Water quality and flows in the Bay-Delta watershed have long been a disputed topic. Under the Clean Water Act, the state must develop a plan to protect water quality and to update this plan every three years. The last time a Bay-Delta Water Quality Control plan was adopted was in 1995 – over 25 years ago. The State Water Board initiated its process to update the Bay-Delta Plan in 2009; to date, the Board has adopted standards for Phase 1, which dealt with San Joaquin River flows and southern Delta salinity issues; however, those standards have yet to be implemented, and the bulk of the work on the rest of the Delta has yet to be finished, even in draft form. In the 2020 Water Resilience Portfolio, Governor Newsom set a state goal not to update the Bay-Delta Water Quality Control Plan but rather to focus on developing voluntary agreements.
At the first set of webinars of the Planning and Conservation League’s 2021 Environmental Assembly held just last week, a panel discussed the problems with using voluntary agreements to regulate water use and strategies on how to convince the Newsom administration to focus on updating the Water Quality Control Plan.
Seated on the panel:
Gary Bobker, Program Director of the Bay Institute, where since 1992, he has been working with scientists and policy experts to recover endangered species, restore the health of the ecosystem, and advocate for policy reforms in California’s water management.
Dr. Jon Rosenfield, a senior scientist of San Francisco Baykeeper, has conducted scientific research in the Delta as well as translating science for attorneys, policymakers, and the public since the early 1990s. He also served as the first director of the scientific peer review for CalFed’s ecosystem restoration program.
Tam Doduc is the civil engineer member of the State Water Resources Control Board, where she has served since 2005. Her experience extends back into the 1990s when she was a staff engineer working at the Board on draft Decision 1630 and the 1995 water quality control plan.
Rachel Zwillinger, an attorney for the Defenders of Wildlife California Water program, has expertise in federal and state water quality and wildlife protection laws with extensive experience in protecting wildlife and the Bay-Delta estuary and its tributary rivers.
The panel was moderated by Jonas Minton, Senior Water Policy Advisor with the Planning and Conservation League. He said that he would have two criteria when he was asked to moderate this panel: First, no PowerPoint presentations. And second, he would honor the words of John Lewis: Get in trouble, good trouble, necessary trouble.
GARY BOBKER: How we got to where we are: The history
To put the focus of the panel discussion, which is the State Water Resources Control Board’s process and role in resolving problems in the Sacramento-San Joaquin Bay-Delta (hereafter the Bay-Delta) in context, Gary Bobker began with three points:
The first is that it’s essential to remember that the issue before the State Water Board and all of us isn’t a Delta issue. It’s not an issue about Delta tunnels or a specific species, he said, noting that usually, when talking about these issues, they are framed in those ways. This is a large ecosystem issue, he asserted: The Bay-Delta, estuary, and watershed are a vast landscape that covers 40% of the state’s surface area. The Delta’s watershed extends from the upper watersheds of the Sierra Nevada, Coastal, and Klamath ranges, into the mainstem rivers in the Sacramento and San Joaquin Valley, into the Delta, out through San Francisco Bay, and out into the Gulf of the Farallones. The estuary is the area where saltwater and freshwater from the watershed mix. It’s a watershed covering a vast area of streams, rivers, and floodplains throughout much of the state.
“This is one of the great ecosystems of the world, certainly of the United States,” he said. “It’s knitted together by flow. The hydrology of the system creates a unique hydroscape where large winter storms and a long period of spring snowmelt create flow patterns that naturally move across the landscape, interacting with all kinds of floodplains and wetlands and mudflats throughout the system, creating unique habitats, and providing a corridor for the movement of all kinds of organic material and migrating fish.”
Secondly, the State Water Board’s role is critical if you consider the problem as a landscape problem rather than just an isolated issue. Many of the tools available to manage the Bay-Delta problems focus on protecting a particular habitat area, establishing a new habitat area, or focusing on a specific stressor like a contaminant. However, the State Water Board’s process of establishing water quality standards in the Bay-Delta Water Quality Control Plan is a unique tool that allows the state to look at all of the factors affecting the Bay-Delta estuary, including the flows that move through, and how that affects salinity, and habitat.
“The board has the ability to look at all of these different elements in a comprehensive water quality control plan in a way that other tools like the Endangered Species Act, or even the five regional boards really aren’t able to do,” said Mr. Bobker. “That landscape-level approach is extremely important. The level of protection the State Water Board can provide is arguably a lot higher than just protecting a single species or preventing it from going extinct. Under the Clean Water Act, the federal government delegates the authority to California to set water quality standards that protect the integrity of the nation’s waters, what’s often called fishable, swimmable, and drinkable waters. So we’re talking about a level of protection where the state has to identify the desirable, beneficial uses of water, fish and wildlife, habitat, and other things and protect them, really.”
Third, the State Water Board also has water rights permitting authority, so it not only sets standards, but it can reach all of the water users in the watershed who affect the achievement of those standards.
Because this is a water flow driven ecosystem that moves throughout the entire watershed and estuary, water development has driven management efforts, said Mr. Bobker. He noted that over the last 150 years, hundreds of large dams, 1000s of small dams, 1000s of miles of canals, tens of thousands of diversions, and the two pumping plants in the south Delta which serve the State Water Project and the Central Valley Project have completely altered the hydrology.
