HUMAN USE OF RESTORED AND NATURALIZED DELTA LANDSCAPES

Brett Milligan Alejo Kraus-Polk

APPENDIX

COMPARATIVE CASE STUDIES Yolo Bypass Wildlife Area 4 Liberty Island 11 Lower Sherman Island 16

Franks Tract 20 Delta Meadows 24 Stone Lakes 28 Cosumnes River Preserve 32 Cosumnes Floodplain Mitigation Bank 36 Quimby Island 40

LIST OF QUESTIONS FROM PROJECT’S ONLINE SURVEY 46

SURVEY PARTICIPANT INVITATION 51

SURVEY RESULTS 52

FIELD WORK 67

RESEARCH PARTICIPANTS 68

PLANNING REVIEW 71

LAW REVIEW 85

LAW ENFORCEMENT REVIEW 99

Copies of this appendix and the study report are available for download at the UC Center for Watershed Sciences website at https://watershed.ucdavis.edu/library/human-use-restored-and-naturalized-delta-landscapes COMPARATIVE CASE STUDIES

This appendix section contains nine case studies of restored and naturalized landscapes in the California Delta. They are provided within this report to give a sense of the diversity of these environments in terms of ecology, socio-environmental history, land ownership, management practices and human presences.

The nine case studies are not an attempt at a complete inventory for the Delta. Rather here they are used here to illustrate variations of the typologies and key design factors we have identified in other chapters of this report. As described in Chapter 2, these case studies expand upon our distinction between restored and naturalized landscapes through example histories of how these landscapes came to be what they are today, which includes both intentional acts (i.e. restoration for habitat purposes) as well as unintentional events, such as levee breaches. Federal, State, private and nonprofit land ownership is represented, of which there are single owner and multiple owner (partnerships). Management of these landscapes varies from ecological reserves, in which habitat and ecosystem function is prioritized, to working landscapes in which habitat is variably reconciled with ongoing agricultural management. Restoration tasks that have occurred, are occurring or are planned for the landscapes include active restoration such as levee removal, invasive species removal, horticultural restoration (planting), etc. as well as passive restoration, in which ecological process is managed to achieve desirable outcomes. Multiple ecosystems are represented in the case studies, from the novel open water lake in the flooded Frank’s tract, to the tidal marsh of Liberty Island, to the ephemeral floodplains of the Cosumnes, to Oak woodlands and riparian edges of Delta Meadows.

Access regimes vary from the strict stipulations limiting public access within mitigation banks, to the open access regimes of navigable, and tidally influenced waterways. Public human uses of these landscapes vary according to access and include, scientific monitoring, active and passive land management, law enforcement presence and patrol, citizen science, agricultural activities, recreational activities, as well as others. In addition to the sanctioned uses of these landscape, unsanctioned uses have also been identified where observed.

These case studies were assembled through a review of printed and on-line resources, participant interviews, extensive field work, on-site photography (both ground and aerial) and GIS mapping. Common data sources for GIS maps include the Sacramento-San Joaquin Delta Historical Ecology Study data set for the early 1900’s USGS surveys, historic habitats, coastlines and waterways; USGS data portal for surveys and historic imagery from the 1950s onward; and the CA department of Water Resources for current levee centerlines.

Human use of Restored and Naturalized Delta Landscapes 2 Appendix Key map of nine Delta case Studies.

Human use of Restored and Naturalized Delta Landscapes 3 Appendix YOLO BYPASS WILDLIFE AREA

Human use of Restored and Naturalized Delta Landscapes 4 Appendix HISTORY The Yolo Bypass Wildlife Area comprises approximately 16,770 acres of managed wildlife habitat and agricultural land within the Yolo Bypass (Bypass). The 59,000 acre Bypass conveys seasonal high flows from the Sacramento River to help control river stage and protect the cities of Sacramento, West Sacramento, and Davis and other local communities, farms, and lands from flooding. Flood control is the official prioritized use of all bypass lands, under which all other uses are subservient. Of note, the Wildlife Area is currently the sole multifunctional and multi-use floodplain landscape in the delta, where agriculture, wildlife habitat and flood protection (farm, fish, fowl, flood) objectives are achieved while also providing opportunities for public access, recreation, and education. How these uses are integrated and choreographed upon the landscape (and how that choreography is evolving) is of particular relevance for this study.

The Yolo Bypass Wildlife Area (YBWA) is located within the historic Yolo Basin of the Sacramento Valley and is part of the CDFW’s Bay-Delta Region. It lies almost entirely within the Yolo Bypass in Yolo County, between the cities of Davis and West Sacramento. The YBWA is also located along the Pacific Flyway, which reaches as far north as Alaska and extends south to Patagonia.

By the 1950’s the loss of waterfowl habitat in the Central Valley was becoming an issue of broad concern. Members of the local community saw in the Yolo Bypass an opportunity to address habitat loss in a way that did not threaten agricultural interests. To harmonize the multiple uses of the landscape - flood control, farming, habitat restoration and duck hunting - required engagement with all the local government agencies, private landowners, and other interest groups, each pursuing their own set of objectives.

The Yolo Basin Foundation (YBF), a community based non-profit organization, was founded in 1990 as a community based organization to assist in the establishment of the Yolo Bypass Wildlife Area. After years of public meetings and engagement with federal, state, and local government officials, as well as landowners, land for the Wildlife Area was acquired by the California Department of Fish and Wildlife (CDFW) in 1997.1 The Wildlife Area continued to expand, with land acquisitions in 2001, 2002, and 2004. It is now approximately 16,770 acres of actively managed land in the Yolo Bypass, providing both wildlife habitat and an agricultural base. The YBWA has received national attention as a model for collaborative restoration. President William J. Clinton, who dedicated the Area in 1997, recognized its unique contributions to wildlife restoration consistent with multiple uses.

Images left to right: Yolo Bypass Wildlife Area as surveyed in the early 1900s (current boundary of the wildlife area overlayed); Aerial in 1937; Aerial in 2014. Maps Brett Milligan.

OWNERSHIP The YBWA is owned and managed by CDFW. MANAGEMENT The Yolo Bypass Wildlife Area (YBWA) is composed of 17 separate management units grouped under 4 headings. The geographic shape and arrangement of these headings reflects land acquisitions and previous ownership (i.e., Causeway Ranch, Original Yolo Bypass Wildlife Area, Los Rios Farms Complex, and Tule Ranch).

Causeway Ranch units are mostly composed of farmland, with the exception being the approximately 25-acre Green’s Lake. The lake is surrounded by riparian vegetation and is one of the very few mature riparian woodland areas existing within the Yolo Bypass.

Human use of Restored and Naturalized Delta Landscapes 5 Appendix Corn, hay, safflower, tomatoes, rice, wild rice, milo, and wheat are grown, some managed specifically as shorebird habitat on a 3-year rotational basis.

The Original Yolo Bypass Wildlife Area units include seasonal and permanent wetland, farmland, grassland, and riparian vegetation communities. The landmark eucalyptus grove is located on the west side of the Causeway unit. A complex web of underground pipeline and fiber optic cable easements crosses the unit making active management for wildlife habitat difficult. Additionally, the numerous concrete slabs that were once part of a previous incarnation of the Yolo Causeway lie shallowly buried over several acres, making the area unmanageable and a potential hazard to vehicles and pedestrians. Extensive wetlands restoration has occurred within Original Yolo Bypass Wildlife Area units, mostly through a 1993 USACE Yolo Basin Wetlands project and ongoing projects involving the California Waterfowl Association (CWA), using funds from North American Wetlands Conservation Act (NAWCA) grants. Several parking lots are sited in the Original Yolo Bypass Wildlife Area units as well as areas designated for hunting. The entire South unit has been primarily managed as sanctuary with no public use allowed (Edaw 2008).

Yolo Bypass Wildlife Area and adjacent industrial landscape of West Sacramento.

Northern Portion of the Yolo Bypass Wildlife Area, seen during a relatively dry stage prior to winter rains (early October, 2015). A visitor parking area is visible in the foreground, as well as roadways for public access and maintenance. Human use of Restored and Naturalized Delta Landscapes 6 Appendix Northern Portion of the Yolo Bypass Wildlife Area, showing perennial flooded wetlands. December, 2015.

The Los Rios Farms Complex units include a mix of farmland, seasonal and permanent wetland, grassland, and riparian vegetation communities. Included is the 153 acre Los Rios WRP unit, under perpetual easement with the Wetland Reserve Program (WRP) of the U.S. Department of Agriculture Natural Resources Conservation Service (USDA NRCS). Also included is the Pacific Flyway Center unit, which has been identified as the preferred site for the proposed Pacific Flyway Center. Several units within the Los Rios Farms Complex are within the designated hunting zone (Edaw 2008).

The Tule Ranch Unit is approximately 9,000 acres consisting of a combination of annual rye-grass pasture, row and field crops, wetlands, vernal pools, and riparian vegetation located along the waterways and in wetland areas. These waterways are extensive and are generally associated with the existing wetlands and/or ponds. The Tule Ranch unit contains an assemblage of plants typical of vernal pools and playas. There are numerous swales that are often crossed by roads in this area. Water can be impounded at these roads, creating vernal pool conditions. The property is currently leased for farming and cattle grazing (Edaw 2008).

There are flowage easements covering all of units within the YBWA that allow for water to be diverted from the Sacramento River during high flows for flood protection purposes. Current management of the YBWA units operates under a unique suite of legal codes, constraints and existing agreements, Including:

• Sacramento River Flood Control Project—Project Modification Agreement • Section 8618 of the California Water Code, which shifts liability onto the political subdivision, state agency, or municipal or quasi- municipal corporation that requests the elimination, modification, or alteration of the authorized plan of flood control2. • Several agreements and commitments conveyed through the 2001 acquisition of the Glide Ranch and Los Rios Farms • MOU’s regarding threatened and endangered species • MOU’s between CDFW and the Yolo Basin Foundation • Fish And Game Code 1602 Streambed Alteration Agreement, which requires an entity to notify CDFW prior to commencing any streambed alteration. • Coordination with the Sacramento-Yolo Mosquito And Vector Control District • Management agreement with Dixon Resource Conservation District • Programs through the Farm Service Agency • Coordination/cooperation associated with the Putah Creek Water Accord.

Human use of Restored and Naturalized Delta Landscapes 7 Appendix A small percentage of the land in the YBWA is designated as prime farmland. On these lands, agriculture is used to manage habitats while providing an important source of steady income for the management and operation of the property. Rice is grown, harvested, and flooded to provide food for migrating waterfowl. Corn fields are harvested, with crop residues providing forage for geese and cranes. Crops such as safflower are cultivated and mowed to provide seed for upland species such as ring-necked pheasant and mourning dove. Much of the grassland in the southern portion of the YBWA is managed with cattle grazing, which effectively maintains vegetation that might otherwise impede the movement of floodwaters (Edaw 2008).

In the YBWA, public uses must be compatible with the broader suite of resource management activities and objectives, which includes seasonal floodwater conveyance, protection, and enhancement of wildlife habitat, and continued agriculture. Compatibility is evaluated focusing on the following five principal factors:

• the potential for land management to conflict with necessary flood control operations; • the potential for conflicts between resource management activities and other objectives (i.e., flood control, vector control, wildlife resources, fisheries resources, and agriculture); • the potential for public uses to unreasonably adversely affect habitat and the fish and wildlife that inhabit the area; • the potential for resource management and public uses to adversely affect adjacent land uses; and • the anticipated resources required by CDFW to manage the resources and public uses.

The YBWA has been a pioneer in the development of citizen patrol programs, which include the Natural Resource Volunteer Program (NRVP) ,administered by the CDFW Law enforcement division, as well as a volunteer Sunday patrol when no CDFW staff are available. Other programs encourage broader community engagement around science and restoration projects and have as a byproduct the discouragement of unsanctioned activity. These programs take many forms including aforementioned citizen science programs, work-trade related to restoration, etc. HUMAN PRESENCE The public and primary entrance to the YBWA, which can be reached via the East Chiles Road (County Road 32B) exit of I-80, is approximately 2 miles east of Davis and 4 miles west of West Sacramento. The entry driveway intersects Chiles Road at the west levee of the Yolo Bypass, immediately west of the west end of the Yolo Causeway.

Public access to the YBWA is physically constrained by gates in many of the management units. No paved roadways exist in the YBWA and the limited gravel and dirt roadways available are restricted to use during non-flooded periods. These access limitations function to regulate the level of human activity within certain units and help to ensure that agricultural activities and the habitat value are not substantially diminished by public use. Access constraints further minimize potential conflicts between public uses, such as nature observation and hunting. Access entails road maintenance, opening and closing of gates, garbage pickup, portable toilets, and law enforcement. With limited CDFW staff members, maintaining current levels of access is a challenge.

The primary function of the YBWA is natural resource management. However, overlapping and interconnected activities in the YBWA make clear that natural resource management cannot be engaged in isolation from the management of human activities. To achieve myriad goals, both human and non-human components must be co-managed. Hierarchies of objectives exists in the various management units of the YBWA. Within the bypass, flood control universally occupies the top spot and thus influences all other activities. Agriculture and wildlife are balanced in a unique way that seeks to reconcile ecological needs with a financial bottom line. The mosaic of flood control, agricultural and wildlife activities and their attendant seasonal cycles shape public use, which fits in where and when it can.

Sanctioned public uses of the YBWA include: hunting, fishing, walking, hiking, wildlife viewing, nature photography, and a range of environmental education activities. All of which are managed to be compatible with those primary resource management activities and other objectives (i.e., flood control, vector control, wildlife resources, fisheries resources, and agriculture). Every public use has its own seasonal cycles dictated in part by public demand, but foremost by these compatibilities. For example, hunting daily capacity ranges from 35–75 hunters in the free roam area depending on acreage flooded and local agricultural activities.

There are, in addition, incompatibilities between public uses that must be managed. For example, much of the YBWA is closed to all non-hunting purposes from two weeks before waterfowl season (September) to one week after waterfowl season. During hunting season bicycles and hunting dogs are allowed in the hunting areas.

However, off-season, off-trail bicycle use and dog-walking are perennial management problems. Bikers are noted and notorious rule- breakers and off-trail use is detrimental to sensitive habitat areas. Dog-walkers present a waste management challenge and both on- leash and off-leash dogs can disrupt wildlife.

Many sanctioned public uses are considered non-consumptive uses, whereby one’s use or experience does not diminish the value of the use or experience of another. Hunting might be considered consumptive, because whether a hunter kills a bird or misses, their Human use of Restored and Naturalized Delta Landscapes 8 Appendix experience may diminish the value of the next hunter. Birdwatching is often considered non-consumptive, because the act of watching a bird would not diminish the value of the use or experience of another bird watcher. However, in the YBWA the sheer number of birdwatchers and the lengths they go in order to see certain birds, begins to have a tangible effect on bird patterns and behaviors. The cumulative effect is that birds are scared away from the highly frequented birdwatching areas making sightings rarer. Which in turn causes determined birdwatchers to seek out birds in lesser traveled areas. The positive feedback has a detrimental effect on both birds, which are chased away from good habitat or food sources, as well as birdwatchers, who are unable to see birds.

Carp Fishing in the Yolo Bypass Wildlife Area irrigation canals

As we have discussed the management of public use is shaped by and around primary resource management activities and other objectives. Unsanctioned public uses are often those that have been deemed incompatible. Theses unsanctioned public uses include, trespass on nonpublic lands, dumping, vandalism, homeless encampments, mud-driving (mudding) and biking and dog-walking in sensitive, off-trail areas. Additional, lower priority unsanctioned uses include illegal beehive operations and the foraging of edible and medicinal plants.

According to land managers, unsanctioned public use in the YBWA in general is not perceived to have a significant effect on the non- human ecology. Unsanctioned public use is more a problem in regards to public safety, theft and vandalism and the associated strain on already scarce resources.

There are currently between 12-15 CDFW field employees in the YBWA, which translates to less than one person per 1000 acres. This low “eyes-to-acre” ratio impedes the capacity of CDFW to address unsanctioned public use issues. The Natural Resource Volunteer Program (NRVP) assists CDFW with this problem of low staffing by training volunteers to observe and report unsanctioned use, functioning as the “eyes and ears of CDFW enforcement personnel.” The citizen status of these volunteers allows for a different relationship with other users which can diffuse some of the tensions that exist between users and state enforcement agents. This program is the first of it’s kind in California and is used as a model throughout the state.3

Farm operators and farm workers are also another set of eyes and ears on the landscape. However, their presence is highly seasonal and the geographic reach largely constrained to those areas in agricultural production. Access to the Yolo Bypass Wildlife Area is closed between sunset and sunrise. Users who are in the bypass at night are therefore in trespass. As a land manager put it, “nothing good happens after sunset”. Human use of Restored and Naturalized Delta Landscapes 9 Appendix FUTURE The BDCP recognized that [i]ncreasing“ the frequency, magnitude, and duration of inundation in the Yolo Bypass floodplain is the largest opportunity for enhancing seasonally inundated floodplain habitat in the Central Valley.”4 There is concern that the restoration of aquatic habitat could threaten the multi-use and multi-species approach used at the Wildlife Area5. However, the transition within the BDCP from ESA Section 10 permitting to Section 7 comes with a renewed commitment on the part of the lead agencies to coordinate with existing local Habitat Conservation Plans and Natural Community Conservation Plans (HCP/NCCP) in the Bypass. Yet Ecorestore is also promoting a new flood regime to support fish habitat restoration and passage improvement in the bypass.

A new flood regime (one which would attempt to keep more water on the bypass for longer periods of time) would also change public access. Significant flooding during the hunting season (i.e., mid-October to mid-January) disrupts access to designated hunting areas, resulting in lost hunting time. Closures also prevent school field trips. It is assumed by land managers that increased flooding would have a net limiting effect on access due to the fact that terrestrial public access would be curtailed and boats are not allowed in the Wildlife Area. Should boating policies change access issues remain due to low number of boat owners coupled with the dangers of navigation in high flood water6.

Ongoing adaptation to climate change, agricultural market volatility, changes in environmental policy and shifting public preferences related to recreation and outdoor activities will be necessary in order to insure agriculture, wildlife protection, and public access for recreation and educational purposes can continue to be carried out in a compatible and complementary manner, while still providing the essential flood protection that was the original design of the Yolo Bypass.

The most recent Land Use Management plan reflects and understanding of the complex challenges ahead and a conviction to continue the hard work of reconciling multiple uses and objectives. The Natural Resource Volunteer Program (NRVP) already seeks to address the management challenges associated with small staffing numbers and limited resources. This program can continue to develop to address changing public uses.

Notes 1 On November 12, 1997, the U.S. Army Corps of Engineers (USACE) formally turned over the 3,700-acre YBWA to CDFW to manage. “The action capped eight years of study, horse-trading and earth-moving in which, as one participant said, ‘We joked that the biologists have become engineers and the engineers biologists’”. (https://nrm.dfg.ca.gov/FileHandler. ashx?DocumentID=85255&inline) 2 “When an elimination, modification, or alteration of any authorized plan of flood control is made at the request of a political subdivision, agency of the State, or municipal or quasi-municipal corporation, the political subdivision, agency of the State, or municipal or quasi-municipal corporation may, in agreements made pursuant to this section, assume responsibility for all claims of damage or liability made against the State and its agencies or the United States and arising from the requested elimination, modification, or alteration of the authorized plan of flood control.” (California Water Code Section 8618) 3 https://www.wildlife.ca.gov/Explore/Volunteering/NRVP 4 BDCP (2013) 3.4.2 Conservation Measure 2 Yolo Bypass Fisheries 2 Enhancement 5 Salcido, Rachael E. “Success and Continued Challenges of the Yolo Bypass Wildlife Area: A Grassroots Restoration, The.” Ecology LQ 39 (2012): 1085. 6 Jeff Stoddard Interview

Human use of Restored and Naturalized Delta Landscapes 10 Appendix LIBERTY ISLAND

Human use of Restored and Naturalized Delta Landscapes 11 Appendix HISTORY “On the northwestern fringe of the Sacramento-San Joaquin Delta sits the 5200-acre Liberty island whose demise by flooding, and ensuing accidental restoration, have yielded an unexpected, and encouraging, future for the Delta.” 1

Liberty Island is a 5,303-acre partially inundated island at the southern end of the Yolo Bypass straddling Yolo and Solano county in the northern Sacramento–San Joaquin Delta (delta). Originally covered by tidal marsh vegetation, the Island was reclaimed and converted to agriculture in the early 1900s. The Island was in agricultural production until 1997, when levees protecting the Island failed and the tract flooded. Remnants of past agricultural use are still visible along the tops and sides of the levees.

The Trust for Public Land (TPL) purchased most of the Island in 1998 with CALFED funding. The land was intended to be a part of the proposed US Fish and Wildlife Service (USFWS) North Delta National Wildlife Refuge, but the refuge was not established. In January 2011, TPL conveyed 4308-acres of the island to CDFW for ongoing restoration and permanent protection.2

Liberty island is a prominent example of an unintentional (naturalized) and highly successful restoration project. Unlike Franks Tract, Liberty island was far less subsided, so instead of being entirely open water habitat, much of the tract has also spontaneously converted to marsh and terrestrial habitats.

Evolution of Liberty Island: 1900 - 2014 The sequential series of maps show liberty Island's transformation from marshland and soughs, to reclaimed agricultural fields, to hydro modification by the Sacramento Shipping channel, to re-naturalized landscape "reclaimed" as an ecological reserve. We make a distinction in this report between restored landscapes (those that are deliberately coverted to ecological habitat) and those that are naturalized (accidently or inadvertantly rewilded). Liberty Island is a naturalized landscape, as it was created by a levee failure, yet it has become a model for ecological restoration, such as for the McCormack-Williamson Tract. Historic Survey data and 1937 ortho imagery from the San Francisco Estuary Institute.

OWNERSHIP Most of the Island is owned and managed by the California Department of Fish and Wildlife (CDFW) as the recently created Liberty Island Ecological Reserve (LIER). The LEIR supports large quantities of wildlife and provides the potential for habitat enhancement, floodplain management, and recovery of endangered species.

Adjacent land users include the Northern Liberty Island Fish Conservation Bank, which consists of approximately 809 acres (RD 2093 2010) of habitat for native fish, located immediately to the north. The Liberty Island Conservation Bank and Preserve is also immediately north of LIER. This conservation bank encompasses 186 acres (RD 2093 2009) of fisheries enhancement area constructed in 2010. These lands are currently owned by TPL and Wildlands, Inc., but may be transferred to CDFW at some point in the future.

Farther to the north, the proposed Lower Yolo Restoration Project would include 1,226 acres of perennial emergent marsh and 233 acres of wetland enhancement. Immediately to the east are Prospect Slough and the Sacramento Deepwater Ship Channel. Farther to the east is Prospect Island, which is proposed for restoration of tidal marsh, open water, and riparian habitats. Shag Slough and Liberty Farms are to the west. Liberty Farms is 1,700 acres of enhanced wetlands. Lands in the broader vicinity are primarily in agricultural production.

Human use of Restored and Naturalized Delta Landscapes 12 Appendix Abandoned vehicle at the base of a levee overgrown with blackberry and other vegetation. MANAGEMENT Liberty Island belongs to a single reclamation district, Reclamation District 2093 (RD 2093); however, because there is no longer any agricultural activity, the pumps are inoperable, and the levee breach is not slated for repair, the reclamation district could be dissolved in the future. CDFW currently coordinates with RD 2093 on required levee maintenance, which includes, stabilization of remaining levees to prevent damage to sensitive habitats within LIER.

Flood control agencies that have jurisdiction over LIER include the Central Valley Flood Protection Board (CVFPB) and RD 2093. RD 2093 is responsible for managing and maintaining the levees, freshwater channels, or sloughs and canals, pumps, and other flood protection structures in the area. RD 2093 will remain in effect as long as there are other, non-state property owners on Liberty Island.

Given its tidally influence emergent wetland ecology, rare in the delta, CDFW prefers to leave the Island in its current state. LIER is subject to a flood easement held by the Central Valley Flood Protection Board (CVFPB). This easement grants the State of California the right to inundate lands in the easement area and precludes landowners from building structures or growing vegetation that would substantially obstruct flood flows (USFWS 1999).

The following are the primary CDFW management concerns that pertain to LIER3:

Endangered Species/Critical Habitats: To protect, restore, and enhance native habitats and aid the recovery of federally listed and state-listed endangered and threatened species.

Passive restoration, occurring since the latest and final failure, has created a mosaic of open water, emergent marsh, and grassland habitats.

• Biodiversity: To protect, manage, and restore the riparian woodlands, tidally influenced wetlands, tidal open water, and non-tidal open-water habitats representative of the biological diversity of the Delta. • Connectivity: To provide habitat linkage and migration corridors to adjacent habitats for wildlife in the Yolo Bypass and Cache Slough Complex. • Cooperative Management: To coordinate land management activities with federal, state, and local governments and agencies; private conservation organizations; and citizens in support of protecting fish and other wildlife resources that occur at LIER. • Wildlife: To provide breeding, foraging, migration, and wintering habitat for migratory and resident birds; aquatic habitat for spawning, rearing, and refugia for endangered or threatened native fish such as Longfin Smelt, Delta Smelt, Splittail, Salmon, and other fish; and habitat for mammals such as otters, beavers, and muskrats. • Public Use: To provide limited, safe, and high-quality opportunities for compatible wildlife -dependent educational and recreational activities that foster public appreciation of the unique natural heritage of the Bay/Delta Ecoregion. • Flood Flow Conveyance: To facilitate flood flow conveyance and the transportation of additional flows through LIER in a manner that benefits wildlife by managing local LIER conveyance features through nonstructural improvements.

Human use of Restored and Naturalized Delta Landscapes 13 Appendix Improvised structure along the waterway and feral vegetation on unmaintained levees.

Although the LMP states that CDFW wildlife officers will conduct routine patrols at LIER, according to Ryan Caruthers, CDFW unit biologist for the Delta, regular CDFW management presence on LIER is limited. There is a significant monitoring presence on the part of the Interagency Ecological Program in the waterways, which could be enrolled in patrolling duties. HUMAN PRESENCE The LIER is accessible on land via county roads that intersect State Route 113 in Solano County. To reach LIER from State Route 113, drivers can turn east onto Midway Road, and then travel south on Bulkley Road, east on King Road for a short distance, and then south on Liberty Island Road.

The LIER can also be accessed via the westernmost branch of the Sacramento River, which is also occupied by the Sacramento deep water shipping channel. From the north, boats can be launched from Arrowhead Harbor Marina on Miner Slough. The Rio Vista public boat launch is a popular launching site south of LIER. Boat-in users are advised to be extremely cautious while accessing the reserve due to underwater hazards, such as snags, submerged debris, floating objects, old piers and pylons, and remnant submerged structures, a legacy of past agricultural use and the sudden flooding. Because of its shallow depth, the northern portion of LIER is limited to kayaking, canoeing, and use by small boats during high tide.

There are currently no CDFW–owned or maintained recreation facilities in the LIER. Launching a kayak can entail the surreal experience of walking over a bridge and following the paved Liberty Island road until one hits deep enough water to paddle in. Part of the appeal of this landscape is how undefined and unstructured the user experience is. Surreal remnants of former habitation lie side by side by stands of tule marsh and feral vegetated levees. Graffiti and other modifications to derelict structures, along with established trails going from the water up the levees shows some evidence of continued human use.

Sanctioned public use within LIER includes waterfowl hunting, fishing, boating, and wildlife viewing. The reserve isopen to waterfowl hunting seven days per week during the regular waterfowl season. As of October 2014 hunters may use only use temporary floating blinds as hunting blinds must be removed daily.4 Other uses include ecological monitoring by agencies involved in the Interagency Ecological Program (IEP). Due to the shallow nature of the island, these boat-based monitoring programs are constrained in their ability to access the Northern portion of the LIER.

Adjacent land uses include agriculture, as well as proposed and constructed restoration areas. The Northern Liberty Island Fish Conservation Bank, which consists of approximately 809 acres (RD 2093 2010) of habitat for native fish, is located immediately to the north. The Liberty Island Conservation Bank and Preserve is also immediately north of LIER. This conservation bank encompasses 186 acres (RD 2093 2009) of fisheries enhancement area constructed in 2010. These lands are currently owned by the Trust for Public Lands (TPL) and Wildlands, Inc., but may be transferred to CDFW at some point in the future.

Unsanctioned use of the LIER includes camping, dumping trash, fires, and permanent duck blinds. Illegal marijuana cultivation has also occurred in the LIER. According to the Delta-Bay Enhanced Enforcement Program (DBEEP), these grows are occurring in Human use of Restored and Naturalized Delta Landscapes 14 Appendix Former roadway into Liberty Island reclaimed by marsh vegetation. areas subject to regular tidal inundation, which allows for irrigation without pumps. These tidally-irrigated grows may exist elsewhere in the delta. The unobtrusive nature of these type of grows (and the sheer size of the former tract) may make them harder to detect.

Law enforcement agencies with jurisdiction in the vicinity of LIER include the CDFW law enforcement division, Yolo County Sheriff ’s Department, Solano County Sheriff ’s Department, and U.S Coast Guard.

CDFW acknowledges that unauthorized uses can damage LIER ecosystems, affect special-status and game species and their habitats, and interfere with authorized uses. However, the remote location and navigability issues of LIER limits the extent and management of unauthorized uses. Additionally, the limited availability of CDFW staff and funding substantially constrains management of unauthorized uses. There is an ongoing push by CDFW to pursue joint funding requests with other law enforcement entities to address law enforcement concerns while maximizing the efficiency of funds for law enforcement purposes.

FUTURE Liberty Island has been heralded as a prescient example of a more desirable permanently flooded island scenario. Studies of the ecology of the island were in part responsible for a larger paradigm shift in the way in which scientists thought about flooded islands in the Delta. “The flooding of Liberty has changed our minds a bit,” says Ted Sommer of the Department of Water Resources. “Flooded islands can be okay, under the right circumstances. The recent data gives some hope.” Carl Wilcox of the Department of Fish and Game takes it a little further. “Liberty Island,” he says, “is our new paradigm.” 5 Therefore the future of Liberty Island is tied up with larger Delta futures in which flooded islands (whether intentional or not) are seen as inevitable.

The DSC and Delta Plan suggests that CDFW consider installing a boat ramp that will facilitate recreational boating and fishing in the interior of Liberty Island.6 This reveals a desire to enhance the recreational opportunities of the Island and shows that the ecological uplift of the landscape has been deemed compatibility with specific, and regulated, human use regimes. However, the issues with unsanctioned use will remain problematic if they are not adequately addressed.

Notes 1 https://www.tpl.org/our-work/land-and-water/liberty-island 2 https://www.tpl.org/our-work/land-and-water/liberty-island 3 Liberty Island Ecological Reserve Land Management Plan (2015) 4 https://www.wildlife.ca.gov/Lands/Places-to-Visit/Liberty-Island-ER 5 https://baynature.org/articles/liberty-island/ 6 DSC comments on the Liberty Island LMP

Human use of Restored and Naturalized Delta Landscapes 15 Appendix LOWER SHERMAN ISLAND

Human use of Restored and Naturalized Delta Landscapes 16 Appendix Above images: cabins grandfathered into the LSIWA.

