.
Catherine Reheis-Boyd, the president of the Western States Petroleum Association (WSPA) and a relentless advocate for offshore oil drilling, fracking, the Keystone XL Pipeline and the weakening of environmental laws, chaired the South Coast MLPA Blue Ribbon Task that developed the MPAs that went into effect in Southern California waters on January 1, 2012. She also served on the MLPA Blue Ribbon Task Forces for the North Coast, North Central Coast and Central Coast.
While Reheis-Boyd served on the task forces to “protect” the ocean, the same oil industry that the “marine guardian” represents was conducting environmentally destructive hydraulic fracturing (fracking) operations off the Southern California coast. Documents obtained under the Freedom of Information Act and media investigations by Associated Press and truthout.org in 2013 reveal that the ocean has been fracked at least 203 times in the past 20 years, including the period from 2004 to 2012 that Reheis-Boyd served as a “marine guardian.”
In yet another conflict of interest, Reheis-Boyd’s husband, James D. Boyd, first appointed by Governor Davis, sat on on the California Energy Commission from 2002 to 2012, including serving as Vice-Chair of the Commission from 2/2007 to 1/2012. His service on the commission coincided with Reheis-Boyd’s terms as a “marine guardian.”
In the case of the BDCP/California WaterFix, the proverbial fox was also in charge of the hen house. Governor Jerry Brown appointed Laura King Moon of Woodland, a lobbyist for the state’s water exporters, as chief deputy director of the California Department of Water Resources (DWR).
Moon had been a project manager for the Bay Delta Conservation Plan since 2011 while “on loan” from the State Water Contractors, an association of 27 public agencies from Northern, Central and Southern California that purchase water under contract from the California State Water Project. Moon passed away from cancer last year.
DWR also hired Susan Ramos, Deputy General Manager of the Westlands Water District, “on loan” from the district to serve as “a liaison between all relevant parties” surrounding the Delta Habitat Conservation and Conveyance Program (DHCCP) and provide “technical and strategic assistance” to DWR.
Documents obtained by this reporter under the California Public Records Act revealed that Ramos was hired in an “inter-jurisdictional personal exchange agreement” between the DWR and Westlands from November 15, 2009 through December 31, 2010. The contract was extended to run through December 31, 2011 and again to continue through December 31, 2012.
4. Greenwashing Goals: Desperately needed actions to restore our ocean, bay and Delta waters have been substituted under the MLPA Initiative with the imposition of more fishing closures on some of the most heavily regulated ocean waters on the planet to further the “green” facades of Governors Schwarzenegger and Brown.
The alleged “marine reserves” created under the MLPA scam fail to protect the ocean from fracking, oil drilling, pollution, military testing, wind and wave energy projects and all human impacts on the ocean than fishing and gathering – at a time when the ocean is under assault by the oil industry, corporate polluters and ocean industrialists.
The greenwashing that occurred under this process become crystal clear during the Refugio Oil Spill of May 2015 when a badly corroded pipeline operated by the Plains All American Pipeline Company burst, fouling more than 9 miles of pristine coastline.
Not mentioned in the superficial coverage of the spill by the mainstream media and most of the “alternative media” is the alarming fact that Catherine Reheis-Boyd, the head of the same oil industry trade association that lobbies for the Plains All American Pipeline corporation, whose pipeline rupture caused the massive oil spill, is the very same person who chaired the panel that created the so-called “marine protected areas” that were fouled by the spill.
“Plains All American, the owner of the pipeline, is a member of the Western States Petroleum Association,” proclaimed Reheis-Boyd in her blogpost responding to the spill in 2015. In the case of the Delta Vision and BDCP/California Water Fix processes, the dire need to restore the Delta by decreasing water exports and retiring drainage impaired land on the San Joaquin Valley’s west side has been substituted with plans to build twin tunnels and increase water exports to corporate agribusiness, developers and oil companies while taking Delta family farms out of production under the guise of “habitat restoration.”
