Best case scenario has adoption of updated Sacramento River objectives and implementation of San Joaquin River flow objectives in 2024
The San Francisco Bay/Sacramento-San Joaquin Delta Estuary Water Quality Control Plan (or Bay-Delta Plan) establishes water quality objectives to protect beneficial uses of water in the Bay-Delta watershed, including fish and wildlife, municipal, and agricultural uses, and a program of implementation to achieve these objectives.
The last time the Bay Delta Plan was updated was in 2006. Since then, fish in the Delta estuary have continued to decline, and water quality has worsened. Acknowledging the water quality objectives were insufficient to protect beneficial uses as required, in 2009, the State Water Board initiated the update process for the Bay Delta Plan.
Nearly 14 years later, the State Water Board is still working on the update. On January 19, staff updated the State Water Board members on the current timeline for completing the Sacramento/Delta update to the Bay-Delta Plan, including consideration of proposed voluntary agreements (VAs); implementing the 2018 Bay-Delta Plan amendments for Lower San Joaquin River flows and southern Delta salinity; and consideration of a recent voluntary agreement proposed for the Tuolumne River.
Diane Riddle, an assistant deputy director in the Division of Water Rights, and Erin Foresman, the Environmental Program Manager of the Bay Delta San Joaquin section, gave the update.
Ms. Riddle began with background on the Bay-Delta Plan. The Bay Delta Plan identifies beneficial uses of water, water quality objectives for the reasonable protection of those uses, and a program of implementation to achieve the objectives, as well as monitoring and evaluation efforts to inform implementation actions and future updates to the Bay-Delta Plan.
The Bay Delta Plan includes municipal, industrial, agricultural, and fish and wildlife beneficial uses and water quality objectives to reasonably protect those uses. The water quality objectives in the Bay-Delta Plan to date have been primarily flow dependent and include both narrative and numeric objectives. The program of implementation includes non-flow actions as well as flow actions, which are largely recommendations to other entities who have the authority to implement those actions.
The Bay Delta Plan is required to be reviewed regularly under the state Porter-Cologne Act and the Federal Clean Water Act. The State Water Board adopted an amendment to the San Joaquin River flow and southern Delta salinity components in 2018, although they have yet to be implemented. The Sacramento River, Delta, and tributary components of the Bay Delta Plan are currently in the process of being updated. The last overall update to the Bay Delta Plan was completed in 2006, with the last major update occurring in 1995.
Ms. Riddle noted that the Board’s Bay-Delta planning and implementation efforts are a very high priority due to the critical role the Bay-Delta watershed plays in the state. The Bay Delta watershed includes the Sacramento and San Joaquin River systems, the Delta, Suisun Marsh, and San Francisco Bay. The Sacramento and San Joaquin River systems, including their tributaries, drain water from about 40% of California’s land area, supporting a variety of beneficial uses of water.
The Bay Delta is one of the most important ecosystems in California, as well as the hub of California’s water supply system. As the largest tidal estuary on the western coast of the Americas, it provides critical habitat to many forms of aquatic, terrestrial, and avian wildlife. The watershed, the salmon, and other species it supports are also significant to tribal communities for nutritional, cultural, religious, and other purposes. In addition, the Delta watershed is critical to the many Californians that live, work, and recreate in the watershed, including recreational and commercial fishing and boating interests and the communities within the Delta.
The path of the update so far
Current efforts to update and implement the Bay-Delta Plan are focused on updating provisions from the 1995 Bay-Delta Plan developed under the 1994 Bay-Delta Accord, an agreement between state and federal entities. Ms. Riddle noted that since then, there have been prolonged and precipitous declines of a broad array of native fish and aquatic species, so they are focused in particular on objectives to protect fish and wildlife. In addition, they are considering provisions to protect the watershed in the face of climate change and pronounced droughts. Their efforts also address issues associated with expired voluntary agreements that have resulted in implementation gaps and compliance issues.
The Board’s effort to update the Bay-Delta Plan began in 2008 and first focused on the Lower San Joaquin River flow and southern Delta salinity objectives. The Board’s efforts to update portions covering the Sacramento River and Delta started in 2012.
When the Board adopted the updated objectives for lower San Joaquin River flow and the southern Delta salinity in 2018, possible voluntary agreements were proposed. So the Board provided direction to staff to provide technical and regulatory support on developing voluntary agreements that could be considered as an alternative in the update process.
In 2022, the Board received an MOU for proposed voluntary agreements. Ms. Riddle pointed out that the State Water Board was not a signatory to the MOU and has made no decisions regarding whether to approve the voluntary agreements. However, Board staff have been working to develop draft scientific and environmental evaluations of the voluntary agreements for public review and input. Following a full public process, the State Water Board will consider incorporating voluntary agreements into the Bay-Delta Plan. The Board may also provide direction before that time.
