To BDCP or Not to BDCP?

by Joe Mathews | August 1st, 2013

The Delta Dialogues delved into the nitty-gritty of governance proposals in its July meeting, producing some of the most detailed discussion of the process – and a divide between participants over how they might move forward with their own governance proposals.

Participants described the six-hour meeting at the Delta Conservancy offices in West Sacramento as at once enlightening and exhausting. Fourteen stakeholders were present, representing a diverse array of Delta interests (though not agriculture; three regular participants had work and travel conflicts). Two participants – Northern California Water Association president David Guy and the Metropolitan Water District of Southern California’s Tom Philp – joined the Dialogues for the first time.

The conversation, while full of good humor, was so intense that the participants kept talking and declined to take breaks, even when prompted by facilitators. But participants said the Dialogues, as they progressed into greater detail, might also be running up against some of the same obstacles as previous efforts to bring together different Delta stakeholders.

“It was a really interesting discussion today… a lot of serious points touched on,” said Leo Winternitz of the Nature Conservancy as he departed the room. “I’m just afraid that Delta Dialogues is ending up where a lot of Delta discussions end up — in the Sargasso Sea.”

What stood out from the conversation were three long exchanges. In the first, Carl Wilcox of the State Department of Fish and Wildlife answered a series of rapid-fire questions from participants about the BDCP’s proposed governance structure. Wilcox’s answers were so detailed and thoughtful that he won praise from the group – even though participants expressed little enthusiasm for the BDCP’s structure.

In the second, the participants discussed a strategy for the dialogues itself. In tackling governance, should the Delta Dialogues attempt to change and influence the BDCP? Or would it be better to look more broadly at governance, perhaps in the context of the Delta Stewardship Council’s Delta Plan?

Tom Zuckerman, a Delta landowner who is a leader among in-Delta interests, said over and over that in-Delta interests would oppose the BDCP, and that there was little virtue in trying to build governance on it as a model. John Cain of American Rivers was the room’s leading voice for engaging the BDCP; he argued that the BDCP was up in the air and that there is an opportunity to make a big impact on the governance plans right now.

“There’s a lot of room for rethinking governance,” Cain said. “There’s open lines for the idea of Delta representation in governance. I don’t think it’s too late. It’s actually at a crisis point, and it would be timely in the next couple months to insert something that has broad support.”

Other participants said that what was crucial was to pick the right level of governance and process. There were so many processes and discussions at so many levels. Ingram noted that given all the different contexts and levels, an intervention by the Dialogues on governance could be “both too late – and very timely.”

Late in the day, participants began to frame the choice narrowly: should they try to influence the BDCP or the Delta Plan?

Zuckerman said: “I feel more comfortable talking about the Delta Stewardship Council than the BDCP. I don’t see things…changing in BDCP. While there’s enough holes and gaps and spaces in the Delta Plan to talk about that on a more constructive basis.” Dick Pool of the commercial fishing industry agreed, saying that the BDCP was changing and too much of a moving target. “We could find the perfect solution and find out that the BDCP is totally different,” Pool said.

Cain replied: “If we don’t participate in the BDCP, we’re ceding it to the AEG and the governor.”

Even as the group debated throughout the day whether to deal directly with the BDCP, they discussed the BDCP – and Delta governance more broadly.

Zuckerman pressed the group to answer the same question: if the BDCP is supposed to protect the Delta, why shouldn’t the job of putting it in place be entrusted to an entity that represents all Delta interests, including in-Delta interests, like the Delta Protection Commission? The DPC’s Delta Plan, he said, has a broader view of the Delta’s problems and has elements that could repair the shortcomings of the BDCP.

Zuckerman acknowledged his question was intended in part as a provocation (the Delta Protection Commission opposes the BDCP), but his question served to focus the discussion on the inadequacies of the BDCP’s proposed governance structure – and to prompt participants to suggest alternatives. The conversation veered into the details of the Authorized Entity Group (AEG), the powerful board overseeing BDCP under the governance structure proposed in the plan’s Chapter 7; the companion Permit Oversight Group or POG that is a part of the structure, and the powerful Program Manager envisioned by the BDCP.

The wide-ranging discussion that ensued brought forth a mix of principles for Delta governance (in-Delta interests needed representation and some measure of “veto authority” to make corrections when plans don’t work out as promise). There were also a host of questions. Could you put an independent body to oversee the BDCP that would have the trust of the public? Isn’t putting the water contractors on the AEG akin to letting the fox guard the henhouse? Can the fact that the water contractors are footing the bill for the BDCP justify giving them more power? Why is the BDCP’s Stakeholder Council – the only body with in-Delta interests under the plan — so weak, with only the right to object and nothing more?

Several participants said that the AEG was an entity dominated by government agencies and the water contractors paying for the contract, and needed to be altered to include in-Delta interests. Would an ex-oficio member be progress? Could the five counties in the Delta be given representation – perhaps along with the Delta Protection Commission – on the AEG? The group also argued that the Stakeholder Council included in the BDCP governance would be too weak to provide a real check on AEG or the BDCP. Could that be beefed up?

Chris Knopp, executive officer of the Delta Stewardship Council, suggested that governance needed to include accountability and adaptability – “the ability to change the decisionmaking body based on the decisions it makes.” For example, he said, if a decision affects Delta residents, then Delta residents should be part of that decision. He said the inclusion of water contractors in the AEG will raise suspicion among many members of the public who want to be assured that decisions made by the AEG will encompass a broad perspective and be unbiased.

Wilcox, while defending the BDCP, argued that cooperation and power for local counties and the people of Delta were essential for the BDCP to be able to work. “It’s not in the AEG’s interest to not pay attention to the Stakeholder Council,” he said. He later added: “Somehow we need to find a way for in-Delta stakeholder interests to be transmitted into the decisionmaking processes for BDCP.”

Ingram, the conservancy director, said he saw “a ripe opportunity” to blend other governance ideas with the BDCP to give in-Delta interests more of a role.

For all the detailed discussion, the question of how the Dialogues would move forward was not answered at the meeting. Facilitators Kristin Cobble and Jeff Conklin twice asked participants if they would like to figure out a way to get together before the next official Dialogues meeting (on Aug. 23) to come up with governance proposals. Conklin was particularly pointed: “We’re sort of at a point in the conversation where it would make sense to go away and make a proposal and bring it back to the group for reactions.”

But no one leaped at the opportunity.

That failure was a disappointment for facilitators, who have been urging the group to meet outside the formal sessions, to think of themselves as a network, and to talk more among themselves online. After the meeting, the facilitators said they would push participants again to do work outside the meetings, perhaps via working groups that could look at specific governance questions.

The meeting concluded with a short discussion of the Dialogues’ future. Participants and facilitators said that trust and team building within the dialogues had been a focus; now it was time to do public outreach and to make a policy and regulatory impact.

But it was clear that as the dialogues moved closer to having an impact, the work would get more difficult. “I think we might be in a little bit of a ‘what do we do next’ mode,” Cain said.