Delta stakeholder group provides history of Delta water quality planning and expresses their concerns over the voluntary agreements

In mid-April of 2020, Restore the Delta hosted a webinar where they discussed the history of water planning and the voluntary agreements, including their numerous concerns.

Restore the Delta is a grassroots organization campaign of residents and organizations started in 2006 with 40,000+ members whose mission is to “fight for a Delta with waters that are fishable, swimmable, drinkable, and farmable, able to support the health of the estuary, San Francisco Bay, and the ocean beyond.”

Before addressing the main topic of the webinar, Executive Director Barbara Barrigan-Parilla noted that there are many in the Delta who aren’t on the webinar due to lack of reliable internet service in rural communities, affordability issues, and/or lack of access to devices.

She also expressed her dismay that the planning process for the Delta Conveyance Project is continuing to move forward.  “Restore the Delta is also a member of the stakeholder engagement committee for the Delta Conveyance Design Construction Authority,” she said.  “We joined that committee because we felt that we had a duty to ensure that impacts are minimized for Delta communities should we not prevail in redirecting and stopping the project.  We can respond to current work activities that have been assigned to us with our observations.  We cannot broadly right now communicate with impacted parties in the Delta.  Farmers are working under difficult conditions and they don’t have time right now for input meetings.  EJ communities are struggling with survival, and asking people about water projects presently is often answered with, why are you asking me this now?  So we are distraught that our work won’t be as thorough or complete as it should be.”

Ms. Barrigan-Parilla also noted that there are several other state and federal processes that are ripe or ripening for litigation and they are preparing to litigate in those areas (no additional details given).

CENTRAL VALLEY/DELTA HYDROLOGY AND WATER QUALITY

Tim Stroshane, policy analyst with Restore the Delta, then began the main presentation with a brief introduction to Central Valley and Delta hydrology.

He began with how California does or does not get its water. “We get storms either from the tropics originating near Hawaii or we get them from a region of the Northern Pacific Ocean near Alaska.  The tropical storms tend to be wetter and warmer while the north Pacific storms tend to be cooler and drier.  Droughts occur for us when a ridge of high pressure shifts the storm track away from us, either to the north or to the south.

“Water that gets here goes into snowpack, rivers, and aquifers when it reaches California.  But it also is captured by gigantic water systems that divert water largely from northern to southern California.

“In the Sacramento River basin, most reservoirs are developed for local use.  Three major reservoirs store and deliver water associated with the federal Central Valley Project and the State Water Project:  Shasta, Oroville, and Folsom.  The major tributaries to the Sacramento are the Feather, Yuba, Bear, and American rivers.  The Sacramento and Feather rivers are the major natural conveyance systems for both the Central Valley Project and the State Water Project.

Tim Stroshane continues: “The San Joaquin Valley has two major basins; the San Joaquin River basin and the Tulare Lake basin.  Only the San Joaquin basin drains naturally to the Delta and San Francisco Bay; only on severe flood occasions will the Tulare Lake basin discharge to the San Joaquin Basin and thence to the Bay.  The San Joaquin river’s major tributaries include the Stanislaus, the Tuolumne, the Merced, and the Upper San Joaquin Rivers.  Major water facilities include Millerton Lake and Friant-Kern Canal of the CVP, and jointly operated facilities, San Luis Reservoir and the part of the California Aqueduct with the San Luis Canal.

“There are two major areas of the Delta where permanent Central Valley Project and State Water Project facilities operate.  First is the Delta Cross Channel near Walnut Grove, shown here in the orange box.  And the south Delta pumping plants: the Banks Pumping Plant for the State Water Project and the Jones Pumping Plant for the Central Valley Project.  Both pumping plants get their water directly from Old River.  These facilities are in the black box at the bottom, next to the inset.

“The SWP and CVP place the Delta at the center of their systems.  In fact, the Delta is also the site of several east to west transfers, not just north to south.  By my count, there are nine projects that divert water from the Delta.  The users shown in bold here account for most of the volume of water diverted for export from the Delta by the SWP and the CVP for San Joaquin Valley, Silicon Valley, and Southern California water customers.  The average annual exports by these three sources is about 5.3 MAF.  An acre-foot is a unit of measure equivalent to covering an acre of land, like a football field, with water one foot deep.  It’s about 326,000 gallons or about the amount the water two families in California use in a year.