The voluntary agreements propose an eight-year initial term, after which the voluntary agreements could be extended or modified, or a regulatory path could be implemented.
The voluntary agreements propose flow and habitat restoration actions on tributaries to the Delta and in the Delta. They are intended to meet a proposed new narrative ecosystem protection objective and to contribute to the existing salmon protection objective, also referred to as a salmon doubling objective. The voluntary agreements also include governance, science, monitoring, reporting, and review provisions to inform the implementation of assets and future decisions regarding continuing the voluntary agreements.
Sacramento and Delta updates
In the fall of 2017, the Board released a scientific basis report that generally described the staff recommendations for Sacramento Delta updates to the Bay-Delta Plan and documented the science that forms the basis for the changes. An earlier draft was reviewed by the Delta Independent Science Board and the public and revised in light of the input received. Following those revisions, the report was peer-reviewed before being finalized and released.
In 2018, during the consideration process for the lower San Joaquin River flow and southern Delta salinity updates to the Bay Delta Plan, Board staff released a framework for possible Sacramento Delta updates to the Bay Delta Plan identified by staff. The framework included possible inflow objectives for the Sacramento River and tributaries and the Delta Eastside tributaries, including the Cosumnes, Calaveras, and Mokelumne rivers, that called for 55% of unimpaired flow with an adaptive range from 45 to 65% of unimpaired flow. Unimpaired flow represents the water production of a river basin unaltered by upstream diversion storage or by the export or import of water to or from other watersheds.
In addition to possible inflows, a framework identified possible cold water habitat provisions, inflow-based Delta outflows, possible interior Delta flows, monitoring and reporting, and other provisions.
On January 5 of this year, Board staff released a draft scientific basis report supplement in support of the possible Sacramento Delta voluntary agreements with written comments due by February 8.
The Tuolumne River voluntary agreement will be the subject of a separate scientific basis report and consideration process from the Sacramento Delta update process.
Ms. Riddle noted that Board staff recently sent letters offering to consult with California Native American tribes on the Sacramento Delta update to the Bay Delta Plan, including the offer for a tribal listening session in which staff would give more information about the Bay Delta Plan process and provide the opportunity to receive input from tribal representatives.
Upcoming actions to complete the Sacramento Delta updates to the Bay Delta Plan
Based on the public comments received on the draft scientific basis report supplement that is the subject of the January 19 workshop, the report will be updated and submitted for independent peer review, which is anticipated to occur this spring.
Also this spring, staff anticipates the release of a draft staff report for public review and comment analyzing the environmental, economic, and other effects of possible Sacramento Delta updates to the Bay-Delta Plan. The report will include an evaluation of the voluntary agreements, the staff framework proposal, and other alternatives. Following the release of the draft staff report, the Board will hold a public workshop to receive verbal input on the draft staff report.
In the spring or summer of 2024, staff anticipates the release of a final draft staff report, including responses to comments and the proposed Sacramento, Sacramento Delta changes to the Bay Delta Plan for the Board’s consideration. The Board is anticipated to consider those proposed updates to the Bay Delta Plan in the summer or fall of 2024.
Implementation of the 2018 Lower San Joaquin flow objectives
Ms. Foresman gave the update on the implementation of Lower San Joaquin River flow objectives.
The map shows the new and revised flow objectives adopted in 2018.
The new tributary flow objective applies to the Stanislaus, Tuolumne, and Merced rivers at the confluence with the lower San Joaquin River. The tributary flow objective requires 40% of unimpaired flow as a seven-day running average within an adaptive range of 30 to 50% of unimpaired flow from February through June. Compliance with the tributary flow objective is assessed at the flow gauge nearest the confluence, shown as green points on each of the Stanislaus, Tuolumne, and Merced Rivers.
The plan amendments also include adaptive implementation options that allow for changing the required percent of unimpaired flow within the adaptive range of 30 to 50%, managing flows as a block of water or as a water budget, using an approved alternative flow schedule, and shifting water to months outside February through June time period to avoid adverse conditions for fish and wildlife at other times of the year.
The minimum instream flow objective on the lower San Joaquin River at Vernalis has been revised, shown on the map as the point that is half yellow and half green. The revised objective requires flows at Vernalis to be 1000 cubic feet per second within an adaptive range of 800 to 1200 cubic feet per second as a seven-day running average.
Southern Delta salinity objectives
The 2018 plan amendments include a revised southern Delta salinity objective of 1.0 deciSiemens per meter as a monthly average year-round. The prior flow objective was 0.7 deciSiemens per meter from April to August and 1.0 deciSiemens per meter for the remainder of the year. The compliance points for the prior flow objective are shown by the yellow and green point at Vernalis and the yellow points in the interior southern Delta.
