Monthly Archives: December 2010

See you in a few weeks.

Hey friends,

Had such a good time going to Turkey that I scheduled another trip to arid lands.  I’ll be back in a couple weeks, insha’Allah.  See you the third week of January. 

Have a wonderful New Year!

UPDATE 1/20/11:  I am back; had a wonderful trip.  I’m keeping an eye on Aquafornia and waiting to have something interesting to say.


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“Bumbling sidekick” is also an archetype.

Pacific Legal Foundation writes a short piece on Judge Wanger’s ruling that I thought overstated the importance of the decision.  But whatever.  You can’t take anything you read on a blog seriously.  This caught my eye, though:

Judge Wanger’s decision… is sure to bring short-term relief to … people in Southern California and the San Joaquin Valley (including PLF’s farming clients).  (The bold is my own emphasis.)

Curious, I clicked over to see who PLF’s farming clients are.  Stewart and Jasper?  Oh hah hah hah ha ha ha hah hah ha hah hah!!  HAH HAH hah hah ha hah ha ha HAhaha ha!  Really?  Haha haha hah hah HAHA ha ha!! The Stewart and Jasper bits were the funniest part of the decision.  Judge Wanger resoundingly denies both of Stewart and Jasper’s bizarre claims on pages 196-200 (points C and D).  Page 197, line 15: Steward and Jasper’s first claim, that FWS failed by not including an analysis of economic effects is “unsupported in law.”  That’s not an obscure point, either.  That was the whole point of the foundation case of ESA law:  “such a conclusion is inconsistent with the purposes of the ESA under TVA v Hill. Greenpeace, 55 F. Supp. 2d at 1267” (lines 26-28).

Judge Wanger dismisses the next point that Stewart and Jasper raise with equal dispatch.  (Page 198, line 8)  “The Stewart & Jasper Plaintiffs raise a novel argument that” Fish and Wildlife Service is trying to be the boss of Reclamation, and that’s illegal.  Judge Wanger is having none of it.  He writes (page 199, lines 3-6):  The law is clear that FWS has no such authority, nor can FWS, as consulting agency, act ultra vires to usurp the operational authority of the Bureau and DWR over the Projects.

Far as I can see, the Pacific Legal Foundation’s plaintiffs raised two crank points, both of which were summarily dispatched by a judge that sounds a little testy about them.  If I were Pacific Legal Foundation, I wouldn’t be emphasizing my role in this case.

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Thoughts on Judge Wanger’s December 2010 decision.

My my.  Twitter hashtag #cawater sure did wake up when Judge Wanger posted his latest smelt ruling.  I’ve skimmed it now, all 230 pages.  I don’t know that it changes much.  Seems to me that the decision points out some parts of the Biological Opinion that Judge Wanger thinks the Fish and Wildlife Service should do over, but it doesn’t up-end any of the situation we’ve come to live under.  The smelt are still endangered; their welfare will still determine project operations.    Judge Wanger is still calling the shots.  He didn’t establish a new pumping regime or revise the ESA or anything.  I can’t speak to any of his conclusions about the technical issues without hearing the testimony he heard, so I was mostly interested in the two paragraphs that reveals his state of mind (pg 218):

It cannot be disputed that the law entitles the delta smelt to ESA protection. It is significant that the co-operator of the Projects, DWR, in its endeavors to protect a substantial part of the State’s water supply, opposes as unjustified and based on bad science some of the RPA Actions. It is equally significant that despite the harm visited on California water users, FWS has failed to provide lawful explanations for the apparent overappropriation of project water supplies for species protection.

In view of the legislative failure to provide the means to assure an adequate water supply for both the humans and the species dependent on the Delta, the public cannot afford sloppy science and uni-directional prescriptions that ignore California’s water needs. A court is bound by the law. Resource allocation and establishing legislative priorities protecting the environment are the prerogatives of other branches of government. The law alone cannot afford protection to all the competing interests at stake in these cases.

You know, I don’t love it that Judge Wanger is picking up the phraseology of the plaintiffs.  The words “sloppy science” (science that passed a National Academy of Science panel’s review, btw) have been promoted and intentionally inserted into the public debate by activists and their paid PR consultants.  I hear advocates use them in meetings and they always sound funny, with a slight pause and heavy emphasis on the phrase.  It is a shame that Judge Wanger is using language that signals he is on their side.  I wonder if I hear regret that his courtroom must be bound by law; how unfortunate for him that his integrity won’t let him flout the ESA.