HISTORY The Lower Sherman Island Wildlife Area (LSIWA) occupies roughly 3,100 acres, primarily marsh and open water, at the confluence of the Sacramento and San Joaquin Rivers in the western Delta. According to the LMP, “This extensive tract of natural vegetation and Delta waters provides diverse and valuable wildlife habitats and related recreational opportunities and is integral to the functioning and human use of the Delta”. The LSIWA consists of all land and open water within the historic levees west of Mayberry Slough and Mayberry Cut. The LSIWA is bordered by Mayberry Slough, Sherman Island, and Donlon Island on the east; the Sacramento River on the north; Kimball Island on the southwest; and the San Joaquin River on the south. Lower Sherman Island is one of the oldest public naturalized landscapes in the post-reclamation Delta and has undergone significant changes. Reclamation of Sherman Island for agricultural purposes began in 1869 when 14,000 acres were leveed in. Extensive levee and canal systems were designed to drain what were otherwise perennially submerged areas. The first levee failure was in 1872, completely flooding the island. Repeated massive flood episodes resulted in the island being completely abandoned as an agricultural venture.

OWNERSHIP The LSIWA property was acquired to establish a public hunting and fishing area. In 1944, the CDFW assumed management of this property from the California Department of Finance (DOF) for “the purpose of establishing a public shooting ground.” Subsequently, in 1958, the California Fish and Game Commission voted to acquire ownership of this property and “establish the area as a public hunting and fishing area”. In 1960, DOF transferred title to the Lower Sherman Island area to the California Fish and Game Commission.

Human use of Restored and Naturalized Delta Landscapes 17 Appendix California Fish and Wildlife personnel performing routine inspections of the LSIWA cabins.

MANAGEMENT The current management goals for the LSIWA relate to both ecological objectives and human management. Ecological objectives include management of riparian, upland, marsh and aquatic ecosystems. Human management objectives relate to the preservation of cultural resources, as well as the management of both authorized and unauthorized public use. In addition, the management plan discusses the maintenance of facilities, as well as administration, fire management, scientific research and monitoring, and management review and coordination. HUMAN PRESENCE The LSIWA is accessible only by boat, except at its northeastern corner, where the only road within the wildlife area runs from West Sherman Island Road at the wildlife area’s eastern boundary to the boat launch and associated facilities operated by Sacramento County. This road, along with the boat launch and associated facilities (i.e., entrance gate, parking areas, lighting, picnic area, restrooms), has been leased by the CDFW to the County under a 25-year operating agreement that began in 1999. Other infrastructure at LSIWA includes an 8-inch natural gas pipeline, operated and maintained by Calpine, running north-south across the western portion of Lower Sherman Island.

On the south shore of Lower Sherman Island, there are both abandoned and occupied cabins. Since 1930, individuals from nearby communities have constructed docking facilities, and cabins on Lower Sherman Island, particularly along the levee adjacent to Cabin Slough. Many were loosely constructed and served as temporary shelters for hunters and anglers. Gradually, the structures were improved, and many became year-round or seasonal residences. In 1957, an estimated 15–20 of these cabins were located on higher areas remaining from the old levee system (DFG 1957). These buildings and facilities were deemed illegal and occupants were told they needed to vacate. There was considerable community outrage, which led to an amendment to the California Fish and Game Code to allow for and specify the terms of leases for existing cabins and associated docking facilities at LSIWA. These leases can be extended for the natural life of any person who was a leaseholder in January 1, 1991, but expire upon the death of the last individual who was a leaseholder on January 1, 1991. Currently, the CDFW leases 15 cabins along Cabin Slough to private individuals. According to CDFW managers these cabin leases have been highly problematic, especially in regards to rudimentary sewage systems.

Waterfowl hunting is one of the major uses of LSIWA during the October through January season. The area is open to all and there is no fee to hunt. Waterfowl hunting is the primary form of hunting at the LSIWA, but the Fish and Game Code specifies that coots, moorhens, pheasants, doves, and rabbits may also be hunted. A hunting group active in LSIWA for many years is the Lower Sherman Island Duck Hunter’s Association. The Association was not founded until approximately 1990 but some members of the group have many years of experience hunting at LSIWA and in some cases a multi-generational family history of hunting in the area.

This long established use of the area for duck hunting included the construction of duck blinds, which continued until recent years. The Lower Sherman Island Duck Hunter’s Association has agreed with the CDFW to not construct new blinds in LSIWA but is Human use of Restored and Naturalized Delta Landscapes 18 Appendix permitted to maintain existing blinds. These are generally wood or metal frame structures onto which cut native vegetation is laid. Hunters also use boat-mounted blinds.

Fishing is another popular use of the LSIWA. According to the LMP, there are several factors which contribute to the high level of angling activity including, historically some of the best fishing conditions for striped and black bass, easy boat access from both the Sherman Island Public Access Facility and from both the Sacramento and San Joaquin Rivers, the presence of boat ramps, marinas, and fishing charters in nearby communities such as Oakley, Antioch, Pittsburg and Rio Vista, as well as frequent fishing tournament activity in the west Delta.

Fishing in the LSIWA is highly seasonal and condition dependent. Black bass fishing is most popular in the spring and fall, although bass fishing occurs year-round. Summer is the most popular time for anglers to pursue catfish. The sturgeon season is generally constrained to the winter and spring, and are rarely caught in the shallow waters of Sherman Lake. Environmental conditions, such as drought, also influence the location and abundance of fish and thus fisherfolk.

According to CDFW managers the illegal cultivation of marijuana has been extensive on the Northern half of the Island. A large fire in 2013 exposed the illegal grow, which consisted of plants grown in bags of potting soil. Additional unsanctioned uses include, dumping, construction of unauthorized structures (or illegal modifications), camping, use of generators and fires. According to the LMP, these unauthorized uses damage the wildlife area’s ecosystems, affect special-status and game species and their habitats, and interfere with authorized uses. Illegal commercialization of wildlife, i.e. poaching may also be an issue in the LWISA. Sturgeon are especially threatened. However, these fish are usually caught in the deeper waters of the large rivers and sloughs and in downstream Suisun and San Pablo Bays, rather than in the more shallow Sherman Lake.

The limited access to Lower Sherman Island is a double edged sword as it limits both the extent of unauthorized uses as well as the ability for these uses to be managed. The limited availability of CDFW staff and funding further constrains management of unauthorized uses.

FUTURE Current BDCP/Waterfix plans call for restoration on Sherman Island. The proposed restoration areas on Sherman Island would be designed to be compatible with and complement the current management direction for these areas and would be required to adapt restoration proposals to meet current policy established for managing these areas.

Ecorestore contains several plans for Sherman Island that would affect human use of the LSIWA. These include:

• The Sherman Island Whale’s Mouth Wetland Restoration Project will restore approximately 600 acres of palustrine emergent wetlands, within an 877‐acre Project boundary, on a nearly 975‐acre parcel of property on Sherman Island. Additional project goals include increasing stability and reduced seepage on a threatened section of levee; determining the rates/amounts of carbon sequestered for project; determining the air and water quality impacts of project; and providing recommendations for Delta‐wide implementation. This project was initiated in 2013 and began construction in 2015.1

• The Belly Wetland Restoration Project will restore approximately 1500 acres of palustrine emergent wetlands and an unknown number of acres of upland and riparian forest habitat on Twitchell Island. This property is owned by the DWR and previously managed as flood irrigated corn and pasture.2

The Western Delta Intakes Concept (WDIC) proposes to use much of Sherman Island as an intake forebay. According to this concept, the peat underlying the forebay would be removed by hydraulic dredging and used to create tidal and subtidal habitat on the western end of Sherman island and in the vicinity of the submerged portion of Sherman Island.3

Notes 1 http://resources.ca.gov/ecorestore/ 2 http://resources.ca.gov/ecorestore/ 3 http://www.centralvalleybusinesstimes.com/links/WDIC%20description%205.pdf

Human use of Restored and Naturalized Delta Landscapes 19 Appendix FRANKS TRACT

Human use of Restored and Naturalized Delta Landscapes 20 Appendix HISTORY Franks Tract was originally reclaimed between 1902 and 1906 and given over to farming of potatoes, beans, asparagus, sugar beets, onions, seed crops, small grains, and corn. Levee breaches flooded Franks Tract in 1936, which was repaired, and again in 1938. The 1938 breach was never repaired, and thus the tract has been open water ever since. From 1943 to 1952, the United States Navy used a 500-acre portion of the area as a bombing target known as Antioch Bombing Target. The entire 3,523-acre (1,426 ha) flooded tract area became officially designated state park in 1959 and took on the name of Franks Tract State Recreation Area (SRA) in 1963. The adjacent Little Frank’s Tract underwent a levee breach in 1981 and was then incorporated into the SRA. Franks Tract SRA is only accessible by water and is located southeast of Brannan Island, between False River and Bethel Island.

Since its permanent flooding a novel ecology has developed in Franks tract. Replacing the monocultural agricultural fields is a only slightly more diverse ecology, dominated by invasive aquatic vegetation, freshwater alien invertebrates, and other alien fishes (Nobriga and Feyrer 2007; Hestir 2010). The socioecological changes that have transpired are indicative of those that are expected to accompany the flooding of other subsided agricultural islands. These changes may provide opportunities for additional habitat and recreation, however, they will have undesirable economic consequences for those who farm and work those lands and will create habitat that mostly favors non-native species (Moyle et al. 2012).

A sense of scale: Franks Tract as seen from Holland Tract looking north, winter 2016. In the foreground, just beyond on heavily reinforced levee (required due the wave fetch), are the fragmented remains of Franks Tract levees. The small dark point in the background are remaining hunting blinds seen just after the end of the hunting season before they are removed.

OWNERSHIP Franks Tract is state park property owned by the California Department of Parks and Recreation.

MANAGEMENT The latest general plan for Franks Tract was released in 1988. The plan states that, “Franks Tract SRA is not a destination area; rather, it acts as a wide open, unregulated intersection for boats traveling in various directions to and from the many heavily used sloughs which reach and border its perimeter”1. The plan does discuss fishing and hunting use, however, due to a lack of facilities recreation was minimal. The plan describes goals generated to guide future recreation use and development, which focus on the minimum recreational facilities to accommodate the needs of boat-in visitors and the creation of beaches. Neither were implemented.

Although, the types of use have not changed significantly, the 1988 plan predates the recent changes in management which resulted from a 2012 concessionaire agreement for Brannan Island SRA, in which Franks Tract management was centered2. This cost-savings agreement occurred during a period where the California Department of Parks and Recreation (State Parks) was discussing park closures and cutting services. As part of the 5-year concessions agreement, all staff from Brannan Island, Franks Tract and Delta Human use of Restored and Naturalized Delta Landscapes 21 Appendix Early 1900s (reclaimed for farming between 1902 and 1906) 1937 (levee breaches in 1936 and 1938. 1938 breach was never repaired)

1950s (used as Navy bombing target from 1943 and 1952) 1970s (CA State Park established in 1959)

1993 (Urbanization of adjacent Bethel Island) 2014. (Levees (orange) and grid of regulated hunting blind locations)

Evolution of Frank’s Tract: 1900 - 2014 Over the last century, Franks tracts has changed from tidal marsh, to reclaimed farm land, to open water Navy bombing range (Antioch Bombing Target), to an officially designated California State Park used for boating, fishing and waterfowl hunting. Each transformation has entailed changing juristictions and law enforcement protocols, spanning private, federal and state entities. Historic Survey data and 1937 ortho imagery from the San Francisco Estuary Institute.

Human use of Restored and Naturalized Delta Landscapes 22 Appendix Meadows were absorbed elsewhere in the district and department. According to Goldfields district supervisor, “the change insofar as management is that we no longer have staff on the ground in the delta”3.

HUMAN PRESENCE Human use of Franks Tract is limited to fishing, hunting and boating. According to Jim Michaels the area is lightly used and lightly managed. The primary management occurs during waterfowl hunting season where State Parks manages the placement of hunting blinds and hunting, subject to Department of Fish and Wildlife regulations. Low water levels due to drought conditions have contributed to the proliferation of Brazilian Waterweed, Egeria Densa, in recent years which has compromised the navigability of much of Franks Tract. Little Frank’s Tract has been particularly affected. Although this aquatic vegetation limits recreational boating, it does provide a habitat for the bass that attract recreational fishermen.

FUTURE California State Parks’ 2011 Recreation Proposal for the Sacramento-San Joaquin Delta and Suisun Marsh includes the recommendation to “explore partnerships at Franks Tract SRA to increase boating, fishing, and hunting opportunities and enhance boating safety”4. Specific concepts for development of Franks Tract are also envisioned in the General Plan, which was written and adopted as the General Plan for Brannan Island SRA (unreleased)5. In addition, the expiration of the 5-year concessions agreement for Brannan Island could change management at Franks Tract SRA.

Notes 1 Franks Tract General Plan (1987) 2 The concessionaire, American Land & Leisure, is currently managed through staff at Folsom Lake SRA. 3 Conversation with Jim Michaels, State Parks. Although staff members have been reassigned out of the delta, they do conduct bimonthly visits to Delta Meadows and staff is involved in the placement of hunting blinds at Franks Tract. 4 Recreation Proposal for the Sacramento-San Joaquin Delta and Suisun Marsh 5 Public Draft BDCP EIR-EIS Appendix 15B - Recreation Setting and California State Park Recommendations by County.

Human use of Restored and Naturalized Delta Landscapes 23 Appendix DELTA MEADOWS

Human use of Restored and Naturalized Delta Landscapes 24 Appendix HISTORY Delta Meadows River Park (DMRP) is a 472-acre state park property. Established in 1985, the purpose of the Delta Meadows property, “is to preserve and protect one of the last remaining areas of the northern Sacramento-San Joaquin River Delta that exhibits remnants of the natural conditions that existed prior to Euro-American settlement”.1 The park encompasses sloughs, wet meadows, and an island between the Sacramento and Mokelumne Rivers. According to the California Department of Parks and Recreation (State Parks), “[t]he property’s waterways, located on the Pacific flyway and influenced by Pacific Ocean tides through the lower Sacramento River, contain permanent and seasonal water areas, as well as adjacent uplands that support a variety of riparian plant and animal life, including the river otter, the delta smelt and the Sacramento chub. The property contains Native American occupancy sites, as well as remnants of such early farming and ranching activities as slough dredging and levee building”.2

The main trail through the park lies atop an abandoned rail line, which was part of a Southern Pacific’s Sacramento Southern feeder line from the Sacramento State Historic Park to Walnut Grove.3 According to the Delta Protection Commission’s Economic Sustainability Plan for the Sacramento-San Joaquin Delta, “the former rail line presents the opportunity to link the Delta Meadows River Park, the historic Locke community, and the historic Japanese and Chinese areas of Walnut Grove. Public improvements along the rail corridor have the potential to stimulate investment in Walnut Grove” (DPC 2012).

The property is located near the historic Chinese-American town of Locke, 28 miles equidistant from Sacramento and Stockton. Initial acquisition plans for the property had a significantly larger footprint and included recreational facilities, however, these plans were never realized due to budget constraints and shifting State Park’ s priorities. As of 2009 it was estimated that Delta Meadows was enjoyed by 10,000 to 12,000 visitors annually.4

Northern edge of Delta Meadows, looking southward, 2015. The pathway in the center follows the abutment of a former rail line excavated from the adjacent area that subsequently became a waterway. Water hyacinth (bright green) has completely filled in the smaller waterways popular with kayakers and canoeists.

OWNERSHIP DMRP is state park property owned by the California Department of Parks and Recreation. MANAGEMENT The property was officially closed in May 2011 due to state budget constraints, and currently offers no visitor services. There is currently no management plan for Delta Meadows. Similar to Frank’s Tract, the management of Delta Meadows was considerably changed by the 2012 concessions agreement at Brannan Island SRA. However, the vehicular access gate at Delta Meadows was closed in 2011 prior to the agreement as part of a larger series of State Parks service reductions. The gate closure policy was maintained after the 2012 agreement, at which point regular, daily presence on the property ended. Currently staff from the Folsom Lake SRA make bimonthly visits to Delta Meadows in response to specific concerns.

The lack of a general plan for Delta Meadows has been impediment to both restoration plans and the development for recreational Human use of Restored and Naturalized Delta Landscapes 25 Appendix facilities.5 Although the district has identified Delta Meadows as a high priority for general plan development, and various planning documents exist, it is unclear whether Delta Meadows presents a state-wide priority.

Although the property is officially listed as closed, and signage at the property states this, access to the property is not illegal. The 2011 gate closure made the main access road, which leads to a small concrete boat ramp, impassable by car. However, the use of state lands is a constitutional right, and as a trustee of state lands, State Parks cannot impinge on these rights by cutting off all access.6 Access by foot and by water remains fully legitimate, however, this is unclear given the current signage.

Ambiguity of entry

HUMAN PRESENCE Delta Meadows is primarily accessed by boat. However, one can park at River Road between Walnut Grove and Locke, and access the site on foot via a small gravel road just north-east of the cross channel A 1-mile gravel footpath on the old railroad levee provides walking/hiking opportunities. The Park is popular impromptu mooring destination for boaters, however, it does not offer essential provisions, such as a boat pump-out station. Canoe tours were offered twice daily on Saturdays and Sundays during spring and fall but are no longer available.

There is concern regarding unsanctioned uses such as illegal campfires, drug/alcohol use, and illegal camping7. According to Jim Michaels, Senior Park & Recreation Specialist State Parks, Gold Fields District, the construction of temporary mooring docks has also been a serious issue around the waterways8. Conversations with US Coast Guard (USCG) patrols out of the Rio Vista station indicate that the area is used for the illegal production of methamphetamines. Waste from the chemical production process is often dumped overboard. Less serious, but also of high concern are the human wastes that are dumped in the area due to the lack of adequate pump- out stations.

Jim Michaels sees a clear connection between the lack of regular State Parks presence and the proliferation of illegal and undesirable activities on the property. If there was regular presence on the property, many of the problem issues, such as encampments, illegal structures, illegal sheep grazing, fires could be addressed before they do significant damage.

The status of the park has created an environment whereby adjacent landowners are more involved in the monitoring and management of human use. Several of the shortcuts from the town of Locke into the park traverse private property. According to Bill Wells, director of the Delta Chamber of Commerce and local resident, unthreatening trespassers, such as student groups or identifiable neighbours are sometimes permitted to trespass9. Human use of Restored and Naturalized Delta Landscapes 26 Appendix According to Jim Michaels, most of the unsanctioned activities that take place in Delta Meadows represent a threat to public health and safety more so than a threat to the ecological integrity of the site. The exceptions would be the fires, illegal dumping of toxic and human wastes, and sheep grazing, which have all occurred on the site since its official closure.

FUTURE A general plan for Delta Meadows will need to be developed prior to any major restoration or recreation projects. Given low usage, as well as a lack of funds, the development of a general plan has been a low priority. However, the implementation of larger infrastructure or ecosystem restoration projects, such as BDCP or Ecorestore, or the regional Recreation Proposal could catalyze the development of a general plan. Likewise, the expiration of the 5-year concessions agreement for Brannan Island could change management at Delta Meadows.

State Parks’ Recreation Proposal for the Sacramento-San Joaquin Delta, recommends to “Complete park planning and create a basecamp by developing facilities, connections, and interpretation”. There has been on ongoing desire on the part of State Parks to connect the Delta Meadows River Park to the adjacent community of Locke and to the adjacent McCormack-Williamson Tract and Cosumnes River Preserve 10. Plans have yet to be implemented due to lack of funds.

The most recent BDCP/WaterFix EIS/EIR outlines negative impacts due to construction in the area. The document states that on- water access to the mooring site (the predominant use in its current state) would not be affected. However, permanent and temporary features of the proposed water conveyance facilities would cause ongoing noise and visual disturbances to visitors.

• Construction of a proposed temporary 230 kV transmission line that would run east of Delta Meadows could cause noise and visual disturbances for up to 3.5 years. • The intermediate forebay and spillway are adjacent to the northern corner of Delta Meadows River Park, across Twin Cities Road. • Geotechnical exploration would also occur along the tunnel corridor for approximately 2.5 years. Construction primarily would take place Monday through Friday, for up to 24 hours per day.

The document concludes that, “[c]onstruction noise, as well as operation and maintenance of the intermediate forebay and spillway, could adversely affect wildlife viewing and environmental education opportunities for potential visitors”11.

Sacramento Vector Control (SVC) conducts spraying on the Delta Meadows property, which contains areas of seasonally standing water that have been identified as mosquito breeding hotspots. According to Jim Michaels, the SVC have an interest in supporting restoration projects that would modify this mosquito breeding grounds.

Notes 1 http://www.parks.ca.gov/pages/795/files/purpose_statements.pdf 2 http://www.parks.ca.gov/pages/795/files/purpose_statements.pdf 3 “This railroad served as a vital link between upper Delta farms and distant markets until the mid-1930s, when both the freight and passenger business began a long and inexorable decline due largely to the Depression, and automobile and motor truck competition. This resulted initially in the discontinuance of passenger service and deferment of track maintenance. By the early 1970s, trains only ran three or four times a week during most of the year, and less than 200 carloads-primarily pears, farm machinery, and chlorine- were handled annually. The June 1972 Isleton flood caused extensive damage to the lower portion of the line, wiping out the section from the Georgiana Slough Bridge to Isleton, 2.3 miles. Effective April l, 1977, Southern Pacific was granted permission by the U.S. Interstate Commerce Commission (ICC) to abandon the 17.5 miles of track between Isleton and Hood Junction. Citing diminish- ing freight revenues and increasing operating costs, Southern Pacific filed an application with the ICC to abandon the remaining 13.8 miles of the line between Hood Junction and Miller Park in Sacramento. Authorization was granted effective March 8, 1978” (State Parks 1980). A 1980 Walnut Grove Branch Line Acquisition-Feasibility Study by California State Parks, proposed that the state pur- chase this feeder line and convert it to a steam train to facilitate recreation and tourism in the Delta. Needless to say this proposal was not adopted. 4 http://www.water.ca.gov/deltainit/docs/comments-2009/California%20State%20Parks%201.pdf 5 Interview with Jim Michaels, Gold Fields District Planner, California Department of Parks and Recreation. 6 Interview with Cheryl Essex, Environmental Planner, California Department of Parks and Recreation. 7 Conversation with Cheryl Essex, State Parks 8 Conversation with Jim Michaels, State Parks. 9 Conversation with Bill Wells, Delta Chamber of Commerce 10 State Parks Recreation Proposal 11 BDCP/WaterFix EIS/EIR

Human use of Restored and Naturalized Delta Landscapes 27 Appendix STONE LAKES

Human use of Restored and Naturalized Delta Landscapes 28 Appendix HISTORY Stone Lakes National Wildlife Refuge (NWR) is unique not only to the Delta, but the greater nation. Stone Lakes belongs to a limited group among the 540 national wildlife refuges that protect fish, wildlife, and habitat within a relatively urbanized area. Adjacent lands in this region are shifting from low density, rural, residential homes and structures, agriculture, and recreational areas to medium density single family suburban tract homes, master-planned communities and vineyards.

The original establishment of Stone Lakes represented a rare convergence of flood control and conservation interests against a 50,000 person development plan. The State of California and County of Sacramento purchased about 2,600 acres in the early 1970s, turning the land over to their respective park departments to manage. The conversion of Stone Lakes from a state and county park to a NWR was strongly supported due to unique ecological features related to connectivity with the adjacent Cosumnes River Preserve and floodplain features as well as the strategic location as a buffer for urban encroachment into the delta. The NWR continues to engage a variety of stakeholders, including the Friends of Stone Lakes, the Sacramento Tree Foundation, civil and school groups, who are involved in various aspects of management, maintenance and enjoyment.

OWNERSHIP The approved refuge boundary for Stone Lakes NWR — the area within which the US Fish and Wildlife Service (FWS) is authorized to acquire, protect, and manage land — is 17,640 acres. Within the approved boundary, the FWS owns or manages 6,550 acres. Another 5,000 acres are owned by Sacramento County and several state agencies. The refuge works only with willing landowners and is required by federal law to pay fair market value when acquiring an interest in the property. Thanks to these willing landowners and a number of cooperating agencies, the 6,550 acres under FWS management at Stone Lakes NWR include:

• 2,933 acres under Cooperative Agreements • 2,084 acres in Fee Title ownership • 1,533 acres under Conservation Easement

MANAGEMENT The management of Stone Lakes occurs within this unique mosaic of federal, state, and county agencies. Management activities include habitat restoration and the maintenance of the lakes and other habitat features. A variety of government and public stakeholders are engaged in management activities, which include:

• Friends of Stone Lakes NWR • Sacramento Tree Foundation • Elk Grove Unified School District • Sacramento County • California State Parks • California Waterfowl Association • Center for Land-based Learning Student and Landowner Education and Watershed Stewardship (SLEWS) • California Joint Venture • North Delta Conservancy • Ducks Unlimited • Ione Band of Miwok Indians • Cosumnes River Preserve BLM • SRCSD Bufferlands • Yolo-Sacramento Mosquito Vector Control District

These groups are involved in a variety of management activities, including advocacy, environmental education, habitat restoration, wildlife habitat conservation & aquatic weed control, wetland enhancement, cultural resource protection & natural history. The Stone Lakes NWR is unique in that the public play a major role in the co-management of this landscape. This can be attributed to a variety of factors such as the history of public participation in the establishment of the NWR, the proximity of urban areas, as well as the diminishing Federal support.

HUMAN PRESENCE Human presence in the Refuge varies by location and season. Recreational uses include: hunting, fishing, wildlife observation, citizen science and photography. Educational and community programs such as eagle scouts, service learning, a youth conservation corps, etc. represent additional uses. All of these uses are managed so as to be compatible with larger conservation goals, flood control measures, and agricultural operations. The majority of regular sanctioned use takes place around the recently constructed Blue Heron Trails,

Human use of Restored and Naturalized Delta Landscapes 29 Appendix which has a parking lot and bathroom in addition to an self-guided, interpretative trail system. The primary design of the Blue Heron Trails was as a place to conduct environmental education for school programs. However, the free parking and bathrooms, have made for a convenient pit stop for motorists driving on Interstate-5. This has led neighbors to refer to the area as the “delta rest stop”1. Refuge manager Bart McDermott describes the unintended consequences of the facility: “I look out from my window and I see you got construction workers and utility workers and people who are rolling out of their vehicles just to make a pit stop and then literally rolling back in … and to me that is not the appropriate use of the facility, nor am I excited to spend already diminishing funds to clean bathrooms for people who are just using them as a pit stop”2.

Proximity to major urban areas likewise affects use, as reflected in new trails such as the Blue Heron Trails, which emphasize ease-of- access3. Proximity to urban areas also creates more serious management problems related to unsanctioned human use. For example, illegal dumping of both non-hazardous and hazardous materials (e.g., methamphetamine lab waste, pesticides, waste oil) near Refuge entrances presents an ongoing concern. Littering along Interstate-5, particular where commercial truck rigs make overnight rest stops (e.g., Hood-Franklin Road exit), has also become a significant problem as traffic increases on the Interstate-5.

The Refuge works with the County of Sacramento and the California Department of Transportation (Caltrans) to remove debris as quickly as possible, but according to the LMP additional efforts and more cooperation are needed. Finally, arson-caused or accidental fires along Interstate-5 have become a serious management concern as the Refuge has expanded east of the freeway. As a result, the Refuge has pursued new partnership opportunities with the Elk Grove Community Services District under the Wildland Urban Interface (WUI)4 program to create adequate firebreaks and ensure protection of adjacent communities such as the Stonelake subdivision.

The majority of additional illegal activities involve some sort of trespass by people or incursions by feral animals, such as cats and dogs. Feral dogs and cats disturb and kill native wildlife and disturb cattle used to graze managed grasslands. Feral animal feces can also spread disease to native wildlife populations. Noxious weeds are spread when people and animals trespass into previously uninfested areas. Unwanted pets (rabbits, chickens, guinea pigs, dogs, cats) that are commonly released at entrances to the Refuge can cause similar problems.

Instances of human trespassing include walking, jogging, horseback riding, hunting, fishing, and plant and material collecting. Trespassing results in poaching, wildlife disturbance, littering, vandalism and wildfires. Illegal waterfowl hunting occurs specifically in the Beach Lake, North Stone Lake, and South Stone Lake units due to limitations in Refuge law enforcement capability and illegal access opportunities via private property and by boat. According to Bart McDermott, “it’s the first dark spot you hit” as one drives south from the greater Sacramento metropolitan area5.

More serious crimes, such as burglary and abandonment or burning stolen cars occur infrequently (one or two times a year) at the more remote Refuge entrances. Several marijuana grows have been discovered in the Refuge leading to busts in 2012, 2013, and 2015. During the 2015 bust a suspected pot grower was shot and killed by a CDFW warden6. The clean up effort after the 2015 grow involved a the Mountain and Valley Marijuana Investigation Team (MAVMIT) and an Army National Guard helicopter. The waste removed from the remote site filled a 20yd dumpster. There seems to be evidence of a trend towards larger grows. Bart McDermott, who has been in the position of refuge manager for 7 years explained that , “when I first came here I was just bumping into the user grows, little ones here or there. Even if my crew saw them we might just spray them and have a law enforcement officer come up dig them up and get rid of them”. The large grow in 2012 marked a clear jump in the size and complexity of these illegal grows, from small “user grows” of around 10 plants to major grows with hundreds of plants and considerable infrastructure.7

FUTURE The NWR hopes to keep expanding and acquiring agricultural and conservation easements on farmland and other fish and wildlife habitats within the land within approved designated project boundary. Some adjacent landowners are concerned about the potential regulations that might be imposed with the expansion of the NWR.

The revised BDCP/WaterFix EIR/EIS outlines potential impacts to the human use experience at Stone Lakes NWR. According to the document, “[h]iking, interpretation, and some environmental education opportunities would still be feasible within the NWR; however, refuge visitors would experience a long-term reduction of recreation opportunities and experiences due to construction noise and visual disruptions, resulting in reduced opportunities for wildlife viewing.” The timeframe of the disturbance is upwards to 10.5 years. Bart McDermott, the refuge manager also expressed concern about the potential expansion of the Elk Grove Sphere of Influence and associated urbanization on the edges of the Refuge.

Notes 1 Conversation with Stone Lakes NRA Refuge manager Bart McDermott 2 Conversation with Stone Lakes NRA Refuge manager Bart McDermott Human use of Restored and Naturalized Delta Landscapes 30 Appendix 3 “Blue Heron Trails provides accessible year-round trails for visitors and school groups along restored wetlands and upland habitat just minutes outside the city.” (http://www.fws.gov/refuge/Stone_Lakes/visit/visitor_activities/blue_heron_trails.html) 4 http://www.fire.ca.gov/fire_prevention/fire_prevention_wildland_codes 5 Conversation with Stone Lakes NRA Refuge manager Bart McDermott 6 http://www.sacbee.com/news/local/crime/article19860156.html#storylink=cpy 7 Conversation with Stone Lakes NRA Refuge manager Bart McDermott

Human use of Restored and Naturalized Delta Landscapes 31 Appendix COSUMNES RIVER PRESERVE

Human use of Restored and Naturalized Delta Landscapes 32 Appendix HISTORY The Preserve is centered along the Cosumnes River, containing both established and more recently restored floodplains and riparian habitat. This habitat is buffered from urbanized areas by a variety of agricultural operations. The Preserve provides numerous social, economic, and recreational benefits to local communities and to people residing in the larger Sacramento and San Joaquin areas. The habitat supports wildlife, including birds that migrate throughout the Pacific Flyway. OWNERSHIP The Cosumnes River Preserve consists of over 50,000 acres of wildlife habitat and agricultural lands owned by The Nature Conservancy, Bureau of Land Management, California Department of Fish & Wildlife, Sacramento County Regional Parks, Department of Water Resources, Ducks Unlimited, and the California State Lands Commission. Other Preserve Partners include the Natural Resources Conservation Service (NRCS), and the Galt Joint Union Elementary School District.