Meanwhile, populations of Delta smelt, longfin smelt, winter-run Chinook salmon, and other fish species continue on their path to extinction, due to massive water exports from the Delta by the state and water projects, along with mismanagement of Trinity, Shasta, Oroville, Folsom and other dams by the Bureau of Reclamation and Department of Water Resources.
The Delta smelt index, a relative measure of abundance, in the latest survey was 8, the second lowest in history. Seven Delta smelt were collected in November – and none were collected in September, October, or December, according to a memo from James White, environmental scientist for the CDFW’s Bay Delta Region, to Scott Wilson, Regional Manager of the Bay Delta Region.
The small 2 to 3 inch fish, found only in the Sacramento-San Joaquin River Delta, is an indicator species that demonstrates the relative health of the largest estuary on the West Coast of the Americas. The species is listed under both the state and federal Endangered Species Acts. When the numbers of Delta smelt are so low, it reveals that the estuary, as we know it, is just as close to extinction as the fish themselves.
In 2015, the Delta smelt index was only 7. That was the lowest number recorded since the survey began in 1967, after the State Water Project began exporting water south of the Delta.
Bill Jennings, Executive Director of the California Sportfishing Protection Allliance (CSPA) pointed out the ecological disaster that would unfold if the State Water Resources Control Board approves the petitions by the Department of Water Resources and Bureau of Reclamation to change their points of diversion in order to proceed with the construction of the Delta Tunnels.
“This plan will deprive the Delta smelt of their habitat by exporting vast quantities of water from the Sacramento River,” said Jennings. “If the State Board approves the petition, it will only exacerbate things enormously for the Delta smelt and other fish species.”
The Delta Tunnels plan will not only hasten the extinction of Delta smelt, but it will also drive longfin smelt, winter-run Chinook salmon, Central Valley steelhead, green sturgeon and other fish species closer and closer to extinction, according to Delta advocates and scientific experts. The WaterFix will also imperil the salmon and steelhead populations on the Trinity and Klamath rivers, since water from the Trinity, the largest tributary of the Klamath, is diverted to the Sacramento River watershed through a tunnel in the Trinity Mountains from Trinity Lake to Whiskeytown Reservoir.
5. Racism and Denial of Tribal Rights: Tribal and environmental justice communities in both processes have been excluded in a classic example of environmental racism.
The institutional racism of the MLPA process was demonstrated when the Yurok Tribe was banned from harvesting abalone, mussels and seaweed off their traditional areas off the False Klamath and Reading Rock as they have done for thousands of years under the “marine protected areas” that went into effect off the coast in December 2012.
And in spite of direct action protests and outrage by Tribal members, fishermen and grassroots environmentalists over the flawed Initiative, the MLPA Initiative failed to recognize tribal gathering rights in no take “State Marine Reserves,” allowing tribal gathering only in “State Marine Conservation Areas” where some fishing and gathering is already allowed.
Likewise, the Bay Delta Conservation Plan/California WaterFix has been developed without the required consent from California Tribes including the Winnemem Wintu Tribe, as required under the UN Declaration on the Rights of Indigenous People. In fact, the first formal informational meeting for California Tribes on the BDCP was held on December 10, 2013, in Sacramento – the day after the EIR/EIS for the tunnel plan was released!
That is hardly “government-to-government” consultation, as required under state, federal and international law.
“There is no precedent for the killing of an estuary of this size, so how could any study be trusted to protect the Delta for salmon and other fish?” asked Caleen Sisk, Chief and Spiritual Leader of the Winnemem Wintu Tribe. “How can they even know what the effects will be? The end of salmon would also mean the end of Winnemem, so the BDCP is a threat to our very existence as indigenous people.”
This environmental injustice extends to non-English speakers in California impacted by the Delta Tunnels Plan. Restore the Delta (RTD) and environmental justice advocates charged the Brown Administration with violation of the civil rights of more than 600,000 non-English speakers in the Delta by its agencies’ failure to provide for “meaningful access to and participation” in the Bay Delta Conservation Plan (BDCP) public comment period.
