The State Water Resources Control Board has drafted a proposed update to the Bay-Delta Water Quality control plan that would require significantly increased flows on the San Joaquin River and its tributaries. The plan has been fiercely opposed by water rights holders on the San Joaquin River.
1 Phase 1 WQCP update would mandate increased minimum instream flows on San Joaquin River and tributaries
On Tuesday, November 6, 2018, just after Gavin Newsom was elected Governor, Governor Brown and Governor-elect Newsom sent a request to the State Water Resources Control Board to delay voting on the Phase 1 Water Quality Control Plan update until December 12, 2018. They stated that
A short extension will allow these negotiations to progress and lead to a faster, more durable outcome.
Led by Board Chair Felicia Marcus, the Board voted 3-0 to approve the request. In deciding to support the Governor and Governor-elect’s requests to delay vote, Chair Felicia Marcus stated,
I call on the better angels of everyone’s nature. If it’s more of the same we will have wasted 30 days of our’s, your’s and the governor’s time.
Board members Steven Moore and Tam Doduc abstained from the vote. Moore is retiring from the Board to take a position with Ross Sanitary District, starting November 13, 2018. Moore and Board member Tam Doduc had expressed support for taking action at today’s meeting.
The Natural Resources Defense Counsel and other environmental groups are concerned that Governor Brown is working with the Department of Water Resources and the California Department of Fish and Wildlife to weaken the proposed flow requirements. Governor Brown’s administration is seeking to modify the Water Board staff’s plan with a “functionally equivalent” plan, based on voluntary settlement agreements and “functional flows.” The agreements would require modification of the Board’s draft order. With Moore’s retirement next week, the Board may lose the votes necessary to approve the currently proposed Phase 1 update.
In today’s hearing, Board Chair Felicia Marcus mentioned the history of gubernatorial interference with Water Quality Control Plans. The last California governor to interfere with a Bay-Delta Water Quality Control Plan update was Governor Pete Wilson in 1993, with Decision 1630. The Wilson administration’s interference began with a similar request for an extension of one month. Decision 1630 states:
Director David Kennedy of the Department of Water Resources has requested an extension of at least one month, and has stated his opinion that the additional time would not foreclose any options for further regulatory action.
But Governor Wilson then directed the Water Board to abandon Decision 1630.
Water Rights Attorney Marc Del Piero was the Vice-Chair of the State Water Resources Control Board from 1992-1999. In April of this year Del Piero testified in the Board’s WaterFix Water Right Change Petition hearing about the consequences of Governor Wilson’s interference with Decision 1630:
In 1992 and 1993, while I was serving on the SWRCB, we came very close to adopting a Water Rights Decision (Draft Decision 1630) that would have addressed many if not all of those desired outcomes sought for the Delta today. I supported that draft and its policies. However, the then-administration intervened to keep the Board majority from adopting the draft decision, which subsequently led to adoption of the Bay Delta Accord in 1994, followed by the establishment of the CalFED process, and the DWR-initiated “Monterey Amendments” to the State Water Project (“SWP”) contracts. These band-aid, compromise actions clearly failed to keep the promise of “balance” and to protect the public trust resources in the Delta. Further, the condition of the Delta, its eco-systems, its public trust and agricultural resources, and its endangered species and fisheries became even worse by the actions of a subsequent administration that allowed DWR to increase real exports from the Delta in 2001 that pushed the ecosystem into near collapse by 2007.
I participated in most of the evidentiary hearings leading up to the adoption of SWRCB Decision 1641 prior to the end of my tenure on the SWRCB in 1999. D-1641, which was intended to effectively implement the rushed Water Quality Plan objectives of 1995, was and is a failure. Its “teeth” were knocked out prior to its subsequent adoption in 2000. It has failed to provide adequate Delta outflow to San Francisco Bay. It has failed to protect the Delta public trust resources and protected fisheries. It failed to obligate major rights holders to actually meet or exceed all of the water quality standards that the Board adopted to guarantee the sustained health of the estuary and its public trust resources. It has failed to guarantee equivalency for the protection of environmental resources as against the needs of export contractors. Moreover, the Petitioners have effectively ignored D-1641 when strict compliance with its mandates became inconvenient due to export demands on the projects.
Petitioners’ assurances to the SWRCB that they will comply with water quality standards in the revised 2006 Water Quality Plan update if their dual tunnels are approved lack sincerity, intellectual honesty, and a successful past track record.
The Department of Water Resources objected unsuccessfully to Del Piero’s testimony and sought to have much of it stricken from the record.