PANEL DISCUSSION: The Bay-Delta Water Quality Control Plan Update: Now What Happens?

Panel at ACWA Conference discusses unimpaired versus functional flows and the potential for voluntary settlements

The State Water Board is expected this year to adopt proposed changes to the Water Quality Control Plan for the San Francisco Bay/ Sacramento-San Joaquin Delta Estuary, more commonly known as the Bay-Delta Plan. Among its considerations, the proposals would increase flow requirements to a starting point of 40 percent of unimpaired flows. If the State Water Board adopts the proposed Bay-Delta Plan update, how could it be implemented? What is the potential for voluntary settlements?

A panel at the spring conference at the Association of California Water Agencies brought together David Guy (President of the Northern California Water Association), Tim O’Laughlin (attorney with O’Laughlin & Paris, LLP), Jennifer Pierre (General Manager of the State Water Contractors), and Eric Oppenheimer (Deputy Director of the State Water Resources Control Board) to discuss these issues.

ERIC OPPENHEIMER, Deputy Director of the State Water Resources Control Board

The panel began with a presentation from Eric Oppenheimer who gave an update on where the State Water Board is in the process of updating the plan.  Completion of the Bay Delta Plan update is a high priority for the board and he acknowledged they have been working on it for quite some time.

The Bay Delta Plan is similar to the basin plans that are adopted by the regional boards.  The plans are required to have certain components, including identifying the beneficial uses of water such as irrigated agriculture, municipal and industrial uses, and fish and wildlife protection.  The plan is also required to identify and set water quality objectives that are intended to protect those uses and then include a program of implementation that once implemented, would achieve the objectives and therefore protect the beneficial uses of water.

What’s different about the Bay Delta Plan is that it includes water quality objectives for flow, and as a result, it has largely been implemented through water right actions,” said Mr. Oppenheimer.

The plan is being updated for a number of reasons:

  • The water code and the Clean Water Act provide the State Water Board with the authorities and responsibilities to adopt basin plans and then to periodically review, evaluate, and update them if necessary to protect beneficial uses over time.
  • The 2014 California Water Action Plan identified updating the Bay Delta Water Quality Control Plan as a key action necessary for advancing the coequal goals in the Delta.
  • The current plan really has not been substantially updated since 1995, and since then, the species and the ecosystem have continued to decline.

Mr. Oppenheimer presented a slide showing the abundance of the longfin smelt and the Delta smelt (lower, left), noting that abundance is represented on the vertical axis, and time is represented on the horizontal axis.  “It’s pretty apparent from the data dating back to the 1970s to current time and that both the species are in a pretty significant downward decline; the trajectory is not great,” he said.  “If you look at the mid 90s when the last plan was adopted, things haven’t improved since then.”

He noted the situation is not any better for salmon, presenting a table of data from the anadromous fish restoration program from the Department of Interior (above, right).  The table shows the data for four different runs of Sacramento chinook and San Joaquin fall run chinook salmon; the first column is the baseline period from 1967 to 1991; and the second column the period of 1992 to 2015.  “Basically what the data show are again significant declines, probably most notably Sacramento winter run,” he said.  “We see an 89% decline from the baseline period to the more current period.”

The State Water Board is updating the Bay Delta Water Quality Control Plan in two phases.  Phase 1 focuses on the San Joaquin River and salinity standards in the Southern Delta; phase 2 focuses on the Sacramento River and its tributaries, the east side tributaries to the Delta, and the larger Delta itself.  Timing wise, Phase 1 is ahead of phase 2; a draft staff proposal has already been released and a Substitute Environmental Document has been prepared.  A staff proposal or SED has not been released for Phase 2 yet.

Phase 1 is proposing modified salinity requirements in the southern Delta for the protection of agriculture, and new flow objectives for the three major east-side tributaries to the San Joaquin: the Merced River, Tuolumne River, and Stanislaus River.  Mr. Oppenheimer acknowledged that the current flow objectives for the San Joaquin River are set at a single location on the river at Vernalis, which is essentially the point where the San Joaquin River discharges into the Delta; those existing flow requirements are currently met through conditions on the water rights that the US Bureau of Reclamation operates under.

As a result, there are certain times of the year when the flow that is needed to meet the requirements are primarily coming from New Melones reservoir via the Stanislaus River, and due to that, we’re seeing augmented enhanced flows on the Stanislaus River, but not necessarily on the Tuolumne and Merced River,” he said.  “So by setting independent flow objectives on each of the tributaries, the idea is that we will realize broader ecosystem benefits across a wider range of the salmon-bearing tributaries in the San Joaquin River.”

Mr. Oppenheim explained that the flow objectives themselves are designed to be a scalable budget of water based on the flow of the rivers.  “The objective that staff has proposed is equal to a budget of water that’s equivalent to 30 to 50% of the unimpaired flow on each of the rivers, with a starting point of 40%,” he said.  “This is intended to be a budget of water, not necessarily strict adherence to an unimpaired flow regime.  That budget of water could then be used where it’s determined that it will provide the most benefit to provide for ecosystem function, such as a pulse flow to assist with outmigration of salmon, or water releases to improve temperature conditions, or pulses to inundate floodplain to benefit juvenile rearing salmon or to create food on the floodplain for fish in the river.  This 30-50% range is designed and intended to accommodate voluntary settlement agreements.”

Phase 2 is focused on the Sacramento River, its tributaries, and the larger Delta.  There isn’t a staff proposal or an SED for Phase 2 yet; however, last fall a final scientific basis report and a fact sheet were released that included at a conceptual level the components of the update to the plan.

Those major components include inflows from the tributaries, new requirements for inflows to the tributaries, new requirements for Delta outflow, requirements for cold water habitat to protect storage in reservoirs that’s needed to maintain temperatures downstream of those reservoirs, and then updated interior Delta flow requirements that would govern operations of the water projects,” he said.