Image of the southern perimeter of the Nature Conservancy’s Oneto-Denier Floodplain Restoration Easement, a 600+ acre levee setback project that is part of the Cosumnes Reserve. Like most Delta restoration projects, the site is surrounded by a heterogeneous mix of land uses, such as different types of agricultural production, and as seen In the left foreground of this image, an active sand mining operation. The rural highway running through the middle of the image is Twin Cities Road. Restoration areas adjacent to such roadways often face challenges with trespassing and unsanctioned uses due to ease of access, particularly when also near urbanized areas (in this case Galt and Sacramento). The shift in land use and land cover is not only an experiment in floodplain restoration, but also a social experiment in how local communities engage and respond to these changes and formal usage protocols.

The UC Davis Lower Cosumnes River Floodplain Restoration Project (Project) involves three key properties owned by Preserve Partners:

• 491 acre Denier II property, acquired by TNC in 2000. • 319 acre Oneto Horseshoe property, acquired by TNC in 2007. • 223 acre Shaw Central property, acquired by California Department of Fish & Game (DFG) in 1998.

When the TNC acquired Denier II and Oneto Horseshoe, both sites were used primarily for agricultural operations (e.g., row crops). Adjacent lands are under public and private ownership and predominantly support agriculture and conservation.

In 2010, TNC sold an Emergency Watersheds Protection Program Floodplain Warranty Easement (floodplain easement) over Denier II and Oneto Horseshoe to NRCS, and TNC is using the proceeds from the sale of that easement to help fund the Project. Under that easement, TNC reserved the rights of Title, Quiet Enjoyment, Control of Access, Recreation Uses, and Subsurface Resources (TNC and NRCS 2010). NRCS can issue Compatible Use Authorization (CUA) to allow certain activities in the easement area that might otherwise be prohibited by the terms of the easement. With NRCS approval, TNC continued agricultural operations on Human use of Restored and Naturalized Delta Landscapes 33 Appendix the property until 2011. TNC will pursue a CUA for this Restoration Plan, which includes some activities that might otherwise be prohibited by the NRCS floodplain easement (e.g., vegetation management and restoration activities). MANAGEMENT The Cosumnes Preserve has played a major role in the development of new ways of thinking about working landscapes in the Central Valley, showing that farming can remain economically viable while preserving and enhancing broader ecosystem health. As a case study for a multi-functional landscape, the Cosumnes preserve is a much touted example of what may be possible elsewhere: “the Cosumnes River project demonstrates that conservation, agriculture and recreation can harmoniously coexist”1

Preserve operations are guided by the Cosumnes River Preserve Management Plan (Preserve Management Plan), which includes the Oneto-Denier Project as a natural resources stewardship objective.

TNC Oneto-Denier Project Goals:

1. Restore approximately 500 acres of riparian habitat by using engineered levee breaches and targeted excavation to improve connectivity between the river and its floodplain, facilitating process-based riparian recruitment and horticultural restoration. • Evaluate community trajectories, costs, and benefits of process-based versus horticultural restoration treatments. Associated research will include monitoring changes in surface and groundwater hydrology, geomorphic developments, and wildlife and plant community response to floodplain reconnection and restoration treatments. 2. Document and communicate the findings from this study to inform floodplain restoration in California’s Central Valley and beyond.

According to TNC’s 2013 Lower Cosumnes River Floodplain Restoration Project – Restoration Plan, restoration activities in the Denier II site will be applied in an experimental design to test the cost versus benefit of three levels (High, Medium, and Low) of restoration. The Oneto Horseshoe site is outside of the Denier II experimental design and will be subject to process-based restoration.

TNC will be conducting the vegetation monitoring component to characterize the vegetation community in the restoration treatment plots using permanent monitoring plots sampled annually during the establishment period. TNC will collect plant survival and species composition data following a standardized riparian vegetation monitoring protocol that is also applied to other remnant and restored riparian sites on the Preserve.

The primary UC Davis research project concerns the wildlife and vegetation response to the experimental restoration of flooded riparian forest habitat. The primary goal of this project is to restore flooded riparian forest to approximately 800 acres of agricultural land using an experimental approach. The primary objectives are to:

• Use engineered levee breaches and targeted grading to reconnect the river with its floodplain on the Oneto Horseshoe and Denier II properties (owned and managed by TNC) • Restore 800 acres of flooded riparian forest habitat to benefit native fish and wildlife, using natural process restoration techniques where possible and horticultural restoration carried out in an experimental context. • Measure wildlife and plant community response to the habitat restoration treatments. • Monitor changes in surface and groundwater hydrology. • Monitor geomorphic changes occurring throughout the restored site using remote sensing techniques.

HUMAN PRESENCE According to the Preserve’s GIS data, of the total 50,00 acres, approximately 37,500 acres are used for agricultural production (e.g., crops and grazing), 16,500 on fee-owned lands and 21,000 on easement lands. On the fee-owned lands, approximately 4,200 acres are utilized for grazing and 12,300 acres are used to grow crops.

According to the Nature Conservancy, the Preserve receives many benefits from agriculture, including:

• Provision of an on-site farmer to help deter illegal activities such as trespass or dumping on the property. • Buffer between more urban land uses and wildlife habitat near the river. • Maintenance of aesthetics and open space for local residents and Preserve visitors. • Habitat value for target species including, sandhill cranes and Swainson’s hawks. • Creation of long-term social capital by retaining the trust of local farmers and communities and their ability to contribute to the local economy through agricultural production and taxes.

Public use restrictions vary widely in the greater preserve, ranging from full access to fully restricted access areas. Use and access restrictions are seasonable. For example, there is no walking along flooded impoundments during the wet season. Public access can

Human use of Restored and Naturalized Delta Landscapes 34 Appendix be temporarily or permanently restricted and/or forbidden at several sensitive habitat areas, which are marked with area closed signs. Hunting, fishing, camping and launching of gas-powered motorized boats are not allowed at the Preserve. It is legal to fish or hunt from boats, in the river, a state-owned navigable waterway, but only during the proper seasons and with the proper licenses. The retrieval of downed birds can be an issue of contention, when birds land on private property. There are no restrictions to motorized boats on the Cosumnes. However, motorized boat use is often not advisable due to shallow and varying water depths and vegetative overgrowth.

Sanctioned human presence on the Oneto-Denier property is limited to TNC staff, researchers from UC Davis, and landowners and their affiliates. TNC Staff activities include active restoration, entailing seasonal broadcast herbicide treatments in the Oneto-Denier “High” intensity restoration treatment plots (4 plots totaling about 97 acres). UC Davis researchers are involved in a variety of studies related to hydrology, wildlife studies, and our own human use studies.

According to our surveys of land managers and field scientists, unsanctioned use consists of illegal Use of motorized vehicles (ATVs and Motorbikes) - particularly in the river bed when dry, Vandalism and destruction of property, littering/dumping, theft, shooting of firearms, illegal hunting/poaching, production/procurement of illegal substances, engagement in explicitly illegal activity (landscape serves as safe harbor for such activities), and homeless encampments. FUTURE: Due to the Preserve’s proximity to growing urban areas (including Sacramento, the San Francisco Bay Area, and Reno) and easy vehicular access from Interstate 5 and Highway 99, it is expected that future demands for recreational use, public access, and use of existing facilities will increase. Further compounding the growing population issue is the fact that publicly accessible open space is limited. Although the Preserve is not actively pursuing an increase in visitor numbers, this is occurring by word of mouth and educational programs. The anticipated increase in visitors brings both challenges and opportunities to the Preserve.2

There is considerable interest in expanding and improving the Cosumnes preserve and connecting it with the McCormack Williamson tract. Such connection would make a valuable wildlife corridor as well as offering the potential for expanded recreational opportunities. According to the Cosumnes River Preserve Management Plan, future effects of climate change are a concern, and the potential impacts of climate change are expected to be mostly negative to many of the species that inhabit the Preserve. However, the plan notes that the, “future effects of, and solutions change may bring challenges, as well as possible opportunities, to the Preserve”. The revised BDCP/WaterFix EIR/EIS outlines potential impacts to the human use experience at the Cosumnes River Preserve. The document outlines long term (12.5 yrs) surface impact as well as noise and visual disturbances.

Notes 1 http://www.nature.org/ourinitiatives/regions/northamerica/unitedstates/california/placesweprotect/cosumnes-river.xml 2 Cosumnes River Preserve Management Plan

Human use of Restored and Naturalized Delta Landscapes 35 Appendix COSUMNES FLOODPLAIN MITIGATION BANK

Human use of Restored and Naturalized Delta Landscapes 36 Appendix Mature riparian forest within the Cosumnes mitigation bank. This forest is a remnant feature of the landscape’s former working farm. The former farm owner retained the forest (rather than cut it down), in order to shade his hogs from the sun.

Nascent riparian floodplain habitat developing since 2009 restoration efforts.

Human use of Restored and Naturalized Delta Landscapes 37 Appendix HISTORY The Cosumnes Floodplain Mitigation Bank (Bank) is a 472-acre site located at the confluence of the Cosumnes and Mokelumne Rivers. This site is approved to provide Shaded Riverine Aquatic (SRA) mitigation credits, a suite of riparian, perennial, and seasonal wetland credits, and riparian forest and shrub scrub habitat credits under the Federal Clean Water Act, California Department of Fish and Game Lake and Streambed Alteration Program, and California’s Delta Levee Program. The Bank occurs along one of the last undammed rivers in California, and along with the neighbouring Cosumnes River Preserve, contributes to the restoration and protection of floodplain and fish habitat along the lower Cosumnes River.1

Several natural gas wells were established on the Bank during the mid 20th century; however, these wells are no longer in use, and were officially abandoned following California Department of Conservation Division of Oil and Gas abandonment procedures between 1968 and 1979. In recent years, there has been renewed interest in the gas field below the property. Five mineral access points have been defined on the Bank where future subsurface oil or gas mining efforts could occur.

The Bank lies within the Secondary Zone of the Legal Delta and is therefore subject to the land use authority of the local government and not the Delta Protection Commission. Historically, the property likely consisted of a mosaic of dense riparian forest and scrub habitats subject to routine flooding.

OWNERSHIP Westervelt Ecological Services bought the property in 2008 from the Lopes Family after several years of failed attempts on the part of the Nature Conservancy. At the time of sale, Transamerica minerals owned mineral rights to property. The establishment of a mitigation bank for section 404 clean water act wetland mitigation requires a demonstrated surface control of the site. Thus Westervelt was required to buy an accommodation agreement from transamerica minerals, which limits them to mineral exploration beneath five 2.5 acre pads and only to minerals located 500 feet or more below the ground surface.

MANAGEMENT Beginning in 2009, the habitat restoration activities at the Bank have created a mosaic of wetland types, associated upland riparian functions and services, and aquatic habitat for listed fish species. These features will continue to develop in richness as the landscape matures. The restored features include riparian habitat features, floodplain wetlands, and channels that provide shaded riverine aquatic habitat. The mitigation bank is managed to provide credits for DWR’s Bulk Credit Program2. The management plan has a specific section related to trash and trespass that emphasizes that, “the Bank should remain free of trash and other debris that harms the aesthetic and ecological value of the site. Proper fence maintenance and site control will limit the amount of trash on Bank. Trash is most likely to occur outside of the Bank’s fences and gates”. The latter point was validated by in our interview with land manager and field biologists.

HUMAN PRESENCE The Bank is currently fenced and subject to no general public access, nor any regular public or private use. Active management, to protect the biological value of the site, is a required component of an official mitigation agreement.3 Further stipulation are outlined in the Fish and Game Code Chapter 7.8. Sacramento-San Joaquin Valley Wetlands Mitigation Bank Act of 1993. and Article 3. Wetlands Mitigation Banks, Sections 1784-1787. Article 3 recognizes that, “the proximity of the bank site to urban or populated areas…could reduce the bank site’s long-term biological values”.

According to the 2009 Long-Term Management Plan Cosumnes Floodplain Mitigation Bank, research and/or other educational programs or efforts may be allowed on the Bank site as deemed jointly appropriate by Westervelt and the Interagency Review Team (IRT); however, these programs are not specifically funded or a part of this long-term management plan. As mitigation landscapes expand it may be necessary to create viable examples where research, educational programs, and or public access are allowed on bank sites and incorporated into long-term management plans. Multiple objectives and desires will require approaches to develop, manage and maintain landscapes for public access as well as mitigation.

According to our interview with the land managers, unsanctioned use of the property is a recurrent issue and has been since prior to Westervelt’s purchase. Current unsanctioned uses include, hiking, homeless encampment, use of motorized vehicles, vandalism and destruction of property, littering/dumping, theft, shooting of firearms, Illegal Hunting/Poaching and fishing. Efforts have been made to limit access to the site and hidden cameras are place to monitor activity and alert managers of trespass in real-time.

According to the Westervelt (WES) website, “WES has a long-standing commitment to land stewardship and, in partnership with its subsidiary units, can provide land stewardship services on natural and multi-use landscapes (e.g., agricultural and recreational lands). Some of these services include property management, maintenance and security services” Furthermore, “WES is the lead entity

Human use of Restored and Naturalized Delta Landscapes 38 Appendix for all property management and maintenance on the nearly 10,000 total acres of land owned by Westervelt Ecological Services. Tasks associated with these responsibilities at each of WES’s properties include securing property boundaries through the establishment of fences, gates, and signage as well as on-going site visits for monitoring, adaptive management, vegetation control, and security patrol for trespass”.4

FUTURE Recreation activities are not currently proposed to occur on the Bank, due to the aforementioned regulations. However, the Westervelt is permitted to partake in certain occasional passive activities such as birding, hunting, photography, or walking. Passive activities are defined as those that would have no potential effect on the sensitive resources protected on site. Interpretive trails and benches are not proposed on the Bank.

Notes 1http://www.wesmitigation.com/mitigation-conservation-projects/cosumnes-floodplain-mitigation-bank.cfm#page=general 2 DWR established the Bulk Credit Program in 2012 which provides off‐site mitigation credits exclusively for reclamation districts (RDs) partici- pating in the Delta Levees Program. These mitigation credits are negotiated for a lower price than retail and purchased from Westervelt’s Cosumnes Floodplain Mitigation Bank. 3 “Incorporating management into the bank agreement is key to the bank’s success. With few exceptions, listed species and their habitat cannot be conserved without management of the conservation property. An active management program may consist of halting and removing illegal trash dumping, preventing trespassing that might include off-road vehicle use, and/or imitating the natural disturbance regimes that might include pre- scribed burns. The ultimate goal for any management plan will consist of maintaining the habitat for the continued use by the listed species conserved on site” (Bayon, Carroll, and Fox 2012). 4 http://www.wesmitigation.com/mitigation-conservation-services/

Human use of Restored and Naturalized Delta Landscapes 39 Appendix QUIMBY ISLAND

Human use of Restored and Naturalized Delta Landscapes 40 Appendix HISTORY Quimby Island was privately farmed in corn until the Natural Resources Conservation Service (NRCS) purchased a wetland conservation easement on the property in 2012. The island was restored to wetland, riparian, and grassland habitats during 2013 and 2014 through the Wetland Reserve Program, North American Wetlands Conservation Act and with help from a private foundation. According to various sources (DWR, USACE, CALFED), the island was subject to various levee breaches (1936, 1938, 1955, 1986), as evidenced by a large scour pond located on its western edge.

OWNERSHIP In April of 2015, CWA received a generous gift of stock and controlling interest in Ellis Island Inc., which owns Quimby Island. The donor who provided the gift to CWA retained a 20 year life estate with hunting rights for himself and his best friend. Upon their death, CWA will own and control 100% of the corporation and the island.

DESIGN AND MANAGEMENT Prior to CWA management, cornfields would be hunted during the waterfowl season. Quimby is now being restored to marsh in an effort to provide waterfowl habitat. The previously existing riparian vegetation, along the island’s perimeter, and lining it’s internal canals, has largely been allowed to grow wild.

The major restoration project entailed the movement of 221,000 cubic yards of dirt.1 The project was funded by NRCS through a 2012 Wetlands Reserve Program (WRP) conservation easement.2 As part of the NRCS Bay-Delta Initiative, the Quimby Island WRP project was a collaboration between NRCS, the landowner, and the non-profit California Waterfowl Association. WRP wetland restoration efforts targeted waterfowl, sandhill cranes and wintering shorebirds. The WRP effort was also intended to help reverse subsidence of the island by protecting fragile peat soils and increase carbon sequestration through the establishment of permanent emergent vegetation.3

CWA intends to use the island as a location for public hunts for both adults and youth. This use is consistent with the broader philosophy of the organization, which, see hunters as the most important force for conserving waterfowl and wetlands, and principal objectives, which are to conserve California’s waterfowl, wetlands and hunting heritage.4 The CWA is currently in the process of developing an operation and maintenance plan for the island.5

HUMAN PRESENCE Quimby is solely accessible by boat. Boat-limited access creates difficulties in getting hunters and others out to the site. The Holland Cut Ferry used to operate between Holland Tract and Quimby Island.

There are two houses and several vehicles on the Island. CWA has a regional biologist who is responsible for overseeing management at Quimby. According to this biologists/manager there have been multiple illegal marijuana grows on the island in recent years. This information was validated by a site visit where we saw the irrigation line leading into an illegal grow sites.

Human use of Restored and Naturalized Delta Landscapes 41 Appendix Northern half of Quimby Island, winter 2016. The waterbody in the foreground is a former scour pond from a levee breach, which has been recontoured with islands for waterfowl habitat.

Southern half of quimby Island, winter 2016, showing habitat restoration in progress. Note breached levees and open water habitat of Little Mandeville Island in the upper left corner - a naturalized open water body.

Human use of Restored and Naturalized Delta Landscapes 42 Appendix Waterfowl in one of the irrigated ponds, winter 2016. The island’s management facility/residence can be seen in the background.

Water pumping infrastructure required to irrigate the island’s leveed habitats, winter 2016.

Human use of Restored and Naturalized Delta Landscapes 43 Appendix Mature riparian habitat and open water, winter 2016. This area was feral prior to recent restoration efforts. The open water areas were originally borrow pits for levee building. Vegetation on the perimeter of the excavation area was allowed to autonomously develop.

Newly restored habitat on the north portion of Quimby Island, winter, 2016.

Human use of Restored and Naturalized Delta Landscapes 44 Appendix FUTURE The restoration of Quimby Island and corresponding development of an operations and maintenance plan will likely maintain the island for seasonal duck hunting use. The Board of the Metropolitan Water District of Southern California recently voted to purchase Bacon and Bouldin islands, Webb and Holland tracts and a portion of Chipps Island from Delta Wetlands Properties, which is owned by a subsidiary of a Swiss insurance company, Zurich Insurance Group. Bacon and Bouldin islands, Webb and Holland tracts are all located adjacent to Quimby Island. At this moment the future management of these islands is unclear, however this may have an impact on Quimby given their proximities. Quimby Island is not specifically mentioned in the BDCP/Waterfix or Ecorestore planning frameworks.

Notes 1 Interview with Paul Phillips, CWA field biologist. 2 The WRP was a voluntary program that offered landowners the opportunity to protect, restore, and enhance wetlands on their prop- erty. http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/easements/wetlands/ 3 http://www.obpa.usda.gov/exnotes/FY2014/25nrcs2014notes.pdf 4 http://www.calwaterfowl.org/mission-vision-history 5 http://refugeforums.com/refuge/threads/cwa-owns-delta-island.1003543/page-2#post-10512604

Human use of Restored and Naturalized Delta Landscapes 45 Appendix LIST OF QUESTIONS FROM PROJECT’S ONLINE SURVEY Human Use of Restored and Naturalized Landscapes in the CA Delta https://docs.google.com/forms/d/1PHikOmIID6WtRlJLvet9iVaHTCv8R...

Participant Survey

This survey asks questions about the perception of sanctioned and unsanctioned human uses (unsanctioned meaning trespass or entry without permission) in restored and naturalized landscapes in the California Delta. It will take approximately 10-15 minutes to complete the survey, which requires respondents to respond about one specific landscape throughout the survey. If participants can provide information about more than one landscape in the Delta, please fill out an additional survey for each landscape. If possible, please answer all questions (there should be an applicable answer to each question) and click 'submit' when you are finished for responses to be recorded.

1. Name of landscape referenced in this survey (such as name of a reserve, wildlife area, state park, private parcel, etc.)

2. This landscape is best classified as: Mark only one oval.

California state lands Federal lands Private conservation land Private land (for example: farm, ranch, or residence) Unknown Other:

3. In what capacity do you interact with the landscape described? Mark only one oval.

Scientist/field researcher Land manager Private landowner (adjacent to, or near the restored/naturalized landscape) Private landowner (owner of restored/naturalized landscape) Other:

4. Officially (per established rules and regulations) public access to this landscape is: Mark only one oval.

Fully restricted; no public access Highly restricted; public access is limited to supervised entry or special occasions Semi-restricted; public access is permitted within a range of specified regulations Non restricted; no limitation on public access Unknown

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Human use of Restored and Naturalized Delta Landscapes 46 Appendix Human Use of Restored and Naturalized Landscapes in the CA Delta https://docs.google.com/forms/d/1PHikOmIID6WtRlJLvet9iVaHTCv8R...

5. If sanctioned public use is permitted in this landscape, what level of public use currently occurs: Mark only one oval.

Generally not used by the public Underused by the public (usage does not meet target levels) Optimally used by the public; usage falls within levels intended for the landscape Overused by the public; usage exceeds intended levels Amount of sanctioned use by the public is unknown No public access is permitted (not applicable)

6. Are any sanctioned public uses beneficial to the ecology and functioning of the landscape? Mark only one oval.

No Unknown; has not been studied or assessed Yes No public access is permitted (not applicable)

7. If you answered yes to the previous question please list types of activity and their benefits

8. Are there clear differences in land use or physical appearances between the restored/naturalized landscape and its surroundings? Mark only one oval.

Yes, the restored landscape is visually distinct from adjacent land uses. No, the restored landscape blends into the surrounding landscape. Distinctions vary; some edges are distinct with others are more blended and similar.

9. How clearly is the landscape’s geographic boundary demarcated (i.e. via signs, fences, gates, etc) to anyone approaching it? Mark only one oval.

Very clear; there is no ambiguity regarding legality of entry and types of access permitted Somewhat clear; physical distinctions may exist but they are not clearly delineated Not clear; boundaries are indistinct

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Human use of Restored and Naturalized Delta Landscapes 47 Appendix Human Use of Restored and Naturalized Landscapes in the CA Delta https://docs.google.com/forms/d/1PHikOmIID6WtRlJLvet9iVaHTCv8R...

10. Does the clarity of the landscape’s boundary demarcation (preceding question) vary along the perimeter of the landscape? Mark only one oval.

Yes, some perimeter areas are more clearly defined than other areas (via fences, signs, levees, differences in land use, etc.) No, the visual clarity of the boundary is relatively the same all around.

11. Does unsanctioned human use occur within this landscape? Mark only one oval.

No Yes Unknown; has not been studied or assessed

12. If unsanctioned human uses occur on the landscape, what types of activities do they include (check all that apply) Check all that apply.

Nature study (bird watching, plant identification, photography, etc.) Citizen science and ecological monitoring Hiking Camping (recreational) Homeless encampment Use of motorized vehicles Boating Vandalism and destruction of property Littering/Dumping Theft Shooting of firearms Illegal Hunting/Poaching Foraging (example: mushrooms, herbs, firewood, etc.) Group social activities Production/procurement of illegal substances Engagement in explicitly illegal activity (landscape serves as safe harbor for such activities) Unsanctioned human uses does not occur on this landscape Other:

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Human use of Restored and Naturalized Delta Landscapes 48 Appendix Human Use of Restored and Naturalized Landscapes in the CA Delta https://docs.google.com/forms/d/1PHikOmIID6WtRlJLvet9iVaHTCv8R...

13. Of the unsanctioned human uses activities outlined in previous question, rank by prominence (1 being most prominent, only rank those uses that were checked in the previous question) Mark only one oval per row.

123456789101112131415 Nature study (bird watching, plant identification, etc.) Citizen science and ecological monitoring Hiking Camping (Recreational) Homeless encampment Use of motorized vehicles Boating Vandalism and destruction of property Littering/Dumping Theft Shooting of firearms llegal Hunting/Poaching Foraging (example: mushrooms, herbs, firewood, etc.) Group social activities Production/procurement of illegal substances Engagement in explicitly illegal activity (landscape serves as safe harbor for such activities)

14. If unsanctioned human uses occur within this landscape, do they conflict with prescribed uses and restoration objectives for the landscape? Mark only one oval.

Severe problem; such activity compromises the overall design objectives and/or management goals for the landscape Moderate problem; such activity is a nuisance, but is manageable and does not compromise overall project goals Mild problem; such activity is relatively benign in effect Not a problem, such activity does not conflict with management goals Unsanctioned use does not seem to occur on this landscape in any significantly observed manner (not applicable)

15. Are any unsanctioned public uses of the landscape benign or beneficial to the ecology of the landscape and in achieving management goals? Mark only one oval.

No Unknown; has not been studied or assessed Yes

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Human use of Restored and Naturalized Delta Landscapes 49 Appendix Human Use of Restored and Naturalized Landscapes in the CA Delta https://docs.google.com/forms/d/1PHikOmIID6WtRlJLvet9iVaHTCv8R...

16. If you answered yes to the previous question please describe unsanctioned public uses of the landscape that are benign or beneficial to the ecology of the landscape and in achieving management goals

17. If unsanctioned uses occur on the restored or naturalized landscape without noticeable effect or damage to the landscape, property or persons, are such uses still of concern? Mark only one oval.

Yes, unsanctioned uses are incompatible regardless of effect No, unsanctioned uses that do not harm the landscape, property or persons are not of concern

18. Does unsanctioned use of this landscape affect adjacent properties and landscapes? Mark only one oval.

No, unsanctioned uses do not occur on this landscape (not applicable) After the last question in this section, stop filling out this form. No, unsanctioned uses on this landscape do not affect adjacent landscapes After the last question in this section, stop filling out this form. Unknown; has not been studied or assessed After the last question in this section, stop filling out this form. Yes

19. If you answered yes to the previous question please list and describe effects

Powered by

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Human use of Restored and Naturalized Delta Landscapes 50 Appendix SURVEY PARTICIPANT INVITATION

My name is Brett Milligan and I am an assistant professor of landscape architecture at UC Davis California. I am conducting a re- search project called “Human Use and Occupation of Restored and Naturalized Delta Landscapes”.

The primary objective of the study is to acquire and analyze data on human activity occurring in restored and naturalized lands in the Delta. These efforts will encompass multiple research methodologies and data sets for contrast and comparison. The study augments and addresses gaps in the current research on how people utilize Sacramento-San Joaquin Delta (Delta) landscapes for recreation, lei- sure and other discretionary uses. Generally, this research will articulate linkages between these cultural patterns and those of natural resource utilization, restoration and management. It includes the study of existing forms of Delta recreation and use as well as design and planning for future uses based on mandates of State legislation, projected scenarios of urban expansion, population growth, envi- ronmental restoration and infrastructural change.

Based on your experience with monitoring and restoration in the delta we would like to ask if you would be interested in participat- ing in our study. Participation will include filling out a short on-line survey and an in-person interview. Participation in this research project is entirely voluntary.

Survey responses will be collected on a Google spreadsheet that will be password-protected and accessible via an UCDavis Google- drive folder exclusively to project researchers (Brett Milligan, Alejo Kraus-Polk). Survey responses will remain anonymous (individual identifying information will not be gathered).

I am the primary investigator for this research project and my contact information is listed below,

Thank You,

Brett Milligan Assistant Professor Landscape Architecture + Environmental Design Department of Human Ecology 157 Hunt Hall UC Davis 505-980-1761 [email protected]

Human use of Restored and Naturalized Delta Landscapes 51 Appendix SURVEY RESULTS

This landscape is best classified as:

unknown

state park

private conservation land

private

mixed

federal

california state land

accidental wetland

0 2 4 6 8 10 12 14 16 18

In what capacity do you interact with the landscape:

Scientist/field researcher

Patrol / Enforcement Ranger

land manager and monitoring ecologist

Land manager

0 2 4 6 8 10 12 14 16 18 20

Human use of Restored and Naturalized Delta Landscapes 52 Appendix Officially (per established rules and regulations) public access to this landscape is:

9%

6%

blank Fully restricted Highly restricted 23% 56% Non restricted Semi-restricted

6%

If sanctioned public use is permitted in this landscape, what level of public use currently occurs:

18%

29%

generally not used 6% not applicable optimally used Overused 9% underused unknown 6%

32%

Human use of Restored and Naturalized Delta Landscapes 53 Appendix Are any sanctioned public uses beneficial to the ecology and functioning of the landscape?

21%

No 38%

No public access is permitted (not applicable) 9% Unknown; has not been studied or assessed Yes

32%

If you answered yes to the previous question please list types of activity and their benefits

Removal of non-native predatory fishes via hook and line

Yes. Our work includes research and monitoring of aquatic species in the system. This information is used to help manage water supply, water quality, and species such as fish (e.g. game and threatened spp). In addition, we do work on habitat restoration studies to evaluate their effectiveness. This information helps guide future habitat restoration projects.

Access is limited to boat only, by Federal law regarding open waterways. Land access is prohibited because of private property laws. The space is designed for ecological restoration, but not with public access in mind.

Duck clubs have kept the marsh as marsh for hunting and management often benefits fish, song birds, and other critters.

We offer habitat restoration and service learning opportunities that involve planting trees and constructing features used by wildlife.

Hunting seems to keep birds from forming large groups and seems to keep disease spread from avian cholera down. We have seen when the area has closed to hunting during flood events that disease outbreaks worsen.

Hunting benefits conservation of species.

Hunting benefits conservation.

HumanHunting use of Restored benefits and Naturalized conservation. Delta Landscapes Research benefits 54adaptive management. Appendix

Hunting and fishing benefit the species through conservation (purchase of stamps and licenses for fishing).

Scientific research on the property is always valuable. People on the property participating in sanctioned activities reduces occurrences of unsanctioned activities.

The only time public access is sanctioned is by permit to conduct scientific research.

Hunting assists with the conservation of species being pursued. Research projects are common on the area and lead to a better understanding of the ecosystem and its functions.

Hunting supports conservation efforts of the target species. Visitors accessing the property to participate in sanctioned activities minimizes the occurrence of those wishing to participate in illegal or unsanctioned activities.

Visitors come to the Ecological Reserve to view wintering waterfowl and Sandhill cranes. The benefit to the landscape is simply raising awareness about the value of the habitat to migrating birds.

Are there clear differences in land use or physical appearances between the restored/naturalized landscape and its surroundings?

26%

Distinctions vary; some edges are distinct with others are more blended and similar. No, the restored landscape blends 50% into the surrounding landscape.

Yes, the restored landscape is visually distinct from adjacent land uses.

