Integrating consumptive use with environmental flows is a core challenge for water management. Regulatory methods for protecting instream flows have evolved over the decades. Currently, California is engaged in a robust conversation about these approaches as the state grapples with the challenge of meeting multiple water demands. At the 2020 Yosemite Environmental Law Conference, a panel discussed approaches to implementing environmental flows, a case study of the Dos Rios Project and instream flows, and the voluntary agreements.
Seated on the panel:
Austin Cho is a water resources attorney practicing with Downey Brand LLP in Sacramento, California. As a near-lifelong resident of California, Austin is a dedicated water lawyer with a close connection to his clients and a passion for all things water. Austin counsels local public agencies and private clients alike in a wide variety of matters, including water rights permitting and litigation, flood control, groundwater management, and project development and financing.
Julie Rentner is a Cal forester and restoration ecologist specializing in large-scale river restoration to benefit people and endangered wildlife. She is the President of River Partners, a 501c3 habitat restoration implementer working across 17 watersheds and tens of thousands of acres in California. For 15 years, Julie has been acquiring, permitting, and restoring wildlife habitat along our hardest-working river corridors such as the San Joaquin and Sacramento Rivers. As an alumnus of the California Ag Leadership Program and Water Solutions Network, Julie is interested in finding scalable opportunities to improve our resilience to climate change while reconnecting land, water, wildlife, and communities.
The panel was moderated by Samantha Olson, Staff Counsel IV with the State Water Resources Control Board Office. Since 2016, her primary area of focus is the Bay-Delta Water Quality Control Plan update.
Flows are essential for the aquatic ecosystems to support fish and wildlife beneficial uses. And while flows are often thought about in the context of an individual reach of a river, upstream tributary flows to estuaries like the Bay-Delta are also important as they create habitat when they push the salt field through the estuary.
Higher winter and spring outflows help cue migration for spawning of anadromous fish and aid in the survival of juveniles migrating seaward. In addition, these outflows are important for nearshore ocean ecosystems. Flows are also important for beneficial recreational uses.
The role of the State Water Board
Ms. Olson acknowledged that many agencies and groups are involved with flow and water issues. However, she will focus on the State Water Resources Control Board because it’s the only administrative agency with authority and jurisdiction over water rights.
The State Water Board houses the Division of Water Rights, which has the authority to set state policy for water quality control and acts as an appellate body for the nine Regional Water Boards. In 1967, the functions of the water rights board and the water quality board were combined into one body for the orderly and efficient administration of the water resources of our state.
Riparian rights accompany the ownership of parcels of land contiguous to a water body. Riparian rights don’t have a fixed quantity, but the water must be used upon the riparian property and cannot be stored. Riparian rights are (generally) of equal priority, and shortages must be shared correlatively among other riparians. Riparian rights cannot be lost through non-use and are not subject to permitting by the State Water Resources Control Board.
In contrast, appropriative rights are rights to divert water and put it to beneficial use at the designated place of use. Appropriative rights are for a fixed quantity and are assigned a priority date with shortages falling upon the juniors first before the seniors, also known as ‘first in time, first in right.’ Appropriative rights can be lost through non-use. Appropriators can store or transfer water. Appropriative rights established before 1914 are not subject to permitting by the State Water Board, but those established after 1914 are.
All water rights are subject to the common law principle prohibiting waste and unreasonable use codified in the California Constitution. A use or method of diversion may be unreasonable based on its impact to instream beneficial uses. In addition, all water rights are subject to the public trust doctrine. And even after an appropriation is acquired, the public trust imposes a duty of continuing supervision.
Federal and state regulations
The Clean Water Act was the first major federal law designed to restore and maintain the nation’s waters. The Act establishes a basic regulatory structure for regulating point source discharges through NPDES permits. The statute follows a cooperative federalism approach, whereby it delegates certain authorities to the states that meet minimum standards.
The Porter Clean Water Quality Control Act is California’s broad-based regulatory program that integrates portions of the Clean Water Act.
“Water Quality Control’ means the regulation of any factor or activity that affects the quality of the waters of the state, and lack of water or flow is a form of pollution,” said Ms. Olson.
Approaches for implementing instream flows
Ms. Olson presented a picture showing the various rock climbing routes on the face of Half Dome at Yosemite, using it as an analogy to represent achieving instream flows.
“As you can see, there are many different approaches and variations,” she said. “I’m going to go over just a few approaches for instream flow, and by the way, all these routes are difficult, and to get to the top, you really need to want to get there.”
New applications for water rights
Appropriative water rights acquired after 1914 are subject to a permitting process at the State Water Board. The process involves an application and notice, protests, protest resolutions, or hearing, and ultimately the issuance of a permit. The Board may establish streamflow requirements necessary to protect fish and wildlife and will consider streamflow recommendations from the California Department of Fish and Wildlife.
Ms. Olson noted that the Division of Water Rights recently issued new permits for a small project along Arroyo San Jose, a tributary to Novato Creek in Marin County. “The applications were protested by the Department of Fish and Game, and the parties worked together to negotiate innovative protest dismissal terms,” she said. “Ultimately, the permit included a limited season of diversion, minimum bypass requirements, a non-native species eradication plan, and riparian replacement plan.”
She pointed out that the Division does not process many new water rights applications because the amount of water rights already allocated far exceeds the state’s average supplies.
“The Board cannot accept new applications for water bodies that are fully appropriated,” she said. “As you can imagine, putting water back in the stream is more difficult than preventing it from being taken to begin with because this reduces the amount of water that diverters can take for other important beneficial uses, such as agricultural and municipal use.”
