Glass Half Full: State Water Board Adopts San Joaquin Flow Objectives for Update of Bay-Delta Plan

The State Water Resources Control Board adopted new objectives for flows in the Lower San Joaquin River and for southern Delta salinity on Wednesday, December 12, 2018.  The new plan for flow in the San Joaquin River will require as a start release from reservoirs on the Stanislaus, Tuolumne and Merced rivers of 40% of the unimpaired flow in the months of February through June.  The adoption is part of the update of the State Board’s Bay-Delta Plan, whose last update was in 1995.

The State Board’s December 12 adoption was essential.  It came in spite of massive pressure from politicians of both major parties and from the overwhelming majority of water users in the Sacramento – San Joaquin watershed.  It also came despite the initiative of the Director of the California Department of Fish and Wildlife (CDFW) and the Director of the California Department of Water Resources (DWR) to substitute a series of “Voluntary Settlement Agreements” that would vastly reduce the amount of water the Bay-Delta Plan will require to go into the Delta and out through San Francisco Bay.

The outcome is not perfect.  CSPA has advocated for 60% of the February-June unimpaired flow.  CSPA has opposed the weakening of the southern Delta salinity standards; it will have the practical effect of reducing San Joaquin River flow at times, and the underlying analysis is flawed.  CSPA is weighing litigation on these and other issues.  Nonetheless, many aspects of the outcome are positive.  Here is why.

First is substance.  The State Board stood up for far more water than the water user community proposes to release into and through the Delta.  That’s huge.  Second is process.  The State Board chose public regulatory process over back-room “voluntary settlements” based more on money and politics than on science.

Organizing February-June flows around the percent of unimpaired flow is correct.

The State Board’s December 12 decision validates the use of a percent of the February-June unimpaired flow as the organizing principle for the update of the Bay-Delta Plan.  Among environmental and fishing non-profit organizations, CSPA has been the most consistent and aggressive champion of this principle, in Federal Energy Regulatory Commission (FERC) hydropower licensing proceedings as well as before the State Water Board.  This principle grew out of the State Board’s 2010 Delta Flow Criteria Report, which the legislature required in the 2009 Delta Reform Act and which the State Board adopted in August 2010.

The percent-of-unimpaired flow principle in establishing a water budget is simple.  It is easy for anyone to understand.  It is much less subject to gaming and manipulation by water operators and planners than complicated formulae that rely on diverse constraints and rules specific to various locations and operations in California’s extensive system of water diversion, storage and delivery.  With the percent-of unimpaired principle, you don’t have to be an expert to know if you’re being taken for a chump.

The flows objectives for the lower San Joaquin River adopted on December 12 require release of an adaptive range of 30%-50% of the February-June unimpaired flow, with an initial starting point of 40%.  The total lower San Joaquin flow from February-June establishes a water budget, which under certain conditions can be redistributed within that time period.  It appears to CSPA that the State Board’s adopted objectives would require the release of about double the amount of water that Turlock Irrigation District, Modesto Irrigation District and the City and County of San Francisco propose to release under a “Voluntary Settlement Agreement” for the Tuolumne River, though the details of the proposed Tuolumne settlement are not yet public and may not even exist yet.

Adoption by the Board of the San Joaquin flow objectives sets a threshold bar of whether any proposed Voluntary Settlement Agreement meets the minimum requirement for the water budget set by the State Board.  It appears to CSPA that the proposed Tuolumne Settlement will not come close to meeting the State Board’s minimum threshold requirement.

The San Joaquin water users have consistently tried to beat the State Board down.

Water users have consistently attacked and continue to attack the percent-of-unimpaired organizing principle of the State Board’s objectives. This is most clearly seen in the approach to droughts.  No water user has stepped forward in the State Board’s regulatory process to suggest, for example, specific changes in the objectives that would change the objectives in Critically Dry years or in Critically Dry year sequences.  As CSPA and other Conservation Groups wrote in flow recommendations for the lower Tuolumne River January 2018:  “The Districts and other water purveyors in the San Joaquin River and elsewhere have argued that using a percent-of-unimpaired flow is infeasible in any year because of water shortage and depleted storage (with attendant water temperature impacts) in Critically Dry years and in dry-year sequences.” (Emphasis added).

