Voluntary Agreements on Delta flows have no real backstop


Delta smelt        Source: USFWS 

A September 19, 2019 Los Angeles Times Op Ed urged that Governor Gavin Newsom sign Senate Bill 1.  One of the reasons given was that by affirming the Endangered Species Act protections in the bill, Newsom would signal that standards for the Voluntary Agreements on Delta flows would be kept high:

Newsom has put a lot of stock into the voluntary settlement talks as a keystone of his still-developing water policy. He appears to believe that he can get the various water interests — agriculture, urban suppliers, environmentalists — to reach an accord that has eluded them for decades. […]

By making clear that the state would keep its standards high, SB 1 would have provided crucial leverage to keep water agencies at the negotiating table with the understanding that they will ultimately have to take less instead of — as Trump would have it — more.

Newsom’s veto of Senate Bill 1 shows just how little backstop there is for the Voluntary Agreements on Delta flows.  This should not be surprising, given how the regulatory framework for the Water Board’s determination of Delta flow objectives has been gutted.

When the Water Board voted to approve new flow requirements for the Lower San Joaquin River and South Delta in December 2018, the resolution encouraged Voluntary Agreements within the Water Board’s regulatory framework.  The resolution states in part:

The State Water Board encourages stakeholders to continue to work together to reach voluntary agreements that incorporate a mix of flow and non-flow measures that meet or exceed the new and revised water quality objectives and protect fish and wildlife beneficial uses, and to present those voluntary agreements to the State Water Board for its review as soon as feasible.   (underlining added.)

But a Trojan Horse clause was inserted at the last minute in the Board’s resolution adopting the Lower San Joaquin flow requirements, under Governor Brown’s direction.  The clause formalized Brown’s back-room political process for a “Delta watershed-wide agreement” that would be an alternative for the Water Board’s entire Bay-Delta Plan update, including the lower San Joaquin River flows.  Clause 7 states in part:

…State Water Board staff shall incorporate the Delta watershed-wide agreement, including potential amendments to implement agreements related to the Tuolumne River, as an alternative for a future, comprehensive Bay-Delta Plan update that addresses the reasonable protection of beneficial uses across the Delta watershed…

No one at the Water Board’s hearing had any notice of Governor Brown’s proposed insertion of Clause 7 in the resolution adopting the San Joaquin flows, nor did anyone except Board members have any opportunity to comment on the clause at the hearing.

Clause 7 has now largely gutted the Water Board’s regulatory processes for the Bay-Delta Water Quality Control Plan update.  Under the Newsom administration, the “Delta watershed-wide agreement” has morphed from an alternative considered by the Water Board in the Bay-Delta Water Quality Control Plan Update to the Bay-Delta Water Quality Control Plan Update, determined by the Natural Resources Agency negotiations.

Given the end run around the Water Board’s independence and normal regulatory processes, it should not be surprising that the Voluntary Agreements are driven more by politics than science.

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