Mr. Oppenheimer said that the State Water Board is aware that flow and reduction in flow is not the only factor that has lead to the decline of aquatic species in the Delta, such as challenges with predation, temperature, water quality, and habitat.  “We get that flow alone is not a panacea for recovery of the species,” he said.  “But there is no getting around that flow is a critical component that fish need for their success and survival.  Flow can provide many benefits.  It can improve water quality, it can improve temperature conditions, it can engage floodplain habitats and engage all sorts of habitats that are available currently, and these relationships between flow and benefits to fish bear out in the data.”

Mr. Oppenheimer presented a slide (bottom, left) showing the relationship between the outmigration of juvenile salmon at Chipps Island plotted against flow at Rio Vista for April through June.  “Basically what we see in these relationships is as flow goes up, outmigrating juvenile salmon abundance increases,” he said.

He noted that the situation is similar for Delta centric species such as longfin smelt, splittail, and starry flounder (upper, right).  “For each of them we see that as flow goes up, abundance increases.”

With respect to voluntary settlements, the California Natural Resources Agency has been leading the settlement discussions and for the most part, the discussions have been confidential, said Mr. Oppenheimer.  “The Board is not involved in those discussions, but we see a lot of promise and upside potential,” he said.  “We are very enthusiastic about settlements for a number of reasons.  Settlements have the ability to bring additional tools to the table; in addition to increased flows, settlements can bring habitat and other non-flow options that the Board can’t really address through the basin planning process.  In addition, they can reduce conflict, and if we get people to agree that these are the right things to do, as a result, we can see improvements in the watershed faster and have potentially more durable solutions as a result of settlement agreements.  The other big benefit for the water supply community is that I do believe that there is an opportunity to reduce the amount of flow that is necessary if it is combined with improved habitat and other non-flow actions.”

Mr. Oppenheimer then explained how voluntary settlement agreements dovetail with the Board’s basin planning process.  “From my perspective, it would be ideal if the settlement agreements were to come forward during the Board staff’s process of developing its proposal and it’s program of implementation for the basin plan, because if settlements come forward and our Board agreed that they were acceptable, we could incorporate them more cleanly into a program of implementation before we adopt it,” he said.

However, that doesn’t mean that if the Board moves forward with adoption of the plan, that there aren’t still opportunities for settlements.  “If you’ve read our Phase 1 program of implementation, we encourage settlements and we create the space to accept settlement agreements,” he said.  “I mentioned the flow requirements are based on 30 to 50% of the unimpaired flow in the San Joaquin River with a starting point of 40%.  So for example, if a package came forward and the Board agreed that it is an acceptable package, the Board could move down in the range of unimpaired flow requirements from 40% to 30%, and it would require board action and a board meeting and all of that, but I think it would be fairly streamlined and manageable process.”

If settlement agreements do come forward after the plan is adopted and they don’t fall within the range the Board adopted, the Board can still consider that, but it’s a more cumbersome process that will likely require the board to update the plan.  “I also think that settlements that fall outside of an adopted range have a higher bar to cross in terms of demonstrating that these agreed upon actions will result in equivalent or hopefully greater benefits than the Board’s flow requirements alone,” he said.

In terms of next steps, staff has been working for the last year on evaluating the comments received and preparing responses; the final staff report and responses to comments will be released sometime this summer.  There were probably be a short comment period, the Board will consider adoption; they will either approve or not the staff proposal and certify the final substitute environmental document.  For Phase 2, the plan is to release a staff proposal and the Supplemental Environmental Document also sometime this summer.

And with that, Mr. Oppenheimer concluded his presentation.

TIM O’LAUGHLIN, attorney, O’Laughlin and Paris, LLP

Tim O’Laughlin said he’s been dealing with the update to the Bay Delta Plan pretty much every day since the original draft report came out, and so today he would talk about the voluntary settlement processes and how they fit in with the water quality control plan and with California Water Fix.

Let’s go back in time,” he said.  “There are some things that are different now than when we did this back in 1995.  In 1995, the State Water Resources Control Board adopted a water quality control plan.  My clients at that time were the only ones who sued on the water quality control plan.  We held that suit in abeyance while we worked for the next 9 months, basically a year almost, in developing a settlement agreement to implement the 1995 water quality control plan, and that resulted in the San Joaquin River agreement that was implemented that ran through 2010.”

The State Board noticed this proceeding in 2009; it’s nine years later and a final draft is expected this summer.  “Then it will get adopted, and then we’ll go to court,” Mr. O’Laughlin said, noting that his office has already prepared a 185-page complaint based on the water quality control plan they last saw.  “There are a myriad of issues that need to be addressed.  In the 1995 plan, no one sued on the plan, so when this document comes out and gets adopted by the State Board, everyone will be suing on the plan.  Everyone.”

If we’re going to try to get things resolved in the Delta, voluntary settlement agreements are the way to expedite the process.  “Last time when we did the water quality control plan, we litigated the San Joaquin River agreement, which is really what we would call Phase 3 which is the implementation of the water quality control plan.  We had agreements by literally everyone and we still had 88 days of hearing in front of the State Board, and that case was basically seven years in the courts.  Given the amount of parties involved in the current proceeding and given the number of issues involved in the current proceeding, I can’t imagine that litigation filed against the current water quality control plan would get done any sooner than that – and that’s only the plan.  Now you still have to go do an implementation of the plan, so I think it’s in everyone’s best interest to do a settlement.”

Unlike in 1995, California Water Fix is moving forward at the same time, Mr. O’Laughlin pointed out, and there’s a very significant phrase in the Delta Reform Act that says that if the Board is going to adopt permit conditions or approve the project and change the permits, that they have to decide what the appropriate Delta flow criteria are.

So far in our discussions and with what’s occurred at the Board, there’s a disconnect,” he said.  “One is on one railroad track and one’s on the other.  I’m not involved in the California Water Fix, not one of my clients are going to get any water from the California Water Fix, but Met’s just put up $13 billion. If your project yield is 5.1 MAF average annual, and all of a sudden if you have to make additional Delta outflows of an additional 300,000-400,000 acre feet, then your unit basis for the cost of that project has just gone up substantially.  And you’re still not done with the water quality control plan.  Because the water quality control plan is still going to move forward in phase one and phase two, so you’re going to get double dinked.”