24%

Human use of Restored and Naturalized Delta Landscapes 55 Appendix How clearly is the landscape’s geographic boundary demarcated (i.e. via signs, fences, gates, etc) to anyone approaching it?

3%

blank 29% 27%

Not clear; boundaries are indistinct

Somewhat clear; physical distinctions may exist but they are not clearly delineated Very clear; there is no ambiguity regarding legality of entry and types of access permitted

41%

Does the clarity of the landscape’s boundary demarcation (preceding question) vary along the perimeter of the landscape?

32% No, the visual clarity of the boundary is relatively the same all around.

Yes, some perimeter areas are more clearly defined than other areas (via fences, signs, levees, differences in land use, etc.) 68%

Human use of Restored and Naturalized Delta Landscapes 56 Appendix The Prevalence of Reported Unsanctioned Activities (ex. Littering was reported in 13% of landscapes where unsanctioned activities were observed)

1% 1% 2% Illegal Hunting/Poaching 3% 14% 3% 3% Littering/Dumping

4% Vandalism and destruction of property Use of motorized vehicles 5% 13% Shooting of firearms

Production/procurement of illegal 7% substances Homeless encampment

7% 11% Theft

Boating

7% Engagement in explicitly illegal 10% activity 8%

Does unsanctioned human use occur within this landscape?

21%

Unknown; has not been studied or assessed Yes

79%

Human use of Restored and Naturalized Delta Landscapes 57 Appendix If unsanctioned human uses occur within this landscape, do they conflict with prescribed uses and restoration objectives for the landscape?

3% 6%

29%

blank Mild Moderate Not a problem Not applicable 44% Severe Problem 9%

9%

Are any unsanctioned public uses of the landscape benign or beneficial to the ecology of the landscape and in achieving management goals?

6%

No

Unknown; has not been studied or 35% assessed Yes

59%

Human use of Restored and Naturalized Delta Landscapes 58 Appendix If you answered yes to the previous question please describe unsanctioned public uses of the landscape that are benign or beneficial to the ecology of the landscape and in achieving management goals

Illegal removal of non-native predatory fishes via hook and line Boating or fishing probably occurs and is unlikely to cause a disturbance to the preserve. Motor vehicle traffic (ATV's, motorcycles) may affect tree growth on sediments deposited on the restored floodplain. Tree growth on the floodplain is stated goal of the project. Theft hinders research capabilities and effective monitoring of ecosystem response to restoration actions.

If unsanctioned uses occur on the restored or naturalized landscape without noticeable effect or damage to the landscape, property or persons, are such uses still of concern?

9%

blank 18%

No, unsanctioned uses that do not harm the landscape, property or persons are not of concern Yes, unsanctioned uses are incompatible regardless of effect

73%

Human use of Restored and Naturalized Delta Landscapes 59 Appendix Does unsanctioned use of this landscape affect adjacent properties and landscapes?

3% No, unsanctioned uses do not occur 9% on this landscape (not applicable)

No, unsanctioned uses on this landscape do not affect adjacent landscapes 36% Unknown; has not been studied or assessed

Yes

(blank)

52%

If you answered yes to the previous question please list and describe effects

Litter of plastics in the water eventually decompose and may be exported into adjacent channels. Pollution of waterways, brush fires, other restricted areas accessable Yes trespass access is through adjacent agricultural land and or preserves. vehicle parking blocks adjacent property gates and results in trash dumping and vandalism. Criminal activity spills out to the surrounding areas causing a larger problem within the area. more litter To get to our property you often have to trespass on other properties or cut other peoples gates or fences. People will often dump garbage or litter at the property boundaries which affect both landowners. Yes, adjacent land owners are particularly concerned about the illegal substance growing and theft. It happens on their properties also. Most unsanctioned activities on this property are also illegal and are of very high concern to neighboring landowners. Illegal hunting is very rare on the property, but when it happens, people are tresspassing through neighboring properties to access the Ecological Reserve. Hunting and marijuana grows can cross the preserve/ private boundary.

Human use of Restored and Naturalized Delta Landscapes 60 Appendix FIELD WORK

Our field work consisted of a variety of different types of activities in Delta, including:

• Field visits with agency staff (California State Parks, USFWS, CDFW) • Ride-alongs with Resource Enforcement Personnel (CDFW Law Enforcement Division) • Self-guided tours of restored and naturalized landscapes (by foot and kayak)

Field visits with agency staff usually consisted of a guided tour of the restoration sites, in which interview questions were asked in-situ. Tours, conducted on foot, by car, and by boat, allowed special access to parts of to restricted access areas that are off-limits to the gener- al public. During these visits, agency staff were able to point out areas in which human use (both sanctioned and unsanctioned) occur and provide their analysis and explanation of the phenomena.

Ride alongs with Resource Enforcement personnel allowed for a unique perspective on resource enforcement in the Delta. These ride alongs consisted of frequent “contacts” with people engaged in hunting, fishing, and target shooting on public lands. The majority of contacts with fisherfolk were conducted along the levees edge. Hunters and target shooters were contacted within limited access areas.

Self-guided tours by foot and kayak provided an opportunity to experience the Delta as many members of the general public do. Dur- ing our tours we encountered indistinct boundary demarcations and experienced the lack of signage and facilities. INTERVIEW QUESTIONS

Interviews with planners, managers, and scientists allow for feedback on research question and design. These interviews are conducted in accordance to a community-based participatory research approach, in which those we interview are viewed as co-researchers as op- posed to subjects. Perspectives from a spectrum of interdisciplinary expertise, from land managers, field ecologists, engineers, growers, business owners, etc. is crucial to the nature of our study.

Our interview methodology consists of semi-informal, open-ended interviews. Interviews were conducted in State offices, on the UC Davis campus and at various sites in the Delta.

Human use of Restored and Naturalized Delta Landscapes 61 Appendix RESEARCH PARTICIPANTS

Name Organization Role Director of Conservation for California John Cain American Rivers Flood Management California Department of Fish and Assistant Chief of Law Enforcement Tony Warrington Wildlife Division California Department of Fish and Mike Milotz Wildlife Cal TIP California Department of Fish and Former Lieutenent, Special Operations Kathy Ponting Wildlife Unit California Department of Fish and Captain, DBEEP, MET, Special Opera- Nathaniel Arnold Wildlife tions Unit, WET California Department of Fish and Daryl Simmons Wildlife Warden, DBEEP/MET California Department of Fish and Stephen Johnson Wildlife Chief, DBEEP California Department of Fish and David Bess Wildlife Chief of Law Enforcement Division California Department of Fish and Former chief of Law Enforcement Divi- Nancy Foley Wildlife sion California Department of Fish and Patrick Foy Wildlife Law Enforcement Division California Department of Fish and Brian Naslund Wildlife Assistant Chief of Law Enforcement California Department of Fish and Ryan Carruthers Wildlife Delta Unit Biologist California Department of Fish and Jeff Stoddard Wildlife Refuge Manager, YBWA California Department of Fish and Associate Governmental Program John Clithero Wildlife Analyst California Department of Parks and Training Coordinator, Division of Boat- Brian Carroll Recreation ing & Waterways ‎Chief, Boating Operations, California California Department of Parks and State Parks, Division of Boating and Ramona Fernandez Recreation Waterways California Department of Parks and Cheryl Essex Recreation Project Manager California Department of Parks and Senior Park & Recreation Specialist Jim Michaels Recreation State Parks - Gold Fields District California Department of Parks and Barry Smith Recreation State Park Peace Officer California Department of Parks and Tom Pagan Recreation State Park Peace Officer California Department of Water Senior Environmental Scientist, Bay- Shaun Philipart Resources Delta Monitoring and Analysis Section California Department of Water Restoration Planning, Monitoring and Marcus Yee Resources Implementation, California Department of Water Special Projects Coordination, Division Michael Perrone Resources of Environmental Services California Department of Water Craig Wilson Resources Former Delta Watermaster California Department of Water Michael George Resources Delta Watermaster California Department of Water Program Manager, Aquatic Ecology Ted Sommer Resources Section Assistant Director, California Water California Department of Water Quality Monitoring Council, Special Kristopher Jones Resources Studies Research Section California Department of Water Jeff Galef Resources Water Resources Engineer, FESSRO Human use of Restored and Naturalized Delta Landscapes 62 Appendix California Environmental Protection Gordon Burns Agency Undersecretary Sgt. McCain California Highway Patrol State Security Division David Okita California Natural Resources Agency EcoRestore Chief, Environmental Planning and Cy Oggins California State Lands Commission Management Division Brian Bugsch California State Lands Commission Chief, Land Management Division Attorney, retired annuitant at California Curtis Fossum California State Lands Commission State Lands Commission Nicholas Lavoie California State Lands Commission Public Land Manager Paul Thayer California State Lands Commission Former Executive Officer Ryan Broddrick California Waterfowl Association Former Director CDFW John Carlson, Jr. California Waterfowl Association President Mark Hennelly California Waterfowl Association VP, Legislative Affairs and Public Policy Jake Messerli California Waterfowl Association VP, Conservation Programs Regional Biologist, Delta and Yolo Paul Phillips California Waterfowl Association Bypass Jeff Volberg California Waterfowl Association Director Law and Policy Jacob Katz CalTrout Central CA Program Director Petrea Marchand Consero Solutions Contra-Costa County Sheriff ’s David O. Livingston Department Sheriff-Coroner Kirk Russell Crime novelist Bill Wells Delta Chamber of Commerce Campbell Ingram Delta Conservancy Executive Director Shakoora Azimi-Gaylon Delta Conservancy Assistant Executive Director Jeff Hart Delta Eco Farm Richard Norgaard Delta Independent Science Board Erik Vink Delta Protection Commission Executive Director Nicole Bert Delta Protection Commission Communications Specialist Adele Lagomarsino Delta Protection Commission Senior Environmental Planner Jennifer Ruffalo Delta Protection Commission Program Manager Blake Roberts Delta Protection Commission Associate Environmental Planner Jahnava Duryea Delta Stewardship Council Delta Science Program Program Manager for Ecosystem Resto- Jessica Davenport Delta Stewardship Council ration and Land Use Amanda Bohl Delta Stewardship Council Meeting Services and Special Projects Cliff Dahm Delta Stewardship Council Lead scientist Pammy Mueller East Bay Regional Parks District Big Break supervisor Dan Cunning East Bay Regional Parks District Park Unit Manager Delta Unit Patty Gershaneck East Bay Regional Parks District Communications and Records Manager Gretchen Rose East Bay Regional Parks District Lieutenant Central Valley / Sierra Region Environ- Eric Ginney ESA-PWA mental Hydrology Director Mike Eaton Farmer Formerly with TNC Central Valley California (CVC) High Intensity Drug Trafficking Dan Lane Area (HIDTA) Assistant Special Agent Mourad W. Gabriel Integral Ecology Research Center Executive Director Osha Meserve Meserve-Soluri Attorney National Oceanic and Atmospheric Andrew Weinstock Administration Enforcement Technician National Oceanic and Atmospheric Brian Cluer Administration Fluvial Geomorphologist Director of the California Water Pro- Gerald Meral Natural Heritage Institute gram Jeffrey Mount Public Policy Institute of California Senior Fellow Walt Vance Recreational Boaters of California Commodore at Oxbow Yacht Club Antonio Rossman Rossmann and Moore, LLP Land Use Attorney San Joaquin County Sheriff ’s De- Les Garcia partment Public Information Officer

Human use of Restored and Naturalized Delta Landscapes 63 Appendix Sacramento County Sheriff ’s De- Stan Lumsden partment Chief Park Ranger State Water Resources Control Senior Water Resources Control Engi- Erin Mustain Board, Office of Enforcement neer State Water Resources Control Cris Carrigan Board, Office of Enforcement Director Alex Brietler Stockton Record Reporter Stacey Sullivan Sustainable Conservation Policy Director Judah Grossman The Nature Conservancy Project Manager Rene Henery Trouts Unlimited California Science Director Richard Walker UC Berkeley Professor Emeritus Mattias Kondolf UC Berkeley Professor Emeritus Professor Emeritus of Environmental Bob Twiss UC Berkeley Planning Jonathan London UC Davis Director, Center for Regional Change Mark Lubell UC Davis Professor William Bennet UC Davis Center for Watershed Science Carson Jeffres UC Davis Center for Watershed Science Richard Frank UC Davis Law Professor Researcher, Center for Watershed Sci- Kyle Philips UC Davis ence Joshua Viers UC Merced Professor Chris Benner UC Santa Cruz Professor Troy Dostart US Coast Guard BMI Refuge Manager, Stone Lakes National Bart McDermott US Department of Fish and Wildlife Wildlife Refuge Samuel Louma US Geological Survey Senior Research Hydrologist Mike Lozano Westervelt Ecological Services GIS Analyst and Cartographer Rob Capriola Westervelt Ecological Services Conservation Planner Matt Coyle Westervelt Ecological Services Ecologist & Land Manager Matt Gause Westervelt Ecological Services Senior Ecologist & Land Manager Restoration Design & Construction Mark Young Westervelt Ecological Services Manager Allegra Bukojemsky Wildlands Inc. Restoration Planner Julie Maddox Wildlands Inc. Restoration Planner Mahala Guggino Wildlands Inc. Restoration Planner/Botanist

20-30 people from the field who we don’t know/won’t say?

Arthur “Art” Hunter, Franks Tract “Jake” Homeless youth, Delta Meadows “Ray” Houseboater, Delta Meadows

Human use of Restored and Naturalized Delta Landscapes 64 Appendix PLANNING REVIEW

This appendix section is intended to accompany the Planning Review Chapter 3. of the technical report and provides a more in-depth discussion of the relevant planning processes. Processes are divided into the following categories, Delta Plan, Infrastructural Futures, Scientific Mandates, Restoration/reconciliation, Recreation and Public Access, and Law and Law Enforcement.

INTRODUCTION

More than 230 public federal, state and local agencies are involved in defining, envisioning and regulating human use in the restored and naturalized landscapes of the Sacramento-San Joaquin Delta (Delta) (Luoma et al. 2015).1 Within this complex institutional landscape2 there exist very different core interests, conflicting visions, and competing priorities. As the recent Delta Challenges report written for the California Natural Resources Agency (CNRA) and the US Department of the Interior by lead Delta scientists concludes, the result is institutional fragmentation that slows decision-making and confounds collaborative management. Despite the challenges, these agencies continue to participate in various planning processes, which continue to shape the way people use, interpret and and interact with restored and naturalized Delta landscapes. Amongst others, these users include scientists, researchers, land managers, recreationalists, public volunteers, and those engaging in the field-based work of environmental restoration. Their use and occupation of these places challenges paradigms of rewilded landscapes that see human presence as antithetical to restoration objectives. However, the economic, political, cultural and biological context of the Delta challenges, or rather supercedes conventional notions of restoration and has prompted reconciliation approaches that seek to balance ecosystem needs with the desires of those who live work and play in these landscapes (Moyle et al. 2012; Hanak 2011; Moyle 2013).

This section compiles and distills Delta policies, infrastructural propositions and planning frameworks most relevant to the present and future status of restored and naturalized Delta landscapes. We have created six categories within which plans, or sections thereof, are grouped. These categories are, 1) Infrastructural Futures, 2) Scientific Mandates, 3) Restoration and Reconciliation, 4) Economic Development, 5) Recreation and Public Access, and 6) Law and Law Enforcement. Each section discusses plans or portions of plans that impact the future of these particular landscapes and human activity within them.

THE DELTA PLAN

Broadly speaking, the coequal goals of water supply reliability and protecting, restoring, and enhancing the Delta ecosystem established by the Delta Reform Act of 2009 has become a guiding concept for recent comprehensive plans. The Delta Plan, finalized in 2012, is the first planning document that was developed with the explicit mandate of achieving these goals. The more recent 2014 California Water Action plan specifically calls for the state to begin implementation of the Delta Plan as well as to:

• Complete comprehensive plans to recover populations of threatened and endangered species in the Delta and improve water supply reliability for users of Delta water • Restore Delta aquatic and intertidal habitat • Implement near-term Delta improvement projects • Maintain important infrastructure

The Delta Reform Act of 2009 forms the legal foundation and impetus of the Delta Plan. The Act declared State policy for the resources and values of the Delta and defined the coequal goals (Water Code section 85054):

“Coequal goals” means the two goals of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem. The coequal goals shall be achieved in a manner that protects and enhances the unique cultural, recreational, natural resource, and agricultural values of the Delta as an evolving place.”

The Legislature declares the following objectives inherent in the coequal goals for management of the Delta (Water Code section 85020):

(a) Manage the Delta’s water and environmental resources and the water resources of the state over the long term. (b) Protect and enhance the unique cultural, recreational, and agricultural values of the California Delta as an evolving place [emphasis added]

The Delta Plan is intended to serve as the comprehensive long-term management plan for the Delta to achieve these goals, wherein multiple agencies carrying out “covered actions” need to comply and be consistent with (DSC, 2012). These covered actions, defined pursuant to Section 21065 of the Public Resources Code, include:3

Human use of Restored and Naturalized Delta Landscapes 65 Appendix • Will occur, in whole or in part, within the boundaries of the Delta or Suisun Marsh; • Will be carried out, approved, or funded by the state or a local public agency; • Is covered by one or more provisions of the Delta Plan; • Will have a significant impact on the achievement of one or both of the coequal goals or the implementation of government- sponsored flood control programs to reduce risks to people, property, and state interests in the Delta.

As the current integrative framework, the Delta Plan references and is referenced by several planning documents discussed in forthcoming sections.4 The Delta Plan acknowledges the Delta as a landscape of ongoing crisis and socio-ecological conflict, citing John Hart’s The Once and Future Delta: “The Delta seems always to have been in crisis, under intensive study, and at the intersection of hostile interests”. The Plan further observes that “Governmental institutions have reacted to each crisis [in the Delta] predictably, often treating individual problems rather than taking a systemwide approach. Over the years, dozens of agencies, task forces, and working groups have been created in a series of sometimes overlapping efforts to find the right combination of leadership and collaboration – incentives and regulation – to provide clean reliable water, protect our environment, and reduce the risk of flooding” (DSC 2013). The Delta Plan represents the most recent attempt to adopt the system wide and more integrative approach to Delta challenges.

Chapter 5 of the Delta Plan, Protect and Enhance the Unique Cultural, Recreational, Natural Resource, and Agricultural Values of the California Delta as an Evolving Place, is the chapter most relevant to our review as it discusses Delta values and how the DSC hopes to participate in the protection and enhancement of these values. The chapter also expands on the Delta Vision (2008), which sought to develop a suite of strategic recommendations for long-term, sustainable management of Delta.

The evolution of restored and naturalized landscapes of the Delta are a critical part of the larger evolution. An evolution that entails coupled social and biogeophysical transformation, where the way people relate to and interact with these landscapes is in turn influencing and being influenced by biogeophysical transformations. The Delta Plan acknowledges this relationship in both its vision, performance measures, as well as adoption of a landscape ecology approach. The vision of the Delta as an evolving place, “acknowledges the role of Delta residents in shaping the future of the region through active and effective participation in Delta planning and management” (DSC 2013). This includes the planning and management of restored and naturalized areas.

The Delta Plan’s performance measures include a mandate to, “[p]rotect, restore and enhance the Delta ecosystem by designating six high priority locations in the Delta and Suisun Marsh to recover endangered species, rebuild salmon runs and enhance habitat for wildlife. These Priority Habitat Restoration Areas include; Suisun Marsh, Western Delta, Yolo Bypass, Cache Slough, Cosumnes/ Mokelumne Confluence, and the Lower San Joaquin River Floodplain.5 The scale and scope of these priority restoration areas are considerable, though still vague in terms of real boundaries and potential acreage. The Plan also prioritizes actions to reduce pollution, ensure improved water quality and limit invasive species, while moving to establish a more natural pattern of water flows in the Delta” (DSC 2013).

Additional Delta Plan recommendations of high relevance to restored and naturalized landscapes include:

• DP P2: Respect Local Land Use When Siting Water or Flood Facilities or Restoring Habitats • DP R11: Provide New and Protect Existing Recreation Opportunities • DP R12: Encourage Partnerships to Support Recreation and Tourism • DP R13: Expand State Recreation Areas • DP R14: Enhance Nature-Based Recreation • DP R15: Promote Boating Safety • DP R16: Encourage Recreation on Public Lands • DP R17: Enhance Opportunities for Visitor-Serving Businesses

These recommendations will be discusses in greater depth in the following sections of this report.

To achieve its intended goals, the Delta Plan adopts an integrative landscape ecology approach. It defines this approach as follows:

...landscape ecology considers people’s role in shaping landscape patterns and processes (Turner 1989). Restored Landscapes often have agricultural and urban neighbors. Each land use affects the other because they are connected by air, land, and water. Yet Humans often want conflicting things (nature areas nearby with abundant wildlife, but also with convenient recreation facilities, no mosquitos, no impacts to adjoining farms). A functioning ecosystem depends on many things, including understanding and dealing with its relationship to human activities. The current regulatory and political framework for restoration projects often puts short-term benefits, such as low cost or immediacy of land availability, before long term benefits of connectivity and appropriateness of scale. Landscape ecology provides a set of tools for assessing and prioritizing limited restoration opportunities. For example, using principles of landscape ecology, decisions about land acquisitions for restoration must address how small parcels that become available for restoration might be connected and combined Human use of Restored and Naturalized Delta Landscapes 66 Appendix to maximize ecological benefits over the long term (DSC 2013, 136).

The landscape ecology approach parallels the conception of the Delta as a socio-ecological system,a bio-geo-physical unit and its associated social actors and institutions, particularly in recognizing the social and political complexities involved in decision making. The Delta has been described as a socio-ecological system by others involved in its policy and management (Kallis, Kiparsky, and Norgaard 2009; Norgaard, Kallis, and Kiparsky 2009), however uptake of the concept has been slow, both in the Delta and beyond:

Conservation scientists recognize the importance of integrating sociocultural data into ecosystem-based planning and management, as reflected in the use of terms such as socioecological systems…In practice, however, social and cultural dimensions are still only weakly incorporated into ecosystem-based analyses (McLain et al. 2013)

It remains to be seen how the Delta Plan is able to integrate landscape ecology and socio-ecological data into Delta planning and management efforts, given the newness of the plan itself. Norgaard et al. argue, “that the Delta will remain unruly until its ‘problems’ are seen, interpreted, and responded to through a highly dynamic socio-ecological systems framework” (Norgaard, Kallis, and Kiparsky 2009). We agree; understanding the Delta’s restored and naturalized areas as part of a complex socio-ecological system provides opportunities for more holistic engagements with the range of forces and actors involved in the shaping of these landscapes, as well as more effective planning for what they might be in the future.

Prospects for human use in the restored and naturalized landscapes of the Delta will be strongly influenced by decisions about infrastructure, ecosystem restoration, water quality, land use and environmental standards. The following section will give an overview of the planning processes directly related to the infrastructural future of the Delta, focusing on the implications for human use of restored and naturalized lands. INFRASTRUCTURAL FUTURES

Water Conveyance and Logistics The Delta is a thoroughly infrastructural landscape. The Delta we experience today is an an infrastructural earthwork constructed through dredging and the construction of an extensive network of levees. At the scale of the state of California, the Delta is also a central logistical hub in one of the largest infrastructural water projects in the world, composed of a statewide network of levees, dams, reservoirs, pumps, canals, and drains, all of which are managed jointly by local, State and Federal institutions to meet goals of flood control, water supply reliability, environmental conservation and habitat mitigation (Luoma et al. 2015). However, infrastructure within this logistical hub is overtaxed, over allocated, decaying and subject to underinvestment, leading to an increasing risk of disruption and failure (Luoma et al. 2015).

The predominant and pivotal water management concern for the Delta is whether and where exports of Delta waters should occur ( J. R. Lund 2010). At present, decisions regarding the future of Delta water exports and water conveyance infrastructure drives and affects all other decisions, including restoration efforts. What is key to consider with respect to planning for restoration, is the potential impact and indeterminacy of this infrastructure, an indeterminacy that has been persistent since at least the initial construction of the State Water Project (SWP), if not before (Lund, et al, 2010) Our study began under the auspices of BDCP specifications and the creation of 145,000 acres of restored lands, framed as, “a 50-year, ecosystem-based plan designed to restore fish and wildlife species in the Delta in a way that also protects California’s water supplies while minimizing impacts to Delta communities and farms” (BDCP 2013).6 The primary water conveyance infrastructure of the BDCP is an updated version of the Peripheral Canal7, originally promulgated by the California Department of Water Resources (DWR) in 1963. The BDCP calls for the building of two underground tunnels (rather than a surface canal) to carry fresh water from the Sacramento River under the Delta to the intake stations for the State Water Project (SWP) and the Central Valley Project (CVP). These tunnels would be one of the largest infrastructure modernization projects in the country8 and ‘complete’ one of the largest systems of water conveyance in the world.9

The Delta is already physically marked with the remnants of unrealized or partially executed infrastructural schemes. The massive borrow pits of the partially (and prematurely) excavated segments of the Peripheral Canal on the eastern edge of the Delta are a telling example of this ongoing indeterminacy and its dynamic relationship to restored and naturalized landscapes. To date, these rectilinear ponds, dug in the 1970s, still exist in an “interim” status as lands owned by the Department of Water Resources, which are leased out to private owners for dog training parks and water skiing, as well as to the California Department of Fish and Wildlife as wildlife areas open to the general public and ecological reserves (White Slough). If the current alternative 4a/Waterfix proposal is voted in, some of these ponds are slated to be filled in with the earth mined from the massive twin tunnels excavation (BDCP, 2013 15-112).

Scientific uncertainty is similarly consequential. The revision and repackaging of the BDCP and the creation of the most recent prefered alternative 4a of the BDCP SEIS/DEIR was precipitated by a lack of scientific consensus around the 50 year Section 1010 permitting processes that would have accompanied approval as a HCP (Habitat Conservation Plan) and NCCP (Natural Communities Conservation Plan). The superseded plan sought to restore and protect approximately 145,000 acres of habitat over its 50-year term.11 Although the initial SEIS/DEIR called for significant mitigation, there was no consensus regarding the efficacy of the Human use of Restored and Naturalized Delta Landscapes 67 Appendix mitigation measures being considered. This prompted a transition in permitting from the more comprehensive section 10 to the more conventional Section 712 of the Federal ESA and Section 2081(b) of the California ESA. This resulted in the creation of EcoRestore, the scaled-down plan to accelerate and implement a comprehensive suite of habitat restoration actions to support the long-term health of native fish and wildlife species, which will streamline at least 30,000 acres of habitat restoration already underway over the next four years.13 It should be emphasized that, according to the California Natural Resources Agency, “EcoRestore is unassociated with any habitat restoration that may be required as part of the construction and operation of new Delta water conveyance”.14

Delta Levees The Delta levees are a critical component of water management in the State, as they directly affect water exports through the CVP and SWP. The levees are also critical infrastructure within in the Delta, as they protect towns, and farmland, both of which are in some cases under sea level, from inundation and flooding. The future of this levee network - its potential failures, degree of maintenance and design improvements - directly relates to how the future Delta will look like and how it will perform across ecological, economic and socio-political domains. Of particular interest to our research are the current levee prioritization and assessment studies, which seek to assist in the prioritization of State investments in levees and to explore novel funding mechanisms that include non-State beneficiaries.

The Delta Stewardship Council (DSC) has been tasked with providing recommendations for the prioritization of State investments in levee operation, maintenance, and improvements, including both project and non-project levees. The DSC has, as part of this Delta Levee Investment Strategy (DLIS)15, created a planning tool that will assist in evaluating levee investments and developing an investment strategy, establishing priorities for maintenance subventions, allocating costs among beneficiaries, and developing recommendations for non-structural flood risk reduction measures. While the DLIS focuses on flood risk reduction as the primary purpose of state levee investments, there is a concurrent mandate that these investments will contribute to long‐term improvement of river corridors with net benefit for fish and wildlife. In accordance to the aforementioned landscape ecology approach, the draft DLIS Levee‐Related Habitat Review advocates for the use of landscape‐ scale planning to guide project siting and design. As the draft states, “[i]n general, larger and more complex habitats will serve to benefit a wider array of wildlife (Brown 2003, Herbold et al. 2014). Regardless of the size of an improvement site, projects should not be planned independently of one another, but viewed in a landscape context. For example, efforts should be made to link together fragmented patches of riparian forest to incrementally build towards large contiguous habitat corridors” (DSC, 2015).

The DLIS is also required under Public Resource Code Section 29702 to proceed, “in a manner that protects and enhances the unique cultural, recreational, natural resource, and agricultural values of the Delta as an evolving place”. As of the summer of 2015, restoration and recreation were not featured in the levee prioritization tool being developed with subconsultants ( Jennifer interview, DPC). In his comment letter on the DLIS draft principles, Erik Vink, the executive director of the DPC expressed his concern that, “the draft Principles failed to include ‘Delta as Place’ as a significant component of the state’s interest in Delta levees”.16 Vink also suggested that the DLIS be clearer in the way in which the it defines and quantifies state interests in Delta levees.17 How and if these concerns will be fully factored into the DLIS is unknown at this time. The critical takeaway is that the DLIS effort to reconcile the multiple functions of the Delta levees, will indelibly affect the human use of restored and naturalized areas, both quantitatively (how much restored area there is) and qualitatively (what these areas are, such as thickened levees vs. flooded open water tracts).

Related to the DLIS, The Delta Protection Commission has initiated their own Delta Flood Risk Management Assessment District (DFRMAD) Feasibility Study to provide the critical beneficiary and cost allocation analysis component of the DLIS planning tool. The DFRMAD seeks to determine both beneficiaries and the level of benefit they receive, as well as both current financial contributions and ability to contribute to a new flood risk management assessment district.

Levees also play a key role in terms of habitat mitigation. Under DWR’s Delta Levees Program, as guided by the California Water Action Plan and Delta Plan, levee enhancements that detrimentally affect or reduce habitat require mitigation. In 2012, DWR began a bulk credits program aimed at facilitating mitigation related to the Delta Levees Program.18 This bulk credit program works with a third party, for-profit entity, Westervelt Ecological Service, to provide mitigation credits for levee enhancement projects related to the Delta Levees Program.

These initiatives are interrelated with the BDCP, restoration plans and the unifying co-equal goals. Intentional underinvestment in levees, with the understanding that islands will remain flooded if and when a flood occurs, is tied to the BDCP because of the salinity implications and threat to water exports in their current configuration. The failure of levees and permanent flooding of islands could also create co-occurring restoration and recreation opportunities. The permanent flooding of islands (also considered under our typology to be restored/naturalized) could also create undesirable habitat for predatory species and compromise existing recreational opportunities and areas of public access. The most significant point here is that regardless of the level of investment in the levee system, we can assume that the area of restored and naturalized lands will continue to expand over time. It is important to note that while both are considered restored and naturalized, flooded islands have values as habitat or recreation area, that are distinct from a mitigation bank, which may have poor recreation values. (See Recreation and Public Access for additional discussion of human management protocols for mitigation landscapes).