Water Code Section 1707
The State Water Board processes petitions filed by water right holders to change the point of diversion, the purpose of use, or the place of use. The process is similar to the application process, where parties may protest and the Board may approve changes if certain findings are made.
“Under Water Code Section 1707, the board may approve a change for the purpose of preserving or enhancing wetland habitat, fish and wildlife resources, or recreation in around the water,” she said. “Processing these types of changes can protect flows from subsequent diversions downstream. And this code section has been useful in facilitating many voluntary efforts taking place around the state, including some instream flow dedications on the Shasta River Watershed, a tributary to the Klamath River.”
Under the Federal Power Act, the Federal Energy Regulatory Commission is responsible for licensing certain hydroelectric power plants. These licenses are typically for a period of 30 to 50 years. Many hydroelectric projects licensed decades ago have dewatered stream segments as the flow is diverted out of the stream for power purposes.
The renewal of these licenses has provided an opportunity to rewater these dewatered stretches. The renewed licenses are subject to mandatory conditions and water quality certification under Section 401 of the Clean Water Act. In issuing water quality certification, the state board can include terms and conditions to increase minimum stream flows.
“In fact, the State Water Board recently issued a certification for the South Fork Feather River project that includes minimum stream flows, measures to improve aquatic habitat, and also measures to maintain and enhance existing recreational opportunities, including whitewater boating,” said Ms. Olson.
She noted that a recent court decision out of the DC circuit is threatening the state’s ability to ensure water quality compliance based on procedural grounds.
Water quality control planning
The approaches discussed thus far all involved individual case-by-case projects. These types of proceedings, if they go to a hearing, are considered quasi-adjudicative. A quasi-adjudicative procedure is best suited for cases with a discrete set of issues and limited individual parties.
However, often water quality impairments due to lack of flow are due to a cumulative impact of multiple diversions. Various planning tools may address flow issues more efficiently on a watershed scale, including the adoption of regulations, water quality control plans, and state policy for water quality control. A hearing for these types of tools is called a quasi-legislative or a rulemaking proceeding. And this type of procedure is more effective when a large number of parties will be subject to a regulation.
The State Water Board is exercising its water quality planning authorities when it adopts and updates the Bay-Delta Water Quality Control Plan. The Plan addresses water diversions and use in the water quality planning context, including the federal Clean Water Act and Porter-Cologne Water Quality Control Act. The water quality control plan includes beneficial uses to be protected, the water quality objectives for the reasonable protection of those uses, and a program of implementation to achieve the objectives.
When promulgating these flow objectives, the State Board is implementing the public trust. However, the basin plan is not self-implementing. There are various authorities for implementing the flow objectives, including state water law and water quality law; there are many approaches that the State Board could take, and not all are mutually exclusive, she said.
Fish and Game Code, Section 5937
Fish and Game Code, Section 5937, which requires the owner of any dam ‘shall allow sufficient water at all times to pass … to keep in good condition any fish that may exist below the dam.’ This statute led to lengthy litigation over the dewatering of the stream on the upper San Joaquin below Friant dam. Eventually, the parties in that case entered into a Settlement Act that was codified in federal law.
Other approaches that can be used include the Endangered Species Act, Native American and other reserved rights, project-specific legislation, and public funding.
So what is an environmental flow? Ms. Olson said that there has recently been a convergence in a general agreement among scientists around the idea of what constitutes an environmental flow.
“It’s not a natural flow, but it reflects the natural hydrograph including the magnitude, timing, duration, and rate of change in frequency of flows necessary to sustain biological composition, ecological function, and habitat processes within a water body and its margins,” she said.
There are a lot of people working on this right now, including the California Environmental Flows Workgroup. The workgroup’s goal is to address the need for a statewide multi-agency methodology to inform instream environmental flow recommendations to protect aquatic life while also supporting human use and hopefully facilitate efficient and timely implementation.
How other Western states address instream flow
Austin Cho then gave a comparative analysis of how some western states manage instream flows, but first gave the standard disclaimer that the views he is expressing are his own and not necessarily those of Downey Brand of his clients.
A critical challenge for instream flow management in the western United States is water scarcity. Our water rights system includes prior appropriation, which boils down to the dual concepts of “first in time, first in right,’ and ‘use it or lose it.’
Mr. Cho noted there’s an inherent incentive not to leave extra water in a stream under such a system. “In addition to that, you have beneficial use, which, in a prior appropriation system, determines the scope and contours of our rights to water,” he said. “And though it was not traditionally intended to include non-consumptive uses, such as fish and wildlife or recreation, states have incorporated those to a large degree.”
However, there are differences among the Western states in how instream flows are determined, who acquires and holds those instream rights, and how those rights are enforced. He noted that more often than not, the underlying scarcity problem highlights the difficulties in developing a flow system that both protects species and habitats but also protects and recognizes that people need water too.
In 1949, Washington State’s legislature recognized that a water right could be denied if it would decrease the flow needed to support fish populations. Washington’s beneficial uses include fish and wildlife maintenance and enhancement, recreational use, and preservation of environmental and aesthetic values. In 1967, the Department of Ecology was tasked with promulgating and setting minimum flows and levels in consultation with other state agencies. The Department of Ecology can also grant withdrawals that conflict with those minimum streamflow standards if it serves overriding consider of public interest or OCPI.
While once applied pretty broadly, the Washington Supreme Court has narrowly construed the OCPI in a couple of key holdings in the past few years. For example, in 2013, the Supreme Court held the OCPI requires extraordinary circumstances before the minimum flow standard can be impaired, which is more than just a simple balancing of those competing interests that are used to set the flow standards in the first place, he said.