The southern Delta salinity objective was revised to apply river segments instead of interior Delta compliance locations to better assess compliance in a tidal environment. The river segments include the San Joaquin River from Vernalis to Grant (?) Bridge, Middle River from Old River to Victoria Canal, and Old River from the Head of Old River to Grant Line Canal.
The prior compliance locations continue to be used to assess compliance until information is developed to determine the appropriate locations and methods to assess the attainment of the salinity objective in the interior southern Delta. Information development includes producing a comprehensive operations plan, monitoring and special study plan, any necessary modeling, and a long-term monitoring and reporting plan, all of which are requirements in the Bay-Delta Plan.
Implementation actions since 2018
The Bay Delta Plan requires multiple planning level actions and products to be completed before taking steps that assign responsibility for achieving the lower San Joaquin River flows and southern Delta salinity requirements. These planning level actions and products include the development of biological goals for lower San Joaquin River flows; the formation of the Stanislaus, Tuolumne, and Merced or STM Working Group; compliance methods for the percent of unimpaired flow objectives; procedures for adaptive implementation of lower San Joaquin River flows; and several products for southern Delta salinity including a monitoring and special study and comprehensive operations plan.
- A report with draft initial biological goals for lower San Joaquin River flows was released for public comment. Biological goals are quantitative metrics that the State Water Board will use to assess if the actions it takes under the Bay Delta Plan are making sufficient progress toward achieving and maintaining the natural production of viable native fish and aquatic species populations.
- The executive director released a draft report describing initial compliance methods for assessing unimpaired flow compliance. The Bay-Delta Plan requires the development of compliance methods because implementing the new flow objectives requires a transition from the prior method of fixed flows based on water year type to the new tributary-specific variable flows based on a portion of the daily unimpaired flow.
- The Department of Water Resources and the Bureau of Reclamation submitted a draft comprehensive operations plan and monitoring and special study for southern Delta salinity. These draft documents were released for public comment, and meetings with stakeholders were held as required by the Bay Delta Plan.
- The State Water Board issued a final Water Quality Certification for Merced River hydroelectric facilities that included conditions for Bay-Delta Plan’s Lower San Joaquin River flows and southern Delta salinity.
- The State Water Board issued the final Water Quality Certification for Tuolumne River hydroelectric facilities in relation to dam relicensing, which also included similar conditions.
- In 2022, the State Water Board released a revised draft initial biological goals report for lower San Joaquin River flows for public comment and held a public staff workshop.
- In addition, DWR and Reclamation submitted a revised monitoring and special study for southern Delta salinity that’s currently being reviewed by staff and a notice of preparation for the development of an environmental impact report in support of an implementing regulation for lower San Joaquin River flows and southern Delta salinity was released.
- Board staff has initiated consultation efforts with tribal organizations.
- The Stanislaus, Tuolumne, and Merced (STM) working group was formed, and the membership was identified. The STM working group is a requirement of the Bay Delta Plan and will assist with implementing, monitoring, and assessing the Lower San Joaquin River flow objectives.
- In October, the State Water Board received a proposed voluntary agreement for the Tuolumne River that staff is currently working to evaluate, including providing opportunities for public input and review. Ms. Foresman pointed out that the Board has not made any decision about the Tuolumne river voluntary agreement or the other voluntary agreements and assured that the Board would conduct a full public process to inform whether to approve the voluntary agreements.
Next steps for implementation
The next steps for the biological goals for the Lower San Joaquin River flow objectives include reviewing and responding to public comments, producing a final draft initial biological goals report and releasing it, conducting a Board workshop for public comment on the final draft report, and a board meeting for consideration and action on the final initial biological goals.
The next steps for unimpaired flow compliance methods and procedures for adaptive implementation include releasing a draft report for public comment that describes compliance methods for the lower San Joaquin River unimpaired flow objectives and identifies procedures for adaptive implementation, holding a staff workshop on a process for seeking STM Working Group recommendations, reviewing and responding to comments, and issuing a final report for executive director action.
The next steps for southern Delta salinity include finalizing the monitoring and special study and comprehensive operations plan and requesting Executive Director’s action on each product.
The next steps for completing the implementing regulation for the Lower San Joaquin River objectives and actions include releasing a draft regulation that provides for the implementation of the flow and salinity objectives and associated components of the program of implementation and the draft environmental impact report that provides environmental analysis in support of the draft regulation. The process will include public comments, public workshops, and associated responses to comments, a final environmental impact report, final regulation, a board workshop, a board meeting for consideration and action, and submission to the Office of Administrative Law.