I have two other thoughts about his commentary.  I love that he calls out the legislature for not providing an adequate water supply for both people and fish.  I want to reassure him, however, that even if they had gone much further with their 2009 legislation, it wouldn’t help solve his problems.  The legislature can’t conjure more water in the short term; with wholehearted dedication to new plumbing, the best they could do is maybe have more flexible operations within a decade.  Sites doesn’t create more water.  The Peripheral Canal doesn’t create more water.  They make moving water easier, but don’t provide an adequate water supply for both people and fish.  Nothing does.  We have hit and blown past the physical limits of our rivers and plumbing.  That’s what the fish population crash means.  Far from there ever being more water, we’ve got climate change taking water away within decades.

His other odd complaint is about “uni-directional prescriptions”, which is so odd and clunky that I suspect it is another bit of PR talk that got lodged in his brain.  It almost sounds like it makes sense.  The restrictions shouldn’t be uni-directional!  One side shouldn’t take the brunt of the shortage!  But it is meaningless, because what would the reverse direction be?  What can the Delta smelt do for the growers in Westlands?  Seriously.  The smelt shouldn’t be so stubborn.  They should all agree to move to the side when the pumps are turned on, and stop flirting with striped bass.  The smelt should compromise too!  They should… sacrifice one of the seventeen found in the summer trawl to die in the pumps?  They should go extinct already, now that they number in the tens or hundreds?  I don’t think Judge Wanger means that, because I don’t think the concept “uni-directional” actually means anything.  I think it is PR gibberish, not to be thought about deeply.

This is disheartening for me.  There are 225 pages in that decision, and Judge Wanger was willing to listen to testimony on stuff that I find arcane, and I was trained in this.  He diligently sorted it and made split, separate decisions on all those points.  On the technical and legal issues, he is still engaged and thinking.  But I think he has chosen an ideological side, and isn’t applying the same rigor to his own thought.  He’s using the mental shortcut of buzzwords now, and they are very much the buzzwords of the plaintiffs.


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Turtles all the way down.

It is worth noting, as I’m sure some of you already have, that Dr. Lund is a strong proponent of a Peripheral Canal. I don’t know Dr. Madani’s position. I’m also a proponent of a Peripheral Canal, although not necessarily a large Peripheral Canal. So maybe that’s what is going on, that we’re just finding arcane academic-talk to drive the process towards our conclusion, including the notion that the State should take a firm hand. That’s surely possible. Biases are subtle and deep; one’s self-reports aren’t necessarily reliable. But there is a bit of a chicken-and-egg question here.

My reason for supporting the Peripheral Canal is that I think the risk of a catastrophic failure of the Delta levees is unacceptably high considering the fact that SoCal’s drinking water depends on them. So, do I think we need a Peripheral Canal because the Delta could melt down at any moment? Or do I think the Delta could melt down at any moment because I’ve already decided we need a Peripheral Canal (because of my innate love of concrete and ruining people’s lives)? Of course I think it is the former, but I am likely in an internal feedback loop, since that’s what people with biases do. You’ll probably come to some conclusion on that question, and it will also be shaped by your underlying biases. There’s no end to it.


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Too bad for Jefferson.

Just read Drs. Madani and Lund’s paper on the structural reasons that a collaborative Delta solution is all but impossible.  They play out a couple game theory scenarios to show that the incentives for the parties don’t lead to cooperation.  They show that limited-player games don’t lead to solution, and write that the multi-player versions are even less resolvable.  A few objections came to mind, but all of them made the problem even less likely to be resolved collaboratively.  Madani and Lund don’t include the fact that some parties can block others from Chickening-out and pre-emptively “fixing” the Delta.  They assume the players are guided by economic rationality, but I don’t think that holds true when people’s identities are at stake.  Basically, my critiques of their model only bring up complexities that make solving the game harder and reinforce their conclusion.  I know that politicians desperately want to lock the parties in a room until they find a non-existent win-win solution, but there are good reasons that hasn’t and doesn’t happen.

A few other thoughts:

Madani and Lund write: Failing into a long-term solution is likely. (pg 18.)