Now on my side of the aisle, we look at it a little bit differently,” he said.  “We don’t want to get dinged with the California Water Fix appropriate Delta flow criteria.  So currently, what’s being proposed in Water Fix is basically the 1995 water quality control plan, plus OCAP output.  We’ll leave OCAP off.  What happens though is if that’s the case from their side of the aisle, and they get 1995 water quality control plan, then who is going to make up the rest of this water?  Well, it’s going to come in this water plan, because when you look at what the State Board is basically doing, if you add up the numbers, generally, and we don’t know Phase 2 looks like yet, but roughly on the San Joaquin River, it’s somewhere between 300-325,000 acre-feet of additional water down the river on an average annual basis.  Based on the scientific basis report for Phase 2 they released last year, ballparking it, it’s roughly 500,000-700,000 acre-feet of additional inflow into the Delta.  Ballpark, I call it an additional million acre-feet.”

Mr. O’Laughlin then discussed the voluntary settlement process, noting that he can’t give details as there is a confidentiality agreement, but he would give a sense of the disconnects that are happening.

He noted that the State Board says they are inviting voluntary settlement agreements, but if you look at what the State Board is telling you, it is on their terms and conditions.  “It says, if you come in with a settlement, you have to be in a range of 30 to 50%,” he said.  “We’ve told the State Board and we’ve told Resources, that doesn’t work.   It doesn’t work because when you hit critically dry years or sequentially dry years, you just don’t have 30% of the unimpaired flow available to meet these requirements.  And if you do, you’ll devastate agriculture in my area – in San Joaquin, Stanislaus, and Merced counties.”

Mr. O’Laughlin said this is a major point that has to be resolved, but the discussions have been going on for six years with the Department of Fish and Wildlife and the Natural Resources Agency and every time, it’s always back to the same thing: ‘We need 30 to 50%.’

Lately the tune has changed, so now you heard Eric mention that it’s a block of water,” he said.  “This provides a real disconnect for me and my clients on another level.  I have no problem talking about blocks of water; if somebody says, it’s a dry year, we need 50,000 acre-feet in the springtime of additional flow, we can manage that.  But the disconnect is that’s not what the water quality control plan says, and that’s not what the basis of the water quality control plan says.  When you look at the 2010 Delta flow criteria report that was adopted by the State Board and submitted to the legislature, it says very clearly that they needed unimpaired flow to mimic the natural hydrograph.  So how is a block of water mimicking the natural hydrograph?  It doesn’t.”

If you read the water quality control plan further, it’s on a 7-day running average, so you’re going, on a 7-day running average of 40%, you’re going to be going up and down, up and down,” he said.  “Well, that’s not what a block of water looks like and that’s not what releases look like.”

The final disconnect is that they talk about needing water February through June.  “If you spend time and looked at the water quality control plan, you would see that upwards of 25% water that they “want” in the spring is shifted to the fall.  Where did that come from?” he said.  “So when you’re in a settlement discussion, you say well, if you want a block of water, then why are you putting water into the fall and where’s that going to be stored and how is that going to be stored and who has control over it and who has ownership over it?

Mr. O’Laughlin said that on the Stanislaus River, one of the components of the water quality control plan is that the two senior water right holders on that river, Oakdale Irrigation District and South San Joaquin Irrigation District, are going to be pushing water into storage in New Melones, a CVP facility.  “If you store water in a CVP facility, either you get a Warren Act contract or you abandon and forfeit that water and it becomes CVP project water under which you have no authority or control.”

So one of the things I keep trying to tell people is that we’re not going to do water quality control plan; we’re not going to do unimpaired flow – we’re just not,” said Mr. O’Laughlin.  “That’s not going to happen.  We need sequential dry year relief.  It’s a requirement.  If we don’t have sequential dry year relief, the problem is if you’re pushing out this much water in other water year types, your reservoirs are dropping, and when those dry years hit, there’s just not enough storage behind those reservoirs to meet instream flow needs and to meet your agricultural diversion needs as well.”

The other thing they hear is that if they come up with non-flow measures and pay money and do projects in the river and do habitat restoration, they will get credit.  “But if I heard Eric correctly, that is only a credit between 50% and 30%, so the floor is still 30%.  Why are people going to spend millions of dollars to do habitat improvement and get little or no credit for it?

Mr. O’Laughlin pointed out another disconnect:  If non-flow measures are truly improving the fishery, then why do you need flow?  “If you go out and do habitat restoration, gravel augmentation, riparian corridors and improvements, and you can increase your abundance of fish coming out of tributaries, then you’ve done your part.  We call it the zone of responsibility.  That’s our contribution to trying to make this solution work.  We keep trying to tell the State Board and Resources Agency that we can’t be responsible for the rest of the world.  We only have control over a little segment of the universe through which these salmon go.”

Mr. O’Laughlin said that one thing that frustrates him deeply is that the other day, the Pacific Fishery Management Council once again reported that they had overshot the estimates for ocean conditions and that the effective ocean harvest rate last year was 72%.  “How are we ever going to recover salmonids or reach the doubling goal if the Pacific Coast Fishery Management Council in 11 out of last 13 years has overestimated the fish available for harvest and harvest rates are in excess of 60%?  How do we ever expect to get our salmon production increase?  You can’t.

Nobody is addressing the predation issue, he pointed out.  “There is no doubt that on our tributaries and in the Delta, predation is a major issue,” he said.  “It’s identified in NMFS’s recovery plan, it’s identified in DFW’s plan, but no one is discussing that.  How is flow going to change ocean harvest?  How is flow going to change ocean conditions?  How is flow going to change our hatchery practices?

There’s a lot of talk about the natural production of anadromous fish, and that’s a laudable goal, but there’s a disconnect there as well, said Mr. O’Laughlin.  The hatcheries are pumping out 32 million smolts a year, trucking them to the Delta or the ocean and releasing them, while in the San Joaquin River, the total production of fish spawning in the rivers and smolts going out is probably on average is about 300,000.