To initiate the public process to consider the Tuolumne River voluntary agreement, the Board plans to issue a notice of possible Bay-Delta Plan amendment and scoping meeting to receive public input on the possible updates to the Bay-Delta Plan and associated environmental analyses. Next, a draft scientific basis report would be created, and a draft staff report would be produced for the Tuolumne River voluntary agreement with associated public comments and workshops. Then the scientific basis report would be finalized, the staff report would be finalized with responses to comments, a workshop conducted for additional public comment, a board meeting, and consideration of action.
Timeline for completion
Ms. Foresman then gave the anticipated schedule for completing actions for implementing the Lower San Joaquin River flow and southern Delta salinity updates to the Bay-Delta Plan and consideration of the Tuolumne River voluntary agreement. She acknowledged the schedule is optimistic and generally represents the earliest dates for completing these actions.
In the winter of 2023, the notice of possible Tuolumne River voluntary agreement plan amendments will be issued. A final draft of initial biological goals for the lower San Joaquin River flows report would be released. Executive Director action on a draft monitoring and special study for Southern Delta salinity is anticipated. A stakeholder draft of the comprehensive operations plan for southern Delta salinity is also expected.
In the spring of 2023, a board workshop on the final draft of initial biological goals for Lower San Joaquin River flows would be held, followed by a board meeting to take action. A draft report describing unimpaired flow compliance methods and procedures for adaptive implementation is anticipated. A staff workshop on the STM recommendations on compliance methods and procedures for adaptive implementation would be released. Finally, a draft scientific basis report for the Tuolumne River voluntary agreement would be released, and a board workshop would be held.
In the summer of 2023, the executive director could take action on the draft comprehensive operations plan, the compliance methods, and procedures for adaptive implementation.
In the fall of 2023, the scientific basis report for the Tuolumne River voluntary agreement would be submitted for peer review. A draft staff report for the Bay Delta Plan Amendment for the Tuolumne River voluntary agreement and a draft regulation and draft EIR supporting the regulation implementing lower San Joaquin River flows and southern Delta salinity would be released.
In the winter-spring of 2024, a final draft report for the Tuolumne River voluntary agreement would be produced, a board workshop held, and then Board consideration of the Tuolumne River voluntary agreement. A final draft EIR and regulation implementing lower San Joaquin River flows and southern delta salinity objectives would be released, and the Board would consider the adoption of the regulation for implementing lower San Joaquin River flows and south Delta salinity.
CDFW and DWR representatives speak
After the staff presentation, Chuck Bonham, Director of the Department of Fish and Wildlife, and Erik Loboschefsky, Technical Advisor to DWR Lead Deputy Director, gave some comments.
Chuck Bonham, Director of Fish and Wildlife, said the most exciting thing is that the voluntary agreements is a collective of state and federal agencies, water districts, and others; it’s not isolated to one river or just one stretch of a river. “It’s designed to think in the aggregate, think in the community collective, think across the whole landscape, and join together multiple rivers in a series of commitments and actions over the next eight years. … What we have are a collective of proposals from water agencies across those major tributaries and from within the Delta to provide both additive flow and habitat for restoration to support the broad panoply of beneficial uses. This approach could lead us to get more done faster.”
It’s not only about flow or only about habitat, he said. “We need to do both. We know from decades of science that flow without habitat can only do so much for native fish species. And it’s vice versa as well. Habitat without flow can’t support fish either. So we want to integrate both. That’s the purpose of this effort.”
Director Bonham noted that the Department is hiring additional positions to support habitat restoration and the Bay Delta Plan efforts. There is also a multi-agency multi-disciplinary team working together to accelerate habitat restoration. “In 2021-2022, we’ve been able to initiate about 146 restoration projects that total about 134,000 acres and about 103 stream miles. In addition, we’re looking at newer ways to deal with permitting more restoration, like supporting the development of a general order for the implementation of large habitat projects and continuing the development of our own restoration permit within the California Endangered Species Act for restoration projects.”
“We calculate that in the last year working with the restoration community, DWR, and the Water Board, those projects have saved restoration applicants about $2 million in cost for doing restoration. And we’ve reduced the average processing time on restoration project permitting to about 70 days. That’s relevant because part of what we’re doing in the voluntary agreement space, we’ve got to turn more dirt faster, to connect our rivers back to the floodplains and do this restoration work.”
Erik Loboschefsky, Technical Advisor to DWR Lead Deputy Director, noted that the voluntary agreements call for adding in excess of 750,000 acre-feet of new flows to the system over the eight-year term of the agreements. “That flow is being derived from a variety of sources – tributary releases, export reductions, and the water purchases across the system. So again, during the eight-year term, we’re looking at around 30,000 acres of new habitat restoration that’s broken broadly into categories of spawning habitat improvements, rearing habitat improvements, floodplain enhancements, and additional tidal habitat restoration in the Bay-Delta system at large.”
