Introduction

Some time in the next month or two, slight, temporal changes in the upper atmosphere will augur the beginning of the rainy portion of California’s Mediterranean climate. The high pressure and sunny days should gradually give way to rain and snow, replenishing the vast reservoir that is the state’s precious water supply.

If conditions are “normal,” the waves of storms from the Pacific will arrive in spaced intervals, raising the level of measured precipitation in a way that does not overwhelm the flood control infrastructure. But nature is far from predictable, and in many parts of California, torrential rainfall can cause devastating and deadly impacts on lives and property.

That lesson, first realized by early colonizers more than a century ago, has continued through the ensuing decades. Flood control efforts, geared against the powerful influence of the region’s natural drainage flows, gradually improved to the point where an impressive system of structural safeguards spared people from the fate of continual flooding and enabled commerce, farming and settlement to expand and flourish.

But as geologists point out, nature is not static. Rivers wage a constant battle against the earthen constraints placed against them in a relentless process that demands constant vigilance. For the most part, engineering and technological prowess retains the upper hand, and winters pass without incident. In the last 20 years, however, disastrous floods throughout northern California have sparked an extraordinary level of activity that continues today. Soon after storm-swollen flows wreaked havoc in early 1997, a legislative committee found that, “rivers need access to their floodplains,” and “non-traditional methods” are needed to manage flood flows.

“The old approach, as demonstrated on the Mississippi and the Sacramento River, was flood water management,” said Pete Rabbon, general manager of the state Reclamation Board. “The new, balanced approach is a combination of floodplain and flood water management.”

Floodplain management is an ambitious, controversial and expensive exercise that collides with modern societal forces, namely private property rights, the nonstop pressure for more housing and the recognized need for environmental protection and enhancement. Floodplain development is a thorny issue involving local land use decisions, investments in levee improvements, questions of necessary insurance and yes, what should be an issue of assumption of risk.

“Once you start developing in the floodplain, it is hard to stop,” wrote Col. Michael Conrad, former district commander of the U.S. Army Corps of Engineers (Corps), in a provocative June 2004 Sacramento Bee opinion piece, “Flood Peril We Keep Ignoring.” In departing remarks, Conrad noted that, “flood protection projects do reduce the odds of levee failure, but there will always be a risk of levees failing no matter how much money is spent on them.”

Flood management must confront the complexities of the modern political landscape, from slashed budgets and the desire of local governments to boost their tax base through floodplain development, to the state’s potential increased liability for levee failures. A court decision earlier this year that held the state liable for a 1986 levee break could place an untold burden for future disasters along more than 1,000 miles of levees.

In addition, there is the controversial proposition of using setback levees to revive historic flood flows and restore riparian habitat. Farmers adamantly oppose the potential loss of productive cropland in a process they believe deviates from the mission of flood protection.

The Family Water Alliance, an advocacy group for agriculture and private property rights, states that “setback levees are NOT the answer,” because of the loss of acreage and jobs, the reduced tax base for counties and “an assortment of negative impacts” on neighboring farms.

“Further, the incredible expense of acquiring the necessary land, planting habitat and rebuilding the levees, especially at a time when the state is in financial crisis, is not only imprudent but completely unrealistic,” the Alliance says.

While those in the know always are thinking about how to brace for the impacts of an extreme storm, elsewhere there is a tendency for the fierceness of calamities past to recede and for business to go on. “The sun shines and everybody forgets about it,” said George Basye, a Sacramento lawyer and expert on flood management issues. “As soon as we have a couple of dry years, the concern is gone.”

The issue of levee fragility catapulted to the forefront rather unexpectedly June 3, when a crumbling Delta levee sent surging river water into Upper and Lower Jones Tract. The sight of the breached levee and the subsequent repair efforts dramatically demonstrated the plight of the Delta levee system and the vital role it serves in holding back the intrusion of salt water into a significant portion of the state’s water supply.

“It isn’t intuitive to know that levee failures can shut down the water supply … for 20 million people,” said Curt Schmutte, branch chief of the levees and north Delta section of the Department of Water Resources (DWR).

Despite the millions of dollars needed to repair Jones Tract, the event had the unintended consequence of highlighting the under funded status of Delta levee oversight, maintenance and repair. How that translates into revised policy and allocated resources remains to be seen, but Schmutte, for one, believes the discussion is “needed, warranted and overdue.”