How is increasing flow on those tributaries upwards of 300,000 acre-feet a year going to change that dynamic?,” said Mr. O’Laughlin. “We’re 1% right now, and even if we went to 1 ½% we had a 50% increase in smolt production, it is not going to do anything, given the 32 million smolts that are being released by the hatcheries.  To think that we have this natural pristine native fishery fall run chinook salmon fishery out there is a myth.  They are all hatchery fish.”

US FWS prepares to release hatchery fish at Rio Vista, March 2015. Photo by USFWS.

The Stanislaus has a lot of fish coming back, but where are they from?  When they started trucking fish out to the Delta, what happened is all the fish strayed when they came back, so they are from the Mokelumne and the Merced, both of which have hatcheries; the Stanislaus does not.  “Our fish that were coming back from the Stanislaus were adipose-fin clipped at more than 30%,” he said.  “Well, if hatchery fish are only adipose-fin clipped at 25% coming out of the hatchery, that literally tells you that 100% of the fish coming back to those tributaries are hatchery fish.  So what difference does increasing flows make on the Stanislaus River, the Tuolumne or the Merced if all your fish are coming back from hatcheries and you have no hatcheries on your rivers?

Mr. O’Laughlin said that in regards to the settlement agreements, people have to realize what is really happening in reality out in the world and tie that up to a program that can pragmatically be implemented and operated to see if we can make changes and improvements in the system.  “I’m not saying that we can’t, I’m not saying that we shouldn’t, but right now, from where I sit, the disconnect is so large, I don’t know how we’re going to bring the sides together somewhere in the middle or wherever that ends up being, because we don’t talk honestly about what it is that we can do and what it is the people want us to do,” he said.  “Right now that is what I think is the biggest problem we have in trying to bring closure on voluntary settlement agreements.”

DAVID GUY, president of the Northern California Water Association

David guy said he’d be discussing a modern flow approach for the Central Valley in the context of the Sacramento River basin.  “We have a wonderful group of folks, leaders, board members, and managers that we’re working with,” he said.  “On the Sacramento River, the Feather River, the Yuba River, and the Mokelumne, we’re all working very closely together at this point in trying to find better flow paths and better ways to improve conditions for fish and wildlife in the Sacramento River basin.”

The charge of the State Water Board is to manage water for multiple beneficial uses in the Sacramento River basin.  There are 2 million acres of farmland; four runs of salmon, two of which are endangered; the Pacific Flyway and the ricelands and the refuges, as well as the cities and rural communities that are sprinkled throughout the region.  “What we try to figure out is how to manage water for all of those beneficial purposes, and obviously flows is a part of that discussion,” he said.

There has been a program underway for the last several decades to benefit fish and wildlife in the Sacramento River basin which has completed about 200 projects up and down the valley.  The projects are all designed to benefit conditions for salmon and they all involve water with habitat, and the essence is how to integrate those into one place, he said.  The Pacific Flyway is the environmental success story of our generation and it happened in large part because people figured out how to make this work for the Central Valley, so they have a great story they want to keep building on, he said.

We always find it a little frustrating that we have this discussion about flows when in fact we have flows in the river every day, but the question is what do those flows do?” said Mr. Guy.  “That’s what we want to think about as we talk about a modern flow approach.  With all of that good work that’s been going on in the past 20 years, there is a tremendous amount of momentum that’s feeding into the voluntary agreement process that we’re very optimistic about, but it also hopefully will ultimately find it’s way into a 21st century regulatory approach that will work and accommodate all of this. “

So the question is, can the 21st century regulatory approach accommodate the work that’s being done in the Sacramento Valley?  “Will it foster the continuing work for improving fish and wildlife or will it derail it and send it off in a different direction?   The answer to that question in our view depends on which fork in the road you take.  Do you go down the unimpaired flow route, the Delta outflow route, or do you go down a different fork in the road, a modern, more functional targeted flow path?  I want to contrast those two, and how that would look in the Sacramento River basin as we go forward, because I think that’s where we are here in California: which is the policy direction we are going to take to improve fish and wildlife in the region.

Unimpaired flow is basically the existing river channels without storage and diversions.  “You would just basically pretend that storage and diversions don’t exist with the existing river channels, and then there’s the discussion about Delta outflow which is essentially a synonymous discussion in my view at this point,” Mr. Guy said.  “Oppose that to a targeted functional flow where you have a discrete specific amount of flow that is timed for a specific purpose and a specific beneficial use, and I think the contrast between those two is increasingly important.”

Mr. Guy pointed out that we’ve tried the unimpaired flow approach in the Delta for the past 20 years, and we have to be honest with the results.  “My organization was one of the signatories to the Bay Delta Accord, which was a great hallmark event; it happened and it was all good at the time,” he said.  “But as a result of that process, we have dedicated more than 1.3 MAF of water on average to Delta outflow, largely through the biological opinions, and also through D-1641.   It hasn’t been working – the fish are declining, and the CVP contractors south of the Delta got 40% supply after two years where the CVP reservoirs were full.  Something’s not working.  I work with farmers.  When something doesn’t work on the farm, next year, I guarantee they try something different.

Butte Canyon Ecological Reserve, photo by DFW

Butte Creek is a rather underwhelming place when you go there, but it has been incredible for spring run salmon, Mr. Guy said.  Former Secretary of the Interior Bruce Babbitt and others recently came out to the banks of Butte Creek to celebrate 20 years of success.  Butte Creek and the spring run have been really dynamic on Butte Creek and why is that?

He said it’s a fairly simple equation consisting of three elements.  “You have a flow and spawning dynamic in the upper part of the river that’s been benefited by a little bit of Feather River water that’s been put over there through PG&E, so you have a nice cold spawning area in the upper part of the river,” he said.  “The middle part of the river, the migratory corridor, is where many impediments were removed through siphons, getting rid of diversions, fish screens – a variety of things.  It’s now a really good migratory corridor.  And what we’re seeing is that probably the key to Butte Creek and what separates it from other places, is that Butte Creek used to go into the Sacramento River, but now Butte Creek goes through the Sutter Bypass, so you now have rearing habitat, food, all the things that a bypass dynamic provides, and so you combine those three elements, it’s a formula for success.  It’s not an unimpaired flow; it’s a small discrete functional flow.  So that is what has worked in our view.”