Mr. Loboschefsky emphasized the Department of Water Resources’ support for the Bay Delta Water Quality Control Plan update. “Since the signing of this voluntary agreement MOU back in last year in March, the VA participants were hoping to expand the participants. We’ve made progress in developing draft processes that outline VA governance and drafted documents outlining the metrics and monitoring that we would attach to the implementation of flows and habitat projects related to the voluntary agreements. We continue to work on developing a drafting a robust science plan as part of the voluntary agreements process and a detailed strategic plan that would help us understand how to, by default, deploy flows in any given year at once if the voluntary agreements were adopted.”
Board member discussion
Vice Chair DeDe D’Adamo asked Director Bonham about the role of predation in the voluntary agreements.
Director Bonham acknowledged predation is a limiting factor to native fish that should be included in an approach where all the limiting factors are being tackled. “Is it the biggest limiting factor driving native salmon and smelt populations down? Absolutely not. But should we ignore it with our heads in the sand? Equally absolutely not. I think we’ve all worked ourselves to a spot where we’re willing to accept and acknowledge we need to actively manage this concern.”
“I think the most sophisticated way to handle it is in hotspot targeting and treat it as a test and learn so we can gather better data on overall effectiveness, and then kind of think through whether the effort needed, the effectiveness and how that factors in,” he continued. “It’s included in this effort, both on our scientific front and our action front. Is it what some water agencies want entirely? No. Is it ignoring and refusing to deal with the topic? No. So I’m confident if enough of us would rise up and work together, voluntarily add flow to the river systems, do mammoth habitat restoration, advanced science collaboratively, tackle predation and other things, we can make a difference here.”
Board member Sean Maguire asked about the process. What should the Board and the public expect?
Mr. Loboschefsky acknowledged there are a lot of moving pieces and timelines are tight. “We need to make sure that in doing so, we’re engaging the broader community, including the Board, Board staff, and the public where we can. So we intend to establish a website through CNRA to showcase some of these materials as they get developed. And provide a venue for feedback processes. … We would be doing everything we can to support developing the materials needed to showcase we have a robust program to implement ahead of the Board considering for adoption. And that includes governance, science, and monitoring.”
He also reiterated the invitation to others to participate in the governance process. “The process is open to organizations in California, Native American tribes, and NGOs interested in participating. To date, there has been a pretty light attendance from those entities, and we would really like and welcome their participation in that process. The proverbial door is still open.”
Board member Laurel Firestone noted the State Water Board has a required and important core role around public process and transparency and several policies on better engagement with tribes and sovereign nations as well. “I believe that governance plans are in development, but there certainly hasn’t been adequate involvement thus far. The point of developing the governance structure is starting with trying to shift that. I think making sure that there are not unworkable expectations around having sovereign nations signing on to charters and such; that is just not going to be realistic, or even probably appropriate.”
Board member Firestone also noted that a fundamental challenge is to see results a lot more quickly than in the past. Mr. Loboschefsky agreed, noting that the efforts to speed up the pace of restoration have made a difference. “As we focus on implementing these projects, quick needs to stay at the top of the list.”
The public comment kicked off with David Guy, president of the Northern California Water Association, who said he thinks the State Water Board is ‘really on the right track.’ “We’re going to deliver about 250,000 acre-feet of water under the flows into the river and the Delta in conjunction with modern infrastructure and various habitat enhancements on the river. Plus, there’s a significant effort to reactivate the floodplain … we think the landscape approach that the UC Davis scientists are all pointing us toward is very exciting and will be very much a part of this. We think that will be where the real benefits to fish and wildlife will come. And we’re looking forward to mobilizing that out on the ground.”
Thad Bettner with the Glenn Colusa Irrigation District said the voluntary agreements are a big deal for his district as they will provide 100,000 acre-feet to the program, which will take 25,000 acres out of production. “What we’re looking at is how do we build trust together, moving forward to improve the environment with accountability by all parties. We look at this as an opportunity to improve communication and transparency. … We really want to have a robust science plan and action plan that includes strong governance … so that with the actions that we’ve taken historically, we’d be able to show you how we think the voluntary agreements will make a difference.”
Michelle Banonis with the Regional Water Authority said that they are reviewing the scientific basis report and will be providing comments to buttress its conclusions that the VAs combination of flow and non-flow measures will improve conditions for fish species more broadly. “Based on what we’ve learned from many years of flow and habitat work on the American River, the benefits to local aquatic species are likely to be even better than described in the scientific basis report,” she said. “So combining new habitat and new flows, new infrastructure, and most importantly, the science and adaptation process called for in the VA, we’re anticipating that that will improve outcomes beyond modeled output.”
