One of the most glaring shortfalls emerged as hundreds of volunteers headed to the shoreline to see how they might help. State and federal officials were slow to incorporate volunteers into cleanup and wildlife rescue efforts, citing safety and training deficits. As a result, most of these Good Samaritans were turned away.

Two bills, AB 2031 and AB 2911, seek to address the logjam for volunteer training. The first bill would require the California Department of Fish and Game’s Office of Oil Spill Prevention and Response (OSPR) to provide grants to local agencies so emergency officials could train volunteers in cleanup and recovery operations. The second would fund local agencies and organizations to train volunteers in bird and wildlife rescue in oil and chemical spills.

OSPR came under scrutiny for what Hancock and others saw as mishandling the cleanup. Nine days after the crash, Hancock and other members of the Assembly Natural Resources Committee held the first hearings on the spill. They determined that communication between the Coast Guard, OSPR, and local agencies broke down in the critical days following the spill.

Currently, the authority for dealing with oil spills and other emergencies on the bay falls to the Coast Guard. Coast Guard officials were unfamiliar with the geography of the area and lethargic in their response to clamoring local agencies. Chris Boyer of the Contra Costa County Office of Emergency Services says he offered everything—his agency’s expertise in hazardous spills, knowledge of the area that includes the largest stretch of coastline on the bay, and equipment—only to be told to wait. “I asked what I could do to help, and I was told to fill out this form,” recalls Boyer. Part of the legislation making its way through Assembly committees would invert the chain of command in the event of an oil spill to place local authorities on the top.

Also becoming clear was how under-resourced OSPR was in dealing with the spill’s aftermath. Non-agency scientists and other individuals tried to help soak up the oil by deploying newer technologies for cleanup that OSPR didn’t have. AB 2547 would require OSPR to set aside $5 million each year for purchases of modern equipment. AB 2912 increases OSPR’s responsibilities to include overseeing inland oil and chemical spills, and also raises the penalty for these spills to the level of maritime spills.

Another issue arising from the spill was its effect on fisheries. AB 2935 would require the California Department of Fish & Game to shut down commercial and recreational fishing within the first 24 hours of a spill, determine whether fishing could go ahead within 48 hours, and within seven days test the fish and shellfish in the affected waters for toxins. AB 1960 raises the fines for misreporting spills, but otherwise does little other than re-state existing spill-prevention law. Finally, AB 2441 would require all vessels carrying hazardous chemicals to have a tugboat escort in California’s harbors. Currently, no escort is provided.

At press time, all of these bills had passed the Assembly, with the exception of AB 2912, which was still in committee. Senate bill SB 1739, which would strengthen requirements for oil-spill response contractors, was also being heard in the Assembly, as was SB 1056, which requires OSPR to hold workshops in cleanup techniques such as burning off the oil.

However, the strongest bill proposed, AB 2032, died in the Assembly. It would have raised money for cleanup, levying a 25-cent fee on every barrel of oil produced or imported into California. A second provision in this bill tried to address the increasing size of container ships. As the Port of Oakland and other ports dig deeper channels to handle bigger ships and larger shipments, the fuel required to power these ships becomes a greater risk in the event of an accident; larger ships hold nearly as much oil as an oil tanker. AB 2032 also would have increased the amount of insurance required for these vessels.

Governor Schwarzenegger has come out in support of three of the bills: Assemblymember Pedro Nava’s AB 1960, Assemblymember Lois Wolk’s AB 2911, and Senator Joe Simitian’s SB 1739. The Pacific Coast Federation of Fishermen’s Association’s Zeke Grader says Governor Schwarzenegger has opposed the strongest bills and is starving OSPR by loaning away its funds. “We’re hoping there was some oversight on the governor’s part, because he certainly missed some of the more substantive bills,” says Grader. “What we have right now is a weak, half-hearted position by the governor that misses an opportunity to better prevent and fully prepare for another Cosco Busan or worse.”

But it was no drought. Hall says he observed trucks filling up water from along the creek at Golden Eye and taking it into the town of Philo and other areas where Anderson Valley’s growing population of vintners cultivate their grapes. “You had trucks filling up multiple times a day, every day, all summer,” he says.

Whether by truck, pump, a trench dug into the side of a creek, or a make-shift dam of dirt piled into a creek bed, water users are dipping into creeks and streams without permits. And it comes at a cost: lower flows impact fish and other aquatic life by diminishing water and raising the temperatures in pools that keep fish alive throughout hot summers.

