Worthy of guarded optimism on Water

Specifically, the report says that “to preserve the attributes of a natural variable system to which native fish species are adapted,” the Delta needs 75% of unimpaired outflow from January through June, 75% of unimpaired Sacramento River inflow from November through June, and 60% of unimpaired San Joaquin River inflow from February through June.

The original draft of the report included an Appendix B that tried to estimate the impact of the flow criteria on water supplies in the Central Valley and the Delta. Delta interests, environmentalists, and fish interests were prepared to argue that Appendix B should be removed, but the Water Board staff themselves recommended removing it. The Water Board agreed, saying the modeling in Appendix B was not sufficiently rigorous or complete.

This, of course, did not please water export interests and agricultural interests from outside the Delta.

Splitting legal hairs as usual, Westlands’ Tom Birmingham argued that the law required the Water Board only to transmit the report, not to adopt it. That argument went nowhere.

But he also raised the issue of the Water Board’s public trust obligation and tied that to the co-equal goals, as did the ACWA representative.

It is worth remembering that the SWRCB has a dual (and, Restore the Delta thinks, a contradictory) mission: “to ensure the highest reasonable quality for waters of the State, while allocating those waters to achieve the optimum balance of beneficial uses.”

What is “reasonable”? What is “optimum”? For years, vague terms like these have created an opening for politics to trump science.

Board Chair Charles Hoppin made it clear that Water Board’s adoption of the report would not mean that the Board had separated itself from the co-equal goals.

In fact, the Executive Summary suggests that the report contains acres of wiggle room for the Water Board. It says that “The flow criteria in this report do not consider any balancing of public trust resource protection with public interest needs for water.”

“In the State Water Board’s development of Delta flow objectives with regulatory effect, it must ensure the reasonable protection of beneficial uses, which may entail balancing competing beneficial uses of water, including municipal and industrial uses, agricultural uses, and other environmental uses.”

And the board clearly does not believe that increased flows alone will solve the Delta’s problems. “Best available science supports that it is important to directly address the negative effects of other stressors, including habitat, water quality, and invasive species, that contribute to high demands for water to protect public trust resources.”

People in the Delta won’t be happy to know that the Executive Summary predicts large scale levee collapse within 50 years and sees this as a good thing, promoting “a more variable, heterogeneous estuary.”

And the Executive Summary says that the Water Board is prepared to consider whether some current in-Delta uses, as well as through-Delta exports, “are at odds with the water quality and variability needs of desirable Delta species.”

The Delta Stewardship Council and the BDCP are required to take these flow criteria into consideration as work goes forward on the Delta Plan.

Watch for lots of discussions of what “the public trust” really is, and what “the public interest” is. There is still a lot to be hashed out.

But these flow criteria are a very good beginning.

According to the Water Board’s press release, “The Delta Watermaster will act with a high degree of independence within the Delta to implement and enforce existing water rights laws and State Water Resources
Control Board permits, licenses, and decisions and authority to issue a notice of proposed cease-and-desist order or administrative civil liability complaint.”

Carolee Krieger, executive director of the California Water Impact Network, has said that the legislation creating the Watermaster position was developed under pressure of west side San Joaquin Valley agribusiness interests to “harass” Delta farmers. RTD hopes that he shows equal concern about the amount of water exported from the Delta.

Wilson is an attorney specializing in water rights and regulatory issues and recently served as chief counsel for the SWRCB. He announced at the meeting that he will be hiring staff and developing an agreement to specify what tasks are delegated to the Watermaster.