Before that, development in the watershed upstream of the Delta in the 1920s and 30s reduced flow into the Delta to such extent that salinity incursions were occurring as salt from the ocean was moving inland, which affected water quality for industrial users as far down as the Carquinez Strait. As a result, the State Water Board began to consider what regulations were necessary to protect water quality from salinity problems.
Mr. Bobker noted that the State Water Project in the Central Valley Project included among their purposes salinity control. “Ironically, they wound up contributing to the problem rather than solving it,” he said.
The build-out of those projects through the 1960s created a situation where in the past, only during droughts did water development really become a problem. However, now so much water is being taken out through both the water projects in the Delta and those upstream of the Delta, that we create a permanent drought in many years where the flow levels are very low, and salinity levels are high in over half of the years, said Mr. Bobker. We’re creating the problem which is driving the need for regulation.
So what has been the State Water Board’s role in reacting or not reacting to that problem? Mr. Bobker likened it to a ‘Groundhog Day’ story over the last few decades. In 1978, the Board issued a water rights decision that covered the operations of the State Water Project and the Central Valley Project that focused mostly on salinity but included for the first time standards that focused on striped bass needs. The challenge to that decision, called the Racanneli decision, determined that the Board needed to look at water quality needs separate from who was being held responsible, so the Board needed to separate those water quality and water rights phases. The Board also needed to consider all users, not just the State Water Project and the Central Valley Project.
At the same time, there were significant population declines in Delta fisheries, which coincided with the state and federal water projects were at full line operations and beginning to divert a lot of water in the 80s. However, Mr. Bobker pointed out that significant declines in fish species occurred even before 1987. The state began to reexamine those standards, issuing a draft decision in 1988, which would have increased flow to the estuary, but Governor Deukmejian basically ordered the Board to drop that decision.
There then was a ping pong game between the state and federal governments as the state proposed weaker standards, and the federal government, at the urging of environmentalists who sued them, disapproved those standards and promulgated their own. In 1995, new water quality standards were adopted, which included broad habitat protections that increased flows for the estuary for the first time. However, because of several loopholes and the ability of water users to change how they operate to add new capacity – new dams, new canals, new diversions, and to shift pumping into different times of the year than the ones that the regulations focused on, there continued to be significant problems in the Delta. And starting in 2000, there was a collapse of fish populations in the estuary.
After the collapse of the fisheries in the early 2000s, the State Water Board, the Legislature, and the Department of Fish and Wildlife recognized there was a big problem. In response, the legislature adopted the Delta Reform Act, which directed the Board to develop flow criteria that considered the Delta’s ecosystem needs without consideration of regulations. There was an intensive set of hearings over several months, and in 2010, and the State Water Board issued findings that about 75% of the flow in the Sacramento River system was needed to protect the ecosystem; on the San Joaquin River system, it was about 60%.
“The State Water Board began hearings and an intensive, regulatory process to set new standards informed by these scientific findings that they had just made,” said Mr. Bobker. “We were in a great position then to adopt new standards, but that didn’t happen in 2011 or 2012. What happened to prevent the consummation of this long process where we recognize we have a huge problem, and we need to do something about it?”
Mr. Bobker attributed the delay to three significant factors:
The first was that the state board decided to break that process into two separate phases, with Phase One dealing with the San Joaquin and Phase Two dealing with the Sacramento River Basin, the Delta, and the rest of the system. That was done based on the theory that the San Joaquin was a smaller area with less of the total flow, so it would be easier to do.
“Of course, the San Joaquin basin is also the most over-allocated part of the entire estuary and watershed with groundwater supplies severely depleted and the San Joaquin River completely diverted before the restoration settlement of 2006,” said Mr. Bobker. “It’s a big problem.”
At the same time, the drought started, and the State Water Board had to put resources into dealing with drought regulations. “It was for a good reason, but I think the Board lost the focus and much of the impetus and the drive to aggressively move forward with completing the update of the standards by 2014.”
And then there was the voluntary agreement process. “The board always encourages the parties in complex regulatory processes to see if they can come to an agreement and come to the board with something that’ll work for them, and there’s nothing wrong with that,” said Mr. Bobker. “In fact, around 2012, many environmental groups started talking to water users about what voluntary agreements would look like. But we were very clear that those voluntary agreements had to be as good or better than what the State Board’s draft regulations might be and meet a number of other thresholds. In 2014, the state kind of hijacked those negotiations and took them over, which completely changed the dynamic. The environmental community was locked out of that process for a good part of that. The state sort of turned it over to water users who naturally proposed to do anything but increase flows, to do all kinds of things to improve habitat or address invasives or do things that might be good to do, but weren’t a replacement for flow.”
All of these things together have had a very negative effect on the State Board’s process to complete its update, Mr. Bobker said, acknowledging that in 2018, the Board did issue a decision on Phase One for the San Joaquin River. The decision was hailed by many in the environmental community because the decision did improve flows to the system and addressed the responsibilities of parties throughout the watershed in the Tuolumne, the Merced, and the Stanislaus watershed, instead of just in the Delta. But at the same time, the decision fell significantly short of what the state board itself had identified as the flows necessary to protect the Delta.
“The State Board has taken that first step at least in terms of regulation on San Joaquin basins. But the next phase, which is the rest of the system, is a much bigger issue because that involves all of the water that moves through the Delta out to San Francisco Bay,” said Mr. Bobker. “Just as importantly, phase three, which is then actually issuing a water rights decision that holds specific water users responsible for meeting those standards – those are kind of in abeyance, and the state has been dragging its feet. I can’t blame the State Water Board entirely for that, because they’ve done a good job of identifying what the needs are, but, as in the past, political decisions have been made that have slowed that process down.”