The main culprits, according to the State Water Resources Control Board, which regulates water rights and diversion permits, are agricultural users, frustrated by having to wait five to more than ten years for a permit. Hall and other residents in Anderson Valley, along with counterparts in Sonoma and Napa valleys, narrow those responsible to a specific group of ag users—vintners. State officials concur.

“Wherever vineyards are being developed—Mendocino, Sonoma, Napa, Solano—that’s where we’re seeing lower flows,” says Jeremy Sarrow of the California Department of Fish & Game.

These unauthorized diversions come in many sizes. Sarrow, one of several Fish & Game staffers charged with looking at the biological impacts of water diversions, says many diversions are ten acre-feet or less; authorized users can legally divert small amounts for domestic uses like stock ponds and drinking water. But Sarrow says these diversions are being abused, and ag users are taking water for crops. “You might think, ‘What’s one acre-foot of water?’ but if 500 people in Sonoma County are taking five to ten acre-feet each&cumulatively that’s a lot to take from watersheds that have coho and steelhead populations in jeopardy.”

The practice of unauthorized diversions—particularly in the wine country—is widespread, says Brian Johnson of Trout Unlimited, because the permitting process for smaller diversions makes it hard to regulate who gets to dip into the river and when. “The culture in this part of the world has been that people build first and then ask permission later,” explains Johnson.

Meanwhile the state Water Board has become buried in a backlog of about 500 applications for water permits and roughly the same number of petitions to change water right conditions. “The Division of Water Rights has about twenty technical staff working on these thousand actions,” the Board’s Liz Kanter explains in an e-mail.

And that’s just the queue for water rights and permit changes. Kanter says the Board acts on unauthorized diversions only after someone files a complaint. Estimates of the number of complaints range from a few hundred to nearly a thousand. And the staffing for investigating these claims is even less than the staff assigned to permits—the Board has only twelve staff dedicated to enforcement. “And these staffers have other assignments unrelated to water right enforcement,” she writes.

How does one police unauthorized diversions? Fish & Game’s Sarrow describes a labor-intensive process that includes aerial photography, water right records, and database matching, and old-fashioned shoe leather detective work to see whether diversions are affecting fish in a watershed and whether the diverters have permits. “We’re typically outgunned&we don’t have the staff—regulatory, legal, or otherwise—to take on all the vineyards and other diverters,” explains Sarrow. (See following story for more on Fish & Game’s budget woes.)

Not all is lost. Trout Unlimited and the Natural Heritage Institute filed a petition in 2004 calling on agencies like the Board and Fish & Game as well as Marin, Sonoma, Napa, Mendocino, and Humboldt counties to improve the permitting and regulatory process for water diversions on central coast streams. The petition has called attention to problems of permitting and enforcement.

One result has been the passage into law of AB 2121, which directs agencies like the Board to develop binding standards for diversions from North Coast streams. The bill faced opposition from agricultural interests, particularly the California Farm Bureau. Nonetheless, the bill passed in 2004, and Governor Arnold Schwarzenegger—who voiced strong support in advance of the legislature’s vote—signed it into law.

Trout Unlimited’s Johnson says the Board, vintners, agencies, and counties are trying to work out an amiable solution to the permit glut. As a result of the petition, Johnson says the Board and others understand they have kinks to fix so obtaining a water right is more efficient.

At the same time, Johnson says vintners appear amenable to moving their diversions to the winter. Another key will be getting the vintners to build their storage systems as off-river ponds instead of engaging in practices such as “spill and fill,” where a crude dam is built by dumping dirt into a river and letting the water pool up behind it while the excess spills over. These dams impede water and sediment flow as well as fish passage. “A lot of them want to do the right thing, and if we can respond with a system to get them a permit in a reasonable time, then I don’t think this is an insurmountable challenge,” says Johnson.

Good faith notwithstanding, however, AB 2121 doesn’t designate new funding for staff—including Fish & Game. Nonetheless, Hall is optimistic that he’ll see some improvement in the Anderson Valley. “The [Water] Board understands that the system is broken, so AB 2121 is the best way we can get them to straighten out their act,” says Hall.

That’s why a number of environmental groups, led by the Natural Resources Defense Council, filed suit in August against the state’s Reclamation Board. The board issued a permit in June that would allow the construction of 224 luxury homes atop a 300-foot-wide “super levee” on a Delta island in the city of Lathrop. The suit contends that the board did not consider the effects global warming will have on the ability of the earthen barriers to protect future residents. The environmental groups charge that the board’s failure to look into this nasty scenario puts the project in violation of the California Environmental Quality Act.