THE WATER QUALITY CONTROL PLANNING PROCESS

Mr. Stroshane then turned to the water quality control planning process.

Structure of a Water Quality Control Plan

“There are three components to the water quality control plan:  Beneficial uses, water quality objectives to protect the beneficial uses, and a program of implementation.

“The Bay Delta Water Quality Control Plan has three broad beneficial uses to which the State Water Board regulates: municipal/industrial, agriculture, and fish and wildlife.  By regulating to the needs of these users, the Board believes its water quality objectives also protect many other beneficial uses, including recreation, groundwater recharge, rare and endangered species, and estuarine uses, such as the reproductive needs of resident fish and the food webs of the estuary.

“Water quality criteria are especially important because the levels at which they are set dictate how much fresh river inflow and Delta outflow are put toward protecting in-Delta beneficial uses as compared with how much of those flows can be exported by the CVP and SWP to customers beyond the Delta.

Quantitative flow and water quality issues

Tim Stroshane continues: “This slide shows the effects of all the diversions on natural or unimpaired flows as compared with actual flows to the Delta.  The diversions substantially reduce the absolute amounts of flow into the Delta each year.  The colors of the chart signify the relative dryness of the flows.

“In the lower chart, they show that the actual flows represent a condition of nearly permanent drought in the form of black and red bars, reflecting super critical and critical flow years, especially since about 1987.

Tim Stroshane continues: “Having seen large amounts of its water exported by the two big water systems for over 40 years now, the Delta has suffered water quality and ecological degradation.  The pumps in the south Delta reverse flows along Old and Middle River as their suction force is just that strong.

“These upstream flows confuse young fish and cause south Delta farmers problems with pumping for their water supplies and for their water quality for crops.  Young fish get trapped in Clifton Court forebay where predators easily eat them.

“The consequences of the Delta’s troubled waters include the federal endangered species act listing of four different native fishes:  Delta smelt, Central Valley steelhead trout, and two runs of chinook salmon, the winter and spring runs.

Bay Delta Accord

Tim Stroshane continues: “Going into the mid-1990s, California’s water industry had been buffeted by drought, financial crisis, and then ESA listings.  They were very worried about whether their total contract water supply amounts could ever become reality.  So between October and December 1994, state, federal, and regional water agencies and some environmental groups hammered out details of a Bay-Delta Accord to be submitted to the Water Board for its consideration in 1995.

“Unfortunately, the Bay-Delta Accord process excluded Delta residents and farmers from discussions.  The Bay Delta Accord established new water quality objectives that had not existed in prior adopted water quality plans for 1978 and 1991.  In effect, the Bay Delta Accord became the 1995 water quality plan objectives for fish and wildlife beneficial uses.

Tim Stroshane continues: “The new plan addressed them in several ways: it provided net Delta outflow objectives, pulse and transport flows to stimulate migration of young salmon to the ocean, and the new X2 estuarine habitat objective.  The plan added a new export to inflow ratio objective to help reduce entrainment of various small fish life stages at or near the pumps.

“To avoid diversion of fish into Central Delta channels where predation is higher, but also to avoid entrainment of fish at the South Delta pumps, the plan added seasonal opening and closure of the Delta Cross Channel near Walnut Grove.  And its program of implementation included numerous other non-flow implementation measures: fish screens at the pumps, angling restrictions, Delta barriers, control of invasive plant and other species, and a proposed habitat mitigation fund.  Voluntary agreements were not included in the 1995 plan.

Water Right Decision D-1641

Tim Stroshane continues: “Between 1995 and 2000, California entered a very wet period in which project allocations were high and there were no drought years.  Water Right Decision D-1641 was also part of the 1995 plan’s program of implementation, since the Water Board is authorized to regulate water rights.

“D-1641 placed three conditions on water right permits of the Central Valley Project and the State Water Project.  First were the 1995 Bay Delta Plan and Delta Accord policies that I just mentioned.  Second, D-1641 also added joint point of diversion and consolidated place of use provisions to give the Central Valley Project and State Water Project more options to move water flexibly, so long as the projects coordinated the accounting of who got what water when.

Vernalis Adaptive Management Plan (VAMP)

Tim Stroshane continues: “D-1641 also incorporated a new negotiated and voluntary San Joaquin River agreement in which an adaptive management experiment on salmon migration and biology would be conducted for 12 years in lieu of meeting the Vernalis San Joaquin River flow objective of the 1995 plan.  The Board agreed.