DR. JON ROSENFIELD: The decline of the estuary
Dr. Jon Rosenfield began by saying that if he had to name one problem that the Bay-Delta is facing, it would be that about 50% of the water that ought to flow out of these watersheds through the rivers into and through the Delta is diverted or stored upstream before it can reach the Delta.
“It’s either stored in dams or diverted along the rivers or exported from the Delta by the massive pumps,” he said. “But that’s on average; in some years, it’s much more than 50%. And for some of the Delta’s tributaries, more than 80% of the water is diverted during the winter and spring, on an average year and up to 90% in some years.”
In rivers and estuaries, freshwater flow is the master variable that affects all other physical and chemical variables. It is the habitat in which river organisms and estuarine organisms live.
“At our current level of diversion, rivers don’t function like rivers, and the estuary doesn’t function like an estuary,” said Dr. Rosenfield. “So the situation that we’re in is that we have a pattern of water use that’s simply not sustainable. It cannot be sustained. It’s not just bad for the environment – it cannot be sustained.”
What’s the evidence for that? Six endangered species listed either under the federal Endangered Species Act or the state Endangered Species Act use the Bay-Delta ecosystem: the much renowned Delta smelt, the longfin smelt, winter-run chinook salmon, spring-run chinook salmon, Central Valley steelhead, and green sturgeon. He pointed out that these species have very little in common with each other, except that they respond positively to increases in freshwater flow in the rivers and the Delta flowing through to San Francisco Bay.
“They are all different in their ecologies, their life history, their size, how long they live, and other factors,” Dr. Rosenfield said. “It’s not surprising that they are all adapted to capitalize on the historic pattern of the master variable, which is flow. The flow would increase seasonally in the winter and spring, decrease seasonally in the summer and fall, be variable from year to year, month to month, and even week to week. Our native species are attuned to that pattern of variability and the uncertainty in that variability. And we’ve modified that greatly by extracting the largest share of the water, but also by making the patterns of flow very predictable.”
He emphasized that it’s not just the Delta’s endangered species. “We talk a lot about the Delta smelt, but the Delta smelt is really the smallest of the problems either ecologically or water use-wise. We also have recreational and commercial fisheries that are collapsing. These include starry flounder, a few shrimp species, Pacific herring, and the fall run and late fall-run chinook salmon, which are distinct from the endangered forms. In 2008-2010, the fisheries were for the first time in the state’s history, and they continue to be truncated in most years due to lack of fish, which is related to lack of freshwater flow.”
Dr. Rosenfield noted that beyond that, the Chinook salmon decline is directly connected to the declining Orca whales, which feed off the California coast, with the local pod of Orca feeding on Chinook salmon. “If there are not enough chinook salmon, the Orca whales starve, and that’s exactly what’s happening, leading to the seventh endangered species that’s tied to water management in the Bay-Delta ecosystem,” he said.
It doesn’t stop at the biology, Dr. Rosenfield continued. The evidence for our unsustainable water use includes the collapsing surface of the earth. The groundwater overdraft in the San Joaquin Valley has caused the level of the ground surface to drop. The overtapping of the water supplies underground has created water supply crises for disadvantaged rural communities that are mainly people of color. And it’s also caused damage to the water delivery system itself.
In addition to all of that, there is declining water quality that’s directly related to insufficient flow coming down our rivers and into the Delta, he said. In particular, there is an expansion in the frequency and severity of harmful algal blooms, particularly in the south Delta.
“When I say harmful, I mean toxic,” he said. “These are the kind of algal blooms that release a toxin that is strong enough to kill your dog when it jumps in the river to swim. But the toxins are also mobilized by the water even if the organisms that cause it don’t continue into the Bay; the toxin is still washed into the Bay. The toxin can also be mobilized into the air by strong winds that we experience just about when these harmful algal blooms are blooming. And again, this is harming in particular underprivileged communities of color differentially.”
The longer we wait to address these messengers, the worse that message will be, and there will be more messages we will get that our water use is unsustainable, he said. “Delta smelt are which are endemic to this ecosystem, meaning they don’t exist anywhere else on earth. They’re nearly extinct. We used to detect them quite easily in a variety of different sampling programs; now, most of those sampling programs don’t turn up any Delta smelt. You all don’t need to care about the Delta smelt per se, but just recognize that it is only a messenger. And other species are marching towards extinction as well, some that aren’t yet listed.”
Under instruction from the state legislature, the State Water Board in 2010 was tasked with determining how much flow from the major river systems would need to flow through the Delta and into the Bay to sustain the public trust values of fish wildlife and water quality. The Board solicited input from all parties, held multiple workshops, and analyzed the best science that was presented. The Board found that about 60% of the San Joaquin River’s unimpaired flow and about 75% of the Sacramento River’s unimpaired flow needed to reach the Delta. 40% of the state’s land area drains into the Bay-Delta, and about 75% of all that water is necessary to make it through the Delta and out into the Bay if only flow was going to be used to maintain public trust values.
Dr. Rosenfield said the report was extremely comprehensive and has been updated in various forms since, although the numbers surrounding what flow is needed have not really changed. In some cases, there are indications that the Board underestimated the amount of water that’s necessary.
