CSPA Says “NO” to Privatizing the Public Trust

Oral Comments of Chris Shutes, CSPA Water Rights Advocate, to the State Water Resources Control Board, April 5, 2016. Item 9: 2016 Operation of New Melones Reservoir on the Stanislaus River [based on notes as read; exact delivery was slightly different]

During the drought, Oakdale and South San Joaquin Irrigation Districts lived off Bureau’s [of Reclamation] storage in New Melones while flow at Vernalis was reduced to a trickle.  In 2014, gross farm revenue in Stanislaus County reached a record $4.397 billion. We don’t know what it was in 2015.  In 2016, OID and SSJID want the Bureau and the Board to cut Stanislaus River flow requirements by between 200,000 and 300,000 acre-feet so the districts can sell 65,000 acre-feet of water that the Bureau is storing, for just under $20 Million.  The so-called “conserved” water becomes free insurance for these districts if 2017 is a dry year.  The scheme is breathtaking.

The proposal before you turns the principle of the public trust on its head.  The public trust protects the needs of the rivers as first priority; developmental uses are limited by the needs of the public trust.  As the Light decision stated it, “[W]hen the public trust doctrine clashes with the rule of priority, the rule of priority must yield.”

That’s not how it’s working here.  It’s a completely new paradigm.  Now the rivers get the leftovers.  Water to protect fish is dependent on its sale.  Even VAMP [Vernalis Adaptive Management Program] reduced exports during the San Joaquin pulse, but now it’s fine if water designated for fish protection escorts fish directly to the Delta pumps.  It’s okay because someone who wasn’t using the water anyway is making millions in the bargain.  This subordination of the public trust to developmental uses raises at least four major policy issues.  Your Notice says there are no policy issues raised by this proposal.  That’s just not correct.

Priority is driving public trust responsibility.  The districts and their 600,000 acre-foot priority plus their 200,000 acre-foot Conservation Pool are assigned no public trust responsibilities for the lower Stanislaus at all.  They clearly benefit from New Melones.  In the last two years at least, OID and SSJID diverted more water than there was inflow to New Melones.  Not all of the rest came from upstream storage.  [But] the districts and the Bureau made a deal in 1988, and the river got the musical chair that was taken away.

You have no basis to assume that there was no Bureau water in New Melones carried over [from last year].  You only have Mr. O’Laughlin’s word for it.  Let’s decide now whose water will be left in New Melones next year.  A very crude estimate is that OID and SSJID plan to divert 500,000 acre-feet this year and sell 75,000 acre-feet. They’ll have almost nothing left in New Melones.  By all means, let’s have some accounting.

In the long term, the Board needs to cut these districts back.  Laying claim to the first 600,000 acre-feet from a watershed that produces an annual average of 1.1 million acre-feet is a permanent deprivation of the public trust and an unsustainable business model.  In the long term, export limits also need to coincide with required high flows on the San Joaquin: that’s the solution to exporters gobbling up San Joaquin fish flows and San Joaquin fish.  The Water Quality Control Plan needs to address this impossible situation, as well as the contributions of the Tuolumne and the Merced [to San Joaquin flow].

This is a bad idea.  Don’t approve it.  Require the D-1641 flows to move the juveniles out in April and May.  Order OID and SSJID diversions in 2016 to remain at the level of 2015.  Order carryover storage of 415,000 acre-feet.  If inflow to New Melones and isn’t enough to achieve the water balance, adjust the June baseflows in May if you need to in order to meet the end of September storage target.

Thank you.

Question from Board Member D’Adamo: Under what authority would we order the 2015 level of diversions?

Answer: It would have to be under the principle of waste and unreasonable use.  Yes, it will be litigated.  But it’s time to have the argument.

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