What does the science tell us?  Mr. Guy noted that most of the science regarding unimpaired flows is about 20 to 30 years old.  Look at the new science, he said; look at the science coming out of UC Davis, the Delta Stewardship Council and the Independent Science Board.  It’s pretty exciting, he said.

Mr. Guy then discussed four elements of the current scientific thinking that he thinks are important.

The first is that the marriage of land, water, and sun is magical; it’s what brings about life.  “An unimpaired flow divorces the water from the land,” he said.  “It pushes water down a sterile inhospitable channel whereas if you can somehow figure out a way to create that marriage of water, land, and sun, that’s what brings life and that’s what the scientists are telling us.”

The second point is that floodplains are a big part of this.  Mr. Guy pointed out that there is about 5% of the historic floodplain left in the Central Valley, and also about 5% of the native fish left, and that’s not by coincidence.  “Bottom line is the floodplains provide great promise in the Sacramento Valley,” he said.  “There’s an opportunity to spread the water out, slow it down, and create that magic of the land, the water, and the sun.  It’s that interface that creates food, it’s that interface that creates a safe place for the fish, and there’s a lot of work being done in the Sacramento Valley right now on both sides of the levee and in the bypasses, as well as some fish food programs on the dry side of the levee as well.  So there’s a lot of promise there.

The third point is the time value of water. There are those that think about the time value of money, but the time value of water is just as critical.  “That’s what a functional flow does; it allows you to think about the time value of water,” he said.  “That’s what all of you do as managers.  You’re essentially managing the water for the best value and the time.  That plays out in two ways in our view: it’s not only the time when you put the water kind of in connection with the land, but there’s also a resting period, and a lot of science right now is trying to determine what is the best resting period for that water to be out on the land to create that magic food production that is essential to life.”

And lastly, the USGS has been telling us for years about the tidal influence in the Delta and we haven’t been listening, but they are being persistent, he said.  “Recently the PPIC published a paper reflecting some of this work and the bottom line, it said you could drain Shasta and put it down into the Delta, and with the tidal influence, it’s not going to change much.  It’s just not a very good use, so the scientists are telling us to pay attention to the tides, and finally I think we’re starting to listen, so I credit the USGS for their persistence.”

Unimpaired flows are devastating in droughts, Mr. Guy said.  “It’s that sequential dry year, going from a normal year to a dry year when you basically evacuate the reservoir and then you set yourself up the following year for no water in the reservoir, and that not only effects the economic dimension down below but that also kills your cold water pool, so you’re really killing salmon in that process as well.”

With unimpaired flow, you lose the ability to recharge groundwater, he said.  “A functional flow will spread that water out and think of it in different ways.  It can help retain the storage for the following year when its dry and it can help with the groundwater recharge, so I think this functional flow concept is really critical if we’re going to prepare for the next dry year.”

The beauty of a functional flow is we can serve multiple beneficial uses,” he said.  “When you spread water out and slow it down up in the Sacramento River, during the summer it supports the agronomic purposes or the farming; and in the fall, it supports the rice decomposition and the Pacific Flyway, the food source that is critical for the birds to migrate up and back from Canada and Mexico.  You can at the same time, also in the winter, provide fish food and benefit for fish in the region, as well as recharging groundwater, depending on the soil types.  It’s that multi beneficial use dynamic that we think is what California Constitution, Article X Section 2 says – to maximize beneficial uses.  That’s the overarching purpose.  Unimpaired flow pushes the water down into the channel, out into the Delta, potentially serves a beneficial use in the Delta, but one very narrow purpose at best.”

Collaboration is also important.  “We’re working in harmony with NGOs and the State Water Contractors that have made an incredible investment in the Sacramento Valley with respect to salmon projects,” he said.  “We’re working with federal and state agencies and we’re implementing the recovery plan for salmon in the valley.  There is incredible collaboration around recovery plans and around this idea of doing these projects together.  Contrast that with the biological opinions which had 12 years of litigation; contrast that with what you’ve just heard as far as potential litigation around an unimpaired flow approach.  Do we want to be spending the next 20 years collaborating, working forward to improve conditions for fish, or do we want to be spending it in the courtroom?  I think it’s a pretty easy choice.”

Unimpaired flows are simple; you can put a percentage to it, such as 40%; functional flows are hard work, Mr. Guy said.  “Because it’s hard work, it takes a lot of thought, it takes a lot of science, and it takes a lot of people to pull together the collaboration, so I don’t think we ought to pretend it’s easy, but at least it’s the path forward in our view to achieve multiple beneficial uses in the valley.”

He summed it up by saying that he thinks the functional flow approach is what is needed.  “We think we can do that through a voluntary agreement process and we’re very optimistic about that,” he said.  “But we also need a regulatory approach in the 21st century that will accommodate and reflect this new approach and this new science that we’re seeing throughout the state, and that’s what we really look forward to working on as we go forward.”

JENNIFER PIERRE, General Manager of the State Water Contractors

The State Water Contractors is an organization of 27 public water agencies that stretch from Yuba City down to the Mexican border and into the desert.  “We have a very varied group of water representatives and water managers in our group, but one of the things I’m most proud of in this group is their commitment to science and to understanding exactly what is happening in the Delta, and managing water in a way that does provide benefits to the ecosystem and in a way that provides reliability in the way that the Delta is managed, and in that note, we are approaching the water quality control plan,” Ms. Pierre said.

It’s important that we acknowledge what we know, but also what we don’t know, she said.  “There is a lot that we do know and we can manage to … I think we have to ask ourselves, how do we want to manage fish in the Delta?  Is this a place we want them to rear?  Do we want them to hang out?  Do we want them to grow and become big fish that enter the Delta or are we trying to push them out the Delta?  And answering that question informs what we do with outflow – for salmon anyway.  With Delta smelt issues, there is so much emerging science coming out of IEP and UC Davis and other avenues that is really indicating that we don’t really understand the relationship as well as we might pretend that we do when we were setting up these regulations.”