Not quite.  I think we are likely to fail into a new long-term simpler equilibrium.  I don’t think it will feel like much of a solution when the day comes.  Since I think that rapid catastrophic failure is substantially more likely than a collaborative solution, it’d be interesting to start planning for that.  Realistically, the Delta agencies should allocate their planning time by relative likelihoods of failure of the physical infrastructure and success of the collaborative process.  But they won’t, because that would feel yucky; humans can’t expose themselves to that much dissonance.

Drs. Madani and Lund write about a State role, and how that plays into bargaining incentives.  They write (pg 19):

Including the state of California (or federal government) with two options did not fundamentally alter the game. For the cases examined, the Chicken characteristics remained and cooperation was unlikely. Adding the state to the game suggested that California can be the victim of the conflict and the loser of the game, bearing much of the cost of a Delta failure, due to its past failure to develop reliable mechanisms which enforce cooperation.

I can’t get too worked up about the State being the one to bear much of the cost of the Delta failure.  Because, you know, the State is very, very similar to “the users of Delta waters”.  The set of people that  use water that would have drained to the Delta or got moved through the Delta is pretty close to the set of people who would be taxed to recover from a Delta collapse.  It is hard on the far north state and the central coast and Sonoma, but fuck ’em.  They’re probably smug anyway, what with being drenched in beauty all the time.  No doubt there would be relative winners and losers compared to their contribution to the collapse of the Delta, but I’ll complain about that when the day comes.

The authors write on page 19:

Whatever plan is adopted to fix the Delta in the coming decades, the Delta’s sustainability is not guaranteed without powerful mechanisms which provide incentives for cooperation or penalties for deviation from cooperation.

Seems to me this aspect has the most potential for interesting work.  I would love to see mechanisms that tie players to failures from other bargaining perspective.  I have suggested before that if the farmers of the Delta block a Peripheral Canal, they should be forced to buy insurance to pay Los Angeles for the costs of L.A.’s water shortages when the Delta levees collapse.  Perhaps the west side contractors should only be allowed to pocket the profits from selling their water rights while fish populations remain above some threshold.  In general, I get disgusted when people at the top of watersheds feel morally entitled to waste; there must be ways to tie their well-being to that of the tail-enders.

Mostly, the paper shows that a vastly simplified mathmatical model of the Delta negotiations does not lead to a collaborative solution, which is what I’ve thought for a while.  If the State remains absolutely dedicated to win-win solutions negotiated by the participants themselves, we should expect and prepare for the Delta levees to collapse before the win-win solution arrives.  (Then we can put in the back-up plan, which I presume is a Peripheral Canal built under emergency authorities.)  The State would have to get more gumption than I’ve seen to go to the other possibilities, win-lose scenarios.  I dunno, man.  I’m glad I don’t work on the Delta.


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Joan Didion’s 1979 essay is still the best writing on water in California that I’ve ever read.


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The ground shifting beneath them.

I find it interesting that Westlands is pouting and sulking because of a meeting they had with Interior a few weeks back.  Does that mean they think they would otherwise be getting their way, if it weren’t for the Feds?  Maybe that’s so for the last month of the Schwarzenegger/Snow state administration, which has openly backed the west side and a Peripheral Canal, going so far as promoting the faux-grassroots efforts of the Latino Water Coalition.  But California is about to change administrations, and who knows where Gov. Brown will come down on this issue?  (I know there’ve been different readings of his campaign statements, but none of them persuaded me.)  

In a few weeks, BDCP could look very different.  What if the Brown administration changes directions enough that Interior’s position ends up being relatively favorable for Westlands?  Then won’t Westlands feel awkward for stomping about and sending nasty notes to the people they need as allies?  I loved their offer in the article: We’ll come back if we get everything we want.  I hope the fact that they’re sending signals out through the paper means that no one is chasing them down and begging them to stay.  Their money was lovely and all, but there cannot be a promise that they’ll reliably get the supplies they want.  They might reliably get far smaller supplies, or intermittently get supplies like they got in the 90’s.  Westlands shouldn’t believe a promise for reliable large supplies anyway; climate change and demography are inexorably against them.  Perhaps they are playing a long game, and what they really want is some sort of guarantor fund for when the water isn’t delivered.  No one should offer that.  No project nor government can back that promise; we would end up paying out far more than the $140M that Westlands has put into this.

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