“More than 600,000 Delta residents alone don’t speak English, and are being shut out of the public comment process on this massive project that would affect them deeply,” said Esperanza Vielma, executive director of Café Coop & Environmental Justice Representative, San Joaquin County/San Joaquin Valley Air Quality Board. “The Brown Administration is violating the civil rights of Limited English speaking Californians in its rush to build tunnels to serve the top 1% of industrial agriculture.”
6. Junk Science: Both the MLPA Initiative and BDCP/California Water Fix fiasco have relied on false assumptions and flawed data with little or no basis in natural science to advance their goals and objectives.
In the case of the MLPA Initiative, the Yurok Tribe said it attempted on numerous occasions to address the scientific inadequacies with the MLPA science developed under the Schwarzenegger administration by adding “more robust protocols” into the equation, but was denied every time.
The Northern California Tribal Chairman’s Association, including the Chairs of the Elk Valley Rancheria, Hoopa Valley Tribe, Karuk Tribe, Smith River Rancheria, Trinidad Rancheria, and Yurok Tribe, documented in a letter how the science behind the MLPA Initiative developed by Schwarzenegger’s Science Advisory Team is “incomplete and terminally flawed.”
Frankie Joe Myers, Yurok Tribal member and Coastal Justice Coalition activist, exposed the refusal to incorporate Tribal science that underlies the “science” of the MLPA process on the day of the historic direct action protest by a coalition of over 50 Tribes and their allies in Fort Bragg in July 2010.
“The whole process is inherently flawed by institutionalized racism,” said Myers. “It doesn’t recognize Tribes as political entities, or Tribal biologists as legitimate scientists.”
To make things even worse, a federal judge in May 2014 sentenced Ron LeValley of Mad River Biologists, the former co-chair of the Marine Life Protection Act (MLPA) Initiative Science Advisory Team for the North Coast, to a 10 month federal prison sentence for his role in a conspiracy to embezzle over $852,000 in federal funds from the Yurok Tribe!
LeValley pleaded guilty to a single federal charge of conspiracy to commit embezzlement and theft from an Indian Tribal Organization (18U.S.C §§ 371 and 1163) in the complex scheme in collaboration with former Yurok Forestry Director Roland Raymond. According to court documents, LeValley submitted more than 75 false invoices between 2007 and 2010 in payment for “work” on northern spotted owl surveys that was never performed.
The BDCP/California WaterFix “science” is also a sham. For example, on July 18, 2013 scientists from the U.S. Bureau of Reclamation, U.S. Fish and Wildlife Service, and National Marine Fisheries Service exposed the hollowness of claims by Secretary John Laird and other state officials that the BDCP is based on “science.” This was done after the federal agencies had already made “red flag” comments stating that the completion of the tunnel plan could hasten the extinction of Sacramento River Chinook salmon, Delta smelt, longfin smelt and other fish species.
The federal scientists provided the California Department of Water Resources and the environmental consultants with 44 pages of comments highly critical of the Consultant Second Administrative Draft EIR/EISDraft, released on May 10, 2013. The agencies found, among other things, that the draft environmental documents were “biased,” “insufficient,” “confusing,” and “very subjective.” (baydeltaconservationplan.com/…)
Then in August 2014 the U.S. Environmental Protection Agency (EPA) issued a scathing 43-page comment letter slamming the Bay Delta Conservation Plan’s draft Environmental Impact Report/Environmental Impact Statement (EIR/EIS).
The EPA diagnosis revealed that operating the proposed conveyance facilities “would contribute to increased and persistent violations of water quality standards in the Delta, set under the Clean Water Act,” and that the tunnels “would not protect beneficial uses for aquatic life, thereby violating the Clean Water Act.”