Human use of Restored and Naturalized Delta Landscapes 68 Appendix The stream of propositions surrounding the BDCP and related levee investment initiatives creates a shifting context and set of design parameters in which all other plans must adapt and respond to. These propositions define the specific territorialities of the problems. The BDCP presents the Delta as the heart of the State’s water conveyance infrastructure. The DLIS is focused on the interests of the state, which has played a crucial in creating, managing, and maintaining the geometry of the Delta. The (DFRMAD) Feasibility Study, in its effort to define an assessment district, is explicitly challenging current territorialities and seeking to redefine the connections between a problem, the unsustainability of current levee investment strategies, and the areas and people that might be responsible for its amelioration.

Delta Wetlands The Delta Wetlands Project is another large infrastructural plan being developed in addition to the BDCP/Waterfix, which would have major implications for restored and naturalized landscapes in the Delta. The Delta Wetlands Project is a mature proposal, having been in circulation for over two decades.19 The project would transform four low-lying islands in the Central Delta into two water storage reservoirs (requiring considerable upgrading of current levees) and two habitat-mitigation islands. According to the 2011 EIR, “the Proposed Project would provide new recreation opportunities in the Delta. Recreation facilities on the Project islands may or may not be publicly accessible; however, the proposed Project would provide opportunities and improve the setting for waterfowl hunting, bird watching, and other recreation activities in the Delta by enhancing the regional habitat value for wildlife in the Delta” (ESA, 2011). Project proponents have recently gained the necessary permission to flood these islands (Chronicle 2015). Again this project speaks to the remarkable possibility space for Delta infrastructure and the magnitude of indeterminacy it presents in planning for networks of restored landscapes.

Smaller Infrastructural Projects The BDCP, levee prioritization and assessment, and Delta Wetlands are the high profile, regional-scale infrastructural plans. Smaller scale infrastructure plans also affect restored and naturalized lands. A good example is the Delta Levees Special Flood Control Projects. Its Projects Solicitation Package (PSP) now only accepts applications that contain features that include long term ecosystem enhancements. The most recent PSP (April 2014) has a specific geographic focus that extends along the freshwater corridor from the Clifton Court Forebay north along the Old and Middle Rivers to the San Joaquin River. Additionally, Fish Friendly Levee Habitat (Delta-specific channel margin habitat) projects are targeted along the mainstem of the Sacramento and San Joaquin rivers, and the North and South forks of the Mokelumne River.

These projects have the potential to integrate access and recreation. However, ‘Public Recreation Resources’ represents the DWR’s third priority for general integrated flood management investments in the Delta, after 1) Water Quality, Water Supply Reliability, and Flood Water Conveyance, and 2) Protection of Infrastructure of Statewide Interest, (i.e., Transportation Assets, Major Utility Corridors). Local integrated flood management investments are focused first on Urban and Urbanizing Flood Protection, secondly on Small Community Protection and Delta as a Place, and thirdly on Protection of Agriculture and Local Working Landscapes.20

Despite lower prioritization, projects continue to promote public recreational benefits, when compatible. For example, the McCormack‐Williamson Tract (MWT) Project, one of two main elements of the North Delta Flood Control and Ecosystem Restoration Project, and a potential component of Ecorestore seeks to “enhance public recreation opportunities in a manner that does not compromise flood protection infrastructure or operations, compromise habitat integrity, or disturb wildlife”.21 Integrating recreation and human use into multi-benefit project introduces components that cannot be fully or adequately managed by biologists and engineers. Metrics and monitoring to determine the successful enhancement of public recreation opportunities requires engagement with groups such as DPR, Bureau of Land Management, and county departments of parks and recreation, with expertise in recreational planning and management.

We can draw two general conclusions about infrastructural futures relevant to restored landscapes in the Delta: (1) all current schemes and protocols will increase the acreage of restored and rewilded landscapes, and (2) these plans, initiatives, and propositions, their timelines, are highly indeterminate and may be superseded by new propositions.

SCIENTIFIC MANDATES

Plans Discussed:

• DSC Delta Science Plan • BDCP/Waterfix • Interagency Ecological Program (IEP) Strategic Plan • Delta Independent Science Board (DISB) Science Plan • Delta Levees Special Flood Control Projects’ Projects Solicitation Package (PSP)

The 2015 Delta Challenges report summarized the state of the Delta’s problems as follows:

Human use of Restored and Naturalized Delta Landscapes 69 Appendix If the problem were just about allocating freshwater flows, it might be solvable. Add in the complexity of moving water through a hydrologically and hydrodynamically complex Delta and it becomes complicated. Add the uncertainty of ecological responses and the institutional complexity of many actors with many visions and the problem becomes wicked. Then add the ever-changing water supply and ecological and economic contexts within which decisions must be made, and the problem becomes devilishly wicked (Luoma et al. 2015).

Restored and naturalized landscapes are at the heart of this ‘devilishly wicked’ problem. Imbued in these landscapes are attempts to:

• Restore natural processes to bring a landscape back to pre-development conditions • Provide legally mandated habitat for threatened and endangered species impacted by water exports, etc. • Mitigate for environmental impacts related to infrastructural modifications (i.e levee maintenance, etc) • Provide enhanced recreational, educational, and public access opportunities • Anticipate climate change, especially in regards to sea level rise in current or future tidal systems • Deliver tangible (and sometimes quantifiable) ecosystem services, such as flood control, groundwater recharge, water filtration, etc. • Reconcile ecosystem needs with the desires of those who live work and play in these landscapes (Reconciliation Ecology)

These objectives mobilize scientific and legal protocols to achieve them, which have differing conceptions regarding the role of people in restored and naturalized landscapes. As the comprehensive plan, the Delta Science Plan is actively seeking to address the grand challenges22 of the Delta. The Delta Science Plan represents an effort to provide, “principles and approaches that will guide Delta science efforts for years to come” (“Delta Science Plan” 2013). The Delta Science Plan is targeted at all science efforts in the Delta, including established efforts such as the Delta Science Program and the Interagency Ecological Program (IEP), the science efforts envisioned for the Bay Delta Conservation Plan (BDCP), and the many smaller science efforts associated with meeting the adaptive management requirements of the Delta Plan.

The Delta Science Plan is offered as, “[a] shared vision for Delta science and a living guide for organizing, conducting, and integrating science in the Delta. It establishes the major elements, organizational structures, and key actions for improving the efficiency, utility, and application of Delta science across many agencies and institutions and for assuring its credibility, relevance, and legitimacy” (“Delta Science Plan” 2013).

Scientific study in the Delta has fully coalesced around the coequal goals of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem.23 Although scientific plans acknowledge that the coequal goals, “shall be achieved in a manner that protects and enhances the unique cultural, recreational, natural resource, and agricultural values of the Delta as an evolving place”, there is concern that little research is being undertaken on what Delta values are and how they might be protected and enhanced in the context of the Delta as an evolving place.24

Plans relevant to scientific study and monitoring in the restored and naturalized landscapes of the discussed in the Delta Science Plan include the Interagency Ecological Program (IEP) Strategic plan, the Delta Independent Science Board (DISB) Science Plan, as well as BDCP/Waterfix and Ecorestore.

The IEP is the on‐the‐water science program focused on the Bay‐Delta ecosystem and the water that flows through it. The vision of the IEP advances the need for high quality science to achieve the coequal goals. Although the IEP seeks to focus their science on management needs, they have yet to study human use of the Bay-Delta ecosystem. The IEP plan seeks to connect to the broader Bay‐ Delta science community. However, as of yet this community has been devoid of social scientists.

• Similar to the IEP the DISB Science Plan is guided by the co-equal goals and advances the concept of adaptive management, defined as, “a structured approach to environmental management and decision-making in the face of uncertainty” (DISB, 2013). The DISB’s definition of a healthy ecosystem includes societal benefits such as water quality and recreation opportunities. Unlike the IEP the DISB does have a social science component.

Scientific plans acknowledge that the Delta is comprised of dynamic, highly-altered, and novel ecosystems. Most of these plans are understood to be operating within the context of radical ecological change. Certain scientists have begun to describe specific ‘regime shifts’ related to fisheries change (Moyle, forthcoming). These changes are understood not as symptoms of ecosystem collapse25, but rather as indications of new species assemblages and corresponding novel ecologies and ecosystem functions. These changes in understanding can be seen in the context of the emergence of the new concept of reconciliation ecology. Reconciliation ecology has been defined by Michael Rosenzweig as, “the science of inventing, establishing and maintaining new habitats to conserve species diversity in places where people live, work or play”.26 Together, these concepts of reconciliation ecology and socioecological systems have wide-ranging implications for human use in the restored and naturalized landscapes in the Delta and will explored further in the next section.

Human use of Restored and Naturalized Delta Landscapes 70 Appendix RESTORATION/RECONCILIATION?

Plans Discussed:

• BDCP/Waterfix • EcoRestore • Delta Plan Chapter 4. Protect, Restore, and Enhance the Delta Ecosystem • Delta Restoration Network • Delta conservancy strategic plan (in a footnote)

Additional Planning efforts related to restoration in the Delta:

• Delta Wetlands Project • Central Valley Flood Protection Plan (CVFPP) • Central Valley Integrated Flood Management Study (CVIFMS) • USACE Delta Islands Feasibility Study • DWR’s Delta Risk Management Strategy (DRMS) • FloodSAFE Environmental Stewardship and Statewide Resources Office (FESSRO) • Ecosystem Restoration Program (ERP) Conservation Strategy • Endangered Fish Species Biological Opinions (referenced in the context of EcoRestore) • Fish Restoration Program Agreement (FRPA) • Yolo Habitat HCP/NCCP, South Sacramento HCP, and Solano Multispecies HCP (in development) • Suisun Marsh Habitat Management, Preservation and Restoration Plan (SMP)

A substantial and diverse collection of scientific findings have coalesced around a premise that various stressors on the dynamic, highly-altered, and novel ecosystems of the Delta necessitate large-scale ecological restoration to preserve key threatened and endangered species (Mount et al. 2012). However, the scale of ecosystem restoration remains contentious, indeterminate, bounded and contingent upon political, economic and ecological realities.

Chapter 4 in the Delta Plan, Protect, Restore, and Enhance the Delta Ecosystem, is the comprehensive call for restoration, and contains several policies and recommendations that would affect human use in restored and naturalized areas. These include recommended areas for the prioritization and implementation of habitat restoration projects. Within these areas the Delta Plan recommends that, “[h]abitat restoration projects should ensure connections between areas being restored and existing habitat areas and other elements of the landscape needed for the full life cycle of the species that will benefit from the restoration project. Where possible, restoration projects should also emphasize the potential for improving water quality” (“Delta Plan” 11/2012). Related specifically to levees, the Delta Plan recommends that, “projects must evaluate and where feasible incorporate alternatives, including use of setback levees, to increase floodplains and riparian habitats. When available, the criteria developed under RR R7 (Develop levee setback criteria) must be used to determine appropriate locations for setback levees” At the time of its publication, this policy covered a proposed actions to construct new levees or substantially rehabilitate or reconstruct existing levees. Chapter 4. discusses several of the stressors that impede restoration at any scale, such as altered Delta flows, environmental water quality problems, and nonnative species. These stressors, along with the current land use and ownership realities of the Delta have made large scale restoration difficult.

The ongoing difficulty of large scale restoration has been manifested in the emergence of smaller scale, independent restoration projects. Some of these contemporary projects will be potentially united under the auspices of EcoRestore. Ecorestore exists as an umbrella over several initiatives related to restoration in the Delta, such as the Biological Opinion (BiOp) on the long-term operations of the Central Valley Project (CVP) and State Water Project (SWP), DWR Interim Delta Actions, and Proposition 1-related projects.

According to Campbell Ingram, executive officer of the Delta Conservancy, the smaller scale of Ecorestore might be easier to actualize and reach broad agreement on (Ingram 2015). Local communities were far more resistant to the 145,000 acre restoration target outlined in the superseded BDCP iteration, despite its 50 year timeline and various stipulations aimed at alleviated concerns regarding seizure by eminent domain. That said, Ingram stresses that the dispersed patchwork of restoration areas outlined in EcoRestore is much harder to manage than one larger, continuous area. Aside from differences related to management, there are ecological differences, related to connectivity and ecosystem functions, between a large continuous area as a opposed to a more dispersed patchwork.

The current mosaic of restored and naturalized lands in the Delta represents the product of the various planning initiatives, advanced by various government, NGO and for profit entities, with myriad objectives and motivations, all playing out within a larger, ever- changing socioecological system. Some restoration has been catalyzed by mitigation mandated by legal struggle, some has emerged from opportunistic or-profit groups, which have developed relationships within the local community, whereas some has been accidental, as in the case of permanently flooded islands, such as Frank’s Tract and Liberty Island.

Human use of Restored and Naturalized Delta Landscapes 71 Appendix The USACE Delta Islands Feasibility Study is localized to the Big Break and Little Franks Tract area. This study calls for the restoration, enhancement, preservation, creation, and maintenance of aquatic, riparian, and adjacent terrestrial habitats for native plants and wildlife, including Federal and State threatened, endangered, and special-status species. The study aims for the reduction of flood risk to protect people, property, agriculture, habitat, and infrastructure. All of these initiatives are stated to have a, “potential secondary benefit to recreation and navigation”27 The study states that, “[c]reated marshlands would offer new recreation possibilities while not hindering existing fishing and hunting activities”28

The aforementioned are some of a diverse suite of projects, which serve as case studies, providing lessons and overcoming institutional inertias related to the regulatory challenges associated with restoration. Collaborative relationships have been forged and navigation through the web of regulatory bureaucracies is honed. The breadth of this experience will prove valuable if and when a more comprehensive plan, such as that outlined in EcoRestore, is made to “scale-up” restoration efforts. Already certain groups, such as the Delta Conservancy’s Delta Restoration Network (DRN)29, are forming to share information and experience regarding restoration. Campbell Ingram30, Executive Officer of the Delta Conservancy, describes the Restoration Network, as an effort to,articulate “ the scientific basis for restoration, what we’re going to do, why we’re going to do it, what we’re going to measure, and then how does that fit in the current landscape…”.31

It is the hope of project proponents that the DRN can lead to the creation of the landscape-scale conceptual model mandated in the Delta Plan and a more concrete process for achieving landscape-scale restoration that can be repeated throughout the Delta.32 This hope may be realized through the development of EcoRestore, which may build off the experiences and relationships of the DRN. According to Campbell, “[w]hile the DRN provided a valuable opportunity for all restoration interests to gather and coordinate, it’s work morphed into developing these planning processes and is now somewhat redundant to the Eco Restore meetings run by the Resources Agency” (Email Correspondence Campbell Ingram).

The landscape scale approach and landscape restoration frameworks of the DRN, which would remain within EcoRestore, represents an experiment in the operationalizing concepts of adaptive management, whereby decisions are made and policies implemented with the expressed understanding that they will be reviewed and adapted based on performance. Adaptive management of this type is being presented as a way to circumvent the stasis and paralysis that pervades decision making under conditions of uncertainty.

Despite specific, isolated, and varyingly adherent and successful experiments with this adaptive management approach, infrastructural indeterminacy continues to loom. All the while planning related to scientific study and monitoring, recreation and public access, law enforcement, and economic development develops new ways for people to use, interpret and and interact with physical Delta landscapes. It is to the latter, plans related to economic development, that we now turn.

ECONOMIC DEVELOPMENT

Plans Discussed:

• Economic Sustainability Plan (ESP) • NHA Proposal • Delta Branding and Marketing • Delta Plan • DPC/CRC Regional Opportunity Analysis (ROA) • DC Strategic Plan 2020

Economic development is thoroughly discussed in most of the major planning documents for the Delta. The protection and enhancement of the unique cultural, recreational, natural resource, and agricultural values of the Delta as an Evolving Place is, by-and- large, assumed to include aspects of economic development. All of the major plans seek to bring recognition to the Delta.

Plans relevant to economic growth include the DSC’s Delta Plan, DPC’s Economic Sustainability Plan (ESP), Regional Opportunity Analysis (ROA), and National Heritage Area (NHA) proposal, as well as the Delta Conservancy’s Delta Marketing Strategy and Vision 2020 Strategic Plan.

The Delta Plan defines performance measures for economic sustainability as maintaining or increasing gross revenues in each of three key sectors: agriculture, recreation, and ecotourism/agritourism. A peer review panel for the ESP found this language to be too strong and recommended that sustainability should allow for the growth in one sector to substitute for decline in another sector. This suggestion is prompted by an acknowledgement of the regulations, enforced by the DPC, which preclude or severely limit new development or services, or redevelopment of existing facilities. Although such regulations may serve to protect the atmosphere of the “Delta as a Place”, it is also inhibit certain aspects of economic growth.

Human use of Restored and Naturalized Delta Landscapes 72 Appendix The Delta Branding and Marketing Project is a joint project of the DC and the DPC. The project aims to improve the Delta’s visibility as a tourist destination and promote the Delta’s agricultural and recreational significance, including boating, fishing, hunting, eco-tourism, wine tours, historic tourism, and others. This project finds support in the DPC’s Economic Sustainability Plan (ESP), which also noted the need for a Delta brand and marketing strategy: “A significant operational constraint for future growth in recreation demand is that there currently exists no Delta brand, overall marketing strategy, or significant-scale focal point area” (DPC, ). The DC anticipates that public accessible restored lands will be included in the overall marketing effort. These lands would include, the Cosumnes River Preserve, Stone Lakes National Wildlife Refuge, Big Break, and others, which would be included on the marketing website and other relevant efforts. According to Amanda Bohl, Economic Development Lead at the DC, they anticipate that the completion and implementation of this project will be included in the Delta Plan performance measures.

This project has been influenced by the State Parks’ Recreation Proposal for the Sacramento-San Joaquin Delta and Suisun Marsh, which stressed the need for coordinated recreation and tourism efforts, noting that “improving recreation and tourism in the region will also contribute to the area’s economic vitality, supporting jobs, growing businesses, generating tax revenues that finance public services, and improving the quality of life that makes the Delta and Suisun Marsh region an attractive place to live, visit, and do business” (Dpr 2011).

The DPC NHA33 proposal is aimed, “to protect, enhance, and sustain the unique cultural, historical, recreational, agricultural, and economic values of the Delta as an evolving place” (DPC, ). On March 3, 2015, U.S. Senator Dianne Feinstein and Congressman John Garamendi introduced identical bills in the Senate and House that would designate the Delta as California’s first NHA, to be managed by the Delta Protection Commission. Commission staff have initiated a Delta Heritage Area Initiative (DelHAI) to protect and enhance the “Delta as place” -- as well as demonstrating the region’s capacity for NHA designation.

The DPC’s Vision 2020 Strategic Plan proposes that by 2020 the Delta will be recognized and enjoyed as aprime leisure destination, agriculture and its support services will thrive, and unique “Delta as Place” values will be embraced statewide, nationally and worldwide

A recent effort on behalf of the DPC has sought a better understanding the socio-economic conditions of residents of the Delta and the communities in which they live. The Delta Regional Opportunity Analysis (ROA) was catalyzed by the impending update of their Economic Sustainability Plan (ESP) and Land Use and Resource Management Plan (LURMP). The effort was comprised of a comparative analysis of 33 key indicators of community opportunity, conducted by the UC Davis Center for Regional Change to provide an overview of socio-economic conditions. The report revealed that socioeconomic opportunity in the legal Delta (primary and secondary) was substantially below the State averages. Low socioeconomic opportunity was found to be driven by education, the economy and health (CRC, 2015).

The initial conclusions of the ROA showed that most communities in the region seem to be relatively stable, with higher than average percentage of people living in the same residence as a year ago. Civic participation seems to be relatively high as well, with high voting rates amongst people of voting age (CRC, 2015).

RECREATION AND PUBLIC ACCESS

Plans discussed:

• Recreation Proposal for the Sacramento-San Joaquin Delta and Suisun Marsh • Delta Plan Ch. 5 • BDCP Waterfix • EcoRestore • Economic Sustainability Plan (ESP) • Aquatic Recreation Component of their Delta Recreation Strategy Plan • National Heritage Area Proposal • Great Delta Trail Planning • Various Delta Land Management Plans (LMP’s) and General Plans

The primary call to expand recreational opportunities comes from State Parks and DPC. This call is echoed in the DSC Delta Plan Chapter 5. recommendations (R11-14, R16). The DSC’s Delta Plan and theRecreation Proposal for the Sacramento-San Joaquin Delta and Suisun Marsh, a collaboration between the Delta Protection Commision (DPC) and the California Department of Parks and Recreation (DPR), are the primary documents which emphasize the compatibility between ecological restoration and recreation. Chapter 5. in the Delta Plan outlines as a performance measure that recreation facilities are included in new restoration projects, with a metric measuring the percent of new ecosystem restoration projects that include recreational facilities. Additional performance measure related to encouraging recreation and tourism have been suggested, which will measure success in terms of; 1) Acres of accessible state and federal owned land to the public for recreation and tourism, 2) Linear (Feet) of shore line accessible for public Human use of Restored and Naturalized Delta Landscapes 73 Appendix recreation, 3) Number of fishing licenses bought per year by county.34 The Recreation Proposal for the Sacramento-San Joaquin and Suisun Marsh posits that the, “restoration of fish and wildlife habitat may create new sites for recreation and enhance boating, angling, and hunting” (Dpr 2011, 20). This proposal also offers recreation as a contingency plan for flooded islands that are too expensive to reclaim (Dpr 2011, 7).

The DPC’s Economic Sustainability Plan (ESP), seeks to focus recreation development in five location-based concepts: 1) Enhance Delta Waterways, 2) Develop Dispersed Points of Interest and Activity Areas, 3) Create Focal Point Destination Complexes with natural areas, parks, Legacy Communities, marinas, historic features, and trails, 4) Expand public access to Natural Habitat Areas, 5) Create recreation-oriented buffers at Delta urban edges. The DPC’s Vision 2020 Strategic Plan, states that, “[by] 2020 the Delta will be recognized and enjoyed as a prime leisure destination, agriculture and its support services will thrive, and unique ‘Delta as Place’ values will be embraced statewide, nationally and worldwide.” Their Great California Delta Trail plan for a continuous regional recreational corridor extending around the Delta and linking the San Francisco Bay Trail system to the planned Sacramento River trails in Yolo and Sacramento Counties will include a bicycling and hiking trail.

The Aquatic Recreation Component of their Delta Recreation Strategy Plan discusses opportunities for new recreational facilities to be provided on publicly-owned land (The Dangermond Group March 30th, 2006). Both this document as well as the Delta Recreation Master Strategy – Phase One Aquatic Resources, and Great California Delta Trail plan speak to the concern, mostly from private landowners, regarding increased usage and access, which they believe may result in increased trespassing, theft, and vandalism. The DPC’s National Heritage Area proposal, has elicited similar concerns. These concerns are reflected in key stipulations within these plans which make the expansion of public access subservient to the desires of private landowners.35

Representatives of a variety of agencies and interest groups in the Delta acknowledge that the current demand for recreational facilities exceeds the supply. Some go as far as to suggest that this mismatch may be partially responsible for certain illegal and or undesirable forms of human use36. However, plans that seek to encourage recreation and public use acknowledge potential conflicts and concerns that may stem from increased use. Given the concerns of private landowners new facilities are proposed for public lands first and only secondarily for lands owned by a willing seller. Plans also call for the completion and reopening of existing State Parks property, such as Delta Meadows and the affiliated Locke Boarding House. These are the lowing hanging fruit of enhanced recreation and public access as they do not require the impractical processes of negotiating directly with private landowners who may not be amenable to the sale of their property.

Recreation is a significant component of economic plans as embodied by the Delta Conservancy’s vision of the Delta as a “prime leisure destination”. This destination concept further touches on the socio-cultural and demographic character of the Delta and assumptions regarding the future changes. Although these plans are consistent with the longstanding function of the Delta as a place for refuge and recreation, they paradoxically pose a threat to the remoteness, solace and slowness that has attracted many (Helzer 2015). A key unanswered management question concerns potential carrying capacity for visitors, both for optimal user experience as well as maintaining ecological resilience of these lands. There is also consideration of the lower thresholds of human presence; the so called “eyes to acres ratio”. Wes Jackson, founder of the Land Institute in Salinas, Kansas, uses the “eyes” to describe the competent watchfulness of human users, whom are aware of the nature and the history of the place, regularly present, always alert for signs of harm and signs of health.37 These eyes do not need to belong only to land managers or law enforcement agents.

As Campbell Ingram, executive officer of the Delta Conservancy suggests, there exists a, “quantifiable positive bystander effect of recreation, whereby the more people in the landscape the less unsanctioned and undesirable activity”. However the importance of formally human use into the design of multi-benefit landscapes is desirable. In our interview with Cheryl Essex, an environmental planner at DPR, she expressed the following,

I am not saying human use does not have impacts, because it does. But is really about finding that balance. That reconciliation. And you still see in that discussion about multibenefit projects and recreation that it’s something people care about. Local agencies care a lot because of the economic development and I’ve argued that the state needs to factor in the economic development potential of restoration, if they factor in recreation facilities, then they can start to put a number on the economic benefit to communities and when they do these economic analysis when they are weighing the costs and benefits that they include the benefits from the recreation industry (Essex 2015).

Ingram acknowledges that, “determining thresholds of occupancy whereby there is a optimization of habitat value and human use value is a challenge. Firstly, trade-offs do exist between the two. Landscapes with extensive human use and presence can disrupt ecological functioning. Likewise landscapes without paths of access and related infrastructure do not invite human use. Secondly, human use projections rely on an imperfect science. Therefore it can be challenging to design a multi benefit landscape based potential use” (Campbell Ingram).

Integrating human use into the design of multi-benefit landscapes also requires the acknowledgement of unsanctioned human use. According to Nancy Foley, former Chief of Law Enforcement for CDFW, the experience of the wardens, who most often deal with Human use of Restored and Naturalized Delta Landscapes 74 Appendix the unsanctioned use, is largely absent from planning processes (Foley 2015).

In addition to the regional scale planning efforts there exist land management plans (LMP’s) which are developed for specific public properties. The LMP’s that exist for the several state and federal properties in the Delta all contain stipulations related to recreation and public access. Appropriate levels and types of recreation and public access are discussed which are compatible with resource management goals.

Despite localized attempts, there exists a rift between those broaders plans focusing on recreation and public access and those looking at water supply reliability and ecosystem restoration. According to Essex, “[i]f recreation planning happens at the same time as [environmental] planning for these other benefits than it is much easier to fund and we also don’t have to do a CEQA analysis on impacts because if it proceeds at the same time as restoration work then it is all good. It is all good, all a public benefit. It is a lot less tougher to do it now than later” (Essex 2015). Interestingly, the original iterations of the Peripheral Canal plans had a recreational component, as evidenced by the sailboat that graced the report’s cover page.

However, recent BDCP iterations no longer have an explicit component that relates to the enhancement of recreational opportunities. The plan does contain stipulations to compensate for the loss of informal bank fishing sites during construction. The DEIR/SDEIS states that, “proponents will enhance nearby formal fishing access sites, including partnering with Yolo County to enhance the Clarksburg Fishing Access site on the west bank of the Sacramento River, and with the Sacramento County Department of Regional Parks to enhance the Cliffhouse Fishing Access site on the east bank of the Sacramento River and the Georgiana Slough Fishing Access site east of the Sacramento River, and with Contra Costa County to enhance fishing sites near Clifton Court Forebay, as well as other nearby sites. Prior to construction of the proposed intakes, the BDCP proponents will ensure adequate signage will be placed at the informal sites that would be directly affected by construction of the intakes, directing anglers to the formal sites. Upgrading the existing fishing access sites will be completed prior to beginning construction of the intakes” (“BDCP/Waterfix RDEIR/SDEIS” 2015).

The new DEIR/SDEIS concludes that, “constructing the proposed water conveyance facilities (CM1) and implementing CM2– CM21 could result in the potential for incompatibilities with plans and policies related to protecting recreation resources of the Delta”. Specifics are limited, but the DEIR/SDEIS does state that, “the BDCP proponents would work with these regional and local efforts to design proposed restoration areas to be compatible with and complement the goals of creating a regional trail network and where feasible to adapt restoration proposals to incorporate recreational amenities and opportunities in these areas” (“BDCP/Waterfix RDEIR/SDEIS” 2015).

The superseded BDCP SEIS/DEIR contained Environmental Commitment (EC) 3B.3.3 which would have the project proponents contribute funds for construction of new recreation opportunities as well as for protection of existing recreation opportunities as outlined in Delta Plan R11 (DSC 2013). Project proponents would, “consult with CDFW to expand wildlife viewing, angling, and hunting opportunities, as described in Recommendation DP R14 of the Delta Plan38. Potential areas for use of funds include, but are not limited to:; completion of Delta Meadows-Locke Boarding House General Plan; draft reconnaissance planning or General Plan development for potential new State Parks at Barker Slough, Elkhorn Basin, and/or the Wright-Elmwood Tract, or in the south Delta; and enhancement of recreational opportunities in and around the Yolo Bypass Wildlife Area” (BDCP, 2015). However, the updated RDEIR/SDEIS concluded that the EC 3B.3.3 does not apply to preferred alternative 4a (i.e. California WaterFix) because total impacts have been substantially reduced from the superseded BDCP alternatives.39

The habitat mitigation components of both the BDCP and other infrastructural plans have the potential to create recreational opportunities. However, this potential is severely limited by human use policies that govern mitigation projects. Mitigation projects, such as the Bulk Credit program discussed in the infrastructural futures section are important to restored and naturalized lands because they create a very specific restoration landscapes, where human uses are severely restricted. Management of this mitigation landscape also highlights concerns regarding unsanctioned human use in its emphasis on an ‘active management program’. According to the USFWS’ Guidance for the Establishment, Use, and Operation of Conservation Banks, “Incorporating management into the bank agreement is key to the bank’s success. With few exceptions, listed species and their habitat cannot be conserved without management of the conservation property. An active management program may consist of halting and removing illegal trash dumping, preventing trespassing that might include off-road vehicle use, and/or imitating the natural disturbance regimes that might include prescribed burns. The ultimate goal for any management plan will consist of maintaining the habitat for the continued use by the listed species conserved on site”40 These guidelines represent stipulations for a restoration landscape in which human use is severely restricted.

The public and private landscapes used by waterfowl hunters represent another restoration landscape where a specific type of activity guides management. Waterfowl hunting on both public and private lands often co-occurs with restoration. However, the restoration landscape that is conducive to hunting is very particular. Likewise the management of landscapes for waterfowl hunting, where it occurs, is unique in its emphasis on waterfowl habitat. Public hunting is addressed in several Delta Land management plans and general plans including Stone Lakes National Wildlife Refuge, Yolo Bypass Wildlife Area, Liberty Island Ecological Reserve, and the Franks Tract State Recreation Area. Human use of Restored and Naturalized Delta Landscapes 75 Appendix Several regional plans, such as the Recreation Proposal for the Sacramento San-Joaquin Delta, Delta Plan, ESP, DC Strategy 2020, etc. discuss hunting, often in reference to specific public properties and the duck clubs, and in the larger context of “nature-based recreation”. The Delta Plan specifically discusses hunting in it’s DP R14: Enhance Nature-Based Recreation recommends that, “the Department of Fish and Game [DFW], in cooperation with other public agencies, should collaborate with nonprofits, private landowners, and business partners to expand wildlife viewing, angling, and hunting opportunities”.