So we’re really looking for a process that resets how we do science in the Delta, and how the governance and decision making occurs that is based on that science, and right now we have really no mechanism to incorporate into our decision making the information that we’re learning,” she said.

Ms. Pierre pointed out that last year, Fall X2 was a reasonable and prudent alternative action that was included in the biological opinion; it was the second year that it was triggered since that biological opinion was issued in 2008.  It cost the SWP 490,000 acre-feet of water, and yet the smelt surveys were showing that there actually weren’t any Delta smelt at all in the Delta during that period of time.

That’s 20% approximately of the water right of the SWP in two months that were provided for fish that weren’t actually even there,” she said.  “That is the sort of thing that we’re frustrated with.  The functional flows really come down to being able to have the flexibility to say, what is it that we’re trying to achieve and what are we targeting, and using our flows in a way that puts it to its best and highest use, and doesn’t just say, put it through the Delta and that’s going to provide some benefit.  We already know that doesn’t work.”

Combined with the current water quality control plan and the biological opinions, on average 1.3 MAF of water is spent outflow annually and we’re not seeing any benefits from that, she said.  She referenced the recent PPIC blogs, noting that they go back to the functional flow idea of how to use flow in a way to not only to just put more flow in the system but to target things like temperature in the tributaries, or working with the tides in a way that slows things down and provides food benefits as well as to minimize aquatic weeds.

“I think there’s a lot that we do know and we can do, but we do need some flexibility in order to learn from what we continue to do science on and then incorporate into a plan,” said Ms. Pierre.  “Having a 20-year plan that is stagnant I think is going to result in continued declines of fish and in the conditions in the Delta.”

Ms. Pierre expressed optimism about structured decision making.  The development of the Delta smelt strategy came through the Collaborative and Adaptive Management Process where, with the help of a consultant, they were able to find consensus on actions that they could take to help the species.  “This means if we continue to apply this and if we can continue to incorporate the information that we’ve learned, we can actually move forward in doing projects, whether they be flow or non-flow, that we have consensus around that can actually benefit fish,” she said.  “What was interesting about that particular exercise is that some of the things this consensus group of environmental organizations, agency staff, and water users found that the easiest and cheapest pieces of the Delta Smelt Resiliency Strategy were the ones that they had the most consensus about the potential benefit, and that’s actually really encouraging. There’s a lot we can be doing now.”

There’s a focus on unimpaired versus natural versus functional flow, but Ms. Pierre pointed out that there are a lot of commonalities across all the panelists.  “I would encourage us as a group to focus on where we have commonalities and move forward among those commonalities while we continue to learn about the things that we disagree,” she said.  “We do disagree on flow.  There isn’t actually a number we can throw out.  30% of unimpaired or 1.3 MAF – Nobody really knows.  I think what we need to be doing is committing ourselves to understanding that and not digging in on a particular number, but setting up a process and a way for us all to learn together and make adjustments in the Delta and the tributaries as needed.  Whether that be through a voluntary process or through the water quality control plan, with climate change and with the acknowledgement that we have a lot to learn, I think we need to have the flexibility in the water quality control plan.”

Another consideration needs to be that fish, salmon in particular, need cold water behind the dams, and fish also need flows through the system, but there’s only so much water.  “When there is a series of dry or drought years, what are we doing as water managers to make sure that we’re protecting that, and how are we able to make tradeoffs?” said Ms. Pierre.  “We had a really big problem during the drought, where we were simultaneously trying to hold cold water while at the same time, put water through the system for water quality and for ecosystem benefits.  I think we have some work to do to figure out how we prioritize what ecosystem functions that we need to be managing to under different conditions and how we’re going to have those tradeoffs occur.”

Flexibility in the water quality control plan is going to be key in being able to make those decisions and to use the knowledge in order to manage best we can, because we can’t actually predict exactly how many years of drought will be or bad it will be,” she said.  “We know it’s coming, but the specifics of that condition are never going to be known, and setting up a stringent criteria to manage that is not going to serve us, I don’t think.”

The other thing Ms. Pierre pointed out that it is really difficult to implement the non-flow actions.  Although there is a lot of support for implementing things not related to flow, DWR and Reclamation are currently responsible for implementing 8,000 acres of tidal wetland restoration in the Delta under the biological opinion, but not a single acre has been implemented yet – and that’s not for lack of trying, she said.  “There’s been a huge amount of effort to try to get those acres in the ground, and we can’t.  It’s just been one hurdle after another.  I’m optimistic that we’re approaching our final hurdle and that we’re going to see those restoration actions occur, but as a community, we need to agree that these things are a priority and get them done.”

That has been a huge challenge and that is going to challenge unimpaired flow, natural flow, function flow – it doesn’t matter,” she said.  “Those are going to be critical to recovering species and managing, and if we can’t figure out as a community that those are a priority, than we’re going to be in a lot of trouble.  It’s not a money thing, it’s a regulatory thing, it’s a priority thing, it’s a getting out of our own way thing.”

DISCUSSION HIGHLIGHTS

Moderator Brent Hastey who is Chairman of the Board of Directors of the Yuba County Water Agency recalled how they worked through a voluntary settlement that resulted in the Yuba Accord, and that took them a lot of Saturdays and about three and a half years.  The State Water Board will be releasing documents this summer, which is a pretty short time frame.  We have less than three months to finish this up.  Is that possible?  And if so, what are the strategies that you think can make that happen?

We can do this,” said Jennifer Pierre.  “Everybody has a stake and everybody needs to put something forward.  It’s really easy for us to all say we’re going to go into our corner and say we’re not doing this and we’re not doing that, but I think there’s a lot we can do, and again I think if we can focus on where we have common agreement, we can find a path forward.  I think it really is about just acknowledging how much we actually do see things similarly and focusing on that, and then setting up a program to work on the things that we have disagreement about or that we don’t understand yet as we implement the plan.  That to me is the path forward.  It allows us to both achieve a deal or a plan in the short term, but it allows us to start getting something done to help the ecosystem, and that is what is going to stabilize water supply, that’s what’s going to stabilize our fisheries and also allow us to build trust and relationships in our system which is sorely lacking.  To me, that’s the only path and I think it can be done quickly if we just decide that we’re all going to take a little bit of a risk.