“The science here hasn’t changed,” he said. “What’s interesting is that 75% of unimpaired flow, which is greater than the 50% that the ecosystem currently receives, is still much lower than what we see in other ecosystems around the world. In other ecosystems around the world, the best available science tells us that taking out as much as 20% of a river slow is enough to cause irrevocable damage. So we’re kind of getting off easy if the science is right in what the State Board and others have done.”
Unimpaired flow refers to the amount of water that would flow down to any point of measurement if there weren’t upstream impoundments behind reservoirs or any upstream water diversions. He noted that it’s not saying that there shouldn’t be dams or diversions upstream; it’s simply an indicator of how wet things are, how much water is expected, and then what percentage of that is needed to accomplish a given task.
Dr. Rosenfield noted that the other caveat to the 2010 report was that it didn’t consider impacts upstream; it was only looking at what flows were necessary within the lower rivers, the Delta and the San Francisco Bay. But upstream, many dams are used to provide the water for downstream flow, and when there’s less water behind the dam, that can cause ecological impacts upstream.
Storage needs to be maintained in the reservoirs so there will be the cold water that the salmon, in particular, rely on upstream as well as providing flow downstream. A draft analysis released in 2018 found that about 65% of the unimpaired flow is the maximum flow into and through the Delta that you could provide without really harming the ability of the reservoirs to provide habitat upstream, he said.
The State Water Board did a tremendous amount of science with contributions from other agencies, nonprofits, academics, and water districts. The Board synthesized all these findings and developed scientific baseline reports for what it takes to support fish and wildlife and water quality to make rivers fishable, drinkable, and swimmable.
“We’re all set to go; we have the scientific foundation for setting water quality standards, but things then sort of grind to a halt right after the water board adopted flow standards for the San Joaquin River,” said Dr. Rosenfield. “We never got to how much water needed to come from the Sacramento River into the Delta or how much water needed to move through the delta into the San Francisco Bay.”
So what’s the solution to this? Some might say, ‘we should pass a law,’ but Dr. Rosenfield pointed out that there are plenty of laws that require protection of the Delta’s imperiled and commercial fish species and its water quality, as well as the way of life that people have built around a functioning ecosystem. These include the state and federal Endangered Species Acts, the federal Clean Water Act, the state’s Porter-Cologne Act, and the 2009 Delta Reform Act, which requires reducing reliance on the Delta for water supplies.
Of those, the most sweeping and potentially powerful are the two Clean Water Acts, state and federal. These are the laws under which water quality control plans are developed to protects public trust values and other beneficial uses, such as fish and wildlife, swimming, agriculture, and municipal use.
“It’s reasonable to expect that if we followed the spirit and letter of the Clean Water Act, and implemented flow standards that met those requirements, there would not be additional flow requirements or export or storage requirements happening under the Endangered Species Act, because there would likely not have been endangered species,” said Dr. Rosenfield. “And even if there were endangered species, the water quality control plan would be the place where the regulations that protected the species lived, rather than relying on the ultimate safety net of the Endangered Species Act.”
He noted that many people talk about the advantages of having an ecosystem restoration plan instead of single species planning. “The Clean Water Act is the place where ecosystem conservation and ecosystem planning would happen, and we’re just not doing it,” he said. “The Water Board acted to update the San Joaquin Valley flow levels in 2018 and identified a pathway for addressing Sacramento River inflow to the Delta, Delta hydrodynamics related to exports, and delta outflow. But the implementation of the San Joaquin River flow standards, which are now the standards, have been delayed, and the proposal and adoption of additional flow standards for the Sacramento River and the Delta have been stalled. We’re now going on 12 years of that delay.”
TAM DODUC: Where the State Water Board is in the update of the Bay-Delta Water Quality Control Plan
Tam Doduc began by saying she appreciates being able to share her thoughts on a topic that is important to her. She gave three disclaimers: “First is that the opinions I express will be my own; they do not reflect that of the State Water Board in its entirety, those of the Cal EPA, or the Newsom administration. Secondly, as a board member, I have not been involved in the voluntary agreement discussions or in the analysis of the voluntary agreement proposal. Thirdly, I have always and still do firmly believe that the Board must proceed and complete its update of the water quality control plan and, even more importantly, implement it, phases one, two, and three. And I also believe that proceeding could be done with consideration of any potential voluntary agreements. So with that framing in place, let’s talk about where things stand today on the two phases of the water quality control plan update.”
Phase one was adopted in 2018 and focused on San Joaquin River flows and Southern Delta salinity. The plan that the Board adopted included some required actions with some timelines, and Ms. Doduc acknowledged those timelines had been affected in part by the voluntary agreement discussions. However, progress is slowly being made.
“For example, the staff has developed and released initial draft biological goals for some audits,” said Ms. Doduc. “I expect to be briefed fairly soon on the final draft biological goals with a release for public comment, hopefully in the next month or so. The staff has also released initial compliance methods for the Lower San Joaquin River flow objectives and are currently refining those, as well as working on adaptive implementation measures. I expect that draft document to be released for public comments later this spring. Additionally, as directed in what we adopted in 2018, staff are reviewing a comprehensive operations plan developed by the Department of Water Resources and the Bureau of Reclamation; this plan is supposed to address the impacts of the water projects operations on interior and Southern Delta salinity and water levels. And the staff is coordinating with these agencies on a monitoring and special study proposal to characterize the water level flow and salinity conditions in southern Delta waterways.”