Tina Yuen, the Water Quality Standards and Assessment section manager at the US EPA Region 9 in San Francisco, spoke next. Her office is responsible for the review and oversight of California’s water quality standards program. She noted that the Board has acknowledged that the current flow requirements objectives in the Bay-Delta Plan are not protective of beneficial uses and began a process in 2009 to revise those standards.
“It’s now 2022, and the objectives in the plan for the Sacramento and its tributaries remain unchanged,” Ms. Yuen said. “You may also be aware of the EPA recently received a petition for rulemaking requesting that we establish protective objectives if the state board fails to do so. I want to acknowledge the EPA understands that the Water Board’s job here is very complex, including the challenges of drought, among other issues. And we recognize the state board has been making progress as evidenced by the adoption of the lower San Joaquin River objectives and its implementation … As you revise the Bay Delta control plan, EPA will be looking for objectives including flow that improve upon the water quality standards that the Board acknowledged needs to be revised to protect the aquatic life uses.”
“The EPA has a mandatory duty to review and approve or disapprove water quality standards to ensure they are consistent with our regulations and are protective of all beneficial uses, as evidenced by sound science. Our review includes consultation with the Fish and Wildlife Service and the National Marine Fisheries Service to assess the potential impact impacts of the standards on threatened and endangered species protected under the federal endangered species act. EPA also is required to engage in government-to-government consultation with Indian tribes that may have an interest in these actions. And so we will also be doing that as a part of our review.”
“I want to make it clear that EPA supports a multi-pronged watershed approach to restore our waterways and aquatic life,” said Ms. Yuen. “But habitat restoration is the one critical element of effective restoration projects. And is not alone an alternative to having specific objectives, including flow, to maintain water quality to support all aquatic life uses.”
Speaking on behalf of the San Joaquin Tributaries Authority, Valerie Kincaid said the SJTA and other members are sending technical expertise to the Stanislaus, Tuolumne, and Merced Working Group. “That group has a very impressive amount of technical expertise and industry knowledge in the room, and so far, that group has mostly been led by staff presentations and State Water Board staff. … I think there’s a real opportunity to engage with this group and to really mine that technical expertise. And I think a few more meetings within that group would really maximize who’s at the table and allow that technical expertise to come in and make robust recommendations to the Board. … We request at least two more meetings to receive correct input to the so what’s so far has been a State Water Board staff presentation.”
Jim Lynch, a fisheries biologist with HDR engineering, spoke on behalf of the Merced Irrigation District. “The Merced Irrigation District is appreciative of all the hard work that’s been done to advance the Bay Delta update. However, they are a bit frustrated; they feel they’ve offered and have had discussions regarding a deal that could bring them into a voluntary agreement. But those haven’t come to fruition yet. So they would like me to pass along that they’re very eager to do so, and they encourage the appropriate staff to reach out to them to continue those discussions. They would like to be part of this process in a more formal way.”
Barry Nelson, representing the Golden State Salmon Association, said the environmental and fishing communities have deep substantive concerns about the voluntary agreements. “First is an assumption in the discussion the Board has heard this morning that you will see a complete enforceable voluntary agreement package soon, and that may not be the case. What you have right now is a term sheet that’s frankly quite similar to other term sheets that you’ve seen for many years, and that term sheet leaves many, many unanswered questions.”
Mr. Nelson pointed out that there is a long pattern of voluntary agreement process setting deadlines and then failing to meet those deadlines. NGOs only recently received the governance package submitted to the Board in August, and they had to work to obtain it. “It raises real concerns about transparency. We’re working on comments, and then governance package, that package still has major subjective flaws and unanswered questions.”
Delta, environmental, fishing, tribal, and environmental justice interests have been frozen out of the existing voluntary agreement process, he said. “The public deserves a better answer about how state agencies will ensure that the public, including communities of color and tribes, are not frozen out of a process that looks to us as though it’s being designed to replace a traditional update of the Bay Delta Plan by the Board. And frankly, when that effort to engage our communities begins, we also want to know if that will be a meaningful effort, or frankly, if the deal will have been cut before we’re invited to be engaged.”
Henrik Albert said the update process has dragged on way too long. “I don’t see any indication that this voluntary agreement process has any more chance than the past efforts to actually change the conditions in the system. In most of the tributaries and the Delta itself, conditions for fish and other wildlife have just continued to deteriorate all this time. So I think it’s really important that we actually move ahead.”