We’ve been negotiating on the San Joaquin for six years with Resources, DFW, and a host of people and we are no further along than when we started,” said Tim O’Laughlin.  “The water quality control plan is coming out this summer so it’s coming out shortly.  The question is, how are you going to take these complex issues in these huge chasms that we have?  I agree with Jennifer; there’s a lot of things that we agree upon.  But the issues we don’t agree upon are so large that they kind of swallow up the ones we do agree upon.  So if the water quality control plan comes out and the State Board adopts it by September or October which we hear they will, how do you have a settlement to feed into that process?  You don’t.  And I don’t know if we can get one in three months.  We’re in; my clients are participating and we’re working with Jennifer and David Guy and others on trying to put together a package that we can move forward with, but its going to take a lot of work in the next three months to get that done.”

We have an amazing framework to do this and these things don’t come along very often,” said David Guy.  “The Governor has said all the right things about voluntary agreements; it was in the water action plan and he had some principles that he articulated which I think are very helpful.  The agencies are all working towards this in different ways. … We’re hoping that Eric and his team will provide the space for this to be successful, but that’s not an easy thing for a regulatory agency like the Water Board, but giving us some flexibility, giving us some space to be successful I think is going to be really important.

It is incumbent upon the water managers in the state to roll up their sleeves and make this work,” continued Mr. Guy.  “We’re the experts, we have a wonderful team, and we just have to lead the way on this.  Brent, I think that’s what you did on the Accord, and we just have to lead the way and work with folks to make this work for 21st century California.  I think it’s a different dynamic, but water agencies have always risen to the occasion in this state when they needed to.”

I’m at a bit of a disadvantage as I’m not involved with the settlement process, but it’s not like we’re starting today and we have three months,” said Eric Oppenheimer.  “There’s been a lot going on in the background, and I agree with Jennifer that there’s a lot that we agree on, and despite how it might sound among the panel, I agree with a lot of what was said about the need for habitat and the need for non-flow actions, and that’s why we encourage the settlement approach and we’re hopeful that something materializes out of that that is something that the Board can accept.”

The one caution I would say, based on what I heard on the panel, is I think there’s a lot of risk in pursuing a strategy or negotiating a position that basically starts from the point of that it can all be done with non-flow actions and no additional flow is needed,” continued Mr. Oppenheimer.  “I say that based on the science that we’ve relied on for our staff proposal and our CEQA document that basically comes to a different conclusion.  Is there room for flexibility?  Absolutely, but again I think it’s risky to start from the point of there’s plenty of flow already, because that’s not what we found through our assessment.”

I think if we had three years to figure this out, we wouldn’t,” said Jennifer Pierre.  “The gap that Tim describes is a hard one, so either we’re going to decide that we’re going to move forward, or we’re just going to keep having the same discussion.  In the meantime, we’re not doing the types of things we need to do to understand and bring that gap to be smaller so we’re going to be wasting time, so to me, we just have to get going and have some framework that allows us to continue to approach more certainty about what’s needed.”

I am not arguing that the flow regime is currently beneficial or doing the job that we would have hoped it would have done; what I’m saying is that there is a lot of water being provided to the environment right now and it’s clearly not doing its job,” continued Ms. Pierre.  “I think the first thing we need to look at is how do we change how we’re doing that to provide some benefits, and what does that look like within a changed landscape and some key areas on migratory routes and in rearing areas that can actually provide a lot of benefits to fish?  Then from there, what are we learning in a way that allows us to continue to make adjustments, and how we’re managing flows and additional non-flow actions we need to do?  That’s the position that I’m coming from.”

I haven’t heard anybody say there shouldn’t be flows,” said David Guy.  “The reality is there is a lot of flows; the five rivers that we’re working on, the Sacramento, Yuba, Feather, American, and Mokelumne, are not flow limited systems.  There’s lots of water in those rivers.  The question becomes, what’s the timing of that water and what’s the way you remanage that water for the benefit of fish and wildlife? I think there’s a lot of discussion around flows but nobody has said flow should not be part of the equation.  What we’re trying to do is we’re trying to marry flows to the habitat in a way that’s more functional and more purposeful and will in fact improve conditions for salmon.  So I think we can get away from the idea that are not flows; flows are in every part of every project that’s being contemplated, so there’s a lot of flows. I don’t think we ought to kid ourselves.

The Delta was in excess conditions the entire year of 2017, and Delta smelt are at their lowest level,” said Jennifer Pierre.  “That is not working.”

Moderator Brent Hastey recalled how his experience with unimpaired flows was canoeing through his house in 1997 and being evacuated last year.  “I don’t really like unimpaired flows.  They are not something that I enjoy.  (laughter)  But we have built a system to manage, and it seems like unimpaired flows, while a simple answer, is not an answer.  We didn’t build the system to be unimpaired.  So how do we manage this system?  I think the functional flows have to be a part of that picture.  What is the strategy that we can get to functional flows?”

Brent, you described it earlier when you celebrated 10 years of the Accord; that’s a great example of a functional flow,” said David Guy.  “A lot of hard work, a lot of biology, a lot of science, a lot of everything that went into that.  That’s a great example of a functional flow: timing for temperature management, timing for rearing habitat, all of those things, and it’s a dynamic process.  We know a lot more now then we knew ten years ago, and we’re evolving, we’re being dynamic, and I think that’s the essence.  And we do have remanaged flow agreements like the Accord on every part of the Sacramento River system at this point and most of them have been developed in the last 20 years, and we’re learning from all of those.  Did they work?  Did they not work?  And I think part of it is we just have to be honest about that.