LAW AND LAW ENFORCEMENT

Plans Discussed:

• BDCP/Waterfix • EcoRestore • Delta Plan

Although trespassing, theft, vandalism and liability concerns on restored and naturalized lands are raised in several planning documents, the specifics of unsanctioned use, law enforcement challenges, and management responses are rarely mentioned. The DSC Delta Plan does not address issues of public access, crime, or law enforcement. The BDCP/Waterfix REIS/DEIR clearly states that the construction of the preferred alternative 4a, “would not increase the demand on law enforcement, fire protection, and emergency response services” (BDCP). The California Natural Resources Agency has yet to release information on Ecorestore related to public access/use and recreation. The 2011 Delta Wetlands EIR does acknowledge the potential for increased demand for police services on the Project Islands. The solution presented is, to “Provide Private Security Services for Recreation Facilities and Boat Docks” (Delta Wetlands EIR, ).

Concerns regarding illegal activity and law enforcement are primarily addressed by the DPC’s, Economic Sustainability Plan (ESP), Aquatic Recreation Component of the Delta Recreation Strategy Plan, and the Land Use & Resource Management Plan for the Primary Zone of the Delta section on Recreation & Access: Including Marine Patrol, Boater Education, and Safety Programs.

By and large the concerns raised in these planning documents relate to public safety. Recommendations from these plans include:

• The establishment of Delta-wide law enforcement protocols related to local public nuisance and safety issues, such as trespassing, littering, and theft. • The development of a strategic plan, in consultation with relevant law enforcement to improve law enforcement and the use of available resources to ensure an adequate level of public safety (Land Use & Resource Management Plan for the Primary Zone of the Delta). • The ESP posits inadequate levels of public funding for law enforcement and operations and maintenance of public facilities as a having an negative effect on recreation and its economic potential (160).

Concerns regarding resource enforcement related to the illegal hunting, fishing and the commercialization of wildlife, illegal cultivation of marijuana and other drug production issues are entirely absent from planning documents. Our interviews and research have, in particular, identified the illegal commercialization of wildlife and illegal cultivation of marijuana as major issues in the restored and naturalized landscapes of the Delta. Funding for the Delta-Bay Enhanced Enforcement Program (DBEEP), which works on cases related to marijuana and commercialization of fish in the Delta is briefly discussed in the 2013 BDCP DEIR/SEIS.

Notes 1 Delta Vision Context Memorandum: Historic and Current Governance in the Delta Region: Water Quality, Environment and Species Protection and Land Use Controls 2 As illustrated by the cover image, created by Mark Lubell, Policy Director at the UC Davis Center for Environmental Policy and Behavior, which depicts the network of actors involved in Delta governance. 3 There are statutory exemptions from covered action which are outlined in Appendix D of the Delta Plan. The most prominent exceptions are related to the regulatory action of a State Agency and the routine operations and maintenance of infrastructure, such as that related to the State and Federal (Central Valley) Water Projects, routine dredging activities that are necessary for maintenance of facilities operated by a special district. For the full list see: http://Deltacouncil.ca.gov/sites/default/files/documents/files/AppD_ Statutory%20Exemptions_Nov2012.pdf 4 The DSC has a comprehensive organizational chart. However, the chart is dated and does not reflect the most recent iterations of several planning initiatives: http://deltacouncil.ca.gov/sites/default/files/documents/files/WEF%20Delta%20Organizational%20 Chart.pdf 5 For map of Recommended Areas for Prioritization and Implementation of Habitat Restoration Projects see figure 4-6 of Delta Plan. http://mavensnotebook.com/dpg/images/Fig4-6_Full.jpg Human use of Restored and Naturalized Delta Landscapes 76 Appendix 6 http://bayDeltaconservationplan.com/Libraries/Dynamic_Document_Library/BDCP_Restoring_the_Delta_Ecosystem_Fact_ Sheet_3-14-13.sflb.ashx 7 Reclamation proposed the original Peripheral Canal to the Interagency Delta Committee (IDC) in early 1963, as an alternative water transfer system. By early 1965, the proposed canal had almost universal acceptance in the Delta region. California wanted Reclamation to design and construct the Peripheral Canal, then the state would assume control of the feature. Reclamation did not want state control of the canal, but did not have the authority to build it. California’s Department of Water Resources (DWR), on the other hand, did have the authority to construct the canal ( Jackson and Paterson 1977). According to DWR plans, the canal would be a 43-mile earth channel, 400 to 500 feet wide and 20 to 30 feet deep, with levees on both sides. The canal would be located along the eastern perimeter of the Delta. As currently planned, it would start at the Sacramento River about 18 miles south of the city of Sacramento, progress in a southeasterly direction toward the city of Stockton, cross the San Joaquin River about 5 miles west of Stockton, then continue in a southwesterly direction and terminate at the State and Federal pumping plant facilities for the California Aqueduct and Delta-Mendota Canal. The proposed canal generally parallels the I-5 alignment, about 2 miles to the west. 8http://bayDeltaconservationplan.com/2015news/2010-2014news/2012-2014bdcpblog/14-05-22/Principles_for_Sharing_Design_ and_Construction_Oversight_for_Proposed_New_Water_Facilities.aspx 9 http://www.water.ca.gov/swp/swptoday.cfm 10 Section 10 of the Endangered Species Act is designed to regulate a wide range of activities affecting plants and animals designated as endangered or threatened, and the habitats upon which they depend. With some exceptions, the ESA prohibits activities affecting these protected species and their habitats unless authorized by a permit from the Service or the National Oceanic and Atmospheric Administration - Fisheries. Permitted activities are designed to be consistent with the conservation of the species. 11http://bayDeltaconservationplan.com/Libraries/Dynamic_Document_Library/BDCP_Restoring_the_Delta_Ecosystem_Fact_ Sheet_3-14-13.sflb.ashx 12 Section 7 of the Act, called “Interagency Cooperation,” is the mechanism by which Federal agencies ensure the actions they take, including those they fund or authorize, do not jeopardize the existence of any listed species. Under Section 7, Federal agencies must consult with the U.S. Fish and Wildlife Service (Service) when any action the agency carries out, funds, or authorizes (such as through a permit) may affect a listed endangered or threatened species. This process usually begins as informal consultation. A Federal agency, in the early stages of project planning, approaches the Service and requests informal consultation. Discussions between the two agencies may include what types of listed species may occur in the proposed action area, and what effect the proposed action may have on those species. If the Federal agency, after discussions with the Service, determines that the proposed action is not likely to affect any listed species in the project area, and if the Service concurs, the informal consultation is complete and the proposed project moves ahead. If it appears that the agency’s action may affect a listed species, that agency may then prepare a biological assessment to assist in its determination of the project’s effect on a species. 13 http://resources.ca.gov/ecorestore/ 14 http://resources.ca.gov/ecorestore/ 15 http://Deltacouncil.ca.gov/Delta-levees-investment-strategy-issue-paper 16 https://drive.google.com/a/ucdavis.edu/file/d/0Bw2hbJKvwe7OUVMzb1p4QlByU28/view?usp=sharing 17 “The EIR should include enough background information and detail so that the reader can comprehend the DLIS interpretation of state interests without having to refer to multiple technical reports produced by the DLIS consultants”. 18 http://www.water.ca.gov/floodsafe/fessro/environmental/dee/docs/bulkcreditprocess.pdf 19 http://www.sjfb.org/news/288-Delta-wetland-project-resurrected.html 20 http://www.water.ca.gov/floodsafe/fessro/docs/special_PSP2014.pdf 21 http://resources.-ca.gov/docs/ecorestore/projects/McCormack_Williamson_Tract.pdf 22 The White House defines grand challenges as, “ambitious but achievable goals that harness science, technology, and innovation to solve important national or global problems and that have the potential to capture the public’s imagination” (https://www.whitehouse. gov/administration/eop/ostp/grand-challenges). 23 The introduction to the Delta Science Plan states that, “[t]oday’s Delta scientists have the responsibility to conduct science and communicate scientific results in a manner that informs decision-makers’ actions to achieve the coequal goals of a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem, and to do so in a manner that protects and enhances the unique cultural, recreational, natural resource, and agricultural values of the Delta as an evolving place (Water Code §85054)” (Delta Science Plan, 2013). 24 From DISB prospectus, “The Board is concerned with how little research is being undertaken on what Delta values are and how they might be protected and enhanced in the context of the Delta as an evolving place. We sense that more research, both through Delta agencies and by academic scholars through the usual sources of academic funding, could help clarify what Delta values are and how they could be brought into Delta decision making” (DISB 2015). 25 Moyle and Lund thoroughly debunk the imminent collapse narrative in their May 23, 2015 Op-Ed in the Sacramento Bee entitled, Delta ecosystem is in a constant state of change (http://www.sacbee.com/opinion/california-forum/article21621063.html). Despite this debunking, the narrative imminent ecological collapse is still being used by advocates of large scale infrastructure projects such as the BDCP or Delta Wetlands, who position their projects as necessary and remediative. 26 http://reconciliationecology.com/definition.html 27 http://www.spk.usace.army.mil/Portals/12/documents/civil_works/Delta/DILFS/Delta%20Study%20Draft%20Integrated%20 Human use of Restored and Naturalized Delta Landscapes 77 Appendix FSEIS.pdf 28 http://www.spk.usace.army.mil/Portals/12/documents/civil_works/Delta/DILFS/Delta%20Study%20Draft%20Integrated%20 FSEIS.pdf 29 The Delta Restoration Network (DRN) is a forum information sharing and coordination to ensure an integrated and accountable restoration program in the Delta. The DRN coordinates and integrates restoration actions, ensuring integrated performance tracking among governmental and non-governmental entities engaged in restoration and habitat management in the Delta and Suisun Marsh (http://Deltaconservancy.ca.gov/Delta-restoration-network-0/) 30 As a representative of the DC, Ingram has been tasked with the establishment of the Conservancy, “as a valuable partner with Delta growers, agriculture-related businesses, and residents in protecting and enhancing the Delta’s agricultural and working landscapes and sense of place”. In 2012, the Sacramento-San Joaquin Delta Conservancy (Conservancy) completed a 5-year strategic plan to achieve its vision, mission, and key priorities. The plan established goals and objectives and identified several strategies to “protect, enhance, and restore the Delta’s economy, agriculture, and working landscapes, and environment for the benefit of the Delta region, its local communities, and the citizens of California” (Delta Conservancy, 2012). The vision, mission, and key priorities of the DC imbricates this agency in all of the infrastructural and restoration planning processes in the Delta. 31 http://mavensnotebook.com/2015/12/01/Delta-plan-interagency-implementation-committee-pt-1-Delta-challenges-complex- chaotic-or-simply-cantankerous/ 32 Northeast Delta Landscape Vision and Strategy https://drive.google.com/a/ucdavis.edu/file/ d/0Bw2hbJKvwe7OTHNzdGF3QTE2cHM/view?usp=sharing 33 A NHA is a region designated by the United States Congress, where natural, cultural, historical, and recreational resources combine to form a cohesive, nationally-distinctive landscape arising from patterns of human activity shaped by geography. (http://www.Delta. ca.gov/Delta_NHA_Proposal.htm) 34 https://drive.google.com/a/ucdavis.edu/file/d/0B743VNXjb-T-b25oLURCU21zVFE/view?usp=sharing 35 For example see, Chapter 10 Local Protection Measures (http://www.Delta.ca.gov/res/docs/12%20Chapter%2010%20-%20 Local%20Protection%20Measures.pdf )and Appendix 6 Right to Farm Ordinances (http://www.Delta.ca.gov/res/docs/20%20 Appendix%206%20-%20Right-to-Farm%20Ordinances.pdf ) 36 “there is a large presence of makeshift docks and hideaways along many of the shores of the central Delta, suggesting that there is a deficit of day-use and overnight facilities in the Delta as well as a demand for shore-edge type access points and day-use facilities.” The Delta Recreation Master Strategy – Phase One Aquatic Resources, pg. 66 37 According to Wes Jackson, We can suppose that the eyes-to-acres ratio is approximately correct, “when a place is thriving in human use and care. The sign of its thriving would be the evident good health and diversity, not just of its crops and livestock but also of its population of native and noncommercial creatures, including the community of creatures living in the soil. Equally indicative and necessary would be the signs of a thriving local and locally adapted human economy”. 38 The Department of Fish and Game, in cooperation with other public agencies, should collaborate with nonprofits, private landowners, and business partners to expand wildlife viewing, angling, and hunting opportunities (DSC 2013). 39 “Because the total impacts within the project area are substantially reduced for Alternatives 4A, 2D, 15 and 5A, this commitment only applies to Alternatives 1A, 1B, 1C, 2A, 2B, 2C, 3, 4, 5, 6A, 6B, 6C, 7, 8 16 and 9.” (http://bayDeltaconservationplan.com/ RDEIRS/Ap_A_Rev_DEIR-S/App_3B_EnvCommit.pdf ) 40 https://www.fws.gov/endangered/esa-library/pdf/Conservation_Banking_Guidance.pdf

Human use of Restored and Naturalized Delta Landscapes 78 Appendix LAW REVIEW

This appendix section is intended to accompany the Law Review Chapter 4. of the technical report.

FEDERAL LAWS

Federal laws lay the foundation of environmental protection and public access to navigable waters in the Delta. The key environmental laws, including the National Environmental Protection Act (NEPA), the Endangered Species Act (ESA), the Clean Water Act (CWA), were passed in the early 70’s. However, the Delta was utterly transformed by the passage, in 1850, of the Federal Swampland Act, which catalyzed the conversion of wetlands to agricultural land1. The nuances of the ESA are coming to the fore with the recent transition of the BDCP from section 10 to section 7 permitting.

National Environmental Protection Act (NEPA) NEPA requires that all executive federal agencies prepare environmental assessments (EAs) and environmental impact statements (EISs). These reports state the potential environmental effects of proposed federal agency actions. Endangered Species Act (ESA) The federal ESA prohibits or place conditions on actions that may threaten the continued existence of listed species, including in some cases alteration of the critical habitat. These laws also prohibit the “taking” of any member of a protected species unless authorized by a biological opinion or by a permit that is consistent with an approved program to protect the species’ habitat. The federal ESA identifies these programs as habitat conservation plans or “HCPs”2.

The State of California’s Natural Community Conservation Planning (NCCP) program began in 1991 as a cooperative effort to protect habitats and species. It is broader in its orientation and objectives than the California and Federal ESA’s, as these laws are designed to identify and protect individual species that have already declined in number significantly.

The ESA a driving force behind ecological restoration in the Delta. “Waterfix”, the newest sub-alternatives to BDCP changes the fundamental permitting the project. Lead agencies will no longer seek the 50-year, Section 103 permits that would have accompanied approval as a HCP and NCCP. Instead lead agencies have resorted to a more conventional approach and seek incidental take authorization through Section 74 of the federal ESA and Section 2081(b) of the California ESA.

Under the newest iteration, the habitat restoration and related conservation measures originally proposed with the BDCP would not be included with new sub-alternatives except to the extent required for mitigation. The habitat restoration measures instead will be implemented in a separate program, California EcoRestore, which will be implemented by the Natural Resources Agency5. Clean Water Act (CWA) The CWA outlines the beneficial uses of waterways, including water-based recreation, subject to regulation. Swamp Land Act of 1850 This Federal Law provided a mechanism for reverting title of federally owned swamp and overflowed land to states which would agree to drain the land and turn it to productive use. We include this act, which is no longer active, as a historic reference point for the legal mechanism that transformed the Delta from what it was to what it currently is.

Swamp lands include marshes and intermittent ponds which do not have effective natural drainage, particularly where such conditions are long continued.6 Overflowed lands include essentially the lower levels within a stream floodplain as distinguished from the higher levels, according to the characteristic effect of submergence where long continued.7 Reclamation Act (also known as the Lowlands Reclamation Actor National Reclamation Act) of 1902 funded irrigation projects for the arid lands of 20 states in the American West. The Act of September 9, 1850, ch. 50, 9 Stat. 452, 453 insists that public access be maintained by new States admitted to the Union.

The congressional act admitting the State of California into the union declares that “all the navigable waters within the said state shall be common highways, and forever free ... to the inhabitants of said state as to the citizens of the United States, without any tax, impost or duty therefor” (Stevens [date unknown]).

Human use of Restored and Naturalized Delta Landscapes 79 Appendix Reclamation Recreation Management Act (RRMA) RMMA of 1992 authorizes the U.S. Bureau of Reclamation to cost-share up to 50 percent of the cost of operating and maintaining recreation facilities at federal lands and waters under its jurisdiction.

Federal Power Act (FPA) Section 10a of the FPA requires the Federal Energy Regulatory Commission (FERC) to consider other beneficial public uses in adopting a new license for hydropower facilities, including recreation.

North American Wetlands Conservation Act (103 Stat. 1968; 16 U.S.C. 4401-4412) -- Public Law 101-233, enacted December 13, 1989, provides funding and administrative direction for implementation of the North American Waterfowl Management Plan and the Tripartite Agreement on wetlands between Canada, U.S. and Mexico.

CALIFORNIA STATE LAWS

The state laws of California relevant to human use in restored and naturalized Delta landscapes come from a variety of sources within the jurisprudence. Environmental regulation largely mirrors that which exists on the Federal level. However, California has its own unique interpretation of the Public Trust Doctrine, which recognizes the value of recreational benefits and the benefits that come from the preservation of sovereign lands in their “natural state”. Stipulations related to recreation recognizes recreation as a public trust use of water that must be considered when managing tidelands and navigable waters and their tributaries. Stipulations related to the non-human environment recognize that wild animals are common property and should be managed in the public trust.

Beneficiaries pays refers to the concept of funding work in and for the Delta through payments from those who benefit or are responsible for its problems. The California State constitution allows for the levying of regulatory fees to support legitimate state regulatory programs, such as those that manage fish populations, levee maintenance, ecological health, and water deliveries from the Delta. These funds can then be used to pay for the administrative costs of the regulatory program and for correcting any harm caused by the regulated activities. The constitutional stipulations are vague regarding the nature and latitude of state fees and there have been few court cases on the subject. This concept is related to the Davis Dolwig act, which established the state policy that the costs of preservation (considered similar to mitigation) of fish and wildlife are to be paid by water supply contractors, and recreation and enhancement of fish and wildlife are to be paid by appropriations from the general fund.

The California Water code and Public Resources code have Delta specific sections meant to guide the governance of certain Delta- specific agencies and planning processes.

The California Recreational Use Statute (RUS) limits private landowner liability, where no fee is charged for use. The California Tort Claims act in effect extends the RUS to public entities. However, the California Penal code outlines laws related to trespass on private property. Particular emphasis is given to trespass on agricultural land and malicious interference with water-related infrastructure.

Additional laws of relevance to the Delta include those which relate to water rights and cost -sharing agreements associated with the state water project. Beneficiary pays (vice versa i.e. those that pay should benefit) Beneficiaries pay in the Delta refers to the concept of funding work in and for the Delta through payments from those who benefit or are responsible for its problems. Exercise of this concept has strong historical precedent, economic rationality, and legal defensibility on its side. However, the challenge of defining both beneficiaries and benefits continues to spawn considerable contestations. The status quo has been to use public money from the California general fund or general obligation bonds. Given the highly political nature of defining beneficiaries and benefits it is likely that some version of the status quo will remain. In light of this reality, some have called for the exercise of the inverse of beneficiaries pay (i.e those that pay should benefit) to insure that the public can see or experience the tangible “benefits” from the projects funded through the general fund or general obligation bonds. Benefits which may include such things as enhanced recreation opportunities, increased public access, tangible improvements in overall ecological health.

Given the regulatory powers the state exercises in the Delta, the legally allowable scope for Delta fees is expansive8. Therefore the law does not constrain the state from levying fees, rather constraints are placed by political considerations and practical economics. These are intractable constraints, however there is a potential to use public funding to soften the transition towards a stricter beneficiaries pays system.9 Human use of Restored and Naturalized Delta Landscapes 80 Appendix This concept is related to the Davis Dolwig act, which established the state policy that the costs of preservation (considered similar to mitigation) of fish and wildlife are to be paid by water supply contractors, and recreation and enhancement of fish and wildlife are to be paid by appropriations from the general fund.

California Constitution Article 10A Water Resources Development

Section 2. No statute amending or repealing, or adding to, the provisions of the statute enacted by Senate Bill No. 200 of the 1979- 80 Regular Session of the Legislature which specify (1) the manner in which the State will protect fish and wildlife resources in the Sacramento-San Joaquin Delta, Suisun Marsh, and San Francisco Bay system westerly of the Delta; (2) the manner in which the State will protect existing water rights in the Sacramento-San Joaquin Delta; and (3) the manner in which the State will operate the State Water Resources Development System to comply with water quality standards and water quality control plans, shall become effective unless approved by the electors in the same manner as statutes amending initiative statutes are approved; except that the Legislature may, by statute passed in each house by roll call vote entered in the journal, two-thirds of the membership concurring, amend or repeal, or add to, these provisions if the statute does not in any manner reduce the protection of the Delta or fish and wildlife. California Environmental Quality Act (CEQA) California statute passed in 1970, shortly after the United States federal government passed NEPA, to institute a statewide policy of environmental protection. CEQA does not directly regulate land uses, but instead requires state and local agencies within California to follow a protocol of analysis and public disclosure of environmental impacts of proposed projects and adopt all feasible measures to mitigate those impacts. CEQA makes environmental protection a mandatory part of every California state and local agency’s decision making process.

Natural Communities Conservation Planning Act (NCCPA) The primary objective of the Natural Community Conservation Planning (NCCP) program is to conserve natural communities at the ecosystem level while accommodating compatible land use. The program seeks to anticipate and prevent the controversies and gridlock caused by species’ listings by focusing on the long-term stability of wildlife and plant communities and including key interests in the process. Public Trust Doctrine The foundational principle of the Public Trust Doctrine is that it is, an“ affirmative duty of the state to protect the people’s common heritage in navigable waters for their common use”10. The traditional uses allowed under the Public Trust Doctrine, i.e. water-related commerce, navigation, and fisheries, are highly relevant within the Delta.

Seminal court cases have found that the public uses to which sovereign lands are subject can change to encompass evolving public needs and desires. Furthermore, the preservation of sovereign lands in their “natural state”, to serve as ecological units for scientific study, open space, and environments which provide habitat for birds and marine life, are appropriate uses under the common law Public Trust Doctrine. Courts have also ruled that access sovereign lands subject to the Public Trust Doctrine cannot be cut off (alienated) through sale into private ownership.

In California, the Legislature, as both trustee and trustor of sovereign lands, has enacted provisions involving the uses of sovereign lands found primarily in the Public Resources Code and uncodified statutes involving local governments. These laws are in addition to those contained in the California Constitution.

Below is a summary of laws relevant to human use, ecological restoration and general water rights in the Delta:

Recreation California Constitution, Article 10, Section 4, states, “No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof.”

California’s Bill of Rights, Article 1, Section 25 states, “The people shall have the right to fish upon and from the public lands of the state and in the waters thereof.”

The Harbors and Navigation Code, Section 68-68.2, states, [T]he“ Legislature hereby finds and declares that there is a statewide and

Human use of Restored and Naturalized Delta Landscapes 81 Appendix continuing interest in the public’s use of the state’s inland waterways for recreational purposes. The Legislature further finds and declares that there exists a need to provide for recreational resource planning of the waterways in a manner that provides access and utilization for recreational purposes.” Section 100 reiterates, “Navigable waters and all streams of sufficient capacity to transport the products of the country are public ways for the purpose of navigation and of such transport.” 11

The public trust doctrine recognizes recreation as a public trust use of water that must be considered when managing tidelands and navigable waters and their tributaries (California State Lands Commission 2001, 2010). California’s Public Resources Code, Section 6301, gives the California State Lands Commission (SLC) jurisdiction over these lands.

Recreational access is protected and encouraged in regional laws throughout California, including those described below:

The California Coastal Act, managed by the California Coastal Commission, protects public access to the coastline and tidelands. The Delta Reform Act of 2009 states that one of the fundamental goals for managing land in the Sacramento-San Joaquin Delta (Delta) is to “[m]aximize public access to Delta resources and maximize public recreational opportunities in the Delta” (California Water Code [CWC] Section 85022[d][3]). The Integrated Regional Water Management Planning Act requires integrated regional water management (IRWM) plans (IRWMPs) to consider California Water Plan recommendations related to recreational access (CWC Section 10541[e][1]).

Ecological Restoration Tidelands In Marks v. Whitney, the California Supreme Court noted: “The public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs...There is a growing public recognition that one of the most important public uses of the tidelands–a use encompassed within the tideland trust–is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area.”

Non-Tidal Inland Waters Attorney General Dan Lungren advised that Public Trust uses could exercised even on dry portions of the South Fork of the American River. Letter to Hon. David Knowles, Op. No. 92-206 (June 15, 1992).12

Wild Creatures (ferae naturae) Wild creatures (ferae naturae) are protected by the trust. “[I]t is well settled that wild animals are not the private property of those whose land they occupy but are instead a sort of common property whose control and regulation are to be exercised ‘as a trust for the benefit of the people.’” Mountain States Legal Foundation v. Hodel, 799 F.2d 1423 (10th Cir. 1986) quoting Geer v. Connecticut, 161 U.S. 519, 528- 529 (1896), overruled on other grounds, Hughes v. Oklahoma, 441 U.S. 322 (1970); see Ex parte Maier, ; People v. Truckee Lumber Co.13

General Water Rights With specific relevance to the Delta, It is acknowledged that the Legislature may “as a matter of current and historical necessity...authorize the diversion of water to distant parts of the state, even though unavoidable harm to trust sues at the source stream may result.” Id 33 Cal.3d at 446.

The California Supreme court issued a decisive ruling in National Audubon Society v. Superior Court (1983) that clarified the role of the public trust doctrine in California water law. Though the decision essentially obligated a reduction in diversions to a level that would protect public trust resources. The court’s decision did not place the public trust doctrine above other water laws in California, rather, the court decided that the state should “attempt, so far as feasible, to avoid or minimize any harm to those [public trust] interests”. National Audubon Society v. Superior Court, 33 Cal.3d 419, 446-447 (1983), cert. denied 454 U.S. 977 (1983). In doing so the court expressly rejected a state argument that the constitutional reasonable and beneficial use provisions had “subsumed” the public trust, and the State Water Resources Control Board has adopted regulations providing for its application in water rights proceedings.

Judge Richard Hodge in EDF v. EBMUD, Alameda County Superior Court No. 425955, ruled that the state must “...balance and accommodate all legitimate competing interests in a body of water”. The Hodge decision struggles with Audubon’s direction to take the public trust into account and protect public trust uses consistently with the “fullest beneficial use” provisions of Article X, section 2 of the California Constitution, and concludes that such reconciliation does not require “precise adjudication” in this case because both interests can be accommodated by limitation of diversions. Human use of Restored and Naturalized Delta Landscapes 82 Appendix On the rights of a state to prohibit diversions from a river against the admitted property rights of a water company,

Few public interests are more obvious, indisputable and independent of particular theory than the interest of the public of a State to maintain the rivers that are wholly within it substantially undiminished, except by such drafts upon them as the guardian of the public welfare may permit for the purpose of turning them to a more perfect use. The public interest is omnipresent wherever there is a state, and grows more pressing as population grows. It is fundamental, and we are of opinion that the private property of riparian proprietors cannot be supposed to have deeper roots...The private right to appropriate is subject not only to the rights of lower owners but to the initial limitation that it may not substantially diminish one of the great foundations of public welfare and health. County Water Co. v. McCarter, 209 U.S. 349, 356 (1908).

CALIFORNIA STATE CODES14

California Civil Code

California Recreational Use Statute (RUS) (Cal. Civ. Code § 846.1).

The California RUS provide protects private landowners who allow the public to use their land for recreational purposes (provided they do not charge a fee). A person injured on land made available to the public for recreational use must prove that the landowner deliberately intended to harm him or her. RUSs are intended to limit landowners’ liability to encourage them to make their land available for public recreation.

Civil Code section 670. “The State is the owner of all land below tide water, and below ordinary high-water mark, bordering upon tide water within the State; of all land below the water of a navigable lake or stream; of all property lawfully appropriated by it to its own use; of all property dedicated to the State; and of all property of which there is no other owner”.

Civil Code section 830 describes the public trust easement that occurs between the ordinary high and low water mark of non- tidal waterways.

“Except where the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on tide water, takes to ordinary high-water mark; when it borders upon a navigable lake or stream, where there is no tide, the owner takes to the edge of the lake or stream, at low-water mark; when it borders upon any other water, the owner takes to the middle of the lake or stream”.

CALIFORNIA PUBLIC RESOURCES CODE

Delta Specific:

DIVISION 5. CHAPTER 12. THE GREAT CALIFORNIA DELTA TRAIL SYSTEM

In accordance with the requirements of subdivision (c), the commission shall develop and adopt a plan and implementation program, including a finance and maintenance plan, for a continuous regional recreational corridor that will extend around the Delta, including, but not limited to, the Delta’s shorelines in Contra Costa, Solano, San Joaquin, Sacramento, and Yolo Counties. This plan shall link the San Francisco Bay Trail system to the planned Sacramento River trails in Yolo and Sacramento Counties. This plan shall include a specific route of a bicycling and hiking trail, the relationship of the route to existing and proposed park and recreational facilities and land and water trail systems, and links to existing and proposed public transportation and transit. The transportation and transit links may include, but are not limited to, roadside bus stops, transit facilities, and transportation facilities. The continuous regional recreational corridor planned and executed pursuant to this chapter shall be called the Great California Delta Trail. The continuous regional recreational corridor shall include, but not be limited to, bikeway systems, and hiking and bicycling trails.

Human use of Restored and Naturalized Delta Landscapes 83 Appendix The Great California Delta Trail plan shall do all of the following:

(1) Provide that designated environmentally sensitive areas, including wildlife habitats and wetlands, shall not be adversely affected by the trail. (2) Provide for appropriate buffer zones along those portions of the bikeway system adjacent to designated environmentally sensitive areas and areas with private uses, when appropriate. (3) Provide that the land and funds used for any purposes under this chapter are not considered mitigation for wetlands losses. (4) Provide alternative routes to avoid impingement on environmentally sensitive areas, traditional hunting and fishing areas, and areas with private uses, when appropriate. (5) Provide that no motorized vehicles, except to the extent necessary for emergency services, including, but not limited to, medical and structural emergencies, and for handicap access, be allowed on the trail. (c) The commission may develop and adopt the plan and the implementation program if it receives sufficient funds, from sources other than the General Fund, to finance the full costs of developing and adopting the plan. The commission shall submit the plan and the implementation program to the Legislature and each of the counties within the commission’s service area not later than two years after the commission determines that sufficient funds will be available to complete the plan and implementation program. (d) The commission shall administer the funds used in the planning of the trail.

DIVISION 19.5. DELTA PROTECTION ACT

DIVISION 22.3. SACRAMENTO-SAN JOAQUIN DELTA CONSERVANCY

California Recreational Trails Act The 1974 California Recreational Trails Act aimed to “encourage hiking, horseback riding, and bicycling as important contributions to the health and welfare of the state’s population” . The State has recognized 26 different trail corridors as part of the Recreational Trail Act, including several trail corridors that passes through the Sacramento-San Joaquin Delta.