John McManus, Golden State Salmon Association, said the best available science points to flow as the primary constraint on salmon health in the Central Valley, and it doesn’t look like the scientific basis report adequately reflects that. He also said information regarding temperature controls is lacking. “We’ve seen salmon runs in both the American River and the Feather River below the Thermalito outlet basically get wiped out as a result of hot water; salmon eggs that are buried in the gravel fertilized but never hatch. We’ve seen the same thing in the upper Sacramento River, both with the winter run, which has been well documented, and with the fall run, which has been less well documented. So without more information about how temperatures are going to be addressed, and how flow during the crucial springtime out-migration for juvenile salmon are going to be addressed, it appears to us at this point that the report is inadequate.”
Michael Cook, director of water resources for Turlock Irrigation District, said the district and its partners on the Tuolumne are very pleased to have signed the MOU with state agencies to develop a voluntary agreement. “We’re glad to be part of the program, and we look forward to future collaboration with you and the entire state team on this important work.”
Barbara Barrigan-Parilla, Executive Director of Restore the Delta, noted that asking tribes, community groups, environmental justice groups, and others to participate in governance was an afterthought after the VA plan was essentially sketched out without including any of their concerns. “We see this as morally wrong and unjust. The VAs have been perhaps the most poorly executed governance process we have seen in 16 years of Delta advocacy. Delta, local community groups, our local government agencies – we were left out from the start. I can’t help but believe that that was intentional.”
“Our communities know what we need; we understand our needs,” she continued. “You don’t have people working on solving problems like the harmful algal blooms, which continue to worsen and are directly tied to flows. So I’m disturbed hearing that governance will be fixed because these parties should now join the process as a way to make up for the mistakes that were made at the beginning. And it won’t work because we’re not seeing what we needed to have included.”
Gary Bobker, Director of the Rivers & Delta Program at the Aquarium of the Bay, said this update is taking way too long. The Board had the right tack when they adopted the amendments to the Lower San Joaquin River in 2018 but indicated they would remain open to constructive and new approaches, which would not stop them from adopting or implementing regulations. “Unfortunately, since then, we’ve seen real delays both in implementing the Phase One amendments and in producing the environmental documents for Phase Two. You have adopted the Phase One [objectives], you have a solid foundation in the report you’ve already issued to get the environmental documents for Phase Two done, and instead, we’re still here. The process has been delayed, and a lot of staff energy and resources have been diverted to the VAs.”
“The more clear and firm you are about your regulatory requirements, the more likely you will have VAs presented to you that can survive the legal and political challenge,” he continued. “You do not have VAs in front of you yet, which can do that, which is clear because of the complete lack of support from so many vital sectors of the folks who are affected by decisions about California water. But it’s never too late to press on and complete the update in a more expeditious manner.”
Regina Chichizola with Save California Salmon said politics should not decide what happens with the Bay Delta Plan. “The VAs, unfortunately, are very much based on politics and not science, and they’re incomplete. … If you look at the diagrams of the salmon runs, it’s very obvious what not taking action has done to the Delta. If you look at toxic algae blooms, it’s very obvious what non-inaction has done to the Delta. I could not be a bigger supporter of restoration. It’s critically important. And I really support the restoration projects that are being proposed. But restoration does not work without water; it just doesn’t. You can make floodplains forever, but if you don’t actually have flood-type flows, they can’t make salmon, they can’t make fish, and they can’t improve water quality. I think we ultimately should encourage these restoration projects but also call for the flows recommended in the earlier scientific report.”
She also echoed the disappointment of being left out of the voluntary agreement discussion. “I am extremely disappointed in the agencies involved that those kinds of things were said when the best available minds were completely kept out of the room and the interests of the people of California were not considered; only the interests of the water users were considered in the VA process.”
Peter Drekmeier, Tuolumne River Trust, said the Board’s 2010 flow criteria study started on the right foot, identifying 60% of unimpaired flow for the San Joaquin basin and 75% for the Sacramento basin. “During the last drought, flow on the Lower Tuolumne River averaged just 12% for five years. Then in 2017, flow was 79% as water was spilled for months to avoid downstream flooding. So all the water that I and millions of others conserved during the drought was dumped in one year when the ecosystem didn’t really need it. Over the past three years, unimpaired flow in the lower Tuolumne is average just 13%. And this year, there will be considerable spill once again. Hoarding water during dry years and then dumping it in wet years is no way to manage a river ecosystem. We need the Bay-Delta Plan as soon as possible.”
