Delta water exporters are lauding the new biological opinions released by the Trump administration and the state's new regulations known as "Trump lite" by many environmentalists. Water exporters are praising the new rules for their use of real-time operations, as opposed to the old rules that were "calendar based." It's great PR messaging, but lousy policy. The message appeals on the surface - new rules are modern and with high-tech real time adjustments, while the old-rules are primitive and based on calendars. Good political messaging, but I would argue that it does not conform to the best available social science and policy design as it reduces water supply reliability and generates strong incentives to harm endangered species.
Let's start with the goal of water supply reliability - made state law by the 2009 Delta Reform Act. For years, I heard water exporters assure us that they didn't need more water - they needed more predictability about the operation of the water pumps so that they could plan with certainty. Seeing a political opportunity to get more water at the expense of reliability, they have quickly changed their tune. Calendars are old-fashioned, but they are extremely reliable, whereas real-time operations based on species location are highly uncertain, and are pretty much the opposite of reliability.
But the even bigger problem with the real-time operation of the Delta pumps are the incentives and reward structure it creates. You do not need a Ph.D. in fisheries to realize that they lower the fish population, the less likely they will be detected, and the less restricted water pumping from the Delta will be. On the other hand, if endangered species populations actually recover, they are more likely to be detected near the pumps, which would reduce water supplies to exporters under the proposed real-time operations.
Scholars of the endangered species act have known for a long time that triggering regulations by the presence of endangered species creates scores of negative incentives. During the 1980s and 1990s, there were many articles about the perverse incentives for economic interests. These incentives became known colloquially by the acronym SSS, "shoot, shovel and shut-up," and preemptive habitat destruction in more academic circles. I was a contributor to this literature in the 1990s and early 2000s, it was the subject of my PhD dissertation. The policy response to this was not abandoning the ESA, but creating positive incentives through Habitat Conservation Plans (HCP) and safe harbor programs.
These new Delta policies claim to be science-based, I can't judge that, but they certainly aren't based on the best available social science or policy design. They clearly create an incentive where water agencies are rewarded when protected species do poorly - and my understanding is that other parts of these new biological opinions create rules in other areas (like cold water habitat upstream from the Delta) that will be harmful to endangered Delta smelt and salmon. If we wanted to save species, if they experience bad conditions somewhere else in their lifecycle (whether that was due to natural fluctuations of ocean conditions or human mismanagement of Shasta dam or other human managed parts of the system), then we would have stronger restrictions at the pumps to make up for it. Under these rules, bad management upstream works to reduce protections at the Delta pumps, the very definition of negative incentives.
It seems to me that the appropriate policy approach for water supply reliability and species protection/ecosystem enhancement in the Delta would be a Habitat Conservation Plan. This is something that the PPIC is currently talking about in their recent publications on ecosystem management (see I don't always disagree with them). But sadly, the only time HCPs have been seriously proposed in the Delta is when they were being used as green gift wrap around 15,000 cfs Delta conveyance tunnels in the BDCP. Environmentalists haven't been warm to HCPs in the Delta either, but perhaps that might change as the BDCP becomes a more distant history.
The state's own economic consultant's analysis showed the value of the BDCP was in the regulatory certainty produced by the HCP, not the tunnels themselves. But under Governor Brown, the state decided to throw out the HCP and proceed with the tunnels only WaterFix. If the Newsom administration wanted to correct course on the Brown administration WaterFix plan, it wouldn't downsize from two tunnels to one, it would bring back the concept of an HCP (rebrand it ecosystem management if you want) and throw out the tunnels.
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