Secondly, while the OCPI is an exception to the overall prioritization of water, the exception cannot be used to grant water rights that impair other existing senior water rights. However, unlike the OCPI exception, the Department of Ecology’s discretion in setting flow requirements is pretty broad. Mr. Cho noted that just this summer, the state Supreme Court held that the Department of Ecology can set minimum flow standards based on any single beneficial use value instead of balancing them all.
In Colorado, instream flows have been managed statewide, with legislation that has been in place since 1973. The Colorado Water Conservation Board holds instream flow rights to protect native and sport fish populations and their habitats and acquires those water rights under a voluntary program. The Conservation Board employs a voluntary water transaction system along with the nonprofit Colorado Water Trust. The Water Trust has brokered and funded the preservation of thousands of miles of streams in the state.
Mr. Cho noted that this year, Colorado’s governor signed new laws that touch on instream flow protection and management that expand the existing instream flow loan program to allow water rights holders to loan water to the Conservation Board to improve instream flows, not just preserve them. Another new law empowers the Conservation Board to use augmentation water, historically used by water users to offset their diversions, to support environmental flows.
As one of the country’s driest states, Mr. Cho noted that New Mexico has adhered very closely to the prior appropriation doctrine with the state’s definitions of beneficial use centered around consumptive uses, such as irrigation, domestic, commercial, and industrial uses.
On a regulatory level, the New Mexico Office of the State Engineer has recognized fish and wildlife and recreational uses, but just through regulation. “In 2005, the state legislature passed the strategic water reserve, which authorized an interstate stream commission to buy or lease senior water rights from willing owners so that it can use those flows to protect species and comply with interstate water compacts, so it’s partway there,” he said. “But unlike other states mentioned, there’s no statutory recognition of instream flow rights, and all surface waters have been fully appropriated in the state.”
“In 1998, the hypothetical transfer of consumptive rights to instream flow was recognized by the state attorney general as permissible under common law,” he continued. “It only took two decades, but last year, the state of New Mexico awarded the first water right permit for instream use the Audubon Society. What remains to be seen, however, is how those instream rights are and will be enforced so that the water stays put.”
In summary …
In all of these instances, including California, states face many common issues in managing instream flows, such as priority and enforcement of instream rights.
“Basically, if a state law provides that instream flow rights can be subordinated to more junior rights, then the likelihood of realizing the benefit of the instream flow right, especially in a dry year, is pretty minimal,” Mr. Cho said. “Effectiveness of flow requirements, that is – using science to link the flow to fish viability directly is a necessary component but has sometimes been overlooked.”
Mr. Cho acknowledged that funding is also a critical issue; in almost every state, the funds available to pursue instream flows can be limited. He also pointed out that balancing instream interests with competing beneficial uses has to be done under the framework of state law.
“In California, that means water right priorities, the Constitution, Article 10, Section two, and the public trust doctrine, among others,” he said. “These common issues have had a need for a flow solution that engages stakeholders and hopefully addresses more than just flow.”
Dos Rios Ranch: An instream flow case study
Julie Rentner is president of River Partners, a 501c3 nonprofit organization in operation for 20 years. River Partners works throughout California in many different watersheds, focusing on creating wildlife habitats to benefit people and the environment. She presented a case study of the Dos Rios Ranch project that illustrates some of the challenges and opportunities of dedicating water to instream flow in California.
Dos Rios Ranch is located at the confluence of the San Joaquin River and its largest tributary, the Tuolumne River. The Dos Rios Ranch and the neighboring Hidden Valley Ranch comprise about 2000 acres of land acquired for multi-benefit flood protection and ecosystem restoration activities. These were formerly irrigated agricultural lands located in the primary floodplain of the two rivers.
The Dos Rios Ranch Project, about 10 miles upstream of Vernalis, is an important location for monitoring the Bay-Delta Water Quality Control Plan as well as salinity targets for the San Joaquin system. The Dos Rios Ranch Project is also about 26 miles downstream of the terminus end of the San Joaquin River Restoration Program, which was the result of a lawsuit that relied on Fish and Game Code Section 5937 to require flows below Friant Dam to maintain fish populations in good condition.
“It’s important to note that while we are 26 miles downstream of the terminus of that program, as the application of the legal settlement around Section 5937 plays out on the landscape and the flow requirements reach a terminus end, the water that is supportive of that settlement is recirculated into delivery systems,” said Ms. Rentner. “So at Dos Rios Ranch, we don’t see the effects of that flow management in the San Joaquin River.”
She also noted that the project is also downstream of two hydroelectric dams; the terminus dams on both the Tuolumne and Merced rivers are regulated through FERC processes as well.
“This is a complicated portion of the system,” she said.
Ms. Rentner pointed out that the challenge is that downstream of the Project, there are more than 120 riparian diverters entitled to the river’s natural flow. The water dedicated from the project for instream flow would have to make it past all of those diverters and out to the Golden Gate to provide a benefit.
“The complexity of the water management system in this part of the world is great, and coordination with all of our neighbors to try to track that water all the way out to the Golden Gate is not possible,” she said.
This project is predicated on wildlife recovery and focuses on flows and the habitats surrounding rivers. Ms. Rentner noted that ten times as many conservation dollars are spent on fish recovery as any other species of wildlife, but mammals, birds, insects, reptiles, and amphibians are all listed on the Endangered Species Act at the state and federal level, and their populations are dwindling. Many of these species rely on a healthy river corridor, which is especially important as temperatures increase and species need to migrate along shaded river corridors.
Besides providing habitat, floodplains also serve a critical public safety function. The Dos Rios Ranch project comprises thousands of acres of floodplains that have been reconnected to overbank flooding by modifying levees and berms and creating an opportunity to allow the floodplain to act as a sponge during times of flooding.
