The State Water Resources Control Board is taking new steps in updating a set of controversial water quality regulations known as the Bay-Delta Plan. Arguments began with a lengthy hearing that delved into both the plan and a set of voluntary agreements (VAs) water districts are proposing to soften the blow of the board’s regulatory hammer.

Dozens of environmental and sportfishing advocates decried the decade-long pursuit of VAs as a distraction and a closed-door water grab. They pushed instead for an update to the plan that would require as much as 60% of the freshwater flowing from rivers to travel unimpeded through the Sacramento-San Joaquin Bay-Delta. When the Newsom administration pushed for a more collaborative solution, environmental groups walked away from the negotiating table in protest.

“All of our interests have been frozen out of the existing voluntary agreement process,” said Barry Nelson, a policy advisor for the Golden State Salmon Association, who added that tribal and environmental justice advocates oppose the VAs as well. “When that effort to engage our communities begins, we also want to know if that is going to be a meaningful effort or if the deal will have been cut before we’re invited to be engaged.”

Irrigation districts and other local water agencies, on the other hand, are hoping to sway the board with conservation tools that go beyond the agency’s narrow authority over unimpaired flows. A central argument for VAs is that reviving critically endangered fish populations like the Delta smelt requires more than just flows and that commitments to build habitat and food sources for the fish are critical to their survival as well.

Administration officials agree that the board should not have to decide between flow or habitat.

“I'm convinced we need to do both,” said California Department of Fish and Wildlife Director Chuck Bonham. “We know from decades of science that flow without habitat can only do so much for native fish species.”

State water board chair Joaquin Esquivel stressed a need for consistency across the science and decision making and to not fall into the “false dichotomy” that the board, the science and the parties are in competition.

“This is a supplement—this isn't a replacement,” said Esquivel, in comparing the VAs to the board’s 2017 scientific review of the unimpaired flows approach. “This document is strengthening it.”

While the water board is now launching into its work with the VAs, the collective effort has been progressing rapidly since the Newsom administration announced a new memorandum of understanding (MOU) last March for an eight-year plan.

Chuck BonhamCDFW Director Chuck Bonham

According to State Water Contractors (SWC) General Manager Jennifer Pierre, the groups have been developing a governance structure, outlining early implementation actions, setting metrics for measuring effectiveness, building out legal documents, and examining ways to collect diversion fees from stakeholders to deposit “money in the bank” for when the program launches. Water users have also shown a willingness to provide water for habitat in the interim. The earliest actions would begin in mid-2024 to early 2025.

SWC serves 27 public water agencies, 750,000 acres of farmland and more than 27 million residents. Through the VA process, it has been collaborating with state and federal resource agencies—along with a few environmental groups that have participated.

Pierre told Agri-Pulse she would like to see more of those interest groups at the table, since they would bring a unique expertise to the science and adaptive management and offer input into prioritizing restoration projects. Among the challenges ahead is discussing the tradeoffs between the environment and consumptive uses—which has dominated the debates—as well between different species, seasons and risks.

Pierre expects the groups to rejoin the discussion when they have more clarity that the VAs will actually happen. She noted that the groups are small and unable to invest staff time into the VAs until a political advantage is apparent, such as helping to implement a multi-billion-dollar restoration fund. The Newsom administration last year proposed $280 million for programs supporting the VAs, while the federal government has yet to match it with $750 million—though Pierre is confident that funding will eventually come through. Individual water districts are investing in projects as well.

While the VAs progress, courts are gradually processing a series of lawsuits filed over the state’s incidental take permit, which dedicated more flows to compensate for the Trump administration relaxing regulations. The 2019 biological opinions had sought a more flexible approach to protecting endangered species. But the Biden administration tabled the opinions, replacing them with an interim operations plan in coordination with state agencies while federal agencies perform a reconsultation on the opinions. Environmental groups, San Joaquin Valley Democrats and farm groups have raised alarms over the interim plan.

Many more hard conversations lie ahead for the VAs, according to Pierre.

“It's a very new concept,” she explained. “Because it's new, it's being held to a higher standard than, for example, an unimpaired flow approach.”

Pierre is optimistic the team will in time develop the credibility needed to bring the VAs to fruition and she welcomes the difficult discussions ahead.

“Part of the point is to create a forum where those hard conversations can happen in a constructive way,” she said.