“We hope to get the Reclamation Board to address these issues in a rational and considered way, and to draw the public’s attention to the failure of the board to do its flood protection job,” writes NRDC’s Kate Poole in an email.

Agencies such as the Department of Water Resources—following the Governor’s June 2005 order—have looked at how the Delta and other parts of the state will fare as temperatures rise. They’ve generated computer models and what they’re finding is not encouraging. (See article on page 11 for more on the state’s modeling.)

Poole notes that the flood threat to the Delta is “on a scale of Hurricane Katrina.” Climate experts have generated computer models demonstrating that higher temperatures could raise sea levels by more than two feet by the end of this century. This will affect not just coast dwellers but also residents in and around the Delta and its 1,100 miles of levees.

The report by the Department of Water Resources estimated that as little as a one-foot rise in sea level would likely flood the three westernmost Delta islands—Jersey, Twitchell, and Sherman. To guard against flooding, levees will have to be built higher—something the Reclamation Board did not take into account when it approved the plans for the Lathrop development, known as River Islands, writes Poole. Eventually, plans call for as many as 11,000 homes to be built on the Delta island.

Scott Morgan of California’s Reclamation Board challenges Poole’s assertion. Morgan, who could not comment directly on the suit, did say that the board lacked the authority to stop a housing project. It does have the authority to ask a developer to fix a flood control plan that, upon the board’s review, doesn’t adequately contain the water that’s projected to flow by. “Is the board concerned about flooding—yes,” says Morgan. “But it’s not the responsibility of the board to control what goes on behind a levee.”

“Well, it’s no secret that when I was on the board, I advocated strongly for worrying about what happens behind the levees,” counters UC Davis geologist Jeff Mount upon hearing Morgan’s comment.

Mount was dismissed from the Reclamation Board along with all other members when Schwarzenegger knocked out Gray Davis in the 2003 recall election. At the time, Mount and that Reclamation Board had pledged to use its authority spelled out in the California Environmental Quality Act to assess development projects in flood zones.

Mount says that priorities change when the equivalent of cities are built on levees—tasks such as repairs and future flood control projects must take into consideration the needs of the human population. “For this reason alone, it is an inescapable fact that what goes on behind the levees impacts the state’s plan of flood control,” says Mount.

Unfortunately, he notes, the changing of the guard at the Reclamation Board came before standard protocols could be developed for incorporating climate change into hydrologic analysis. Absent these protocols, “it’s not considered standard practice to require projects to take climate change into account.”

While this suit may be the first of its kind, Poole hopes it will start a new trend of state flood control officials taking the effects of global warming into account. And while the klieg lights have dimmed on the bipartisan Climate Change Cha-Cha-Cha for the moment, Mount believes that these efforts—and willingness of the state’s Climate Change team to address the issue head-on—may eventually bubble to the surface of flood management thinking. “But we’ve got a long way to go on this,” he says.

In a modern-day version of the Odyssey, Circe is played by Wal-Mart, Odysseus’ sword is represented by sanctions meted out against the retailing giant for its environmental law violations, and doubting Eurylochos is the environmental community.

In April Wal-Mart pledged to donate $35 million over the next ten years in partnership with the National Fish and Wildlife Foundation (NFWF). Called “Acres for America,” Wal-Mart will set aside an acre for conservation for every acre it has developed or will develop under its ten-year plan. Projects based at the Grand Canyon, Catahoula National Wildlife Refuge in Louisiana, and the Downeast Lakes Forestry Partnership in Maine were among those receiving the first awards. Wal-Mart spokesperson Tara Stewart says the offer is retroactive to 1962—the year of Wal-Mart’s founding—and includes “every store we’ve owned, operated, and leased.”

The amount of land to be set aside from the initial round—321,000 acres—more than doubles what Wal-Mart currently occupies or plans to occupy over the next ten years. Stewart says Wal-Mart’s acreage stands at 88,000. The company’s expansion plans call for 5,000 acres a year over the next ten years. This means Wal-Mart plans to put a store, parking lot, or distribution center on more than 138,000 acres by 2015.

While the object of Acres for America is to offset the environmental impact of a corporation such as Wal-Mart, skeptics abound. Jody Jones of the Maine Audubon Society is one. Maine Audubon was among several groups contesting a proposed Wal-Mart store to be built near the Penjajawoc Marsh in the central Maine town of Bangor. Penjajawoc is home to hundreds of bird species, some of which are listed statewide as endangered.