“If we can slow the conveyance of floodwaters out of the San Joaquin River system in this area, we can make significant flood management improvements for Lathrop, Manteca, and Stockton, where a few million people are living in harm’s way,” Ms. Rentner said. “And as our climate continues to change, the flood hydrology is expected to become even more intense, putting more folks downstream of this property at risk.”
The project will also help with groundwater recharge. Recent research from Lawrence Livermore National Laboratories looking at environmentally present radioisotopes demonstrated the increasing contribution of river flows to groundwater recharge.
“So as we’ve overdrafted our groundwater stores to the point of creating a new groundwater management act in California, it’s clear from the science that our rivers play a significant role in recharging the overdraft across the San Joaquin Valley as well as in other watersheds,” she said. “We think about this groundwater recharge as both shallow temporal storage in the soils of the floodplain itself, as well as potential deep aquifer recharge through and amongst paleochannels across the Central Valley.”
The instream flow petition
The properties for the project were purchased in 2014 and 2012; over $30 million of public dollars went into buying these properties to secure them for multiple public benefits. When the properties were acquired, they had dedicating some of the water rights to instream flow in mind, so they ensured that the water rights from these properties would be transferable.
In 2016, the Wildlife Conservation Board funded a planning grant to the Tuolumne River Trust, a partner in the project, to hire water attorneys to develop a 1707 streamflow dedication petition for the riparian rights.
“There are five different points of diversion on these properties,” Ms. Rentner said. “All of the articulation of the value of dedication from riparian water rights has to come from a comparison of consumptive use. So we partnered with some researchers who have tools to use monthly or even daily timestamped LANDSAT satellite imagery to calculate how much water is being transpired by that land use. We were able to look at the adjacent properties which have been restored into riparian and floodplain habitat types over the last two decades and compare evapotranspiration rates on those adjacent properties to the evapotranspiration rates at the Dos Rios Ranch and Hidden Valley Ranch properties that we just acquired.”
“By comparing an intended future land use and its evapotranspiration rate to the existing land use which was irrigated ag, we were able to come up with a difference in water use,” she continued. “As we move forward converting these properties from irrigated agriculture, which is mainly alfalfa and corn, into riparian habitats, such as forests and wetlands, we’ve generated water savings, and that is the basis for our 1707 dedication petition.”
They took the results to the different agencies, Reclamation, and the Water Board to get agreement on the amount of water, and did some outreach to neighbors in the region to inform them of the project and gather their input.
In December of 2018, the Water Board approved lower San Joaquin River flow and revised South Delta salinity objectives, which set a target for 40% of unimpaired flows making it out through Vernalis. “This started a new set of decades-long conversations around how possible is it to reach such flow targets in such a complicated environment? Who’s responsible for meeting those requirements? And can we get there through regulatory pathways up the face of Half Dome, through voluntary pathways up the face of Half Dome, or some combination?”
The outreach to the neighbors brought a range of reactions ranging from little concern to those who said it would upend the way water is managed in the South Delta, which Ms. Rentner noted illustrates just how variable everyone’s perspective is about how water rights and dedications work in this area.
The 1707 petition was filed with the Board in September of 2019 and is still in review.
Ms. Rentner said that they chose to take the pathway of using Water Code Section 1707 for many reasons:
It allows existing appropriative and riparian water rights to be not-diverted and left instream for fish and wildlife beneficial uses without risk of abandonment or forfeiture. “We do believe that there’s a way or that the code at least describes a potential authority for the water board to try to keep that water instream.”
It preserves the seniority of the right and gives the owner of the water right an enforceable right to protect that water from other junior appropriators and other diversions.
It is becoming an increasingly important tool that simultaneously respects existing property rights while generating an effective and “drought-proof” instream flow tool.
The water dedicated to instream flow would be 7000 total acre-feet that would be distributed over the months, as shown on the graph. This reflects the amount of water that was historically used on these properties for irrigated ag during the growing season. The petition requests that this water remain instream.
To put this into context, Ms. Rentner noted that the CalFed program in the late 90s identified that acquiring about 100,000 acre-feet of water from upstream to flow through the Delta would provide a significant environmental benefit for species recovery, so this project represents about 7% of those goals.
She noted that the timing of the flows doesn’t perfectly match up with the fish needs. Still, in terms of magnitude, in late September, the flows in this reach of the San Joaquin River are about 500 CFS, so she said the flow would be increased by approximately 4% if this instream dedication is approved.
“From a personal standpoint, this petition is an example of a completely voluntary petition to dedicate unused water to streamflow by an organization that is interested in and motivated to and incentivized to dedicate this water,” Ms. Rentner said. “Our riparian water rights are being unused. So we thought this is an incredible opportunity to provide even greater environmental benefit and public benefit from this project.”
“There’s a certain need for instream flow increases in the lower San Joaquin River,” she continued. “Water dedication benefits people and the environment, which is completely mission-aligned for our organization. We think that future land ownership changes can facilitate more projects like Dos Rios Project and that they can facilitate cost-sharing in providing public benefits to other sectors besides water quality or water supply – for example, groundwater recharge or flood protection.”
“To us, this is an accounting process and a test case; this is an opportunity to drop a marble through the machine and see if we can predict where it’s going to pop out. Or better yet, we’ve taken off to the face of Half Dome, and we’ll see if we can make it to the top.”