Lastly, while it has been pointed out that the Board has not yet initiated a water right proceeding to implement the plan objectives that were adopted in December 2018, Water Board staff have issued water quality certifications for the Merced and Tuolumne Rivers that include provisions to implement the flow objectives adopted in 2018.
Phase two focuses on the Sacramento River and Delta tributary flow, cold water habitat, delta outflow, interior Delta flow objectives, and related implementation measures. When the Board adopted phase one, the Board directed staff to provide technical and regulatory information to assist the secretaries of Cal EPA and Resources Agency with the voluntary agreement discussions and to incorporate a voluntary agreement alternative in their CEQA analysis. So, as staff continue to develop their staff report and substitute environmental document, they are integrating voluntary agreement alternatives into these documents. They’re also considering unimpaired flow alternatives as well as potentially other alternatives.
At this time, Ms. Doduc said she did not have a specific schedule for the release of the draft staff report and the CEQA document, in part because staff continues to evaluate the voluntary agreements and because the ongoing litigation on the biological opinions and the state incidental take permit has complicated their progress. There was some thinking that a staff report could be released in February, but that is certainly no longer the case, she said.
“I, unfortunately, do not have any projections to share on when or what the next steps will be on the water control plan update,” said Ms. Doduc. “As I stated earlier, I, for one, fervently hope that the Board will take the steps necessary to complete the phase two update of the water quality control plan. But I won’t be on the Board when that happens. Jonas mentioned that I’ve been on the Board for a while, and my fourth term ended on January 15. I have decided not to seek reappointment. I said earlier that the Bay-Delta plan is very dear and important to me, and that’s because it was the impetus for my being on the Board in the first place. And now it’s one of the major reasons why I’m leaving.”
“So if you indulge me, I like to share my story about the Delta and the hope that I have in terms of where things are with the water quality control plan. I worked as a staff engineer on the Board’s draft decision 1630, which was released in December of 1992. It was my first engagement in Delta issues. When it was withdrawn by the Board at Governor Pete Wilson’s direction on April Fool’s Day 1993, I was devastated. Having worked so hard on the technical analyses on the recommendations, I believe that what we proposed would truly make a difference in the Delta, and it felt like we failed. Tom Howard, who would later become our executive director, was my supervisor at the time. And he told me that I did my job as an engineer, that I did the technical analyses, and that staff presented our best work to the Board. But it’s the Board members who made the decision, balancing a variety of technical policy and legal considerations. It’s the board members who made the decision. It was a cold splash of reality on an idealistic young engineer to know that technical might isn’t always right.”
“I left the board soon after the 1995 water quality control plan was approved,” Ms. Doduc continued. “And ten years later, in 2005, after different experiences, I returned to the Board as an appointed member with the responsibility with the rest of the Board to make decisions on the water quality control plan. So now here we are in 2021. And the job is half done with the adoption of phase one – actually, one third done if you consider the water rights phase, as well. Recently, I was hit with another cold splash of reality … I believe that is a strong desire – perhaps a better word for it is determination – by the Board and by the administration to incorporate a concrete voluntary agreement alternative into the phase two update of the water quality control plan. Well, I may wish otherwise, moving forward without a voluntary agreement alternative is a non-starter, I believe, for the Board and the administration. That’s based on my experiences and observation over the last two years with this process. And yes, something might happen to change that, but what that something is, I have no idea, and so I look forward to the suggestions offered.”
“So where is the hope in all of this? In the Water Resilience Portfolio, Governor Newsom did commit in action 18.2 on page 23, to complete the update to the Bay-Delta water quality control plan and the Delta and to implement that plan, potentially through voluntary agreements,” continued Ms. Doduc. “So completing the update is a goal and a priority for Board, but that update, in my opinion, will include consideration of one or more VA alternatives.”
“The second reason for hope is that consideration of the voluntary agreements does not mean they are guaranteed acceptance and implementation. The agency secretaries will evaluate the VA proposals and make a recommendation to the Board, but the Board itself is charged with the responsibility of making an independent decision as to whether such proposal will reasonably protect beneficial uses and be legally and scientifically adequate. It’s the board members who will make the decision. And as a board member, I can tell you that the decision will not be made lightly, especially in the context of long term implications for the viability of the Delta, and for the rest of the state for that matter. Complex scientific, legal, and policy arguments will be raised and considered. And many of the strongest and most credible analyses and evidence will be from organizations represented here by my fellow panelists, and I’m sure many participating in this assembly.”
“That’s the crux of my hope for the water quality control plan. And that is the public process, the engagement, expertise, and passion that all of you bring to the table.”
“Over my 16 years on the Board, I’ve been through many policy, regulatory, and adjudicatory proceedings, and I find them to be very time consuming, very inefficient. and often resulted in compromises,” said Ms. Doduc. “But while they may take longer and not result in decisions that I would make if I had the sole authority, I do believe they are better, more long-lasting, and more effective in the long term because of the public process and the deliberations of the Board, with members from diverse backgrounds and perspectives. The water quality control plan is one such proceeding. And I hope all of you will continue to engage in that effort as I will hopefully in a different capacity.”