Among the hurdles to work out is determining a comfortable level of flexibility in the VAs, avoiding a situation where the board must approve “every little thing” while also assuring that other parties are not harmed. Pierre is also seeking to protect the water set aside for fish from other diverters in the Delta, who are “always stealing our water.”

The board discussion this month centered on the agency’s review of the science behind the VAs. Pierre was studying the board’s findings to see if staff researchers left room for further informing the science as the program unfolds and if they held the VAs to the same standards as the unimpaired flows approach. She felt the public needed a good comparison between the two approaches to be able to understand the different tradeoffs.

Others lauded the progress with the VAs over many difficult years.

“The bottom line is we just feel like the state water board is really on the right track and pointing in the right direction,” said David Guy, president of the Northern California Water Association, during the hearing. “I can assure you that there's a lot of people working on the voluntary agreements. We have the best and the brightest in just about every discipline working on this.”

Under the VAs, farmers along the Sacramento River basin would dedicate 250,000 acre-feet of water to prop up fish populations. Thad Bettner, general manager of Glenn-Colusa Irrigation District, said that amounts to taking 25,000 acres out of production in his district, leading to both economic and environmental losses.

Yet several environmental advocates took offense at Guy’s description of the “best and brightest” working on the VAs, since those groups have not been involved in the work groups.

“We see this as morally wrong and unjust,” said Barbara Barrigan-Parrilla, executive director of Restore the Delta. “The VAs have been perhaps the most poorly executed governance process we have seen in 16 years of Delta advocacy.”

Seven hours into the hearing, Justin Fredrickson, the California Farm Bureau’s environmental policy analyst, called it depressing to hear person after person advocating for continuing the same regulatory approach, “which has not worked for 20 years.”

“We know what the way of regulation and conflict looks like,” said Fredrickson. “That's what we've been doing very well for the last couple of decades. We're not really sure where it goes, except into more conflict and regulation.”

He described how the flows issue goes far beyond the Delta, impacting the ability of the valley to recharge aquifers and protect drinking water in the wake of the Sustainable Groundwater Management Act. After two years of zero allocations for many water users and unprecedented curtailments for senior right holders, the regulatory environment is making it “next to impossible to plan, to invest or to adapt.”

Esquivel charged that Fredrickson was conflating outside issues with the Bay-Delta Plan and urged him not take offense at the criticism from environmental advocates.

Fredrickson also pointed out that water users along the Merced and Stanislaus rivers have yet to enter the VAs and asked for putting a placeholder in the documentation process for those tributaries, arguing the consequences for those communities are otherwise “quite draconian.”

The Modesto and Turlock irrigation districts were late to joining the VAs as well, with an agreement ironed out last fall. With the San Francisco Public Utilities Commission, the two districts have been challenging the 2018 update in court, arguing it would redirect supplies from their communities without recognizable benefits. According to Melissa Williams, public affairs manager for the Modesto Irrigation District, the VAs discussion has been running in parallel to the lawsuit. Signing on to the MOU was “a big step” and gave the districts access to the smaller work groups that are finalizing the details on the VAs.

“Hopefully this will be adopted and provide some certainty to our communities and improvements to the [Tuolumne] River,” Williams told Agri-Pulse. “We're going to continue with our lawsuits in parallel until we have an ironclad voluntary agreement.”

Their agreement would incorporate strategically timed flows, habitat restoration and science and governance to improve river conditions.

An early partner in the VAs, the Metropolitan Water District of Southern California is the nation’s largest supplier of treated water, serving 26 cities and 19 million people.

“We've always felt some sort of habitat planning—where you'd look at the entire Delta, not species-by-species—is the best way to go,” said Jeffrey Kightlinger, who recently retired as a longtime general manager at Metropolitan.

Prior to the VAs, the district sought a 50-year habitat plan but the fishery agencies felt “there just was so much biological uncertainty.” Metropolitan’s search for a substitute led to the VAs, which lacked the legal restrictions but still prioritized the ecosystem benefits.

Kightlinger is optimistic the work groups will soon hammer out the final details for the VAs and present the complete package to the board “in a matter of months.” He noted that Metropolitan has a track record of success with such habitat plans for the Colorado River basins and other watersheds.

“For both ag and urban, stability is really important for us for planning purposes,” he explained to Agri-Pulse. “It's in both our interests to put up the money to try and build some stability into the system.”

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