The part that is exciting beyond that is that we are now starting to see this opportunity to connect the floodplain back into the river systems and do it in a way that doesn’t put people in jeopardy.  Public safety has to come first,” Mr. Guy continued.  “The city of Sacramento depends on a levee system, a bypass system, and a reservoir system.  We’re probably not going to change that, so we have to work within that, but we can reconnect the floodplain in ways that will provide for public safety while at the same time, starting to provide some benefits for fish and wildlife.  That’s about as close as I think we can get to mimicking the natural system.  We’re not going to have a totally natural system, obviously, but again it worked on the Pacific Flyway.  Rice fields are not the original wetlands obviously, but they sure function as a great surrogate wetland, and in some ways, they actually function as a better wetland because there is more food production on the ricelands than there is on the refuges, and that’s what the birds need, the food.  Now we’re trying to do the same thing for salmon, and a lot of people around this room are the leaders in that.  I think there’s some great opportunity there to do that.”

Eric Oppenheimer then added a comment on unimpaired flow.  “Just to be clear, the staff proposal is not pure unimpaired flows.  We’re talking about percentage of unimpaired flows, so on the San Joaquin, as I said, 30 to 50%.  30% of unimpaired flows is not full unimpaired flows, and there’s also an off-ramp for flood conditions, and so that concern I think is well addressed in our proposal.”

The proposal is again for a budget of water equal to 30 to 50% of the unimpaired flow, so using unimpaired flow really is just a way to scale a budget of water that can be used to do all the things the rest of panelists have been talking about today, such as inundate floodplains, provide for cold water in rivers and streams when its needed to help with water quality, so I think there is actually a lot of alignment,” continued Mr. Oppenheimer.  “Where the disagreement is is how big that amount of water should be, because we have built in the flexibility in our proposal to use it in a way that provides the most benefit.  We’re not talking about rigid adherence to unimpaired flows … It’s just a way of scaling a block of water that can be used to provide functions.  And if you want to look at just the functional approach, you can do that, too, but from my perspective, you sort of need to figure out what’s your goal, how many fish are you trying to produce, what are the habitat requirements to produce that number of fish, what are the functions you need to provide, and then what are the flows to provide that function, so there sort of needs to be the calculus of adding up all of that habitat and flow and figuring out how much is that, what would be budget be, and then compare that maybe to what we’re proposing, and that would be, from my perspective, a good starting point.”

Question:  Irrespective of whether we go with unimpaired flow and litigation or not litigation and some settlement, my question to the panelists is, how do we accommodate adaptive management to accommodate what’s going on and the changes in the Delta in real-time? Because sometimes, in real-time, it can mean you’ve wasted 1 MAF or you’ve put 300,000 acre-feet to beneficial use.  There’s a big difference … “

I’m glad you mentioned that because we keep thinking how did the fish evolve and what did it look like a thousand years ago but it’s never going to look like that again,” said Jennifer Pierre.  “So what do we want the Delta to look like in 100 years and that’s what we should be managing to.  In other estuaries in the US, that’s the way that they are approaching their science and trying to understand more of a trajectory and managing to that, versus hanging on to past centuries and trying to understand that.  So what I think has been very promising is structured decision making.  To me that is a mechanism by which you’re bringing data to the table, you’re having a collaborative discussion, you’re understanding where there’s consensus based on that data, and you’re able to make a decision to move forward, and it’s incremental, and it’s collaborative, and that’s the way I see the Delta being able to be managed as that information comes to bear.  You are just incrementally making these steps, and that’s why I worry about a plan that blocks us down, because we don’t know what we don’t know and it is going to change, it’s going to keep changing, and we need to be able to be responsive to that.”

Question:  The water quality control plan is really where the rubber meets the road on the coequal goals … I have some sympathy for Eric because it’s tough to write a flexible regulation and I think that’s what you’re being asked to do … “

We’ve tried to incorporate flexibility into the proposed water quality objectives and the proposed flow objectives by adopting an adaptive range, and we have within our program of implementation, a whole rubric of rules of how you move within that range and how you shift flows so I think we have incorporated a lot of flexibility, but probably not enough for everyone,” said Eric Oppenheimer.  “The other avenue is the voluntary settlements and the fact that we’re looking to those to bring other landscape based solutions that the Board doesn’t have really the control over.  So I think we’ve attempted to incorporate that flexibility.  I would add to that, no matter where we land on this whole process down the road, no matter what the Board ultimately adopts, one of the things is a modern updated science and monitoring plan to go along with it, because there’s a lot of uncertainty and we acknowledge the uncertainty … It sure would be a lot easier if we had more information to help guide these decisions and through adaptive management, but it’s built into the flow objectives and through science, and hopefully we can get to a place that optimizes the conditions for the fisheries while also minimizing the water supply effects.”

Question: Although the perception in this big segment of the scientific community is that you’re focusing solely on flow and then everything else, landscape and habitat, is just gravy on top of it, so I think they are asking you to engage with that.  Again, looking at flexibility and understanding how difficult that is, so the fact that they are saying this and they are saying it incrementally louder hopefully the water board will try and work with those scientists who are really interested in protecting the Delta and restoring the ecosystem.”

I do have to say in Eric’s defense,” says Tim O’Laughlin (and the room erupts in laughter at Tim O’Laughlin defending the State Water Board) “All these non-flow and other issues that we have to face like landscaping and non-flow issues, ocean harvest, hatcheries, predation – there’s a whole litany of things, and when you go back to the 1995 plan, you will see in the program of implementation, every one of these things is already in the 1995 plan.  But here’s the problem.  When you’re at the Board, you have control over flow.  They don’t have authority or jurisdiction over land use.  They don’t have authority or jurisdiction over NMFS, over Magnusson Stevenson.  They can suggest to people what to do.”

The real question though, for all of us as we sit here today is, how is it that we can put something together in a voluntary settlement agreement that the Board can actually see a benefit that they don’t get stuck on flow?” continued Mr. O’Laughlin.  “I don’t know what that looks like or what that package looks like, and given the uncertainty that we’re all dealing with, I think the best we can say is we’re going to try this and see what the results look like.  It may not be success in anyone’s world, but I think everybody in the room agrees, doing the same thing over and over again and not getting any results just doesn’t make much sense.  And we really can’t go the litigation route, because if we go the litigation route, we’re going to be in this paradigm of having repeated OCAP BOs, TUCPs and other regulatory emergency actions that are taking place and it’s not going to be very satisfying for anybody on all sides.  And you may lose the fish.”

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