“So let me end by thanking you for the opportunity to share these thoughts, and especially thank my fellow panelists, and Jonas and, and all of you who have dedicated yourselves to working on Bay-Delta issues. Your voices, your expertise, and your commitment have been and will continue to be invaluable as the board struggles, I believe, with the challenges of balancing the demands and finding a path forward. One of the things that they will seek to do, I’m sure, is a compromise to move forward. And that’s where the expertise that I see here is so important to be engaged in that process. So stay involved, stay committed. And let’s keep moving on the update. I believe it will be done. And I think it will take all of us working and helping the Board in order to make that happen.”
“I’m sure I can speak for everybody in our admiration for your fairness, your objectivity, your smarts, or commitment to carrying out your responsibilities as a board member,” said Jonas Minton. “We’re talking today about the update of the Bay-Delta Water Quality Control Plan. But the State Board has jurisdiction over many, many water rights and water quality issues and a growing list of subjects. And you have certainly been a star on the Board. Thank you, whatever you do in the future, hopefully, you’ll continue, and I’m sure you will continue to contribute. We do have a desk set aside for you. Whenever you’re ready to join us, I’m sure you’ll find even greater opportunity.”
RACHEL ZWILLINGER: The path forward
Rachel Zwillinger began by saying she agrees with Tam Doduc’s observation that in the road the administration is going down, voluntary agreements will likely be a part of the discussion. However, there are better and worse ways to go about integrating them.
For background, the voluntary agreements are an effort to bring a variety of stakeholders to the table, including water districts, to some extent NGOs, and state and federal agencies to negotiate a combination of habitat and flow measures, along with funding, that could achieve the outcomes of the Bay-Delta plan update through a path other than the unimpaired flow regulatory path that the Board has set forward. It’s been a process that has gone on for years and years and has resulted in some proposals, but in no action thus far.
In terms of where to go next, Ms. Zwillinger said she would discuss three paths: the first is a possible path that is problematic; the second, the best path to go down, but probably won’t happen; and third, the way things are likely to unfold and some of the ingredients that are necessary for success.
The path to avoid
The first path which Ms. Zwllinger said needs to be avoided is the idea that has emerged in some corners of the water world to negotiate a deal over the federal and state Endangered Species Act protections in Delta to align them. Once that is worked out, a voluntary agreement will magically emerge, and we will have a comprehensive package for the Bay-Delta.
“The problem with this suggested path is that it’s premised on the state and federal agencies cutting a deal over Endangered Species Act protections that would allow those protections to be much, much weaker than is necessary for these gravely endangered species to survive,” said Ms. Zwillinger. “Once that deal is in place, it strikes me as exceedingly unlikely that a voluntary agreement is going to emerge. First, those protections won’t be secure, there will be lawsuits challenging them, and the certainty that the water user community thought they would receive from that deal won’t come about. And second, once the Endangered Species Act protections are weakened and locked into place, the water districts have no incentive to move forward with a meaningful voluntary agreement.”
“So what I see in that instance is that we would end up with Endangered Species Act protections that are not adequate to stave off extinction, and continued discussion about voluntary agreements with no actual action. And I think that is a recipe for disaster for the estuary,” she said. “Now, hopefully, that doesn’t happen. And we have a new federal administration coming in who will fix the disaster that occurred with the Endangered Species Act protections under the Trump administration, and we’ll move in a better direction on that front.”
The path we should take – but likely won’t
What we really should be doing is not leading with the Endangered Species Act at all- that’s a law that’s meant to stave off extinction. “It’s not a path to taking an ecosystem-wide perspective and really recovering the estuary,” Ms. Zwillinger said. “What we need to be doing is leading with the Clean Water Act and the Porter-Cologne acts through the Bay-Delta plan update. Those are laws designed to protect all of the beneficial uses of our waterways, and for wildlife, the standards and those laws are much more protective than what we see in the Endangered Species Act. It’s also focused on the health of all species in the estuary, not just the endangered species.”
The Bay-Delta Plan update is an opportunity to look at the best approaches for the whole estuary and focus on the impacts from a whole range of water users throughout the system rather than just the big state and federal projects. What the Board needs to do is move forward with the Bay-Delta plan update and perhaps use voluntary agreements as a way to implement the plan’s standards, she said. Once the Bay-Delta plan is established, that should become the operational basis for all of the big water projects in the system.
“It would be a plan that is designed to achieve viable fish and wildlife populations, not just avoid extinction, and so the Endangered Species Act would become much less important. We can easily get no jeopardy biological opinions; those are permits that say the operations are fine; they’re no longer causing the extinction of the species or causing a risk of extinction of the species. And so the Endangered Species Act will no longer drive the operation at the estuary.”
Ms. Zwillinger noted that would be a different path and a better one than the current path. “What we’re doing today is creating a plan of operations for the water projects that is designed to take as much water from the system as possible. Having the Endangered Species Act come in and say, you need to ratchet it back a little bit so that we don’t actually wipe these species off the face of the earth, and then asking the water board to come in with a much more sensible forward-looking plan. But that from the water user community is viewed as a second bite at the apple after the Endangered Species Act has already reduced protections.”
The idea of flipping the operations to lead with the Bay-Delta Plan is, in her opinion, the best path forward but the one likely not taken because that approach would require a level of urgency from the state administration that hasn’t been seen yet, and doesn’t appear to be on the near term horizon.