Up till now, CSPA and allied Conservation Groups (primarily in FERC filings) have been the only entities that have made specific suggestions about how the State Board could modify the San Joaquin flow objectives to address Critically Dry years and dry-year sequences within the State Board’s overall percent-of-unimpaired framework.  CSPA advocated that the State Board evaluate such modifications in comments to the State Board in March 2017 (p. 22) and in July 2018 (p. 2).   CSPA has coupled its approach to Critically Dry years and dry-year sequences with a recommendation for reduced water supply demand in all water years, in order to improve efficiency, allow for carryover storage, and manage water supply expectations.  CSPA has also advocated for more flow in wetter water years, to improve the overall resiliency of fishery resources.

On December 12, Board Member Dorene D’Adamo moved to amend the San Joaquin flow objectives in Critically Dry years.  Other State Board members objected on numerous grounds, including absence of analysis and review time, and refused to delay adoption to accommodate evaluation of a last minute change.  In the motion to adopt the objectives and the accompanying environmental analysis, the State Board did so “with direction to staff to analyze getting input from appropriate stakeholders to analyze the scenario of consecutive dry year and possible options, as part of consideration  of a Delta watershed-wide voluntary agreement or without it [such a voluntary agreement].”

CSPA is still willing to engage with Board staff and Board Member D’Adamo, provided that the water user community is also willing to engage in order to improve the Board’s objectives, not to attack them.  Since August 2018, CSPA has reiterated this option explicitly to staff from the San Francisco Public Utilities Commission.  But the City and the Tuolumne River Districts have continued to roll the dice on their way or the highway.  The absence of specific rules for droughts in the Plan as adopted on December 12 is squarely on them and their colleagues in irrigation districts on the Stanislaus and the Merced.

The current Director of the California Department of Fish and Wildlife and the leaders at the California Department of Natural Resources never believed in the percent of unimpaired, and they have now joined almost all water purveyors in actively opposing it.

In a previous post, CSPA discussed how senior officials in the Trump administration’s Department of Interior compelled California staff from the U.S. Fish and Wildlife Service to surrender to Turlock and Modesto irrigation districts on flows in the lower Tuolumne River.  The U.S. Fish and Wildlife Service, in a filing on January 29, 2018, had proposed flow recommendations for the lower Tuolumne River based on the State Board’s principle of a percent of February-June unimpaired flow.

CDFW embraced the percent-of-unimpaired principle under previous leadership in 2013. See CDFW March 29, 2013 letter from Scott Cantrell, especially p. 10ff.   However, the current Director of CDFW never believed in the percent-of-unimpaired principle, and prioritized getting a deal over the substance of a deal.  The current Director of CDFW surrendered the percent-of-unimpaired principle from the start, just as he surrendered on the principle that good government is conducted in the open.  To the degree that the secret voluntary settlement deals have been daylighted, they all follow the base flow/pulse flow model advocated by water users.

The lead actor in voluntary settlements for California Natural Resources Agency was appointed Director of the Department of Water Resources in January 2018.  This made more explicit the interest of the Resources Agency in suppressing the percent-of-unimpaired principle in any discussion of flow in the Sacramento – San Joaquin watershed, simply on the basis that DWR, like other water users, wants to lose as little water supply as possible.

So what’s wrong with the base flow/pulse flow model, besides the fact that it sells out for 33 to 50 cents on the flow dollar?  A lot of the problem is that when someone proposes an “additional” quantity of water for a pulse flow, say 50,000 acre-feet, it is really hard to say what the basis of comparison is.  To paraphrase Les McCann, 50,000 additional acre-feet compared to what?  The construction invites application of the maxim: if you want a flow increase tomorrow, tell me now, so I can reduce the flow today.

The most likely example of dig-a-hole-and-fill-it is the ongoing reinitiation of Endangered Species Act consultation for the long-term operation of the State Water Project and the Central Valley Project.  An October 19, 2018 Presidential Memorandum ordered completion of this consultation by June, 2019, under this policy: “[T]he Secretary of the Interior and the Secretary of Commerce should, to the extent permitted by law, work together to minimize unnecessary regulatory burdens and foster more efficient decision-making so that water projects are better able to meet the demands of their authorized purposes [i.e., delivering water].”