Justin Fredrickson, California Farm Bureau Federation, said we need to look at the possibility of another way. “We know what the way of regulation and conflict looks like; that’s what we’ve been doing very well for the last several decades. We’re not sure where it goes except for more conflict and regulation. We also know what it looks like to take a flows-only approach to fisheries issues and expect that that is going to yield benefits that we have not seen over time. And so the voluntary agreements, in my view, are providing a more balanced approach that is more promising and more likely to succeed.”
He also expressed concern that there are no voluntary agreements for the Merced River and the Stanislaus River. “That’s of concern to us here at the Farm Bureau because we have many agriculturalists in those watersheds impacted by this. So I’d like to invite the parties to explore any remaining opportunities to try to get to some similar set of voluntary actions on those two tributaries. … It is very important because, without those, the consequences for the water users and the communities and those watersheds are quite dire and quite draconian. And I can’t really overstate that.”
Danielle Frank, Save California Salmon, expressed concerns over the lack of protection of tribal beneficial uses. “Without this, along with the incorporation of tribal knowledge, that report does remain incomplete. Also, the failure to assess the effects of water temperature on spawning habitat in the report is yet another example of how incomplete scientific analysis fails to address the extreme concern concerns of tribes and environmental justice communities for restored fisheries.”
“The only people who were brought in as the only [non-agency] interests involved were powerful land owners; tribal communities who are the true owners and stewards of these lands were excluded from the creation of the proposed VAs. Now, this is not really a welcome to the conversation when the conversation has already been had. The water board has stated various times in the past few years that tribal involvement is welcomed but continues to leave us out of conversations. These conversations have been ongoing for a long time. And the ones we have been part of have been a fight to get there. And so even when we’ll be negatively affected by projects such as this, we don’t have much of a voice, which is really unfortunate. And just the proposed VAs are not tribal friendly; they don’t benefit us. We were not brought into this conversation; we were excluded from these projects that will negatively affect our people who rely almost solely on the land and waterways from which we originate.”
Board member Laurel Firestone said she understands the really justified frustration over the work at the Board and also the work outside of the board processes that are bringing things here today. “I look at this process as an opportunity to shift that, and I really want to reiterate the commitment to really meaningful participation and partnership with and in all of these processes. I know there is a lot of work that we all need to be doing to improve both the process and outcomes.”
Kasil Willie, staff attorney for Save California salmon, expressed concerns that tribal beneficiary uses are still not being included in the list of beneficial uses for the Bay Delta Plan. “The regional water boards are in the process of adopting the new tribal beneficial use definitions. And the State Water Board should also do the same for its water quality plans. I encourage efforts to incorporate the tribal beneficial uses through an amendment or another method going into the future.”
She also emphasized the importance of involving tribes, environmental justice communities, and conservation groups in the process. “There cannot be a true collective until everyone not only has a seat at the table but has the opportunity to speak. Moving forward, I hope that agencies involved will effectively listen to and incorporate the valid concerns that these groups have with the VAs.”
Chair Esquivel asks Diane Riddle how the Regional Board’s work on beneficial uses ultimately incorporates into the State Water Board’s work.
“The regional water quality control plans are primarily constituent related. And I think the request to add tribal beneficial uses to the Bay Delta Plan would apply those beneficial uses to the flow objectives that the Board adopts, and that’s something we could certainly do,” said Ms. Riddle. The concern that we’ve had is the time issue. We’ve heard today a lot about the significant amount of time it’s taken today to develop efforts to update and implement the Bay Delta Plan. I think that might be something that the Board should prioritize as the next step beyond this review. … I think there is a differentiation between the actions the Regional Board is taking and the consideration of tribal beneficial uses by the State Water Board.”
Vice Chair D’Adamo asked Michael Lauffer for clarification on tribal beneficial uses. “In 2017, this Board adopted the standard definitions and has already included those definitions in the inland surface waters plan and enclosed bays and actuaries plan,” Mr. Lauffer said. “So you already have the framework out there, and the regions have been incorporating into their basin plan those standardized definitions, and then pursuant to the state boards resolution, you had directed the regions to prioritize first the incorporation of the definitions and then to begin to work with actually designating the beneficial uses.”
“There’s some overlap between the Bay-Delta Plan and the Central Valley boards basin plans. And one of the things that the Board has expressed in the past is that unless the Board affirmatively identifies a conflict with the Bay-Delta Plan and overrides the regional board basin plan, including, for example, its designation of uses, those uses are maintained from the regional Board.”
Mr. Lauffer said they would provide a detailed update but noted that it is proceeding on multiple fronts, but what the regions do actually can have a force multiplier effect within the Bay-Delta Plan as well.
Board member Laurel Firestone noted that there will be a workshop coming up with tribes. “It’d be great if we could clarify this issue in particular because it’s a confusing one for all of us. So it’d be great to be able to do that not just in the future but for that meeting in particular.”