By Christine Souza, Ag Alert
A state plan that requires affected water users to leave unimpaired flows of 30% to 50% in each of three San Joaquin River tributaries—the Stanislaus, Tuolumne and Merced rivers—can move forward, according to a Sacramento County Superior Court ruling.
More than a dozen lawsuits, including a case filed by the California Farm Bureau in early 2019, challenged different aspects of the state’s first phase of the water quality control plan update for the San Francisco Bay/Sacramento–San Joaquin Delta, known as the Bay-Delta plan.
Districts, farmers and residents of the affected region protested the plan, saying it would do little to restore salmon and other fish populations, while cutting water supplies to the northern San Joaquin Valley.
Chris Scheuring, senior counsel for the California Farm Bureau, called the March 15 ruling by Sacramento County Superior Court Judge Stephen Acquisto “discouraging.” He noted that not one of the 116 claims by petitioners was granted in the case.
The Farm Bureau challenged the adoption of the plan and claimed the state’s environmental review document underestimated the harm the plan would cause to Central Valley agriculture.
“We thought the state greatly underestimated the impacts of the plan and didn’t consider an appropriate range of alternatives and mitigation measures or standard things that the California Environmental Quality Act is supposed to do as a constraint on government to make sure that we’re not just throwing everybody under the bus to get this water quality overlay into place,” Scheuring said.
“The ruling begs the question: What is the tipping point in terms of regulation that will start to meaningfully impinge upon our ability to live and prosper on this landscape, whether it’s where we grow our food supply or the cities we live in?” he added.
According to the court ruling, some water districts claimed that the California State Water Resources Control Board, which adopted the flow objectives in December 2018, failed to do sufficient analysis to show whether increased flows would provide reasonable protection for fish and wildlife.
Westlands Water District argued that “the board focused on securing a block of water as an end in itself, and deferred to later figuring out how much water was needed and how to use it,” according to the ruling.
In addition, Merced Irrigation District maintained that nonflow measures such as predation control would provide protection but were not adequately considered.
In denying petitioners’ claims, Judge Acquisto concluded: “It is possible that not all claims have been addressed to the satisfaction of all parties. The court, however, has carefully considered all pending claims, and if any claims were not specifically addressed in this order, the court did not find them persuasive.”
Scheuring said Farm Bureau, irrigation districts or others may appeal the ruling.
“With more than a dozen lawsuits and a number of important issues left unresolved,” he said, “I think the chances are high.”
One issue that needs to be reconciled, Scheuring said, is the plan puts California’s water quality law in direct conflict with water rights law.
“If 40% of the flow in the San Joaquin River tributaries cannot be diverted, affected irrigators might not be able to exercise their water rights,” he said.
Stanislaus County farmer Jake Wenger, whose family farms in the Modesto Irrigation District, where he formerly served on the board of directors, said the court has set aside addressing water rights.
“The challenge—and what makes this decision so frustrating—is the court doesn’t even acknowledge longstanding water rights and says, ‘we’ll deal with that later,’ even though we know that the state wants to change water rights law,” said Wenger, general manager of Salida Hulling Association, a grower-owned cooperative.
“We will push on, but for all the good-faith efforts by so many agricultural groups and irrigation districts (to develop voluntary agreements), to get a ruling like this is really just a slap in the face,” he added.
The San Joaquin Tributaries Authority, whose member agencies include MID, Turlock Irrigation District, South San Joaquin Irrigation District and the San Francisco Public Utilities Commission, said it is examining the court decision and discussing next steps.
Emphasizing the importance of ensuring the delivery of water and protecting the environment, the authority said it plans to continue to work with the state on voluntary agreements.
“More can be done, and we are prepared to tackle that challenge but not at the wholesale risk of critical water supply for our health, homes, farms and economy,” the tributaries authority said.
MID public affairs director Melissa Williams took issue with the Bay-Delta plan’s singular focus on unimpaired flows.
She said the plan, if implemented, “will have devastating, long-term impacts on our region, depriving it of the water necessary to support locally grown food at affordable prices, high-quality drinking water and creating permanent economic impacts and additional burdens on our disadvantaged communities.”
MID and TID, which jointly operate Don Pedro Reservoir on the Tuolumne River, signed an agreement in 2022 to work with the state to advance the Tuolumne River Voluntary Agreement. In December, the districts announced plans to design and implement a habitat restoration plan to improve conditions for salmon and other aquatic species.
Sacramento Valley water users are also working on voluntary agreements for the second phase of the Bay-Delta plan that may require between 45% to 65% of unimpaired flows for the Sacramento River tributaries.
The state’s plan to limit the diversion of surface water flows in the tributaries comes as farmers work to comply with a regulatory framework to achieve groundwater sustainability under the Sustainable Groundwater Management Act, or SGMA.
“You’re burning the candle at both ends,” Scheuring said, referring to the state clamping down on farmers’ use of groundwater and surface water supplies.
To provide flexibility to meet long-term water challenges, he suggested the state consider voluntary agreements and construct new water-supply projects, such as the proposed Sites Reservoir.
“There are more than 40 million people in the state of California, so there needs to be a greater amount of measure and balance for all of us to move forward,” Scheuring said. “This is about what you see in the produce section of the grocery store. This will lead to some difficult decisions about our food supply and where it comes from.”
(Christine Souza is an assistant editor of Ag Alert. She may be contacted at csouza@cfbf.com.)