“The Vernalis Adaptive Management Plan ultimately failed to meet expectations.  The science work done was helpful and interesting, but ultimately inconclusive for two main reasons.  First, the water gods did not provide a sequence of water years varied enough to be meaningful for further adaptive management purposes.  Second, what flows were provided were not enough to make meaningful pulses for the fish to take advantage of as they headed to sea.

“This part of D-1641 was litigated immediately in 2000.  The 2006 Robie decision found that the Water Board violated Clean Water laws when it allowed the San Joaquin River agreement and its VAMP experiment to go forward within D-1641, but without having provided in the 1995 plan that negotiated agreements in lieu of meeting flow objectives could be used as an alternative for Vernalis flow compliance.  The Water Board took the Robie decision to heart, and is now calling for voluntary agreements where the Sacramento and San Joaquin River basins as among the amendments to the water quality plan in the Delta.  So far, none have been concluded.

Delta exports

Tim Stroshane continues: “This chart shows how state and federal water exports south of the Delta responded when the Bay Delta Accord took effect with approval of D-1641 in 2000.  D-1641 was a boon to the projects in wetter years, from 2000 – 2007, and again in 2011 when conditions were very wet.  The declines in exports in 2008, 2009, and from 2012 through 2015 were due primarily to drought.

“Water quality and ecological problems also worsened after 2000 under the regime of the Bay Delta Accord and D-1641.  By 2005, many fish and other species populations were crashing in the Delta and by 2009, harmful algal blooms had emerged as a new ecological and water quality stressor in the Delta and other water bodies throughout California.

UPDATE TO THE BAY-DELTA WATER QUALITY CONTROL PLAN

Tim Stroshane continues: “The 2018 Phase 1 amendments to the Bay Delta Plan begun in 2009 were delayed by two droughts and the California Water Fix project water rights hearings 2015 through 2018.  But when they got to it, first the Water Board amended the 1995 plan to provide a new flow objective ranging from 30 to 50% of unimpaired flow, not only on the San Joaquin River itself, but on its major tributaries, the Stanislaus, Tuolumne and Merced Rivers.  The Board adopted a starting point of 40% of unimpaired flow which was the mid-point of the range.  These target flows are higher than actual flows on the tributaries prior to their adoption.  The season of use is from February 1^st through June 30^th each year now.

“While Restore the Delta and other environmental water advocates wanted to see still higher flows, we felt ultimately the Board’s action was at least better than the earlier status quo.

“Next, the Water Board potentially increased allowable salinity for agriculture in the South Delta by adopting a single year round salinity objective within the interior south Delta along Old, Middle, and mainstem San Joaquin Rivers.  The Board did so, believing that expected February through June flow increases will also help protect farmers’ irrigation supplies in the south Delta.

“Finally, phase 1 San Joaquin flow amendments also encouraged voluntary agreements, provided they demonstrate that flows in all tributaries meet the unimpaired flow range that the Board adopted in December 2018.

Tim Stroshane continues: “The Board intends to use voluntary agreements with phase 2 Sacramento River flow objective amendments, except that they haven’t formally adopted Sacramento River flow and related operational objectives.  They have floated the idea of an unimpaired flow range of 45 to 65% of unimpaired flows for the Sacramento, Feather, Yuba, Bear, and American Rivers.

“The suggested starting point they would regulate to is 55% of unimpaired flows.  The season for these is not yet known.  The Water Board’s 2018 Sacramento Basin Framework document excluded mention.  The 2010 Delta Flow Criteria report however which described informational flow objectives to help fish species in the Delta called for a season of November through June.

VOLUNTARY AGREEMENTS

Tim Stroshane continues: “A February 2020 announcement of a framework for voluntary agreements, shown here in the following blue slides, suggests a lack of transparency about how successful VA negotiations are right now.  It’s been 14 months since the phase 1 San Joaquin amendments were adopted and going on a year since the Board indicated it would consider its phase 2 Sacramento flow amendments.  The February rollout left many unanswered questions.

“For example, this new VA framework fails to indicate whether the 800 to 900,000 acre-feet of proposed new flows in fact fall within the Board’s desired unimpaired flow range.  This makes it hard to draw meaningful comparisons.  It fails to indicate how much of the 60,000 acres of new habitat are already contained in California Eco Restore or other habitat conservation plans for the valley and Delta.