Dos Rios Project as a model for ecosystem-based management
Lastly, Ms. Rentner pointed out that the Dos Rios Project is a model or a proof of concept for ecosystem-based management in this part of California’s water system. “What we’ve done is we found ways to tangibly engage human and environmental needs in one large project through the contribution of funds and regulatory authorities and approvals. If this project works and we’re able to dedicate some of our unused riparian water to streamflow, then we’ve crossed another boundary in terms of describing how an ecosystem-based management approach can actually work and is consistent with existing authorities in California.”
“If the project were expanded, potentially we could deliver eco functional flows in the south Delta by replicating them. And importantly, what we’ve learned through the course of this project is that any approach to improve streamflow in California is going to require vigilance that the structures that we’re using are adaptable. As better science is uncovered, we can adapt to the processes we use to maintain streamflow that we can scale up and bring folks together around a solution.”
Voluntary agreements: Potential solutions
Austin Cho then discussed potential solutions, focusing on the voluntary agreement process. He acknowledged that the Dos Rios Project is a good example of the type of alternative individual approach that utilizes scientific measurement tools to put the water to reasonable and beneficial use to the maximum degree practicable, while at the same time protecting species, recognizing existing water rights, and meeting both current and future demands within a source watershed.
The concept of statewide instream flow management is daunting, particularly in a state as vast as California, where different regions of the state have different water needs, he said. The impacts of low water supplies will vary depending on geography and water supply portfolio, so it’s hard to have a one-size-fits-all approach. He also noted that it’s difficult not to reduce the issue to a ‘farms versus fish’ struggle with agricultural interests on one side and the environment on the other.
“When we view the issue as one that centers on flows, we’re limiting ourselves to a game of tug of war over a limited resource, which is a zero-sum game,” Mr. Cho said. “Taking that path in the past has not achieved the outcomes we wanted. So I think it’s important to weave the individual components into a broader comprehensive umbrella of flow management that might have some more success.”
Turning to the Delta, he acknowledged the Delta is its own ‘can of worms’; however, the Water Quality Control Plan proceedings can serve as a useful ‘macrocosm that identifies the inherent problems with instream flow protection approach that focuses mainly on flows.
“The ongoing voluntary agreement component of the water quality control plan process is an alternative approach to statewide management that could prove more effective both in outcomes for fish and in practice for the people who need water that would be expected to live within the system, as opposed to a top-down unimpaired flow regime of days passed,” Mr. Cho said. “The laws governing the Bay-Delta have historically required that adjustments made to flow separate from consideration of other factors that affect fish and wildlife, such as habitat modifications, floodplain work, or predation. Yet, despite the implementation of flow requirements in the Delta, native species viability has not improved as we would have liked to see over the years.”
The voluntary agreement process underway now is supported by more than 40 public water agencies, resource agencies, non-governmental groups. The voluntary agreements are currently being developed as an alternative to a straight flow approach in the Delta, he said. The VAs are founded on the principle that an inclusive approach to manage habitat flow and other factors by interested stakeholders might more effectively protect native fish and wildlife species while simultaneously protecting water supply reliability.
“The framework for voluntary agreements provides a good template for other regions beyond the Delta that might be worked into a larger scheme,” Mr. Cho said. “The core elements involve actions that rely on best available science for decision making that implement measures to demonstrably improve fish and wildlife. Participating parties essentially provide a certain amount of water in targeted releases in most water years to maximally help fisheries in the Delta. Tens of thousands of acres of new fisheries habitat get created over a span of years; these habitat improvement measures such as in the Yolo Bypass and other areas could counter the fish population declines and get native fisheries back on the roads to viability in ways that flow alone might not.”
The voluntary agreements also facilitate stakeholders working together to understand the needs of native fisheries better and make the most effective use of limited resources through a collaborative decision-making process that would determine appropriate flows and what levels of flow achieve positive results. The State Water Resources Control Board would be the enforcer that ensures that the commitments made in the voluntary agreements are, in fact, real and tangible.
“The Voluntary Agreement process had the support of former Governor Jerry Brown, who issued principles for the voluntary agreements in 2017,” said Mr. Cho. “Governor Newsom, earlier this year, praise the VAs as the path forward to move past the old water binaries that have bogged us down in the past. Rather than continue a zero-sum game, this type of approach focuses on quantifying and restoring flow components that have the greatest link to success. I think most people would recognize that it’s unlikely that we’ll ever restore the entire flow of all of our water systems to what they were in their natural states. So in the end, we need to take a step back and identify what gives us the best bang for our buck.”
The environmental perspective
Rene Henery began by noting the challenge for environmental flows. “You heard about the way that our conceptualization of beneficial uses has changed over time as we’ve started to recognize the significance of the environment,” he said. “Now we’re in this interesting circumstance where, in certain parts of the Central Valley, for example, we have agriculture booming, record revenues from high-value crops like almonds and pistachios that are being grown on historic floodplains. Simultaneously, all of our salmon populations not propped up by hatcheries are essentially in some form of a federal listing, from species of concern to endangered. You also have a commercial salmon industry that is literally on the brink of collapse, and that would have probably collapsed last year or the year before had there not been limited salmon seasons. Almost all commercial salmon fishermen have had to diversify into other things or move out of the state because of the collapse of the fish populations. And those two things are directly tied together.”
“The growth in agriculture and the history of water management has been borne economically, by commercial fishing, among other things, and also has been borne by all of the other environmental functions that rivers support,” said Mr. Henery. “So that leaves us in a really complex spot. How do we take into account the imbalance of the past when we’re thinking about reconciling the current situation and balancing beneficial uses? If you want to balance beneficial uses, how do you do that? Economically, somehow?”