Jones is happy that the Downeast Lakes will be receiving a grant from the Acres for America to purchase 312,000 acres of forestland. But she notes that this land, in the northern part of the state, is less desirable than, say, the area around the marsh. “Habitat and real estate are alike in that it’s all about location, location, location,” Jones observes.

There is other land, including that near Penjajawoc and in the southern part of Maine that Jones says has huge conservation needs—and provides homes for many endangered species—but because it is highly desired by developers, it has a high real estate value. Jones wonders where Wal-Mart’s conservation priorities were when it was trying to get permits for the land near Penjajawoc. “A year and a half ago, there was an unwillingness to work collaboratively,” she recalls. “They fought tooth and nail—tooth and nail—to build what they wanted to build, the way they wanted to build it.”

Might Wal-Mart be using Acres for America as a public relations ploy to soften objections to even more acreage than that currently on its drawing board? “We’re going to offset an acre for an acre,” insists Wal-Mart’s Stewart. “We’re not going to develop more to offset more; that’s the first time I’ve heard that question.”

Even on its face, an acre for an acre is low-balling in the realm of mitigation efforts, says Jones. “It’s not one-to-one,” she says. “It’s a higher ratio because as you remove habitat you have to preserve even more to make up the difference.”

That Wal-Mart is participating in this program is cause for celebration from the perspective of the NFWF’s executive director John Berry. The concept came from one board member who broke down conservation efforts into four facts: Wide areas of land are sought for conservation; a lot of money is needed to get the land; a lot of American companies leave a big environmental footprint; big box stores like Wal-Mart are doing well financially. This set of facts led NFWF to Wal-Mart’s headquarters a year ago. “This is the biggest capital infusion to preserve land in the history of this country, and it’s the largest charitable donation we’ve ever received,” says Berry.

But is it real, or is it well-timed PR? Tracy Sefl of Wal-Mart Watch says Acres for America must be viewed against the backdrop of the giant retailer’s behavior on other environmental issues. A timeline of the past 18 months shows a different side of Wal-Mart and would read something like this:

• January 2004: Wal-Mart agrees to pay $400,000 to settle claims that its Sam’s Club stores flouted the Clean Air Act in 11 states.
• May 2004: Wal-Mart is fined $3.1 million by the US Department of Justice for environmental violations due to excessive stormwater runoff at construction sites in nine states.
• October 2004: Artists and intellectuals in Mexico petition President Vicente Fox over Wal-Mart’s plans to build a store at the foot of the 2,000-year-old pyramids of Teotihuacán.
• November 2004: Wal-Mart is fined $765,000 for violating Florida’s petroleum storage tank laws and blocking state inspectors from reviewing maintenance records at the company’s automotive service centers.
• February 2005: Wal-Mart is hit with $160,000 worth of fines for violating the Clean Water Act at construction sites in Georgia.

“Wal-Mart’s record tells a very different story,” says Sefl. “They have a pattern where they violate the law, wait until they’re caught, pay the fine, and then they move on.”

Another fact that makes Sefl question the effort is that Wal-Mart hasn’t changed its behavior in any way other than partnering with NFWF. In the Odyssey, the skeptical Eurylochos was eventually proven wrong with respect to Circe. Circe did change her behavior and helped Odysseus and his men return to Ithaca.

But this proof took time, as Sefl observes about Wal-Mart. “Look, we’re strong supporters of a corporation’s efforts to become a better citizen, but change of this magnitude doesn’t happen overnight.”

Between 1999 and 2002, Captain Charles Moore and researchers with the Algalita Marine Research Foundation made several trips to the Pacific Ocean halfway between San Francisco and Hawai’i to study the situation. What he has found is startling.

Dragging trawlers behind his ship, Moore and his researchers took samples to assess the effects of the plastic on sea life. They compared the mass of zooplankton to the mass of plastic and found that for every pound of zooplankton, there were six pounds of plastic.

Plastics accumulate in this region because of the subtropical high, a system of spiraling warm winds travelling from the Equator to the North Pole that produces a funnel-like current. This current pulls in plastics that make their way to sea from street litter of towns and cities all along the Pacific Rim. “It’s possible some of these plastics have been there since the beginning of the plastics era in the ’50s,” says Moore.

California’s coastal wind conditions combine with the winds of the Synthetic Sea to create our own polymer-laden surf, explains Moore. Any waste from the Synthetic Sea that breaks away and gets within fifty miles from the shore is blown onto our bays and beaches. Likewise, debris that is unable to get more than fifty miles offshore gets blown back, where it wreaks havoc with local ecosystems.

