GUEST COMMENTARY: Why Newsom’s Voluntary Agreements Won’t Work, Part 4: The Road Not Taken (Yet)

By Gary Bobker, Program Director at Friends of the River, and Eric Buescher, Managing Attorney at San Francisco Baykeeper

As discussed in the first three parts of this series, the State Water Resources Control Board’s expected decision later this week to adopt the Voluntary Agreement (VA) Program as the central feature of the update of the Bay-Delta Water Quality Control Plan would willfully ignore three uncomfortable facts. The VA Program provides far too little water and habitat to be effective; it is highly unlikely to deliver on its stated purposes; and it was developed through an exclusionary, closed-door process that ignored the interests and expertise of a diverse array of affected California communities.

It doesn’t have to be this way. There was another path the Board could have taken – one that the next administration can still pursue to preserve the ecological treasures of our Central Valley rivers and the Bay-Delta estuary and manage our water resources sustainably with an eye toward a future impacted by climate change.

Declare Independence Day for the Water Board

One of the most important things the next governor can do is to appoint the best, most qualified people to the Water Board and then let them do the job of safeguarding and stewarding the beneficial use of the state’s waters. The Water Board is an independent entity, a fact that apparently meant little to Governor Newsom, whose administration micromanaged and dictated the Water Board’s decisions. Doing the Water Board’s job requires independence and a willingness to use the best available science and existing legal authority to regulate powerful water agencies and water districts, including the Department of Water Resources and the Bureau of Reclamation.

“The best available science” is not an empty phrase

Fortunately, the next administration already has all the information it needs to put California on a path to sustainable Central Valley water management that protects precious natural resources. Over the thirty-one years since the last Plan update, the Water Board has compiled a record of literally hundreds of studies documenting that:

  • river flows from the Central Valley through the Delta to San Francisco Bay are grossly inadequate in most years to support productive ecosystems and maintain acceptable water quality
  • these drastic deficits in flow are the direct result of unsustainable levels of capture and diversion of natural runoff
  • the amount of flow is clearly, strongly, and persistently related to the viability of native aquatic species and the quality of river, wetland, and estuary habitats and ecosystems
  • flow increases on a large scale are needed to reverse the declines in water quality, native fish populations, and habitat condition

All this means that, in order to actually prevent species extinctions, toxic water quality, and ecological collapse, the Water Board must adopt flow requirements that provide the conditions which allow native fish populations to grow and aquatic habitats to thrive. Under the proposed Plan update, the status quo – degradation and decline – will continue.

The Water Board originally proposed that river inflows to the Delta (and resulting Delta outflow) be maintained in an adaptive range of 45-65% of natural runoff – in other words, 35-55% of the Central Valley’s natural runoff would still be available to divert. Based on the best available scientific evidence, flow requirements at the higher end of that range, combined with clear, evidence-based, and consistent rules for moving within the range, can protect fish and wildlife populations, habitat, and water quality, while maintaining more than sufficient water supply for other uses. Less protective alternatives, with lower required flows, will result in permanently degrading or even eliminating beneficial uses of the state’s waters as species go extinct, fisheries are destroyed, and toxic algae blooms make waterbodies dangerous to people. This result cannot be reconciled with the Water Board’s mission and legal obligations.

Differentiating between real vs imagined uncertainty

The effect of flow on native fish and ecological function is well studied and well understood. As a general matter: more flow equals more fish and other aquatic organisms and more productive aquatic ecosystems. Our understanding of how and why is far from perfect because that is how science works. But to say that the relationship between flow and fish is uncertain requires powerful imagination. On the other hand, there is a remarkable lack of evidence, and therefore real uncertainty, to support the hypothesis that restoring physical habitat can replace adequate river flow. The Water Board’s job is to follow the best available science and the existing evidence. The VA Program flips this process on its head, allowing imagined uncertainty about the effect of river flows to perpetuate inaction, while plowing ahead with earth-moving habitat restoration despite real uncertainties about the efficacy and feasibility of doing so.

The VA Program hypothesizes that restoring physical habitat can take the place of adequate river flow. This concept has been tested under the CalFed program, which arose out of the last substantive Plan update; the results (today’s status quo) show clearly that previous investments in aquatic habitat restoration were no substitute for adequate river flows. There’s no reason to expect the underlying science to change. Unless and until it does, and credible science shows equally clearly that non-flow strategies can achieve specific, measurable targets for increasing population size of target wildlife populations and improving ecological function, the Water Board has no choice but to require significantly more flow on our rivers and into the estuary.

Plan explicitly for droughts and be honest about tradeoffs

In multiple drought year cycles, significantly improving river and estuary flows is a challenge, especially given the constraints of our current water management system. But the Board’s proposed approach – never to significantly improve flows – is not a serious response to that challenge. In fact, the proposed Plan’s failure to assign minimum storage limits for Central Valley reservoirs increases the risk of water shortage while exacerbating warm water conditions that decimate wild salmon populations. Appropriate safeguards can be developed to balance the benefits of adequate coldwater storage in upstream reservoirs against the benefits of adequate flow conditions downstream against the benefits of water consumption by municipalities and industry, if the will is there to do so. Success will hinge on being open and honest about the tradeoffs, instead of ignoring the science and pretending that failing to improve flows or require adequate storage will prevent water scarcity or protect species and water quality.