“It’s hard to attach a dollar figure to all of these environmental variables and all of these environmental functions that are critical to the functionality of the landscape,” he continued. “And you don’t want to do that in a way that negatively impacts people’s livelihoods. Would you include all the costs of flood maintenance from the construction of levees and the maintenance of the levees themselves and the increased flood risk from urban areas developing on floodplains that are now at flood risk because we haven’t allowed those rivers room to move? It’s really complicated when you think about the pattern of externalities we’ve created through time and how that’s stacked up in terms of the actual cost of the way we’re managing water right now. So that doesn’t seem like it makes a lot of sense.”
“Do you do it in terms of a percentage of water? That goes to Austin’s point that water by itself doesn’t fix the problem,” he continued. “For juvenile salmon, for example, you need floodplain habitat, so if you just turn up the water with these trapezoidal channels, you’ll blast the fish down the river, and they won’t have any room where to grow. So you need the water in combination with the habitat. That said, You can’t take a little bit of water and set back a levee because there’s no water to inundate the floodplain. And if you do inundate the floodplain with that water, the water is too hot because it’s so little that is now being exposed to all of that sun.”
We all know fish need water, and there’s no way around that. But how do we balance beneficial uses so that we make the most efficient use of the water we have by coupling it with other things?
“That’s where the ecological functional flows concept and the environmental flows framework come in,” said Mr. Henery. “It’s a first step towards looking the components of the natural hydrograph that really generate the most ecological benefit and that our native species have coadapted with over time. If we restore those parts of the hydrograph, we can give them the best chance to leverage their adaptive abilities in the context of a changing climate.”
It might be the spring pulse that comes from snowmelt in a particular river that generates many benefits, maintains a specific temperature during the summertime, or maybe a fall pulse flow. He noted that those components of the hydrograph will vary based on where it is in the landscape: whether it is a short, steep rain dominated coastal stream or a long river that flows from the Sierra to the sea will determine in part what components and percentage of the hydrograph are going to generate those benefits. So the development of the framework is a promising step.
It’s also a promising step in that in the context of a water right system where how much water people get is based on how much other people are taking first who have senior water rights. “If you suddenly change the hydrograph, it’s really complicated because people are used to taking water at a particular time, which changes and dictates what other people can take. So the concept of an ecologically functional flow creates a baseline against which we could say that this is the template hydrograph and the timing of the different components of those hydrographs. Then we could reapportion water based on that shape of the flow.”
The framework is useful for restoration because projects such as mountain meadows or floodplains that restore the landscape and the hydrologic functionality could make more water available by increasing retention in the landscape, but it could also significantly change the timing of that availability.
“So you need some basis to be able to say now that we’ve changed the timing, how do we make sure that everybody gets what they need?” said Mr. Henery.
Mr. Henery said he agrees that ‘fish versus farms’ is fundamentally broken and a zero-sum game. “I think there’s something else that’s even more broken underneath it, which is the idea of transactional collaboration – the idea that the way we work together is by ‘you do something for me, I do something for you,’ as opposed to, ‘we’re all doing things that benefit all of us.’ That idea that we all belong and that everyone’s needs matter, and that we need to find a way to support all of those; we can see each other’s needs as our own needs because we need to be here together. That is really critical.”
“To date, that’s been part of the tension in the voluntary agreements,” he continued. “Because of our history, there’s a huge imbalance of power. Section 5937, which requires downstream flow sufficient below the dam to keep fish in good condition, has only been leveraged to maintain those conditions in three cases in our history of the state, whereas most of our rivers are not meeting those requirements.”
“So if we were actually implementing all of the law that we have on the books around conditions for the environment, the landscape would look much, much different than it does right now. And we’re not because there are so many people with so much interest in that water currently and historically, because of the history of beneficial uses. Because of the imbalance in money and power that history has created, the voices of those human uses for water and water management are much larger. They are larger in the state, they’re larger nationally, and they’re larger in Congress. That imbalance creates a difficult dynamic where, until you have a dialogue that’s actually inclusive, it’s very difficult to have a voluntary discussion that works, because there’s always a marginalized group that is going to lean on the regulatory structures that aren’t being implemented to try to preserve the very little bit that’s left of all of this environmental functionality that’s taken a disproportionate hit over time, because of the history of our evolution.”
Mr. Henery said the environmental flows framework is helpful because it provides a template hydrograph that can be scaled down. If we can’t provide for the needs of all ecological functions, which ones do we really care about?
“We can pick portions of the hydrograph and scale parts of it down proportionally to make sort of a smaller functional river from what was a big river, but it’s really a hypothesis,” he said. “The hypothesis is that if we run flows down the river to look like they did historically, or to look like a portion of the current unimpaired flow, we will recover some significant portion of the ecological benefit that’s been lost.”
One of the challenges in the voluntary agreement discussions and elsewhere is how to create a system where we’re ground-truthing and testing, so we know that the environmental benefits that are supposed to be delivered are actually being delivered.
A study from the Shasta River looked at fish growth potential using a bioenergetics model over a year. There’s a significant diversion on the Upper Shasta River that diverts a large portion of the water. So researchers from the University of Nevada and others looked at what happens to the invertebrate densities in the river when that diversion gets turned on.
“What they discovered was the invertebrate densities radically decrease, they change size, and the big bugs go away,” Mr. Henery said. “So fish have to swim around more to eat during the time of year where they’re accumulating their fat the most. And in swimming around more to eat, they’re using more energy for the food that they’re consuming. So by the time you get to the low flow portion of the year where they’re living off of their fat stores, they don’t have enough, and they’re dying. And so tools like this allow you to say, what is the amount of food we need to support whatever our target fish population is? To look at that in the context of flow management and say, what would it take in terms of the amount and timing of the water with maximum efficient use of the water to make that amount of food to support this amount of fish. And then to be able to go out and measure it and make sure that it’s happening.”