“The state is on a much slower path with the Bay-Delta plan update. And because of this, the Biden administration will have to come in and get Endangered Species Act protections in place. And we’re going to be back in this dynamic that we’ve been in for ages with the Endangered Species Act protections coming first, and then trying to get the Bay-Delta plan to follow.”
The likely path and what is needed for success
Ms. Zwillinger then laid out her thoughts on the likely path that the state and the water quality control plan will take. “I think what we’re going to see is three things happening at once,” she said. “The Board is going to get back to work hopefully quickly to set standards for the Delta and the Sacramento side of the system. The voluntary agreement discussions are going to continue. And the Fish and Wildlife Service and National Marine Fisheries Service are going to start working on new Endangered Species Act permits for the for endangered species in the estuary.”
To make these three parallel processes work, there are a couple of elements that are necessary for success:
The first is that we need strong interim Endangered Species Act protections. While the agencies work on their new permits, that’s going to take a long time, and if we don’t have strong interim protections that are better than the protections the Trump administration put in place, Ms. Zwillinger said there’s a real risk of extinction for some of these species in the short term.
The second is we need for the water board’s process to be real, to proceed on a concrete timeline, and for there to be accountability. “It’s fine if the Board’s process leaves space to consider a voluntary agreement, but it can’t wait for it. And without a real board process that moves forward expeditiously, there’s no incentive for the water users to come forward with a voluntary agreement that is real and meaningful because there’s no threat of a regulatory action that will drive a real voluntary agreement. And if the Board isn’t moving forward on a real timeline with real accountability, I think we’re just going to continue to see the estuary decline and more species being listed as endangered and the commercial and recreational fishing industry being so severely impacted.”
Ms. Zwillinger noted that in the past, everybody came to the table with different expectations about what those Endangered Species Act permits would look like. Once those expectations were not met, the voluntary agreement discussions fell apart. “That’s going to continue to be a risk because there’s not going to be certainty about this Endangered Species Act permits for a long, long time, in light of the slow process for getting permits in place, and then the litigation that will unfold after they are in place. So the state needs to come up with a way to approach voluntary agreement discussions where the flow contributions and the obligations of the parties coming into those discussions are not tied to certain expectations about what the operations of the project and the permits will look like.”
The third is more state investment to advance sustainable local water supply projects, such as efficiency, recycling, conservation, and support economic transitions in places where there will be changes in land use. “The combination of the implementation of the Sustainable Groundwater Management Act and a real process to update the Bay-Delta Water Quality Control Plan is a rethinking in California of how we can move forward in a world with climate change to use our water resources in a way that is sustainable for agriculture, communities, and the environment. And I think a part of this rethinking needs to be investing in communities and local economies to make sure that nobody is left behind in that transition.”
With all three of these processes moving forward at once, Ms. Zwillinger said it’s possible to achieve a good outcome. “What that good outcome looks like to me is strong interim Endangered Species Act protections, improved permits down the road, the water board setting standards for phase two for the Delta and Sacramento system through its regulatory process, and then voluntary agreements that emerge to implement those standards. I think that is a path forward that accommodates a lot of the interests at the table. And that strikes me as realistic if folks move forward with the urgency that I think is necessary. But I don’t think any of this good stuff happens unless the state decides that it actually wants to save the Bay-Delta estuary. And I don’t think I’ve seen that decision having been made yet.”
How folks can be involved
What can people do to try to create the urgency that’s necessary to move forward? Ms. Zwillinger listed some things people can do to be helpful.
Showing up at a water board meeting and let them know you think it’s important for the Board to move forward with the Bay-Delta Plan update. It’s much easier to do it now over Zoom rather than showing up in Sacramento, she said.
Write to the Governor or Secretary of Resources, Wade Crowfoot, and let them know why having healthy Bay-Delta, clean rivers, and vibrant salmon runs matters to you.
While these are useful actions to take, Ms. Zwillinger said that what is needed is something more sustained, such as a social media campaign, for example, that can grow to increase pressure on the state. If anyone has ideas for creating the kind of buzz necessary to put some pressure on the administration to do better, let her know.
Finally, it’s helpful to understand where your own water supply comes from. “The water that comes out of your tap comes from somewhere, and perhaps it’s coming from a river from which we’re removing so much water that fish species aren’t able to survive. And if that’s the case, figure out who your local water district officials are, and let them know that you’re concerned, ask them what alternatives they’re considering. And I think, slowly, people becoming more aware of where their water comes from, the impact that’s having on the environment, and ways that we could do it better is really important for moving forward with a different approach in the future and approach that makes our system work for wildlife, for communities, and for economies.”
QUESTION & ANSWER HIGHLIGHTS
Question for Tam Doduc: What, if any, consideration of indigenous nations’ rights were included in updating the Bay-Delta Water Quality Control Plan standards? What consideration was given to the involvement of indigenous nations’ rights?
“To the extent that the beneficial uses involved include fisheries for traditional use and practices and the ceremonial aspect, those are things that were considered as part of the development of various criteria and continued to be considered as part of the development of phase two,” said Ms. Doduc. “If the question is about the engagement process, Cal EPA certainly has a tribal engagement process that we follow as well. And we have an office of public participation. So yes, the rights of indigenous people are considered. It’s always a challenge, given our limited resources to try to reach out and engage as all the stakeholders, but we recognize and honor the role and rights of indigenous tribes and what to have them engage in the process. If there are suggestions on how we can do a better job of that, please do share.”