Bob Wright, the lawyer for Friends of the River, summed up the complete lack of science that the BDCP/California Water Fix is based upon when he said, “The plan is to grab the water and in the process take it away from designated critical habitat for several already endangered and threatened species of fish including Sacramento River Winter-Run and Central Valley Spring-Run Chinook Salmon and drive them into extinction. That is against the law because federal agencies are prohibited from doing that by the Endangered Species Act.”
Unjust Implementation of MLPA Initiative Continues
The MLPA Initiative’s unjust implementation continues to forge ahead, in spite of opposition by anglers, conservationists and public trust advocates. The California Fish and Game Commission on Wednesday, August 24, 2016, adopted the controversial Master Plan for Marine Protected Areas in California that delays regional reviews of MPAs, as originally promised, from every five years to every ten years.
After a very short discussion and hearing public comment, the Commission by a 4-0 vote approved text related to traditional ecological knowledge and then adopted the proposed final Master Plan for Marine Protected Areas and the Marine Life Protection Program pursuant to the Marine Life Protection Act (Pursuant to Section 2850, et seq., Fish and Game Code).
The three members of the commission at the time – President Eric Sklar, Vice President Jacque Hostler-Carmesin, and Member Anthony C. Williams – postponed the vote for approval to the June meeting. Since the April meeting, Governor Jerry Brown appointed two new Commissioners, Russell Burns of Napa, and Peter Silva of Chula Vista.
It’s no surprise that both of the new Commissioners who voted for the MLPA Master Plan have worked for organizations backing the Delta Tunnels. Burns is the business manager at Operating Engineers Local Union 3, a strong supporter of the California Water Fix, since 2006. Silva served as senior policy advisor at the Metropolitan Water District of Southern California, one of the key organizations pushing the Governor’s Delta Tunnels Plan, from 2005 to 2009.
The Master Plan breaks the original promise given to anglers by officials that regional reviews of the alleged “marine protected areas” created under the Marine Life Protection Act (MLPA) Initiative would be conducted every five years. The new plan changes the regional reviews to once every ten years, a move that anglers and public trust advocates strongly oppose because it results in less frequent scientific monitoring of the MPAs.
Here’s what the MLPA Initiative South Coast News, the official publication of the Initiative, actually said on October 16, 2009, contradicting claims by Commissioners that this promise to conduct five year reviews was never made:
“Q: If an area is closed as an MPA will it always be closed?
A: Not necessarily. The MLPA specifically requires monitoring, research and evaluation at selected sites to facilitate adaptive management of MPAs and ensure the system meets its goals and objectives. Within the MLPA master plan, it is recommended that the MPA network be evaluated approximately every five years. As MPAs are re-assessed for effectiveness, changes may be necessary, either to individual MPAs or the network as a whole. This may mean changing boundaries and/or allowances for extractive activities depending on how well MPAs are meeting goals. Just because an area is closed to one type of use or another does not mean that it will always be that way.”
We must learn from successes and failures of opposition to both processes
We can see that MLPA and BDCP/California WaterFix processes have much in common in terms of their leadership, funding, conflicts of interest, greenwashing goals, racism and denial of tribal rights, and junk science. I believe that people can more effectively oppose the Governor’s Delta Tunnels Plan and other threats to our rivers, lakes, bays and ocean water by understanding the dark links between the MLPA Initiative and Delta Tunnels project.
The unjust implementation of questionable “marine protected areas” under the MLPA Initiative also provides a cautionary tale for activists fighting the California Water Fix – the fact that science, state, federal and international laws and the majority of people are on your side doesn’t necessarily mean that you will prevail. The state and federal governments have a long history of implementing projects that don’t make any scientific, legal or economic sense because powerful corporate interests effectively bought off and manipulated agency and elected officials to produce a pre-determined outcome.
It is vital that people fighting against the California WaterFix and for the restoration of salmon and other fish populations in California learn from both the successes and mistakes of MLPA Initiative opponents so they can more effectively wage a successful campaign to stop the construction of Governor Jerry Brown’s Twin Tunnels.
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