Miscellany

PART 1. ADMINISTRATION AND CONTROL OF STATE LANDS

CHAPTER 4. ADMINISTRATION AND CONTROL OF SWAMP, OVERFLOWED, TIDE, OR SUBMERGED LANDS, AND STRUCTURES THEREON Article 1. Administration and Control Generally ...... 6301-6320 Article 2. Control of Structures ...... 6321-6327 Article 2.5. Survey and Mapping of Ungranted Tide and Submerged Lands ...... 6331-6342 Article 3. Procedure on Establishment of Ordinary High-Water and Low-Water Mark ...... 6357-6360

California Tort Claims Act

California’s Tort Claims Act provides public entities and their employees broad immunity from lawsuits similar to the protections provided by the California RUS. The Tort Claims Act provides that public entities cannot be sued under common law or generally applicable principles of tort law or negligence (e.g., Cal. Civ. Code §1714). In order for a public entity to be held liable for an injury, the injury must have been caused by a dangerous condition of their property (Gov. Code §835).

CALIFORNIA FISH AND GAME CODE

CHAPTER 2. PARTICULAR VARIETIES OF FISH Article 4. Bay-Delta Sport Fishing ...... 7361-7364

CHAPTER 10. NATURAL COMMUNITY CONSERVATION PLANNING ACT ...... 2800-2835

*see Natural Community Conservation Planning Act under California State Laws section

Human use of Restored and Naturalized Delta Landscapes 84 Appendix California Water Code

12840. Notwithstanding any other provisions of Chapter 2 (commencing with Section 12639) and Chapter 3 (commencing with Section 12800), the policy set forth in this chapter shall apply to watershed protection and flood prevention projects under Chapter 4 (commencing with Section 12850), to small watershed projects approved by the State Conservationist of the United States Department of Agriculture, to small flood control projects authorized by Section 12750, and to flood control projects authorized by Congress and adopted and authorized by the Legislature pursuant to Chapter 2 (commencing with Section 12639). It is not the intent of this chapter to affect the responsibility for the maintenance and operation of those projects pursuant to the applicable provisions of law.

12841. The Legislature finds and declares that in order to protect the general health and welfare of the public it is necessary to provide for the preservation and enhancement of the state’s fish and wildlife resources in connection with flood control and watershed protection projects and to realize the full potential of such projects to provide recreational opportunities to the general public.

The Legislature further finds and declares that in order to enhance the general public health and welfare it is necessary that all flood control and watershed protection projects be designed, constructed, and operated so as to realize their full potential for the enhancement of the state’s fish and wildlife resources and to provide recreational opportunities to the general public. The Legislature further finds and declares that the realization of fish and wildlife enhancement opportunities and the provision of recreational opportunities is of benefit to all of the people of California and that a portion of the costs of realizing these benefits from federal flood control and watershed protection projects should be borne by them.

The Legislature further finds and declares that fish and wildlife enhancement and recreational development should be among the purposes of all federal flood control and watershed protection projects and that opportunities to attain these benefits should be realized concurrently with the realization of benefits from other project purposes.

12842. The Legislature further finds and declares that it is the intent of the Legislature that the planning and construction of all flood control and watershed protection projects shall include such features as may be determined to be necessary and desirable to preserve and enhance the state’s fish and wildlife resources and to achieve the full utilization of such projects for recreational purposes consistent with the construction and operation of such projects to protect life and property.

9616. (a) The plan shall include a description of both structural and nonstructural means for improving the performance and elimination of deficiencies of levees, weirs, bypasses, and facilities, including facilities of the State Plan of Flood Control, and, wherever feasible, meet multiple objectives, including each of the following:

Human use of Restored and Naturalized Delta Landscapes 85 Appendix (1) Reduce the risk to human life, health, and safety from flooding, including protection of public safety infrastructure. (2) Expand the capacity of the flood protection system in the Sacramento-San Joaquin Valley to either reduce floodflows or convey floodwaters away from urban areas. (3) Link the flood protection system with the water supply system. (4) Reduce flood risks in currently nonurbanized areas. (5) Increase the engagement of local agencies willing to participate in improving flood protection, ensuring a better connection between state flood protection decisions and local land use decisions. (6) Improve flood protection for urban areas to the urban level of flood protection. (7) Promote natural dynamic hydrologic and geomorphic processes. (8) Reduce damage from flooding. (9) Increase and improve the quantity, diversity, and connectivity of riparian, wetland, flood plain, and shaded riverine aquatic habitats, including the agricultural and ecological values of these lands. (10) Minimize the flood management system operation and maintenance requirements. (11) Promote the recovery and stability of native species populations and overall biotic community diversity. (12) Identify opportunities and incentives for expanding or increasing use of floodway corridors. (13) Provide a feasible, comprehensive, and long-term financing plan for implementing the plan. (14) Identify opportunities for reservoir reoperation in conjunction with groundwater flood storage. (b) The plan shall include a prioritized list of recommended actions to reduce flood risks and meet the objectives described in subdivision (a).

PART 4.5. SACRAMENTO-SAN JOAQUIN DELTA

The Legislature hereby finds that the water problems of the Sacramento-San Joaquin Delta are unique within the State; the Sacramento and San Joaquin Rivers join at the Sacramento-San Joaquin Delta to discharge their fresh water flows into Suisun, San Pablo and San Francisco Bays and thence into the Pacific Ocean; the merging of fresh water with saline bay waters and drainage waters and the withdrawal of fresh water for beneficial uses creates an acute problem of salinity intrusion into the vast network of channels and sloughs of the Delta; the State Water Resources Development System has as one of its objectives the transfer of waters from water-surplus areas in the Sacramento Valley and the north coastal area to water-deficient areas to the south and west of the Sacramento-San Joaquin Delta via the Delta; water surplus to the needs of the areas in which it originates is gathered in the Delta and thereby provides a common source of fresh water supply for water-deficient areas. It is, therefore, hereby declared that a general law cannot be made applicable to said Delta and that the enactment of this law is necessary for the protection, conservation, development, control and use of the waters in the Delta for the public good.

PART 4.8. DELTA FLOOD PROTECTION

PART 9. DELTA LEVEE MAINTENANCE

12981. (a) The Legislature finds and declares that the Delta is endowed with many invaluable and unique resources and that these resources are of major statewide significance.

(b) The Legislature further finds and declares that the Delta’s uniqueness is particularly characterized by its hundreds of miles of meandering waterways and the many islands adjacent thereto; that, in order to preserve the Delta’s invaluable resources, which include highly productive agriculture, recreational assets, fisheries, and wildlife environment, the physical characteristics of the Delta should be preserved essentially in their present form; and that the key to preserving the Delta’s physical characteristics is the system of levees defining the waterways and producing the adjacent islands. However, the Human use of Restored and Naturalized Delta Landscapes 86 Appendix Legislature recognizes that it may not be economically justifiable to maintain all Delta islands. (c) The Legislature further finds and declares that funds necessary to maintain and improve the Delta’s levees to protect the Delta’s physical characteristics should be used to fund levee work that would promote agricultural and habitat uses in the Delta consistent with the purpose of preserving the Delta’s invaluable resources.

12995. (a) The Legislature hereby finds and declares both of the following:

(1) There is an urgent need for rehabilitation and improvement of Delta levees, and that the United States Army Corps of Engineers has a crucial and continuing role in that work. (2) The department and the board have been cooperating with the United States Army Corps of Engineers in a feasibility study for rehabilitation and improvement of the levees in the Delta. That feasibility study identified a federal interest in levee rehabilitation and improvements due to benefits to navigation, commerce, the environment, and flood damage reduction. (b) The department and the board may cooperate with the United States Army Corps of Engineers to develop and implement Delta levee rehabilitation, improvement, and realignment, and to enhance the environment.

DIVISION 24. SAFE, CLEAN, RELIABLE WATER SUPPLY ACT CHAPTER 4. DELTA IMPROVEMENT PROGRAM Article 1. The Delta Improvement Account ...... 78525-78526 Article 2. Central Valley Project Improvement Program ...... 78530-78531 Article 3. Bay-Delta Agreement Program ...... 78535-78538 Article 4. Delta Levee Rehabilitation Program ...... 78540-78545 Article 5. South Delta Barriers Program ...... 78550-78552 Article 6. Delta Recreation Program ...... 78560-78568

The Department of Parks and Recreation may use funds in the subaccount for grants to local public agencies and nonprofit organizations for the purposes of acquiring fee title, development rights, easements, or other interests in land located in the Delta to provide for, or improve, public access in the Delta. The amount of any grant and the degree of local participation shall be determined by the fiscal resources of the grant applicant, the degree of public benefit provided by the proposed project, and other factors prescribed by the Department of Parks and Recreation.

Article 7. CALFED Bay-Delta Program ...... 78570-78572

DIVISION 26. SAFE DRINKING WATER, CLEAN WATER, WATERSHED PROTECTION, AND FLOOD PROTECTION ACT CHAPTER 5. FLOOD PROTECTION PROGRAM Article 3. Delta Levee Rehabilitation Program ...... 79045-79052

DIVISION 35. SACRAMENTO-SAN JOAQUIN DELTA REFORM ACT OF 2009 PART 1. GENERAL PROVISIONS CHAPTER 1. SHORT TITLE AND LEGISLATIVE FINDINGS ...... 85000-85004 CHAPTER 2. DELTA POLICY ...... 85020-85023

The fundamental goals for managing land use in the Delta are to do all of the following: (1) Protect, maintain, enhance, and, where feasible, restore the overall quality of the Delta environment and its natural and artificial resources. (2) Ensure the utilization and conservation of Delta resources, taking into account the social and economic needs of the people of the state. (3) Maximize public access to Delta resources and maximize public recreational opportunities in the Delta consistent with sound resources conservation principles and constitutionally protected rights of private property owners. (4) Encourage state and local initiatives and cooperation in preparing procedures to implement coordinated planning and development for mutually beneficial uses, including educational uses, in the Delta. (5) Develop new or improved aquatic and terrestrial habitat and protect existing habitats to advance the goal of restoring and enhancing the Delta ecosystem. (6) Improve water quality to protect human health and the environment consistent with achieving water quality objectives in the Delta.

Human use of Restored and Naturalized Delta Landscapes 87 Appendix CHAPTER 3. MISCELLANEOUS PROVISIONS ...... 85031-85034 CHAPTER 4. DEFINITIONS ...... 85050-85067 PART 2. EARLY ACTIONS ...... 85080-85089 PART 3. DELTA GOVERNANCE CHAPTER 1. DELTA STEWARDSHIP COUNCIL ...... 85200-85204 CHAPTER 2. MISSION, DUTIES, AND RESPONSIBILITIES OF THE COUNCIL ...... 85210-85214 CHAPTER 3. CONSISTENCY OF STATE AND LOCAL PUBLIC AGENCY ACTIONS ...... 85225-85225.30 CHAPTER 4. DELTA WATERMASTER ...... 85230

The Delta Watermaster shall exercise the board’s authority to provide timely monitoring and enforcement of board orders and license and permit terms and conditions. The Delta Watermaster’s delegated authority shall include authority to require monitoring and reporting, authority for approvals delegated to an officer or employee of the board by the terms of a water right permit or license, authority to approve temporary urgency changes pursuant to Chapter 6.6 (commencing with Section 1435) of Part 2 of Division 2, and authority to issue a notice of a proposed cease and desist order or administrative civil liability complaint. The Delta Watermaster’s authority shall be limited to diversions in the Delta, and for the monitoring and enforcement of the board’s orders and license and permit terms and conditions that apply to conditions in the Delta.

CHAPTER 5. DELTA INDEPENDENT SCIENCE BOARD AND DELTA SCIENCE PROGRAM ...... 85280 PART 4. COMPREHENSIVE DELTA PLANNING CHAPTER 1. THE DELTA PLAN ...... 85300-85309 CHAPTER 2. BAY DELTA CONSERVATION PLAN ...... 85320-85322

(b) The BDCP shall not be incorporated into the Delta Plan and the public benefits associated with the BDCP shall not be eligible for state funding, unless the BDCP does all of the following: (1) Complies with Chapter 10 (commencing with Section 2800) of Division 3 of the Fish and Game Code. (2) Complies with Division 13 (commencing with Section 21000) of the Public Resources Code, including a comprehensive review and analysis of all of the following:

(A) A reasonable range of flow criteria, rates of diversion, and other operational criteria required to satisfy the criteria for approval of a natural community conservation plan as provided in subdivision (a) of Section 2820 of the Fish and Game Code, and other operational requirements and flows necessary for recovering the Delta ecosystem and restoring fisheries under a reasonable range of hydrologic conditions, which will identify the remaining water available for export and other beneficial uses. (B) A reasonable range of Delta conveyance alternatives, including through-Delta, dual conveyance, and isolated conveyance alternatives and including further capacity and design options of a lined canal, an unlined canal, and pipelines. (C) The potential effects of climate change, possible sea level rise up to 55 inches, and possible changes in total precipitation and runoff patterns on the conveyance alternatives and habitat restoration activities considered in the environmental impact report. (D) The potential effects on migratory fish and aquatic resources. (E) The potential effects on Sacramento River and San Joaquin River flood management. (F) The resilience and recovery of Delta conveyance alternatives in the event of catastrophic loss caused by earthquake or flood or other natural disaster. (G) The potential effects of each Delta conveyance alternative on Delta water quality.

(c) The department shall consult with the council and the Delta Independent Science Board during the development of the BDCP. The council shall be a responsible agency in the development of the environmental impact report. The Delta Independent Science Board shall review the draft environmental impact report and submit its comments to the council and the Department of Fish and Game.

(d) If the Department of Fish and Game approves the BDCP as a natural community conservation plan pursuant to Chapter 10 (commencing with Section 2800) of Division 3 of the Fish and Game Code, the council shall have at least one public hearing concerning the incorporation of the BDCP into the Delta Plan.

(e) If the Department of Fish and Game approves the BDCP as a natural community conservation plan pursuant to Chapter 10 (commencing with Section 2800) of Division 3 of the Fish and Game Code and determines that the BDCP meets the requirements of this section, and the BDCP has been approved as a habitat conservation plan pursuant to the federal Endangered Species Act (16 U.S.C. Section 1531 et seq.), the council shall incorporate the BDCP into the Delta Plan. The Department of Fish and Game’s Human use of Restored and Naturalized Delta Landscapes 88 Appendix determination that the BDCP has met the requirements of this section may be appealed to the council.

(f ) The department, in coordination with the Department of Fish and Game, or any successor agencies charged with BDCP implementation, shall report to the council on the implementation of the BDCP at least once a year, including the status of monitoring programs and adaptive management.

(g) The council may make recommendations to BDCP implementing agencies regarding the implementation of the BDCP. BDCP implementing agencies shall consult with the council on these recommendations. These recommendations shall not change the terms and conditions of the permits issued by state and federal regulatory agencies.

CHAPTER 3. OTHER PLANS FOR THE DELTA ...... 85350

The council may incorporate other completed plans related to the Delta into the Delta Plan to the extent that the other plans promote the coequal goals.

The State Water Board is responsible for approving changes in water right permits and licenses, and the Board’s review of this project is also required by provisions of the Sacramento-San Joaquin Delta Reform Act of 2009 (Delta Reform Act).

85054. “Coequal goals” means the two goals of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem. The coequal goals shall be achieved in a manner that protects and enhances the unique cultural, recreational, natural resource, and agricultural values of the Delta as an evolving place.

DIVISION 6. CONSERVATION, DEVELOPMENT, AND UTILIZATION OF STATE WATER RESOURCES PART 3. CENTRAL VALLEY PROJECT CHAPTER 10. FISH AND WILDLIFE AND RECREATION IN CONNECTION WITH STATE WATER PROJECTS

DAVIS-DOLWIG ACT

The Davis‐Dolwig Act (Water Code 11900–11925) established the state policy that the costs of preservation (considered similar to mitigation) of fish and wildlife are to be paid by water supply contractors, and recreation and enhancement of fish and wildlife are to be paid by appropriations from the general fund.

Under the likely BDCP funding framework, water contractor payment will occur in response to DWR issuance of water system revenue bonds that are secured by a pledge of revenues received by DWR from water supply contractors.

• The act outlines responsibility for project costs allocated to recreation, to fish and wildlife enhancement, and for costs of acquiring property for recreation development, for “the Central Valley Project and every other project constructed by the State itself or by the State in co-operation with the United States, including, but not limited to, the State Water Resources Development System.” (CWC Section 11905.) • CWC Section 12842 also requires that “planning and construction of all flood control and watershed protection projects shall include such features as may be determined to be necessary and desirable to preserve and enhance the state’s fish and wildlife resources and to achieve the full utilization of such projects for recreational purposes consistent with the construction and operation of such projects to protect life and property.”

CALIFORNIA PENAL CODE

Trespass Laws of interest to Agriculture

PC 602 (a) - Cutting down, destroying, or injuring any kind of wood or timber standing or growing upon the lands of another.

PC 602 (b) - Carrying away any kind of wood or timber lying on those lands.

Human use of Restored and Naturalized Delta Landscapes 89 Appendix PC 602 (c) - Injuring or severing from the freehold of another anything attached to it, or its produce.

PC 602 (f ) - Tear down, damage, mutilate, or destroy any sign, signboard affixed to any property belonging to the state, county, city, town, or village, or upon the property of any person by the state or an automobile association, which sign is intended to indicate or designate a road, or a highway, or is intended to direct travelers from one point to another, or relates to fires, fire control, or any other matter involving the protection of property.

PC 602 (g) - Entering upon any lands owned by any other person whereon oysters or other shellfish are planted or growing; or injuring, gathering, or carrying away any oysters or other shellfish planted, growing, or on any of those lands, whether covered by water or not, without the license of the owner or legal occupant; or damaging, destroying, or removing, or causing to be removed, damaged, or destroyed, any stakes, marks, fences, or signs intended to designate the boundaries and limits of any of those lands.

PC 602 (h)(1) - Entering upon lands or buildings owned by any other person without the license of the owner or legal occupant, where signs forbidding trespass are displayed, and whereon cattle, goats, pigs, sheep, fowl, or any other animal is being raised, bred, fed, or held for the purpose of food for human consumption; or injuring, gathering, or carrying away any animal being housed on any of those lands, without the license of the owner or legal occupant; or damaging, destroying, or removing, or causing to be removed, damaged, or destroyed any stakes, marks, fences, or signs intended to designate the boundaries and limits of any of those lands. (h)(2) - Must post sign at intervals not less than three per mile along all exterior boundaries and at all roads and trails entering the land.

PC 602 (i) - Opening, tearing down, or destroying any fence on the enclosed land of another, or opening any gate, bar, or fence and willfully leaving it open without the written permission of the owner, or maliciously tearing down, mutilating, or destroying any sign or notice forbidding shooting on private property.

PC 602 (j) - Building fires upon any lands owned by another where signs forbidding trespass are displayed at intervals not greater than one mile along the exterior boundaries and at all roads and trails entering the lands, without first having obtained written permission from the owner of the lands or the owner’s agent, or the person in lawful possession.

PC 602 (k) - Entering any lands, whether unenclosed or enclosed by fence, for the purpose of injuring any property or property rights or with the intention of interfering with obstructing, or injuring any lawful business or occupation carried on by the owner of the land , the owner’s agent or by the person in lawful possession.

PC 602 (l) - Entering any lands under cultivation or enclosed by fence, belonging to, or occupied by, another, or entering upon uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along all exterior boundaries and at all roads and trails entering the lands without the written permission of the owner of the land or the person in lawful possession, and

(1) Refusing or failing to leave the lands immediately upon being requested by the owner of the land, the owner’s agent or by the person in lawful possession to leave the lands,

(2) Tearing down, mutilating, or destroying any sign signboard, or notice forbidding trespass or hunting on the lands,

(3) Removing, injuring, unlocking, or tampering with any lock on any gate on or leading into the lands, or

(4) Discharging any firearm.

PC 602 (n) - Driving any vehicle upon real property belonging to, or lawfully occupied by, another and known not to be open to the general public, without the consent of the owner, agent, or the person in lawful possession.

PC 602.1 (a) - Any person who intentionally interferes with any lawful business or occupation carried on by the owner or agent of a business establishment open to the public, by obstructing or intimidating those attempting to carry on business, or their customers, and who refuses to leave the premises of the business establishment after being requested to leave by the owner or the owner’s agent, or by a peace officer acting at the request of the owner or owner’s agent is guilty of a misdemeanor, punishable by imprisonment in a county jail for up to 90 days, or by a fine of up to four hundred dollars ($400), or by both that imprisonment and fine.

PC 602.2 - Any ordinance or resolution adopted by a county which requires written permission to enter vacant or unimproved private land from either the owner, the owner’s agent, or the person in lawful possession of private land, shall not apply unless the land is immediately adjacent and contiguous to residential property, or enclosed by fence, or under cultivation, or posted with signs forbidding trespass, displayed at intervals of not less than three to a mile, along all exterior boundaries and at all roads and trails entering the private land. Human use of Restored and Naturalized Delta Landscapes 90 Appendix PC 604 - Every person who maliciously injures or destroys any standing crops, grain, cultivated fruits or vegetables, the property of another, in any case for which a punishment is not otherwise prescribed by this code, is guilty of a misdemeanor.

PC 607 - Every person who willfully and maliciously cuts, breaks, injures, or destroys, or who, without the authority of the owner or managing agent, operates any gate or control of , any bridge,dam, canal, flue, aqueduct, levee, embankment, reservoir, or other structure erected to create hydraulic power, or to drain or reclaim any swamp, overflow, tide, or marsh land, or to store or conduct water for mining, manufacturing, reclamation, or agricultural purposes, or for the supply of the inhabitants of any city or town, or any embankment necessary to the same, or either of them, or willfully or maliciously makes, or causes to be made, any aperture or plows up the bottom or sides in the dam, canal, flume, aqueduct, reservoir, embankment levee, or structure, with intent to injure or destroy the same; or draws up, cuts, or injures any piles fixed in the ground for the purpose of securing any sea bank, sea wall, dock, quay, jetty, or lock; or who, between the first day of October and the fifteenth day of April of each year, plows up or loosens the soil in the bed on the side of any natural water course, reclamation ditch, or drainage ditch, with an intent to destroy the same without removing the soil within 24 hours from the water course, reclamation ditch, or drainage ditch, or who, between the fifteenth day of April and the first day of October of each year, plows up or loosens the soil in the bed or on the sides of the natural water course, reclamation ditch, or drainage ditch, with an intent to destroy the same and does not remove there from the soil so plowed up or loosened before the first day of October next thereafter, is guilty of vandalism under Section 594. Nothing in this section shall be construed so as to in any manner prohibit any person from digging or removing soil from any watercourse, reclamation ditch, or drainage ditch for the purpose of mining.

PC 602.8(a) - Any person who without the written permission of the landowner, the owner’s agent, or the person in lawful possession of the land, willfully enters any lands under cultiva- tion or enclosed by fence, belonging to, or occupied by, another, or who willfully enters upon uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along all exterior boundaries and at all roads and trails entering the lands, is guilty of a public offense.

(b)(1) First offense = $75 fine. (b)(2) Second offense on the same land or any contiguous land of the same landowner = $250 fine. (b)(3) Third or subsequent offense on the same land or any contiguous land of the same landowner is a misdemeanor. (c) Does not apply to any of the following: (1) Lawful labor union activities. (2) Activities protected by the California or US Constitution. (3) Process Servers. (4) Licensed land survey person

Concerning general private property rights, trespass, and signage

Penal Code Section 552-555.5

552.1. This article does not prohibit: (a) Any lawful activity for the purpose of engaging in any organizational effort on behalf of any labor union, agent, or member thereof, or of any employee group, or any member thereof, employed or formerly employed in any place of business or manufacturing establishment described in this article, or for the purpose of carrying on the lawful activities of labor unions, or members thereof. (b) Any lawful activity for the purpose of investigation of the safety of working conditions on posted property by a representative of a labor union or other employee group who has upon his person written evidence of due authorization by his labor union or employee group to make such investigation.

553. The following definitions apply to this article only: (a) “Sign” means a sign not less than one (1) square foot in area and upon which in letters not less than two inches in height appear the words “trespassing-loitering forbidden by law,” or words describing the use of the property followed by the words “no trespassing.” (b) “Posted property” means any property specified in Section 554 which is posted in a manner provided in Section 554.1. (c) “Posted boundary” means a line running from sign to sign and such line need not conform to the legal boundary or legal description of any lot, parcel, or acreage of land, but only the area within the posted boundary shall constitute posted property, except as otherwise provided in subdivision (e) of Section 554. 1.

554. Any property, except that portion of such property to which the general public is accorded access, may be posted against trespassing and loitering in the manner provided in Section 554.1, and thereby become posted property subject to the provisions of this article applicable to posted property, if such property consists of, or is used, or is designed to be used, for any one or more of the Human use of Restored and Naturalized Delta Landscapes 91 Appendix following: (a) An oil well, oilfield, tank farm, refinery, compressor plant, absorption plant, bulk plant, marine terminal, pipeline, pipeline pumping station, or reservoir, or any other plant, structure, or works, used for the production, extraction, treatment, handling, storage, or transportation, of oil, gas, gasoline, petroleum, or any product or products thereof. (b) A gas plant, gas storage station, gas meter, gas valve, or regulator station, gas odorant station, gas pipeline, or appurtenances, or any other property used in the transmission or distribution of gas. (c) A reservoir, dam, generating plant, receiving station, distributing station, transformer, transmission line, or any appurtenances, used for the storage of water for the generation of hydroelectric power, or for the generation of electricity by water or steam or by any other apparatus or method suitable for the generation of electricity, or for the handling, transmission, reception, or distribution of electric energy. (d) Plant, structures or facilities used for or in connection with the rendering of telephone or telegraph service or for radio or television broadcasting. (e) A water well, dam, reservoir, pumping plant, aqueduct, canal, tunnel, siphon, conduit, or any other structure, facility, or conductor for producing, storing, diverting, conserving, treating, or conveying water. (f ) The production, storage, or manufacture of munitions, dynamite, black blasting powder, gunpowder, or other explosives. (g) A railroad right-of-way, railroad bridge, railroad tunnel, railroad shop, railroad yard, or other railroad facility. (h) A plant and facility for the collection, pumping, transmission, treatment, outfall, and disposal of sanitary sewerage or storm and waste water, including a water pollution or quality control facility. (i) A quarry used for the purpose of extracting surface or subsurface material or where explosives are stored or used for that purpose.

554.1. Any property described in Section 554 may be posted against trespassing and loitering in the following manner: (a) If it is not enclosed within a fence and if it is of an area not exceeding one (1) acre and has no lineal dimension exceeding one (1) mile, by posting signs at each corner of the area and at each entrance. (b) If it is not enclosed within a fence, and if it is of an area exceeding one (1) acre, or contains any lineal dimension exceeding one (1) mile, by posting signs along or near the exterior boundaries of the area at intervals of not more than 600 feet, and also at each corner, and, if such property has a definite entrance or entrances, at each such entrance. (c) If it is enclosed within a fence and if it is of an area not exceeding one (1) acre, and has no lineal dimension exceeding one (1) mile, by posting signs at each corner of such fence and at each entrance. (d) If it is enclosed within a fence and if it is of an area exceeding one (1) acre, or has any lineal dimension exceeding one (1) mile, by posting signs on, or along the line of, such fence at intervals of not more than 600 feet, and also at each corner and at each entrance. (e) If it consists of poles or towers or appurtenant structures for the suspension of wires or other conductors for conveying electricity or telegraphic or telephonic messages or of towers or derricks for the production of oil or gas, by affixing a sign upon one or more sides of such poles, towers, or derricks, but such posting shall render only the pole, tower, derrick, or appurtenant structure posted property.

555. It is unlawful to enter or remain upon any posted property without the written permission of the owner, tenant, or occupant in legal possession or control thereof. Every person who enters or remains upon posted property without such written permission is guilty of a separate offense for each day during any portion of which he enters or remains upon such posted property.

555.1. It is unlawful, without authority, to tear down, deface or destroy any sign posted pursuant to this article.

555.2. It is unlawful to loiter in the immediate vicinity of any posted property. This section does not prohibit picketing in such immediate vicinity or any lawful activity by which the public is informed of the existence of an alleged labor dispute.

555.3. Violation of any of the provisions of this article is a misdemeanor.

555.4. The provisions of this article are applicable throughout the State in all counties and municipalities and no local authority shall enact or enforce any ordinance in conflict with such provisions.

555.5. If any provision of this article, or the application thereof to any person or circumstance, is held to be invalid, the remainder of the article, and the application of such provision to other persons or circumstances, shall not be affected thereby. If any section, subsection, sentence, clause, or phrase of this article is for any reason held to be unconstitutional or invalid, such decision shall not affect the validity or constitutionality of the remaining portions of this article. The Legislature hereby declares that it would have passed this article and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more of the sections, subsections, sentences, clauses, or phrases thereof be declared unconstitutional or invalid.

MISCELLANY

Human Right to Water - effective January 1, 2013 California Water Code (Division 1, Section 106.3) Establishes that every human

Human use of Restored and Naturalized Delta Landscapes 92 Appendix LAW ENFORCEMENT REVIEW

This appendix section is intended to accompany the Law Enforcement Review Chapter 5. of the technical report.

COUNTY SHERIFF’S DEPARTMENTS

Most of the Delta lies within Contra Costa, Sacramento, San Joaquin, Solano and Yolo Counties. The Sheriff ’s departments of these various counties all actively conduct law enforcement within the legal Delta.

Marine Patrols All five Delta counties have marine patrol divisions or units that operate within the waterways of the legal Delta.

• The Contra Costa Marine Unit patrols over 200 miles of linear coastline, from Richmond to Discovery Bay. Deputy’s assigned to Marine Patrol serve to keep the waterways safe through education and enforcement and conduct search and rescue of missing or disabled boats. The Marine Patrol is actively involved in improving the water quality of the Delta by way of abandoned vessel abatement and removal1. • The Sacramento County Marine Enforcement Detail is responsible for patrolling the river and Delta regions within Sacramento County. The patrol area ranges from the Sacramento River north of Downtown Sacramento to the Delta/San Joaquin River. The Marine Enforcement Detail is permanently staffed 365 days a year with highly trained Marine Enforcement Deputies2. • The San Joaquin County Boating Safety Unit provides law enforcement services to the residents and visitors of the 700+ miles of waterways and rivers in the San Joaquin county portion of the Delta. The unit enforces penal code and boating safety laws including, “vigorously pursuing and prosecuting Boating Under the Influence (BUI) violators”.3 • The Solano County Sheriff ’s Marine Patrol Program is managed by the Public Safety Commander and operates as a program of the Operations Division. The Marine Patrol Program provides public safety resources to recreational boaters and commercial vessels operating on the navigable waterways within the county of Solano. Approximately one hundred and fifty miles of navigable rivers, sloughs, channels and bays comprising the western portion of the Delta lie within the jurisdiction of Solano County. This area is commonly known as the “gateway to the Delta” and is the entry point for thousands of recreational boaters and commercial vessels, many transitioning from the San Francisco Bay area to Delta each year. In addition to the San Francisco Bay area traffic, numerous local resorts and public launching ramps provide access for local boaters. The Marine Patrol Program is staffed with four full-time deputies. The program is operational ten hours each day, seven days each week, year-round, providing professional public safety services to the community. The Marine Patrol deputies are subject to callout 24 hours a day, seven days a week to provide search and rescue operations on the waterways of Solano County.4 • The Yolo County Sheriff ’s Office Field Operations Division the Sheriff maintains a year round Marine Patrol Search and Rescue. The primary mission of this section is to ensure and promote the safety of the boating public. The Boating/Safety Section also provides countywide search and rescue services for lost, stranded, and injured victims. Areas of operations include the Sacramento River, Cache Canyon, Putah Creek, and the mountains, slough, and flat lands of the county. In addition, deputies give demonstrations and provide boat care training to the general public throughout the surrounding area5.