“Creating measurable objectives for environmental benefits that are transparent and the basis for adaptive management of flows is a path forward that allows us to get out of making it about balancing beneficial uses from the context of money or balancing beneficial uses strictly from the context of water, and not locking us into a regulatory circumstance where it’s just, ‘you must do only this with water,’ and it can’t change.”
“But it requires flexibility on the part of water users to say, okay, we’re actually committing to achieving this environmental objective, not committing to a certain amount of money, or to giving up a certain amount of water,” Mr. Henery continued. “That’s the push-pull in order to get those folks who feel like they’re protecting the last vestiges in the environment with our regulatory system to loosen their grip. There needs to be a commitment to attaining those environmental objectives, not just commitment to specific actions.”
“So that’s where we are. It’s a promising place to be in from the standpoint that we have a collaborative intention across the Board, we have tools that we can use to bridge the different places in the Venn diagram, and we have cool new science. We have some forums starting to evolve that could potentially hold those dialogues. We have some challenges around the inequity in those forums with the reluctance on both sides to trust. How do you loosen the regulatory framework enough to provide space for people to come together without loosening it so much that the dynamics of the existing power imbalances don’t take away the potential for equitable dialogue.”
Samantha Olson began the panel discussion with the voluntary agreements. What voluntary agreements have been successful in the past? What has worked on the ground? And what could work better?
“I think that the cases where voluntary actions have yielded some significant outcomes on the ground have been the result of really broad collaboratives,” said Julie Rentner. “In addition to the multiple agencies, California’s supporting and endorsing actions to move forward have included meaningful engagement at federal and local levels. And then a commitment to making things happen on the landscape.”
One non-water rights example of how voluntary or collaborative processes that appear to be yielding some good outcomes is in the Central Valley Flood Protection Plan, which followed Hurricane Katrina when there was a focus on flood safety. “The Sacramento San Joaquin Delta is one of the most or the most at risk for flooding in North America,” Ms. Rentner said. “The Department of Water Resources opened up their planning doors and said, we’re going to think about a flood plan for this entire Central Valley. They were open to discussing other beneficial uses, like conservation and ecosystem outcomes, enriching experiences for people, and economic vitality. So what that did in the flood planning world is it invited in many different stakeholders.”
“Then, they took the next step and said, we’re also going to invest in regional flood planning,” Ms. Rentner continued. “They said, we’re going to go to the local level and talking to folks about what they need to see on the landscape, and then developing a system-wide investment strategy where we’re trying to invest in not only the narrow interests of improving flood safety and reducing the state’s liability and flood protection, but also deliver outcomes that speak to the needs of all of the stakeholders who have raised their hand and who we’ve identified. The outcomes on the landscape – certainly, they need to be larger. But we’re seeing the implementation of a huge amount of flood system improvements that are integrated with other kinds of improvements as a result of that effort.”
Samantha Olson asked, since we were getting into the actual amount of flows or segregating out pieces of the hydrograph that we think are most beneficial and getting the most bang for our buck, how we know about the actual amount? “The Bay-Delta plan was based on a concept of a percentage of unimpaired flow, which was trying to incorporate the same idea of allocating a certain amount and carving out a starting block of water that could then be shaped with functional flows. So I’m wondering, in the absence of that, though, how do you know you have enough? And what is there any actual difference between those two concepts?”
Austin Cho pointed out that being able to see tangible results is important. “I think what hampered previous flow regime attempts and struggles in the Delta was that we didn’t really see the connection from the water that was being pushed down the streams to actual fish population growth or improvements that were expected,” he said. “Flows don’t necessarily equate to fish. There are these other non-flow factors that need to be put either through testing or experimentation or added to the modeling, such as habitat restoration and floodplain management, that can improve the food ecosystem and the other factors that sustain fish populations before any of those approaches can be actually be effectively put into practice.”
“One of the things I’ve been working on for the last decade and in a lot of different contexts, including with the State Board around the water quality standards, is the development of measurable objectives for environmental benefit,” said Mr. Henery. “To their credit, the state board used those sorts of objectives to develop the 40% unimpaired flow recommendation. It wasn’t just an arbitrary percentage of water; it was actually looking at statistical relationships between flow and species response. So there are well-demonstrated responses from species at higher flow levels. To Austin’s point, though, if you were to do other things on the landscape, you might not need all of that water. And so I think there is also a need to think about how flow and habitat changes could work together.”
Mr. Henery recalled a presentation by Dr. Jon Rosenfield from The Bay Institute to the State Board during the proceedings. He looked at flow versus the cost of treating acres to do floodplain restoration. “He said, ‘you can do either of these things. You can treat this number of acres to get the amount of floodplain that you need with less flow, and here’s the dollar figure; or you can provide just water and here’s the dollar figure.’ So I think frameworks that allow people to pick what to spend money on that make sense are really useful. For salmon, that information exists; we’ve had it for a long time and have been refining it, especially over the last five years. So there’s a lot of great estimation about how much area of what type of habitat, what type of temperature, we need to support what sort of salmon population.”
“There are two things that have complicated that being applied,” Mr. Henery continued. “One is that we have in law targets for salmon that we were supposed to have met a long time ago. There are a few people who say whatever flows we provide need to be supporting these targets that are part of the existing law. Others feel that if we can just have a transparent discussion about what’s actually possible, then it might be that those targets could change. But until we get to the place where we’re having that transparent discussion, it’s difficult, and it’s been hard for us to get to that place.”