Plastics in the San Francisco Bay and the Pacific Ocean trap, sicken, and otherwise disable an average of 25 sea lions, harbor seals, and other mammals locally each year, says Jennifer Witherspoon, formerly with the Marine Mammal Center. “Some get tangled in discarded fishing nets and packing strap, and we do save some,” she explains. “We autopsy those who die, and we’ve found plastics and, in one instance, a sock.”

Externally, they can maim wildlife. Witherspoon recalls “Michelin,” a sea lion found with a rubber tube around his neck; researchers had to euthanize him. An elephant seal with packing strap around her middle was lucky. “We cut the strap, and she doubled in size,” says Witherspoon. “She hadn’t been able to take a breath in some time.”

Researchers at the San Francisco Estuary Institute are trying to learn more about the effects of plastic. In a 2002 study, “Identification and Evaluation of Unidentified Organic Compounds,” the Institute looked at a number of pollutants and found five different phthalate compounds around the Bay. Recently the Institute has begun sampling water, sediment, and tissues in bay dwellers like mussels to develop a more complete picture of phthalates, a ubiquitous polymer found in plastics ranging from medical tubing to children’s toys and pacifiers.

Plastics pose many dangers to the ocean. They remain present in perpetuity because of their chemical makeup—the polymers never completely break down on their own, and there is no organism that can help break them down.

Sea-dwelling birds and other species do not distinguish between food and small pieces of plastic. That’s because many of the plastic pieces are small and tan, resembling krill. Resin beads, or nurdles, resemble fish eggs. Birds and other animals ingest these particles, which make them feel sated, robbing them of the drive to find real food and depriving them of nutrients. Some birds, such as the albatross, regurgitate this polymer-laced meal to feed their chicks. Researchers have found shampoo bottle caps and electric wire plugs in the remains of albatross chicks.

Plastics themselves contain endocrine-disrupting compounds such as Bisphenol A or Di-n-butyphthalate. Endocrine disrupters are compounds with chemical structures close to natural hormones. They bind with hormone receptors in species ranging from fish to reptiles to mammals, and can inhibit biological functions such as sexual development and reproduction, and compromise immune systems.

Moore says it is possible to make plastics from row crops and compounds that are biodegradable. He will soon have a platform in which to make his case. The Algalita Marine Research Foundation is currently working under a $482,183 California State Water Resources Control Board grant to research industrial sites and sources of plastic waste in the Los Angeles and San Gabriel River watersheds, where a recent proposal by the regional water board to establish a “TMDL”—or Total Maximum Daily Load—for trash is the target of a lawsuit by the cities the board seeks to regulate. Moore’s foundation is expected to discuss its findings and actions to be taken at the state and local level at an as-yet unscheduled statewide conference set for this year.

The 9th Circuit’s actions reverse the 2003 ruling by Judge Oliver Wanger that required yet another round of environmental impact studies, requested by downstream power generators and irrigators like Westlands Water District. Westlands, the largest irrigation district in the nation and a big downstream beneficiary of Trinity flows, may yet attempt to appeal the decision. Spokesman Tupper Hall says the agency might pursue the issue of increased salinity levels in the Delta, an ironic move considering that Westlands returns a heavy load of salt, selenium, and pesticides to the San Joaquin River from desert-grown cotton, tomatoes, and lettuce.

But the tribe’s Mike Orcutt is hopeful. “Nothing remains to hold up the [Clinton policy].” In 2000, the Clinton administration demanded that flows to the Trinity be increased—but studies have held up implementation since.

The science of the Clinton policy, favored by the Hoopa, was affirmed when the bodies of rotting salmon piled up on the rocky banks of the Klamath and Trinity rivers in 2002. In studying the cause of the massive fish kills, the National Academy of Sciences found that the reduced flows on the Trinity, the major cold water tributary of the Klamath, contributed significantly.

With the 9th Circuit decision, the tribe and the Trinity County Planning Department can move beyond studying the “environmental impacts” of increased flows—an endeavor that has taken up most of the last 15 years—and get on with the task of restoring the Trinity. Says the Department’s Tom Stokely, “There’s lots of work to be done on implementing [the Clinton policy], and now we’ll have time to focus on that.”

Restoration will include removing vegetation that has grown into dried-up areas, to allow the Trinity’s cold waters to run at higher levels past the red and white alders, tan oak, and ponderosa and sugar pine along its banks. Now river rafters will be able to enjoy the rocky turn through Burnt Ranch Gorge, and the lifeblood of the salmon will flow again.