Air Patrols Contra Costa and Sacramento have air patrol units that provide law enforcement reconnaissance, rescue, and support to all public safety agencies within their respective counties.

Mutual Aid Agreements Neighboring law enforcement agencies and non-governmental organizations can be valuable assets in times of emergencies that exceed the capacity of a county Sheriff ’s department to respond. Therefore county sheriff ’s departments enter into mutual aid agreements (MAA) with neighboring agencies that are likely to enhance the agency’s capacity in its overall emergency management planning6.

The Mutual Aid System is an extension of the concept of “neighbor helping neighbor.” The Law Enforcement Mutual Aid System was established in 1961, and has been used to restore order during emergencies, including civil unrest and to provide assistance to local agencies during other unusual events. As a component of the Standardized Emergency Management System [SEMS], the Mutual Aid System is based on four organizational levels: cities, counties, regions and the State. (A county is an operational area along with its political Subdivisions.) The state is divided into seven Law Enforcement Mutual Aid Regions. The County Sheriff is a key role player within the system. Each sheriff serves as the Regional Mutual Aid Coordinator.

The basic concept provides that within the operational area, adjacent or neighboring law enforcement agencies will assist each other. Should the event require assistance from outside the county, the region will provide requested assistance to the impacted county. If the combined

Human use of Restored and Naturalized Delta Landscapes 93 Appendix resources of the region are insufficient to cope with the incident, the Regional Coordinator contacts the State Law Enforcement Mutual Aid Coordinator at the California Governor’s Office of Emergency Services (CalOES).

Planned events, such as concerts, parades, fairs, etc. are the responsibility of local agencies. Any requirement for additional public safety presence should be addressed through contractual arrangements. If any event, planned or spontaneous, appears that it may result in a request for mutual aid, or some other special resource, and early call to the CalOES Law Enforcement Branch is encouraged. A staff peace officer from the branch will usually be assigned to work directly with the jurisdiction to assist in plans development.

Source: http://www.caloes.ca.gov/cal-oes-divisions/law-enforcement/mutual-aid-system

Five County crime data summary Crime statistics in the Delta is fragmented across the various law enforcement agencies operating in the five Delta counties. County- level crime statistics are available on third party, non-governmental crime data hosting sites. The most prominent of which ishttps:// www.crimereports.com/, where Incident data is available is only available for the past six months. A user may choose to display up to 30 consecutive days’ worth of data within those six months. The six month range is common to all such third party hosting sites, posing limitations on longer term research inquiries. The most prominent crime report in rural areas is registered sex offenders.

CALIFORNIA HIGHWAY PATROL

The primary mission of the California Highway Patrol (CHP) is “the management and regulation of traffic to achieve safe, lawful, and efficient use of the highway transportation system.”7 As a major statewide law enforcement agency, the secondary mission of the Department is to assist in emergencies exceeding local capabilities.

Several State highways traverse the legal Delta, including State Route 160, State Route 12, and State Route 4. However, CHP jurisdiction is not constrained to these highways.

The​ State Security Division (SSD) of the CHP coordinates the collection of crime and incident reports, via theSTD. 99, Report of Crimes on State Property Missing/Lost Property, for the Safety Service Program. Section 14613.7 of the Government Code requires state agencies to report all crimes and criminally caused property damage occurring on state owned or leased properties to the California Highway Patrol (CHP)8. The CHP is then required to compile all information received and report to the state Legislature when requested.

We attempted to obtain this data, but the data we received was not Delta specific (despite considerable specificity in our request). At this time we have not conducted a full analysis of this data.

CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE (CDFW)

General Law Enforcement Contacts: David Bess, Chief / Deputy Director Law Enforcement Division, California Department of Fish and Wildlife [email protected] (916) 654-3812

Nancy Foley, former Chief / Deputy Director Law Enforcement Division, California Department of Fish and Wildlife [email protected] (530) 957-2941

Lt. Kathy Ponting, Special Operations Unit (SOU) Law Enforcement Division, California Department of Fish and Wildlife [email protected] 530-957-3216

Kirk Russel, Author [email protected] 510-334-5182

Human use of Restored and Naturalized Delta Landscapes 94 Appendix General Background The mission of the CDFW Law Enforcement Division is to protect California natural resources and provide public safety through effective and responsive law enforcement9.

Special Operations Unit Contact: Brian Naslund, Operations Unit , Assistant Chief Law Enforcement Division, Department of Fish and Wildlife [email protected]

The Special Operations Unit (SOU) of the CDFW was formed for the purpose of investigating, infiltrating and apprehending those who steal California’s natural resources for profit. The SOU focuses their efforts on priorities set by CDFW, such as illegal commercialization of fish and wildlife.

“The duties of an SOU warden are in much contrast to a uniformed warden. Much of the SOU’s time is spent traveling extensively to different areas of the state wherever commercial cases occur. The duties include long term investigations required to successfully apprehend and prosecute the worst of the worst abusers of California resources The current SOU has taken many steps to enhance their investigative abilities with training in a wide variety of topics. Technology has moved to the forefront of many investigations with equipment such as GPS tracking units, infrared scopes, pen register phone taps, and much more. In some cases, the use of technological equipment save many personnel hours in an investigation, however, circumstances in other cases still require time intensive moving and stationary surveillance techniques, coupled with short and long term undercover infiltration of suspects.”10

From interview with Lt. Kathy Ponting:

Illegal commercialization has a critical impact on salmon and sturgeon populations in the Bay-Delta

Through the demand for caviar, salmon as well as sturgeon are negatively affected, due to the use salmon roe as bait for sturgeon.

The SOU program has successfully dealt with the regional poaching issues. In this way the SOU is unlike a narcotics task force (Kathy’s previous job) where operations are chipping away at a larger, much more complex problem.

According to Lt. Ponting, “you do see a difference”. However, there is an ongoing co-evolution between the law enforcement team and the criminals. Criminal rings change tactics to circumvent infiltration and law enforcement must adapt accordingly.

New tactics being employed by the SOU focus on financial penalties, including, high fines and vehicle forfeitures.

When compared with the Northern Coast abalone issues, the Delta battle is harder, bigger much more going on. Illegal commercialization of sturgeon remains lucrative and the presence of repeat offenders seems to indicate that the money is worth the risk. There are also issues related to certain ethnic traditions and ways of life. Specifically, the main harvesters are people of Southeast Asian descent, primarily from the Mekong River Delta region. Catching large fish is a way of life and has been critical to livelihood. The consumption of fish protein is a staple food supplement. However, the market is driven by Eastern European demand for caviar. This demand also has deep ingrained ethnic traditions and has been infiltrated by criminal rings in the Black Sea region as well.

According to Lt. Ponting, solutions include:

• Ongoing and increased collaboration between the SOU and DBEEP • A focus on activities that impact endangered and native species11 • Dedicated SOU teams with a sole focus on Delta issues (with long-term and dedicated funding) • Education is the most important thing (this extends to the prosecutors and judges who must be well informed regarding the significance of illegal commercialization and the legal mechanism by which poachers can be prosecuted)

“It’s a Battle”

Human use of Restored and Naturalized Delta Landscapes 95 Appendix Examples of SOU cases in the Bay-Delta: Source: http://www.californiafishandgamewardens.com/specops.htm

• Operation Delta Beluga – Sacramento County Superior Court – 2003 Several month investigation into the illegal take and sales of sturgeon and caviar. SOU inserted undercover officer into main suspects. A large scale take down conducted where 22 suspects arrested for various charges, including felony conspiracy to buy and sell sport taken sturgeon. Connections made to Oregon and Washington suspects where SOU followed large shipments of illegal white sturgeon caviar from Sacramento Delta to Washington state. Joint investigation with Oregon, Washington and US Fish and Wildlife Service. Agent in Washington inserted into their suspects who purchased California caviar for $5000. A total of 28 defendants in entire case. Various sentences ranging from $15,000 plus penalty assessment ($45,000) 120 days in jail, search and seizure, to $3000 fines and probation. • Operation Delta Beluga II – Sacramento County – 2005 Investigation into the illegal sales of white sturgeon/caviar involving suspects from the Sacramento and San Francisco areas. Six individuals arrested. Five have pled guilty to charges and fines ranging from $800 to $8,000, probation and revoked licenses. Main suspect is scheduled for jury trial in May 2006. • Operation “Tales of the Fish Patrol” – Contra Costa County Superior Court – 2004 Investigation into two sturgeon fishermen harvesting white sturgeon from the Carquinez Strait and selling their catch to two individuals from San Jose (Santa Clara County). Those individuals would in turn, re-sale the fish to individuals amongst the community of San Jose. Felony conspiracy charges against two fishermen and two brokers from San Jose to sell and purchase white sturgeon are being charged in Contra Costa County. In addition, Contra Costa County is charging the buyers in San Jose with illegal purchase of sport taken fish (7121). Five buyers pled guilty to illegal purchase of sport taken sturgeon. Fines ranged in amounts from $200 to $2000. The two fishermen pled guilty to illegal sales of sport taken fish. Both of their vessels were forfeited to the Department, one received a fine of $1000 as the other main fisherman received a fine of $6400, his fishing license suspended for three years.

CALTIP

Contact: Lieutenant Michael Milotz, CalTIP Coordinator Law Enforcement Division, Department of Fish and Wildlife [email protected] 916-654-1485 (office)

CalTIP (Californians Turn In Poachers and Polluters) is a confidential secret witness program that encourages the public to provide Fish and Wildlife with factual information leading to the arrest of poachers and polluters.

CalTIP was introduced in California in 1981 in order to give Californians an opportunity to help protect the state’s fish and wildlife resources. The toll free telephone number operates 24 hours a day, 7 days a week. You do not have to give your name.

Information from the call is relayed to the CDFW region where the offense occurred and an investigation is undertaken locally. If the information supplied by the caller results in an arrest the caller becomes eligible for a reward. (Rewards up to $1,000 have been paid.) The case is then reviewed by a volunteer citizen’s group known as the “CalTIP Rewards Committee”.

CalTIP rewards come entirely from donations, no state funds are used. The CalTIP Rewards Committee, not CDFW, receives and administers these funds. Money not used for the payment of rewards goes toward furthering CalTIP’s educational goals.

Source: http://www.dfg.ca.gov/enforcement/caltip.aspx

Conversations with land managers, field scientists, and others who have used CalTIP indicate that the program has it’s shortcomings. It is often hard to tell whether your information has been registered by the system. A confirmation system was suggested.

DBEEP (DELTA BAY ENHANCED ENFORCEMENT PROGRAM)

Contacts: Captain Nathaniel Arnold, Special Operations Law Enforcement Division, California Department of Fish and Wildlife [email protected] (559) 284-1264

Steven Johnson, Lieutenant DBEEP Human use of Restored and Naturalized Delta Landscapes 96 Appendix [email protected] 916.719.5892

Daryl Simmons, Warden DBEEP [email protected] (916) 719-5894

Alex Browning, Administrative Support [email protected]

Current Status The program is funded through Fiscal Year 2016-17.

DBEEP is comprised of one Lieutenant, 9 Fish and Wildlife officers and one Scientific Aide (Sci. Aide to start work in April 2015’). The DBEEP squad maintains an office in west Sacramento.

DBEEP officers’ conduct uniform patrol on the river utilizing patrol trucks, boats and kayaks. DBEEP also has a fleet of unmarked vehicles and vessels and have focused on the commercialization of anadromous fish. DBEEP has taken the lead on commercialization of fish cases on the Delta and they have also been instrumental in working with the department’s SOU.

The program is funded by water contractors through theDelta Fish Agreement12 (California Department of Water Resources and California Department of Fish and Game 1986).

Source: http://mavensnotebook.com/BDCP/BDCP%20Ch%203%20Sec%203.4.17.3%20Adaptive%20Management%20and%20 Monitoring.pdf

Marijuana Eradication on the Delta DBEEP has recognized the infestation of marijuana on the Delta in recent years and has decided to engage this issue due to the devastation these marijuana grows are having on the anadromous fish they are tasked to protect, and the Delta ecosystem in general.

According to DBEEP Lt. Stephen Johnson, Marijuana is primary concern in the summer season (April - Late October). State properties are the main geographic focus during this time. Only occasionally will DBEEP engage in raids on private property with grows exceeding 99 plants (non-215 grows13).

DBEEP assumes that each marijuana plant growing on the Delta consumes up to 8 gallons of water per plant, per day. To address the issue, the DBEEP squad assigned two Wildlife Officers to work as alternates on the Marijuana Enforcement Team (MET). DBEEP officers were tasked to take down marijuana grows in the Delta. According to DBEEP documents, “these marijuana grows stole water and added harmful chemicals to the water that would adversely affect salmon and steelhead”14.

Documented operations:

• Caswell State Park: Sept 2013, June 2014 Large illegal Marijuana grow on State Park in San Joaquin County, along the Stanislaus river. (This section of the Stanislaus river is home to migrating sturgeon, salmon, and striped bass. No suspects were apprehended; however, we were able to recover over 500lbs of processed Marijuana and over 2000 standing plants. Several tons of trash was also removed from the site. • Cosumnes Preserve #2: Aug 2014 Illegal MJ grow on the Cosumnes Preserve adjacent an anadromous slough. One suspect was taken into custody and arraigned on numerous charges including felony cultivation of Marijuana, trespassing, water diversion, and pollution. The outcome of the case is unknown. Over 400 standing Marijuana plants and over 500 lbs of trash were removed from the site. • SDEA Stanislaus River: May 2014 Large Marijuana grow along the Stanislaus river between Modesto and Patterson. 5 suspects were taken into custody and arraigned on numerous charges including felony cultivation of Marijuana, trespassing, pollution, and resisting arrest. The outcome of the case is unknown. Over 3000 standing MJ plants were removed from the site and reclamation will be conducted in the future.

DBEEP also coordinates with the California Department of Justice’s Campaign against Marijuana Planting (CAMP)15.

Our conversation with Lt Johnson also provided additional insight regarding the specifics of grow operations. For example, it appears that certain grows in the Delta are watered by freshwater tidal action (Liberty Island). Additionally, marijuana is often planted in cornfields, where it is harder to detect from the ground and the air16. Human use of Restored and Naturalized Delta Landscapes 97 Appendix

Lt. Johnson explained that several years ago nearly 100% of grow workers were Mexican nationals. However, recently they have been seeing US citizens from the local communities. Theses US citizens are primarily hispanic. There exists some speculation that grow workers may be current farmworkers or previous farmworkers.

Grow sites are often actively patrolled by armed guards. Lt. Johnson informed us that 80% of apprehended growers were armed. He was unsure as to whether the arms are meant to protect against rival gangs or meant for self-protection against law enforcement. Busts on grow sites have uncovered motion detectors and trail cameras.

Relevant articles: illegal marijuana grow on the westernmost point of Grand Island:Multi-Agency Marijuana Sting in the Sacramento River Delta Leads to Major Cleanup Effort MAY 16, 2014

Stone Lakes Refuge Shooting: http://www.sacbee.com/news/local/crime/article19860156.html

DBEEP General Patrol

Despite the commitment DBEEP has delivered to Marijuana operations and covert work related to commercialization of fish. DBEEP has still been able to keep up with their regular patrol duties. Between April 2013 and December 2014 DBEEP officers issued over 250 citations. These citations directly involved the poaching of salmon, steelhead, sturgeon and striped bass.

DBEEP Special Details

Between August 2014 and December 2014 DBEEP officers arranged four special details with directed enforcement at the Feather River and nimbus hatcheries. DBEEP officers arranged for marked and unmarked officers to conduct surveillance and contact suspected poachers around the hatchery. California State Park Rangers and Sacramento County Rangers supplied officers at their cost, to assist in the details. This type of multi-agency cooperation has enhanced the motivation of other departments to work and enforce salmon and steelhead violations within their jurisdiction.

DBEEP continues to act as the high risk entry team for the CDFW. The squad trains at a special entry training facility numerous times a year. The unit has been dispatched statewide to assist wildlife enforcement officers by executing high risk search warrants on suspected poachers.

In August 2014 DBEEP was sent to Santa Cruz to serve a high risk warrant on a suspect who was growing marijuana and taking water from pristine steelhead habitat.

DBEEP will be participating on a special detail that will focus on the take of salmon fry from the Sacramento River. It has been a common problem where poachers will illegally net salmon fry from the river and use the salmon as bait. The DBEEP squad makes numerous cases regarding this violation every year. The special detail will include district wardens, covert operations, DBEEP boats and the CDFW airplane.

DBEEP and BDCP

Since 1986, this project has been annually funded by DWR through contracts with CDFW that are continually renewed every 3 years. Most recently, in July 2011, DWR entered into a contract with CDFW to continue for an additional 3 years the implementation of DBEEP for increased fishery protection enforcement efforts to reduce illegal take of striped bass, salmon, steelhead, and sturgeon. The agreement will support ten existing warden positions in the San Francisco Bay/Delta,northern Sacramento Valley, and southern San Joaquin Valley. Under this contract, DBEEP funding for the next 3 years is projected to be $1.9 to $2.1 million annually (see financials section for exact numbers).

Conservation Measure 17 of the BDCP (CM17, Illegal Harvest Reduction) calls for hiring and equipping 17 additional game wardens and 5 supervisory and administrative staff in support of the DBEEP. BDCP funding would be in addition to what DWR already provides for DBEEP (i.e., 27 game wardens would be employed by DBEEP with the BDCP). Although DBEEP funding must be renewed every 3 years, DWR is assumed to fund the DBEEP program at the current level (accounting for inflation) throughout the permit term to which CM17 would be added.

Source: http://bayDeltaconservationplan.com/Libraries/Dynamic_Document_Library/BDCP_Chapter_8_-_Implementation_Costs_ Human use of Restored and Naturalized Delta Landscapes 98 Appendix and_Funding_Sources_5-29-13.sflb.ashx

See appendix for further information about the Davis-Dolwig Act, which established the state policy that the costs of preservation (considered similar to mitigation) of fish and wildlife are to be paid by water supply contractors, and recreation and enhancement of fish and wildlife are to be paid by appropriations from the general fund.

Errata

DBEEP was the first unit in DFG to be issued TASER’s and deployed them in Jan of 10 2010. Although they have never been used to date, the TASER’s have already proved to be very useful because simply displaying them has avoided several “use of force incidents” by officers through the act of simply removing them from the holster. DBEEP has secured a warehouse with an evidence locker and freezer in the West Sacramento area. This has streamlined the evidence handling process and got us into compliance with new DFG policy regarding evidence. It has also been a place to have training and meetings. DBEEP continues to train on a monthly basis to stay sharp and proficient in all aspects on law enforcement work.

Source: http://www.water.ca.gov/environmentalservices/docs/four_pumps/06012010_DFA%20MEETING%20PACKAGE_ JUNE%209_2010.pdf

“San Francisco Bay is so large that often its storms are more disastrous to ocean-going craft than is the ocean itself in its violent moments. The waters of the bay contain all manner of fish, wherefore its surface is ploughed by the keels of all manner of fishing boats manned by all manner of fishermen. To protect the fish from this motley floating population many wise laws have been passed, and there is a fish patrol to see that these laws are enforced. Exciting times are the lot of the fish patrol: in its history more than one dead patrolman has marked defeat, and more often dead fishermen across their illegal nets have marked success.”

Jack London, Tales of the Fish Patrol17

Relevant articles:

Poachers Take Advantage of Drought Conditions to Target Juvenile Salmon MAY 13, 2015

Financials18 FY Budget Ref Fund Source Amount 2008-2009 (Actuals) 510 - State Water Project State Water Project $1,535,773.00 2009-2010 (Actuals) 510 - State Water Project State Water Project $1,575,000.00 2010-2011 (Actuals) 510 - State Water Project State Water Project $0.00 2011-2012 (Actuals) 510 - State Water Project State Water Project $0.00 2012-2013 (Actuals) 510 - State Water Project State Water Project $0.00 2013-2014 (Budgeted) 510 - State Water Project State Water Project $0.00 2014-2015 (Proposed) 510 - State Water Project State Water Project $0.00 Total Funding: $3,110,773.00

Budgeted amounts are projections only and do not necessarily reflect obligations, encumbrances, or actual expenditures. Total Funding amount may include budget year projections and may change when actual expenditures are posted. Total Funding amount represents the funding related to the specific agency and project selected. This amount is not intended to reflect funding that may or may not be contributed by other agency(ies).

Human use of Restored and Naturalized Delta Landscapes 99 Appendix CALIFORNIA DEPARTMENT OF JUSTICE

The California Department of Justice (CDOJ) provides legal advice to State and local agencies involved in mutual aid situations. Assist city and county law enforcement jurisdictions by making sworn law enforcement personnel available for mutual aid and emergency assistance, i.e. civil unrest, major disasters (earthquakes and flooding). The Department of Justice Emergency Operations Center assists local law enforcement agencies with regional or statewide response for mutual aid requests, disasters or major emergencies. CDOJ aviation resources are available for local, regional or statewide mutual aid requests. The CDOJ consists of approximately 250 peace officers statewide19.

UNITED STATES COAST GUARD

United States Coast Guard (USCG) has a station in Rio Vista and are the only permanent federal law enforcement presence in the Delta waterways. The Rio Vista station lies within the USCG’s 11th District, Sector San Francisco which covers over 1,500 nautical miles of rivers and sloughs from Sacramento to Suisun Bay. The main missions of the Rio Vista station is search and rescue and general maritime law enforcement. At Port Waterways Coastal Security (PWCS) Level one status, the Rio Vista station provides an armed escort to ships (primarily those carrying ammonia) into the ports of Stockton and Sacramento.

The Station has 30 active duty officers and 20 reserve officers and is equipped with four 25ft Defender Class Boats and 3 landside emergency vehicles. These resources are augmented by land and water-based auxiliary patrols, staffed by USCG auxiliary volunteers.

CENTRAL VALLEY CALIFORNIA (CVC) HIGH INTENSITY DRUG TRAFFICKING AREAS (HIDTA)

The High Intensity Drug Trafficking Areas (HIDTA) program, created by Congress with the Anti-Drug Abuse Act of 1988, provides assistance to federal, state, local, and tribal law enforcement agencies operating in areas determined to be critical drug-trafficking regions of the United States. The HIDTA program is overseen by the Office of National Drug Control Policy (ONDCP), within the Executive Office of the President. The purpose of the program is to reduce drug trafficking and production in the United States by:

Facilitating cooperation among federal, state, local, and tribal law enforcement agencies to share information and implement coordinated enforcement activities; Enhancing law enforcement intelligence sharing among Federal, state, local, and tribal law enforcement agencies; Providing reliable law enforcement intelligence to law enforcement agencies to facilitate the design of effective enforcement strategies and operations; and Supporting coordinated law enforcement strategies that make the most of available resources to reduce the supply of illegal drugs in designated areas of the United States and in the Nation as a whole.

CALIFORNIA STATE PARKS

California State Park Peace Officers Background

California State Park Peace Officers formally known as State Park Rangers and State Park Lifeguards, are fully sworn California State Police Officers. The title of State Police Officer is often used during enforcement contact, as many Park Rangers with municipalities, counties and special districts are not armed Peace Officers, with authority throughout the state, on and off duty, like the California State Park Peace Officers law enforcement officer. State Park Peace Officers perform a wide variety of general law-enforcement activities, including complex criminal investigations, traffic enforcement, and participate in statewide task forces, for gang suspension, narcotics enforcement, auto theft, and fish and wildlife crimes, under the jurisdiction of the California Department of Parks and Recreation in the state parks of California, United States. Duties include general law enforcement, aquatic rescue (by lifeguards and other certified officers), search and rescue, emergency medical response, interpretation of natural, historic and cultural resources, resource protection, park management and proactive enforcement patrol.

Human use of Restored and Naturalized Delta Landscapes 100 Appendix COUNTY AND REGIONAL PARK DISTRICTS

East Bay Regional Parks District (EBRPD)

General Background

The EBRPD patrol includes some 65 different parks over a 1,750 square mile area covering all of Alameda and Contra Costa Counties. Policing contracts provide law enforcement services in the East Bay Municipal Utilities District (EBMUD) watershed and recreation facilities. By special agreement, EBRPD additionally provides police service in the East Bay lands of the San Francisco Public Utilities Commission’s watershed, and for several state owned parklands located in the East Bay.

At peak summer season, the Public Safety Division is staffed by approximately 500 personnel, which includes 148 full-time equivalent employees (65 of whom are sworn police officers who derive their authority under CA Penal code section 830.1). In addition, EBRPD employs 195 seasonal lifeguards, 200 members in a Volunteer Trail Safety Patrols, and 40 industrial firefighters. The Division’s annual budget is approximately $23 million. EBRPD is a full service POST-recognized law enforcement agency.

EBRPD police headquarters are located at Lake Chabot in Castro Valley, with sub-stations at the EBMUD San Pablo Reservoir in Orinda and Contra Loma Regional Park in Antioch, and at our Air Support Unit at the Hayward Municipal Airport. Departments includes the Air Support Unit, Marine Patrol, Equestrian Patrols, K-9 Unit, Special Enforcement Unit, Investigations Unit, and a 24- hour per day 9-1-1 Communications Center.

Source: http://www.ebparks.org/about/police

Presence in the Delta

The EBRPD currently operates Big Break Regional Shoreline and a Delta access land bank north of Discovery Bay.

Big Break Regional Shoreline

Big Break Regional Shoreline is a part of the great 1150-square-mile Sacramento-San Joaquin River Delta. The water flowing past Big Break through the Sacramento and San Joaquin-the State’s two greatest rivers-drains half of California and creates the largest estuarine environment on the Pacific coast. This area is also referred to as the “Inland Coast.”

The main human management problems are associated with park maintenance stemming from perceived overuse.

Source: http://www.ebparks.org/parks/big_break

East Bay Regional Park District, California - Ordinance 38 - Rules and Regulations

Section 200. - General regulations

200.1 All persons entering upon District parkland shall abide by the rules and regulations of the district, the laws of the State of California, and all applicable county and/or municipal ordinances. 200.2 The provisions of this Ordinance shall not apply to employees of the District or to its concessionaires or their employees engaged in and acting within the scope of their authorized duties and concession activities or to allied agency emergency personnel in the performance of their official duties. However, District employees and concessionaires and their employees shall abide by the laws of the State of California and all applicable county and/or municipal ordinances. (rev. 4/12) Human use of Restored and Naturalized Delta Landscapes 101 Appendix 200.3 The General Manager may temporarily suspend or modify provisions of the Ordinance for public health or safety reasons. The General Manager shall notify the Board of Directors within 30 days of any actions taken pursuant to this section. 200.4 A police officer may remove all persons from a District campsite for violation of any state law, this Ordinance or campground rules. (added 7/10)

DAVIS-DOLWIG ACT

The Davis‐Dolwig Act (Water Code 11900–11925) established the state policy that the costs of preservation (considered similar to mitigation) of fish and wildlife are to be paid by water supply contractors, and recreation and enhancement of fish and wildlife are to be paid by appropriations from the general fund.

Under the likely BDCP funding framework, water contractor payment will occur in response to DWR issuance of water system revenue bonds that are secured by a pledge of revenues received by DWR from water supply contractors.

Sources: http://bayDeltaconservationplan.com/Libraries/Dynamic_Document_Library/BDCP_Chapter_8_-_Implementation_ Costs_and_Funding_Sources_5-29-13.sflb.ashx

Notes 1 http://www.co.contra-costa.ca.us/214/Marine-Patrol-STARR-One 2 http://www.sacsheriff.com/Pages/Organization/Central/Marine.aspx 3 http://www.sjgov.org/sheriff/patrol_boating.html 4 https://www.solanocounty.com/depts/sheriff/special_teams/marine_patrol.asp 5 http://www.yolocountysheriff.com/services/patrol/marine/ 6 There exists a statewide mutual aid system, which is an outgrowth of the California Disaster and Civil Defense and the Master Mutual Aid Agreement (1950), the Emergency Services Act, Chapter 7 of Division 1 of Title 2 of the Government Code (GC), Governor’s Executive Order W-9-91, is supported by the California Emergency Plan and by extension, the Law Enforcement Mutual Aid Plan. The State of California Law Enforcement Mutual Aid Plan is issued and revised under the authority of Sections 8550, 8569, 8615 through 8619, and 8668 of the California Government Code, the California Emergency Plan, and the Master Mutual Aid Agreement. (http://www.caloes.ca.gov/LawEnforcementSite/Documents/1Blue%20Book.pdf ) 7 https://www.chp.ca.gov/home/about-us/the-history-of-the-california-highway-patrol 8 Government Code; Section 14613.7. Each state agency that is protected by the Department of the California Highway Patrol, those state agencies currently being protected by contract private security companies, or those state agencies currently under contract with a local governmental law enforcement agency for general law enforcement services, excluding all current mutual aid agreements, shall, as soon as practical, report to the Department of the California Highway Patrol all crimes and criminally caused property damage on state-owned or state-leased property where state employees are discharging their duties. This section shall not apply to incidents that result in the filing of Incidence Memoranda issued by the Parole Divisions of the Department of Corrections and the Department of the Youth Authority. (http://law.onecle.com/california/government/14613.7.html) 9 http://www.dfg.ca.gov/enforcement/ 10 http://www.californiafishandgamewardens.com/specops.htm 11 Cases made against poachers of striped bass are made only because those same poachers also poach sturgeon and salmon. 12 The Delta Fish Agreement guidelines give priority to habitat restoration and other non-hatchery measures in order to protect genetic diversity and avoid over reliance on hatcheries. In selecting salmon measures, priority is given to measures on the San Joaquin River system. There is currently work ongoing to amend the Delta Fish Agreement to include mitigation for the direct and indirect loss of Delta smelt, winter-run salmon, and spring-run salmon. Delta Fish Agreement mitigation projects are funded through DWR by the State Water Contractors. Source: http://www.watereducation.org/aquapedia/Delta-pumping-plant-fish-protection-agreement 13 California’s new marijuana laws, which will take effect on January 1, 2016, will allow 100 square feet of medical cannabis for a patient, and allow caregivers to grow 500 square feet for up to five patients. http://abovethelaw.com/2015/10/an-overview-of- californias-new-and-improved-medical-marijuana-laws/ 14 DBEEP four pumps update (https://docs.google.com/a/ucdavis.edu/document/d/1bTVYRP9Ru_ZiXLA7Q1FFozARQ2mi_ TclFBxSz-ohHdw/edit?usp=sharing) 15 The CAMP program along with our local, state, and federal partner agencies will continue to eradicate the large scale illegal marijuana cultivations from public and private lands that cause deforestation, damage to wildlife habitats, pose danger to our citizens, and hazardous-chemical pollutions. https://oag.ca.gov/bi/camp 16 Email correspondence with UCCE Delta crop advisor Michelle M. Leinfelder-Miles 17 http://london.sonoma.edu/Writings/TalesFishPatrol/white_yellow.html 18 http://cppis.Deltacouncil.ca.gov/Project_Summary_Sheet.aspx?project=DWR_181 19 http://www.caloes.ca.gov/LawEnforcementSite/Documents/1Blue%20Book.pdf

Human use of Restored and Naturalized Delta Landscapes 102 Appendix