It is generally estimated that the previous consultation, which produced the 2008 Biological Opinion for smelt and the 2009 Biological Opinion for salmon, reduced Project water exports from the Delta by an average of about 1 million acre-feet annually.  This was generally not water previously stored in reservoirs, but “unregulated” water in high flow events from snowmelt and from runoff during and after storms.  If those Biological Opinions were changed to allow exports at previous levels, the “additional” water from the Voluntary Settlement Agreements would only make up water previously released as Delta outflow because of the Biological Opinions.  Plus, the providers of this “additional” water would get paid for it.  Nice work if you can get it.

The Voluntary Settlement Agreement document presented to the State Board on December 12 provides another example.  “300 TAF of additional water will be made available, subject to conditions below, through Prop 1 storage projects that generate environmental water [and other sources].” (pdf page 58).  “Prop 1 storage projects” are new dams (Sites is the likely first choice) or new groundwater storage projects.  So, if new water storage projects divert water that under current conditions is not captured, the Voluntary Settlement Agreements will require that some of the water that in the past would likely have been Delta outflow without the new water storage projects would generously be released from new dams or water banks as “increased” Delta outflow.  Through this arrangement, less becomes more.

The public, including environmental and fishing organizations, will not know the details of the Voluntary Settlement Agreements for at least two months.  This is partly due to the secrecy of the negotiations, and partly due to the fact that many of the products are conceptual or partial. The public is also likely to remain uninformed on how these Agreements relate to other decisions or actions that water users and state and federal agencies make during that time.

The Voluntary Settlement Agreement negotiations oppose the State Board’s update of the Bay-Delta Plan by substituting a closed and secret process for an open and transparent process.      

The State Board’s adoption of the San Joaquin flow objectives validates the 2010 Delta Flow Criteria Report mandated by the Delta Reform Act of 2009.  Adoption also validates eight subsequent years of work by Water Board staff.  Unlike CDFW and U.S. Fish and Wildlife, Water Board staff has not been overruled by political appointees.  The State Board re-asserted its authority and affirmed its independence from political control.  It showed that science and standards still mean something.

The adoption of the San Joaquin flow objectives side-stepped the effort by north state water users to substitute Voluntary Settlement Agreements for the update of the Bay-Delta Plan.  Had the State Board failed to adopt the San Joaquin flow objectives on December 12, it would have immediately lost credibility as the enforcer of flow requirements and the adjudicator of the state’s water.  The State Board’s decision was not as strong as it should have been, because it didn’t require enough water to protect the public trust. The State Board’s decision also left the door open to acceptance of deals that stand no chance of protecting the public trust.  The State Board could still backslide, and let the water users hijack the update of the Bay-Delta Plan.  But so far, that hasn’t happened.

By contrast, the valley-wide Voluntary Settlement Agreement would retroactively replace the preferred project, the just-adopted San Joaquin flow objectives.  It would also preempt and short-circuit State Board’s staff’s development of flow objectives for the Delta and the Sacramento River watershed.  North state users want to crush the San Joaquin precedent by burying the San Joaquin flow objectives in a water-starved scheme for the entire valley and Delta.  The “comprehensive” settlement is comprehensive only in the sense that it proposes to address the entire watershed in one document.  But it is a comprehensive non-solution.  It proposes a solution to one problem by creating a raft of different problems.

The settlement is notable in substantial part for what it assumes but does not discuss.  It avoids essential elements like carryover storage and Delta export operations, though a fair assumption is that there won’t be any firm carryover requirements and that Delta exports will increase.

Needed: enforceable conditions and a new business model for California water.

Voluntary Settlement Agreements would evade the need for enforceable conditions.  The Voluntary Settlement Agreements proposed on December 12 would solidify the business model in which water supply lives off the water needed to protect public trust resources and finances mitigations with money raised by selling off water that should be assigned to protect the public trust.  Under the Voluntary Settlement Agreements as currently structured, the bad old days of over-appropriating the state’s water will never end.

Although on too modest a level, the State Board’s flow objectives require a new business model: intensive investment in water efficiency and alternative sources of water.  This implies a recognition that water supply is finite and that water users can and must live within their means.

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