“The legislated salmon doubling goal has been with us since 1988.  It calls for doubling the annual average populations of salmon and steelhead over the 1967 – 1991 average populations.  The Voluntary Agreement framework actually may seek to set a new baseline.  Perhaps the negotiators believe that the old salmon doubling goal is now impossible to achieve.  The February presentation was hazy about this.

Tim Stroshane continues: “Natural Resources Secretary Wade Crowfoot referred to the Voluntary Agreement’s anticipated investments in science and adaptive management as the ‘secret sauce’ for success of the VAs.  But is it secret sauce or just applying science-based trial and error?  Unfortunately, error could mean extinction for one or more of the listed fish species.  The framework’s current description of these adaptive management investments is no more specific that were those of California Water Fix at the time of that project’s water right hearings.  That project’s ‘secret sauce’ was so secret, it was nearly non-existent.

“The cost estimate for the Voluntary Agreement framework suggests other ways in which negotiators are less than forthcoming.  First, what is voluntary paid fallowing?  It may be a program to pay farmers not to plant crops and forego irrigating.  In theory, that would free up water for meeting VA flows.  How will that be organized?  If farmers already get paid not to grow crops through USDA programs, will they still be eligible to be paid for water they would not have used anyway?   In other words, will the VAs encourage double dipping for taxpayer subsidies by wealthy water right holders just because they hold senior water rights?

“Second, there appears to be a $1.2 billion fund for water purchases for unspecified uses from unspecified sellers.  Again, probably senior water right holders.  The Voluntary Agreement framework gives every impression of being water welfare for the rich.

“Third, new water projects and programs also are not itemized in the framework but will cost $1.6 billion.  Is that Shasta raise? Sites Reservoir? A down payment on a Delta Conveyance Project?  Or all of the above?

Tim Stroshane continues: “The Voluntary Agreement framework implementation slide does not bother to state whether the State Water Board will use its legal authority to enforce Voluntary Agreement flows because they have not adopted flow objectives for a range within which the flows would have to conform.

“State officials also omitted that to finalize the Voluntary Agreements means submitting them to a Water Board process in which we the public will learn whether Water Board or VA negotiated flows drive the process and in whose interests they will be adopted.  One Water Board member told us last Friday that the VAs would be considered as an alternative to the Board’s proposals for flow objectives, whatever they will be.  We were also told that the Board’s process may not get going for another 18 to 24 months.  The San Joaquin River agreement experience does not inspire confidence that the outcome of these VAs will truly improve things for fish and protect humans from noxious waters in the Delta, including flows for harmful algal bloom prevention and mitigation.

“There’s still many more questions that we have about the substance and process of the Voluntary Agreements.  What will be their relationships to other elements of the California water picture at this point?  And that water picture of course includes things like the new incidental take permit for the State Water Project, the proposed Delta Conveyance Project, upstream storage projects such Shasta raise or Sites, or this year’s potential opening of a water market for transfers to cope with dry conditions.

“What about the Eco Restore activities that I mentioned; do they overlap or are they new projects contained in the Voluntary Agreements?  What’s the relationship of the Voluntary Agreements to SGMA implementation, like groundwater recovery?  And finally, we have questions about the status of the Delta Levees Subventions Program and whether there will be investments in the long run and what their relationship might be to Voluntary Agreements.

“What effects will the pandemic and its economic recession have on funding and planning?  Will the VA negotiators have taken account of climate change effects on upstream storage exports and Delta outflow?  What is the risk of the Delta Conveyance Project and new upstream storage projects becoming stranded assets with large debt burdens?

“So those are some of the questions that we still have.”

EXECUTIVE DIRECTOR BARBARA BARRIGAN-PARILLA WEIGHS IN …

“To summarize how we see things falling out regarding really I would say the politics of the voluntary agreements,” Barbara Barrigan-Parilla said.  “We’re hearing daily that parties are pushing for reconciliation between the Trump Administration’s water plan and DWR operations of the State Water Project, and that anything less than that reconciliation will scorch the voluntary agreements.  As we’ve seen today in the news, federal leaders are sending letters and really urging Governor Newsom to take a ‘Surrender, Dorothy’ type of action toward water management in California.  They are really pushing for an agenda of water exports all the time, regardless of conditions.”