Elsewhere, officials warn that the flood control structure that protects millions of valley residents is at risk of failure, following years of deteriorating conditions and reduced budget allocations. “The bad news is we’ve had a steady decline in maintenance and upgrades, so the infrastructure has begun to decline,” said Jeff Mount, a member of the state Reclamation Board and professor of geology at the University of California, Davis.

In August 2004, The California Performance Review, a 2,500-page examination of how the state can deliver services more efficiently, found a “pressing need to upgrade and maintain the [flood control] system as well as to educate the public about the risk of levee failure.”

Revelations of levee instability have sparked calls for the Corps to repair the foundations of the levees built decades ago and turned over to the state. “What is needed is a frank admission by the Corps that they have provided a levee system to the state and local agencies to operate that does not meet a reasonable design and construction standard,” wrote Robert Clark, manager of the California Central Valley Flood Control Association, in a June letter to Conrad.

Conrad refuted the claim that his agency is somehow responsible for going back and making wholesale improvements to the levee system, noting that the Corps “has not ‘provided’ a levee system to anyone,” and that its role “has always been to assist local interests in improving their system.”

That’s not to say improvements have not been made. Since the floods of 1986, a series of levee improvement projects funded by state and federal tax dollars resulted in a stronger network in the Sacramento area and through much of the valley. State, local and federal agencies have partnered on plans to modify and raise Folsom Dam on the American River to better manage the swift Sierra runoff that plummets from the mountains during fast-moving storms.

In the northern Sacramento Valley, along the river’s troublesome tributaries, local leaders in 1993 approved a 12,000 home development. Although the area is considered at-risk from flooding, the approval was based in part upon several existing projects meant to shore up levees along parts of the Feather, Yuba and Bear rivers. Construction began this year, seven years after the 1997 flood that deeply inundated the area, and after tens of millions of dollars were spent on planning and constructing flood protection projects. Now, new information and design requirements have lowered the area’s level of protection to less than the 100-year benchmark. Local flood protection entities are attempting to expedite several projects to increase this level of protection using local and state funds.

As knowledge about storms and hydrology continually changes, so do opinions about the best management strategies to accommodate high flows without disruption to daily activity and economic prosperity. The task is particularly challenging in the Sacramento Valley, a sizable drainage basin with voluminous runoff that contributes to a relatively high risk of flooding compared to other metropolitan regions.

Early engineers devised a system of weirs, levees and bypass channels to move water through the valley and the Delta and out to sea. Today, flood managers are adjusting their approach to acknowledge the need for ecosystem and riparian restoration by abandoning existing levees and erecting new barriers hundreds or thousands of feet farther from the riverbank. Creating setback levees is anything but perfunctory or free of conflict, as flood agencies seek to reconcile project improvements with environmental compliance.

“We’re not going to rail against environmental regulations,” said Stein Buer, executive director of the Sacramento Area Flood Control Agency, and former DWR flood management chief. “Our goal is to recognize there is a cost associated with environmental enhancement and to find a balance. That’s going to be difficult.”

Of course, the drive to secure better flood protection is ultimately powered by the need to preserve lives and property. Throughout the state, development pressures are pushing homes into areas once deemed extremely vulnerable to frequent flooding. One southern Delta project proposes the use of reinforced “super levees” to shield a proposed housing development from dangerous conditions. Extensive and costly levee improvement projects have substantially improved the stability of levees planned development, but officials emphasize that it is not a matter of if a levee will break, it’s when.

“There is absolutely no doubt there will be flooding in the future and levee breaks in the future,” said Lester Snow, director of DWR. “And there are houses being built near those levees even as we speak.”

NOTE: A complete copy of this 16-page magazine is available from the Foundation for $3. Visit our Products Page and add the September/October 2004 issue of Western Water to your shopping cart.

Editor’s Desk

The return of autumn makes us hopeful that rain will fall to help quench the Western drought. But Mother Nature is fickle. The drought might continue; rainfall patterns may be “normal;” or a series of torrential storms could cause major flooding – a problem all too familiar in the West.

But floods don’t always follow the seasons. This summer, an island in California’s Sacramento- San Joaquin Delta, Jones Tract, was inundated when a levee broke. Blame for the break was said to be a combination of high Pacific Ocean tides and an animal burrowing in the levee. Whatever the cause, the break generated an immediate – and expensive – response by various federal and state flood control officials because Delta levees not only protect the islands’ houses and farm fields, but the fresh water exported from the Delta for use by two-thirds of the state.