“I don’t believe that we can wait to implement those things to prove that they are functional,” Mr. Henery continued. “One of the reasons we haven’t seen results from a lot of the water that we’ve used in the past is because we haven’t used enough. We’ve never actually put down the amount of water through the system, except in flood years when we’re having uncontrolled spills, where we do see a huge response. The rest of the time, we haven’t actually put down enough water to create a significant biological response. So someone asked me, ‘do you think in some of those cases that water was wasted?’ I’d say, maybe so, or at least spent inefficiently but not wasted because it did other things. Right now, we have a salmon population that is propped up by our flood years. We make a lot of fish during flood years. And the rest of the years, fish are dying. And so you have a very gradually decreasing trend. It’s not even that gradual; it’s a semi gradual decreasing trend towards extinction, where we get saved every so often when we have a flood year. And it’s not even really a save; we just get a little boost.”
“Biological objectives are really helpful,” said Mr. Henery. “Trying to achieve those biological objectives using a combination of flow and what people call non-flow actions (even though the non-flow actions usually require water, so I don’t know why we call them non-flow, but they’re not specific to water) is a good place to go. You asked about what would make voluntary agreements work? In the flood context, one of the things we did is we all sat down in a room, and we spent several hours where all anybody did was go around and name what their desired outcomes were – not the problems, not the pathway that they thought would get them to that. Just, what do you want from a functional system? I haven’t even seen that happen yet in the context of water management in the Central Valley. But if we could have that discussion, I think we’d have a more realistic sense of what’s possible and could then bring science to bear on it more effectively.”
Austin Cho said he thinks the transactional nature of water is a necessary evil (or maybe not an evil at all) for water in the state. “It is a limited resource that needs to be allocated, and it needs to be allocated over a vast span of land and space. I think it presents some opportunities, like what Julie has been exploring with water transfers and acquisitions, that better balance that human supply with demand cycles for fish and targeting when that water gets moved through a system to meet more needs than otherwise would be met with an ordinary approach to flow management. I think there’s always going to be equities at stake. But we exist under a water law framework that includes prior appropriation and water rights as a property right. And we have to navigate how we allocate and manage water through that system unless we change the system altogether.”
Moderator Samantha Olson asked Ms. Rentner how far 1707 can protect a dedicated flow? And what are the limitations about the extent of the downstream benefits of those transfers?
“That question is the crux of why there’s such a wide variety of responses to the Dos Rios 1707 petition,” said Ms. Rentner. “When you read the water code, the language is pretty clear; it looks like that water can be protected from downstream diversion. But it looks like the state is infused without authority. In practice, the state has no possible way to realize that authority or enforce it on the landscape. So the purpose of dropping the marble through the machine that the Dos Rios Project represents is to provide a forum for all of us to have that explicit conversation, does the State actually have that authority to protect that water all the way out to the Golden Gate or not? If it does in practice, how do we actually make that happen? How does that work? And if it doesn’t, then is this example of voluntary agreements to meet streamflow targets in the south Delta foolhardy? Is it possible to even get there through voluntary agreements?”
“There’s a sort of carrot and a stick question there,” said Mr. Cho. “The one thing that the voluntary agreements do provide as a framework is they lean a bit more on the carrot portion of it, which might have more teeth in the end, given the questionable ability to actually enforce instream water and protect it going all the way to the ocean. If you take SGMA, the Sustainable Groundwater Management Act, for example, embedded in that law are some interesting components of focusing on local management and encouraging localities to get their acts together to manage groundwater sustainably. But there is a backstop of state intervention if they don’t follow through. And something similar but not exactly like that might be an effective tool where the carrot is offered first, and the stick only comes later.”
“I was thinking more about the technical limitations of tracking the water, but let’s assume we have the legal authority there to protect the flows downstream,” said Ms. Olson. “Would it help if the Basin Plan would articulate that all the water right holders had some obligation toward the ecosystem of the Delta is? So would that perhaps help us enforce a voluntary agreement or flow dedication?“
“I think back to that map that I showed in my slide deck of just all of the riparian diversions that are downstream of the Dos Rios project,” said Ms. Rentner. “Every single one of those is first in time, first in rights with an unlimited water right to use that water on that property for beneficial uses. Short of revamping our water rights system, I’m not sure how we create the technical ability to track that flow all the way past a whole bunch of riparian diverters in a meaningful way. I’d love it if we could figure it out. There’s a lot of big, big brains trying to.”
“On your last point, I don’t think we actually disagree at all,” said Mr. Henery to Austin Cho. “I think you articulated it really well … despite my comment about we could change our water rights system, which we may have to at some point in the context of our existing legal structure, I agree. That said, that legal structure includes things like Fish and Game code 5937. So I would love for the beginning of that transparent dialogue to be, what would it look like if we were managing all the water according to the existing laws, which we’re not doing right now? We have laws that are enforced to reflect that inequity that I was talking about in the past. So that’s part of navigating it.”
Moderator Samantha Olson asked about partial voluntary agreements. How will we deal with a system of water rights if some people are parties to agreements and others aren’t?
“Personally, I don’t think of a voluntary agreement that’s partial is a voluntary agreement,” said Mr. Henery. “It’s an involuntary agreement for everybody who’s not there in the room. That happens all the time. It’s like, we’re just going to get together and decide. It’s voluntary among us, but it’s involuntary for the rest of you all; you just have to live with the consequences. So I feel like the basis for any voluntary agreement has to be inclusivity, equity, and space for people to be heard. Otherwise, it’s not voluntary. It’s just like what you’re being made to do.”
“I was also just thinking about the water rights system,” said Samantha Olson. “If we have some water diverters participating in an agreement that isn’t necessarily reflecting the rule of priority. What do we do with the other water diverters? And from the state board’s perspective, how is that manageable?”