“If we take a step back from the analysis that Tim just provided and we reflect on the historical nature of what has lead to the Voluntary Agreements, it’s really clear that the Voluntary Agreements will be a “success” if they generate even greater exports from our rivers and from the Delta, despite this continuously dwindling water supply.  And Delta residents, the people who can’t get on this webinar today, the people who are working in the farms, and people who are part of our urban economy that works in a food economy, all tied to the health of the estuary are the people who are going to be left with degraded water quality and a never-ending proliferation of harmful algal blooms, which really has become our primary water quality fear and concern in the Delta.

Ms. Barrigan-Parilla continues: “And the increased flood threat.  The bottom line is the Fourth Climate Change Assessment by the State of California is being ignored in state and federal analysis when it should be the basis for future water planning on the drought side and on the flood side.  We need projects outside of the Delta in order to solve our water challenges and in closing; we’ve been told repeatedly by Secretary Crowfoot that he got it, that the Delta tunnels could not take more water from the Delta, that it would take less, but our question right now with the Voluntary Agreements is less to what?  If the goal posts are moved for the Voluntary Agreements, we can have standards for flows in and out of the Delta, it becomes very easy to facilitate greater volumes of water for transfers through a tunnel.  In short, George Miller got it right in this op-ed this past weekend on how California water has to be managed post-COVID.

“We’re asking everyone who is participating today to help us support sustainable water policies.  Get the comments in wherever you can.  Watch what’s happening with the Voluntary Agreements, and processes later on at the Water Board.  Especially now during the pandemic, we’re calling on you for help so that we can help protect those who cannot advocate for themselves within the Delta presently, and we need to rely on our friends on the outside to help with our communities.”

Q&A HIGHLIGHTS

There were several questions about details of the Voluntary Agreements, such as how will fish be monitored differently within the voluntary agreements?  How would changes in the biops for the Delta water operations impact Delta outflows?  And will Delta outflow levels be mandated at healthy levels?

“Those are all great questions,” said Tim Stroshane.  “We have not been privy to the discussions of that.”

“You have to remember, Delta parties were not invited into the Voluntary Agreements process,” said Barbara Barrigan-Parilla.  “We’re not just talking our organization; we’re talking about local counties, water districts, the irrigation districts within the Delta, and the surrounding municipal districts.  We have all been left out of the process, so we rely on information from people who have an understanding of what’s going on and work on our own research.  To an extent for us, it’s kind of like feeling a part of the elephant and we’re all blindfolded.”

Question: The phase 1 flow objectives apply to San Joaquin River tributaries.  Please comment on how entities in addition to those tributaries became involved in negotiating Voluntary Agreements.

“My understanding is that these entities are largely irrigation districts and perhaps a few mutual water companies and water districts in both the Sacramento and San Joaquin Basins,” said Tim Stroshane.  “And when the opportunity was opened up by the Board in the 2018 amendment process to voluntary agreements, they got busy with it.”

“There was also a point at which Governor Brown, I don’t remember the exact year that he wrote this letter to Felicia Marcus who was Board Chair at the time, but my recollection is, he wrote a letter and said, ‘you really ought to consider putting voluntary agreements into the plan,’” continued Tim Stroshane.  “Ms. Marcus wrote back very diplomatically … she wrote back saying that the Board intended to do that, but they also intended to ensure that whatever negotiated agreements on flows and other provisions were established in the negotiated agreements, in the Voluntary Agreements, that they would comply substantially with the flow ranges that the Board was considering at the time, which was also the 30-50% with the 40% target flow to start.

“We also have to remember that Governor Brown had enlisted the aid of Arizona retired governor Bruce Babbitt, that he had, even before those letters were sent, Bruce Babbitt out on the trail meeting with water district officials and water right holders throughout the entire state really trying to put such a plan or deal together at that time,” said Barbara Barrigan-Parilla.  “He had told us when we finally had a meeting with him that he recognized there was an error made that flow standards should have been set before trying to move forward with construction of a tunnel, and I think that’s where that process really began and it is an extension of that initial effort from several years ago, 2016-2017.”

Steve Rothert from American Rivers, also on the webinar, submitted a comment, noting that Secretary Babbitt was also meeting with numerous NGOs in addition to water users in 2017.

“As far as the claim of meeting with NGOs, I will point out which NGOs,” said Barbara Barrigan-Parilla. “Because it has never been inclusive truly of NGOs that are protective of the estuary, from the Bay Area, and certainly never on a regular basis with NGOs within the Delta, and particularly with environmental justice communities tied to the health of the Bay Delta estuary.  We are always left out.”