The break served to remind us all that even strong levees can fail as Mark Twain said about the Mississippi River when he talked about the two kinds of levees – those that have failed and those that will fail.

In this issue of Western Water, writer Gary Pitzer explores flood management in this new century of California’s flood control system. The state Supreme Court’s refusal to take up a case, Paterno, which found the state liable for potentially hundreds of millions of dollars in damages from a 1986 Yuba County levee collapse, has sent shock waves through the flood control community. Because flood management is important to all Californians, the Foundation has joined with the California Department of Water Resources and The Reclamation Board to sponsor Flood Management Workshop: Options and Opportunities, November 9-10, 2004 at the Sacramento Convention Center. The Workshop will be bringing together the best minds in discuss strategies and tools for the future of the flood control system. Click here for more information.

Southern California is not immune to flooding, but too little water rather than too much water is the norm in this semi-arid part of the state. You can learn all about southern California groundwater AND surface water during the Foundation’s Oct. 6-8 Southern California Tour. This year’s tour will include surface storage issues with visits to such sites as Diamond Valley Lake. This is a one-bus tour so register today!

The leaders of tomorrow are the members of our Water Leaders classes today. Applications for the 2005 Bill Gianelli Water Leaders Class are now being accepted. Visit our web site to learn more about this program and print out an application form. Applications are due by Nov. 19.

– Rita Schmidt Sudman

In the News

Water Lost to ESA Restrictions Requires Compensation

Parties involved in an important test of water rights and the Endangered Species Act (ESA) are awaiting entry of final judgment by the U.S. Court of Federal Claims in a case that could set a precedent requiring compensation for water supplies lost due to ESA restrictions. In the opinions, the court found the U.S. government must compensate several water districts and their customers for curtailing water deliveries to them in the early 1990s to protect the endangered Sacramento River winter run Chinook salmon and the threatened Delta smelt.

The water districts won a major legal victory in 2001 when the court ruled in Tulare Lake Basin Water Storage District v. U.S. that curtailments in deliveries of State Water Project water between 1992 and 1994 to meet ESA fish-protection goals were a physical “taking” of private property in violation of the Fifth Amendment to the U.S. Constitution. In a second ruling in late 2003, the court determined how much water was taken and awarded the affected water districts $13.9 million, plus interest, dating back to 1992. Parties in the case are awaiting a final determination by the court on the amount of damages, estimated now at more than $26 million. Entry of final judgment will trigger a 60-day appeal period.

If it stands, the decision represents a strong reaffirmation that water rights are property rights and that actions taken under the ESA that restrict those rights are “physical” takings of property that require compensation. In “takings” law, courts have distinguished between “physical” takings and “regulatory” takings. The U.S. Supreme Court has held that a “physical” taking is unconstitutional unless just compensation is paid to the property owner, whereas a “regulatory” taking requires a balancing of the nature of the government action against the economic effects of the action and reasonableness of the property owner’s expectations. In its first Tulare Lake ruling, the Court of Federal Claims concluded the curtailment of water deliveries was a “physical” taking because “the denial of a right to the use of water accomplishes a complete extinction of all value.”

Using their authority under the ESA, federal fisheries agencies had issued biological opinions between 1992 and 1994 that required pumping restrictions and other project changes that resulted in reductions of water deliveries to Tulare Lake Basin Water Storage District and others. The districts emphasized that they were not attacking the ESA in their suit, but only seeking compensation for the cost of tens of thousands of acre-feet of water they were contractually entitled to receive from the State Water Project that were not delivered to them because of the pumping restrictions imposed under the biological opinions.

Dan O’Hanlon, an attorney at Kronick, Moskovitz, Tiedemann & Girard who filed an amicus brief on behalf of the State Water Contractors, said the court’s ruling would make it easier for water districts affected by delivery reductions to bring “physical” takings cases. That, in turn, should cause federal fisheries agencies to more carefully consider alternatives to reducing water deliveries when drafting biological opinions, he said. The ruling does not, however, change the scope or standards of the ESA.

Environmental groups that took the government’s side in the case argued the court’s physical taking finding was not appropriate because, in their view, the biological opinions didn’t change the amount of water the contractors received, only the timing and rate of delivery. Greg Thomas of the Natural Heritage Institute worries that the decision will make physical takings claims easier to establish by defining any environmental restriction on water use as a per se taking and requiring a much higher legal threshold for aquatic species protection.

– Glenn Totten