San Francisco Bay, the California WaterFix Project and Beyond The Intersection of Law, Environment and Economics Ed Whitelaw and Winston Hovekamp University of Oregon and FION! Public Interest Environmental Law Conference University of Oregon School of Law March 3, 2017 This slideshow and additional resources can be found at <http://pages.uoregon.edu/whitelaw/PIELC_2017/California_Water/> FION! LLC | 72 W. Broadway St. Suite 206 | Eugene OR, 97401

If we could first know where we are, and whither we are tending, Policy Analysis 101 If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it. Abraham Lincoln (1858; House Divided speech) Descriptive Model: Conditions as they are Explanatory Model: Why they are as they are Normative Model: Conditions as they should be Prescriptive Model: Change them from as they are to as they should be

By Michael B. Jackson, Esq. Bay Delta Conservation Plan: Why it fails to solve the California Water Problem By Michael B. Jackson, Esq.

California’s Water Problem 2/3 precipitation falls in the upper 1/3 of California Average annual runoff is approximately 71 million acre feet (MAF) North Coast streams 40% - 28 MAF Total Sacramento runoff 31% - 22 MAF San Joaquin runoff 9% - 7 MAF Rest of state 20% - 18 MAF

“Less spring snowmelt could make it more difficult to refill winter reservoir flood control space during late spring and early summer of many years, thus potentially reducing the amount of surface water available during the dry season.” - Maurice Roos, Chief Hydrologist DWR

Proposed water tunnels underneath the Sacramento-Bay Delta

Proposed water tunnels underneath the Sacramento-Bay Delta

The “No Injury” Rule Changes in points of diversion must meet the “No Injury” rule Petitioners fail to heed the “No Injury” rule.

If we could first know where we are, and whither we are tending, Policy Analysis 101 If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it. Abraham Lincoln (1858; House Divided speech) Descriptive Model: Conditions as they are Explanatory Model: Why they are as they are Normative Model: Conditions as they should be Prescriptive Model: Change them from as they are to as they should be

“The Sacramento-San Joaquin Delta (Delta) is the largest estuary on the west coast of North America. It is home to hundreds of bird, mammal, and fish species. Populations of many ecologically and commercially important species (public trust resources) have declined substantially over the past decade. These declines are related, among other factors, to increased diversions of water that have occurred since 1985 (Fleenor et al. 2010).” - Executive Summary, California DFG (now DFW), Quantifiable Biological Objectives and Flow Criteria for Aquatic and Terrestrial Species of Concern Dependent on the Delta, Nov. 2010

“Water flow through the Delta is one of the primary drivers of ecosystem function. The timing, magnitude, quality of flows, and way in which water is diverted all influence habitat features such as temperature, turbidity, transport, nutrient loadings, pollutant dispersal, and other factors.” - Executive Summary, DFG, Quantifiable Biological Objectives and Flow Criteria, Nov. 2010

Climate Change & Risk and Uncertainty “[Uncertainty] is something distinctly not of [risk’s] character; and there are far-reaching and crucial differences [between the two]…. It will appear that a measurable uncertainty, or “risk” proper, as we shall use the term, is so far different from an unmeasurable one that it is not in effect an uncertainty at all.” Knight, F. H. 1921. Risk, Uncertainty, and Profit. Houghton Mifflin, Boston & New York. Pg. 19-20

If we could first know where we are, and whither we are tending, Policy Analysis 101 If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it. Abraham Lincoln (1858; House Divided speech) Descriptive Model: Conditions as they are Explanatory Model: Why they are as they are Normative Model: Conditions as they should be Prescriptive Model: Change them from as they are to as they should be

California Public Trust Emperor Justinian (535 A.D.) “By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea.” 1928 Amendment to California Constitution 1983 Mono Lake decision in National Audubon Society v. Superior Court Alpine County Nature’s Trust “A government’s trust duty requires administering the natural endowment strictly on behalf of the people, rather than to favor singular interests.” Wood, Mary Christina. 2014. Nature’s Trust: Environmental Law for a New Ecological Age. New York: Cambridge University Press. pg 127.

Policy Analysis 101 Descriptive Model: Conditions as they are If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it. Abraham Lincoln (1858; House Divided speech) Descriptive Model: Conditions as they are Explanatory Model: Why they are as they are Normative Model: Conditions as they should be Prescriptive Model: Change them from as they are to as they should be This slideshow and additional resources can be found at <http://pages.uoregon.edu/whitelaw/PIELC_2017/California_Water/> FION! LLC | 72 W. Broadway St. Suite 206 | Eugene OR, 97401