Clear limits lead to better management

Adopting protective, science-based requirements for river flow would not only help reverse the decline of native populations and water and habitat quality, but it also provides something that clearly inadequate minimum requirements do not: a meaningful bookend for efforts to capture and store water that is “surplus” to the needs of rivers and the estuary. For instance, recharging our depleted aquifers is a high priority goal for California – but the success of recharge efforts depends on knowing when it is safe to divert flood flows and when doing so robs river and estuary environments of flows that are desperately needed to restore and support fish and wildlife populations, fisheries, water quality and ecosystem health. An adequate, science-based Plan update would be one of the most important contributions to defining and developing sustainable groundwater recharge programs throughout the Central Valley.

The best way to get out of a hole is to stop digging

California’s water supply problems are in large part the result of unchecked demand. Mother Nature provides the water budget that we must live within — exceeding that budget is unsustainable for all beneficial uses. California’s water policies and laws need to reflect this reality, before it’s too late. Adopting strong, science-based flow regulations is certainly critical for protecting water quality and the environment. But the fight over such protections will continue to be a flashpoint as long as the behaviors that drive overallocation of our state’s finite water resources remain unchanged.

Make the state’s urban regions more self-reliant

Too much of the total supply for the Bay Area and Southern California depends on water imported hundreds of miles across the state. Powerful water interests are proposing to increase the reliance on imported water by investing hundreds of billions of dollars to build new reservoirs and conveyance systems. These projects will further exacerbate the flow deficit in our rivers and the estuary, increase the state’s carbon footprint (conveying Northern California water to the Southern California is the single largest energy use in California), and make urban supplies more vulnerable to natural disasters, climate disruption, and other threats.

Shifting investment to maximize regional water resiliency shows the way out of this box. For instance, generating local water supplies in Southern California through a combination of water conservation and efficiency measures, water recycling, stormwater recapture, and groundwater remediation could generate up to five times as much water for as little as a third of the cost of the proposed Delta Tunnel and Sites Reservoir projects.

Guiding the transition to climate-resilient agriculture

Irrigated agriculture consumes four-fifths of the state’s developed water supply. The next administration will need to initiate major transitions in this sector. The combined consequences of decades of unsustainable water use and the impacts of climate change on water availability will drastically reshape California agriculture in coming years. Will industrial agriculture fight change by proposing to extract even more water from rivers and aquifers, or can the next administration create enough incentives to help the agricultural sector adapt? Fortunately, there are a host of options: planting less water-intensive crops, applying (and developing) innovative new water conservation technologies, and expanding on-farm reuse, are just a few. Simply reducing demand will not work for all irrigated lands, especially those that are marginally productive, experience poor drainage, and/or produce contaminated runoff, will need to be repurposed toward other economic activities – from dryland farming to clean energy to restored wildlife habitat – that do not rely on imported water or over-extraction of groundwater. They will be repurposed one way or the other; the next Governor will need to provide leadership in helping support the transition. Starting now and staying on schedule is imperative given the exorbitant cost of delay.

Reform the water rights system

Ultimately, California must re-examine and update its archaic and inequitable water rights system.

California’s water rights system is inherently unfair to most Californians. Under California’s “first in time, first in right” system of water rights seniority– a system that excluded Tribes and minorities when these rights were first assigned – senior water rights holders have access to cheap, ample water supplies virtually every year while newer cities and industries compete for water at a cost that can be ten to fifty times higher than for the senior diverters.

Worse, existing water rights documented by the state are equal to five times California’s average annual runoff. Even though some of these rights are obviously not exercised, it’s easy to see why aquatic environments are being eradicated. Some rivers have actually gone dry in recent years, like the Merced and the Scott, because withdrawals exceed runoff. Yet, powerful water interests continue to apply for new water rights on our rivers and in the estuary.

Like water rights reform, groundwater management was once considered unthinkable in California. Now it’s the law. A century and half of inequitable and unsustainable water management and the added stressor of accelerating climate change will force the next governor to rethink the antiquated water rights system that rewards the few, excludes others, and privatizes profits while externalizing costs. We and our shared environment are penalized by this system. Waiting will only make the day of reckoning more painful and mitigation measures less effective.

The old path in California water management has always favored powerful water interests and shifted most of the risk to the environment. It has excluded Tribes and minorities. It forces cities and towns to conserve while senior irrigation districts have enough water to sell for a massive profit. It has devastated fishing-based communities and economies. It has to change. The next governor does not want to preside over unique native species going extinct, toxic events that harm vulnerable communities, or the permanent closure of the state’s salmon fisheries.

A new path means recognizing that the benefits and the risks must be shared more equitably by all Californians. It means recognizing that the many benefits provided by functioning ecosystems underpin our way of life and economy. It means recognizing that we must avoid destroying or irreparably damaging them. That new path is a road worth taking.

Gary Bobker is the Program Director at Friends of the River, a nonprofit organization which works to promote a climate-resilient future for California, with healthy rivers, equal access to clean water and outdoor recreation, and a thriving, sustainable economy.

 Eric Buescher is the Managing Attorney at San Francisco Baykeeper, a nonprofit organization that defends San Francisco Bay and its watershed from the biggest threats by holding polluters and government agencies accountable.

Note:  The views and opinions expressed in this commentary are those of the author and do not necessarily reflect the official policy or position of Maven’s Notebook.

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