Question for Rachel Zwillinger: If an organization had the resources to sue the water board to goad them into action, what would be the best set of laws upon which to base the lawsuit?
“That’s something that a lot of people have spent a lot of time thinking about, and I don’t think there’s an easy answer,” said Ms. Zwillinger. “The federal Clean Water Act has a requirement that water quality standards like the Bay-Delta plan needs to be reviewed and, if appropriate, updated every three years. The Porter-Cologne Act, the state’s water quality law, similarly has a requirement for periodic review of water quality standards to ensure they’re adequate to protect Fish and Wildlife beneficial uses. The state board is long overdue in completing those mandatory legal updates to the standards. But there are questions that if one was to bring a lawsuit, what would the remedy be? And I think there are complicated issues. But those laws are something to think about and look at.”
“People also talk about the public trust obligations of the Water Board, and that the Water Board has a duty to protect public trust resources, the fish and wildlife and water quality and all of the beneficial uses of the Bay-Delta estuary and it has not fulfilled those obligations,” Ms. Zwillinger continued. “Those are a handful of the tools that I think people think about, but it’s a hard space to find, I think, a clear legal argument with a remedy that a court could put in place to get protections on the ground quickly.”
“I recall that in an earlier time when the state was not perceived as acting quickly enough, the United States Environmental Protection Agency threatened to intervene,” reminded Jonas Minton. “Is it a possibility that US EPA would look at California and say, ‘enough’s enough; if you don’t know, we will?”
“I can’t obviously speak on behalf of the Biden administration,” said Tam Doduc. “But as you’ve noted, that has happened in the past. And that actually happened after the 1995 decision was adopted. So that is an option on the table. And that will be up to the Biden ministration to determine.”
Question for Tam: Tam says the environmental documentation for the Bay-Delta update should include a concrete voluntary agreement alternative. Are the voluntary agreements well defined enough to constitute a CEQA alternative? If not, How long must we wait?
“First, let me state that I did not say a document should include a VA alternative. In fact, personally, as one board member, I would be in strong support of us proceeding without a VA alternative in order to finish the water quality control plan update,” said Tam Doduc. “However, what I stated was my strong opinion that I believe the VA alternative is expected to be included in the CEQA analysis before we can proceed with phase two. So with that clarification, let me also say that I am not privy to the discussions on the voluntary agreement to know the details of it or how substantive it is. But it is something that the staff will have to struggle with in order to fully analyze it as an alternative in the CEQA document and to present it to the Board for consideration. As far as how long that takes, if I knew, I might not be leaving the Board. But seriously, I know that the administration is committed to bringing forth a VA proposal to the Board, and they have already invested two-plus years in that effort. So I don’t know how much longer it’s going to take. And I think that’s part of the impetus for the discussion today.”
Dr. Jon Rosenfield noted that in the last days of 2018, Governor-elect Newsom, along with Governor Brown, asked the Board to delay. “They requested an additional month to come to the table with something at the subsequent meeting of the Water Board. And in 2018, the water board was prepared to and did eventually adopt the first phase of the water quality control plan update dealing with the San Joaquin River and flows. At that meeting, representatives of the still Brown administration represented that they had an agreement and that the water board should continue the agreement. The water board, in its wisdom, went forward and adopted what it had been working on for many years and said, bring us these agreements when they are fully fleshed out enough for us to consider it.”
“This is an important point to raise because we talk about, well, either we’ll have voluntary agreements, or we’ll have a water quality control plan regulatory update, and it’s really not black and white like that,” said Dr. Rosenfield. “The water board has said for over a decade now that they will consider any voluntary agreement at any time that can solve the problems that we need to solve under our legal obligations and make the impact of that less damaging to all economic interests. So the water board could adopt a water quality control plan update tomorrow, and then Tuesday of next week, say we have a voluntary agreement that we are going to consider. And maybe we will adopt that. There’s no prohibition on that.”
Phase two, the part that deals with the Sacramento River flow and Delta hydrodynamics, was then put on hold for a year while various parties tried to articulate what the voluntary agreements that had been offered in December 2018 actually meant. At the end of 2019, a preliminary analysis by the water board of the existing proposals for voluntary agreements revealed that the proposals on the table were so far from adequate a more thorough analysis wasn’t necessary.
“Many of us have said all along that these proposals were not going to cut the mustard as it were,” said Dr. Rosenfield. “The state took the comments that we had on those analyses and didn’t say anything for a while. Then, in February of 2020, a new framework for voluntary agreements was announced that consisted of 10 slides in a PowerPoint. So are these voluntary agreements in a form where they can be analyzed as a CEQA alternative? Another year has passed, people have been working on things, so I can’t say what the voluntary agreement proposal is. … As far as I know, the voluntary agreements that were proposed in 2018 are not the proposal anymore.”
“The longer we wait, with our current regulatory regime, or even the regulatory regime that existed in the Obama administration, the more of a certainty it is that species will go extinct. Fisheries will collapse, water quality problems and health problems that come with it will worsen. Once those species are lost, of course, they’re lost forever. And once the fisheries collapse, they’re not coming back. So we’re beginning to lose rather rapidly, resources that are that we can’t reclaim while we talk ad nauseum over the course of more than a decade about an alternative to a plan that hasn’t even been completed yet.”
“The status quo is not a flatline,” said Dr. Rosenfield. “The status quo is a rapid decline towards very bad things and more new bad things emerging all the time.”