Drinking Water Week (Part 2): The Undead Policies of California Water

by Barbara Barrigan-Parrilla and Tim Stroshane

These are the undead ideas of California “water policy” today: A Delta Conveyance Project. New Dams and Reservoir Storage. Voluntary Agreements. Such ideas are put forward by the water industry—and few others—as “solutions” to California’s seeming chronic shortage of water. 

These ideas have been defeated time and time again (statewide elections, regulatory-agency-forced-march attrition and rejection, change of governor). They are propped up like scarecrows by water industry investment of time, money, and expertise to keep them in their undead state. They keep returning, largely unwanted and unsupported, to menace the California public, especially when they learn the environmental and economic impacts of such projects.

Both new storage and some form of Delta conveyance have languished going on four decades now. This type of water policy bespeaks “more water under water industry control by more storage and movement.” Control is coveted by parties to cross-Delta water transfers: north-of-Delta water sellers, south-of-Delta water buyers, and big system operators like the California Department of Water Resources (DWR) and the United States Bureau of Reclamation (USBR).

Contract amendment negotiations for the Delta Conveyance Project are nearly concluded. State water contractors seek “flexibility” in the new contract amendment terms. To them, flexibility means control at the Delta tunnel over their water market transfers and exchanges once a Delta conveyance project is in place. DWR largely would act as an accountant for this system. No other public criteria are brought to bear on this market-driven policy for water control.

The contract amendments represent chickens counted before eggs hatch. The Water Board water rights permit proceeding for California WaterFix trudged nearly four years before Governor Newsom pulled the plug on it. The Delta Stewardship Council rejected WaterFix in December 2018 after about a year-long comparison with the Delta Plan. Nearly all the same issues before both of these agencies will recur. An environmental impact report on a new Delta Conveyance Project is due for public release not much sooner than a year from now. It could be another six months to a year beyond that before the project begins its own water right permit process. Assuming Board and Council approvals are forthcoming for this tunnel, its permitting and construction period will drag on for 23 years. So, we’re talking about eggs for the water industry, right now, not omelets or chickens.

New storage sites—like the proposed Sites Reservoir—are not something we at Restore the Delta monitor closely. Trying to be useful they dangle “water for dry years” as a selling point, and offer images of grassy fields and American avocets in breeding plumage as hints of reservoir beneficence. But from our climate equity research, upstream storage yield will be far less than the water industry hopes. The 2018 Fourth California Climate Assessment produced technical studies showing increased flood risk—and a strong need to use existing reservoir capacity as flood control space. Flood control space displaces water storage space, since more precipitation here will fall as rain, not snow. And forecasted warmer temperatures will likely restructure not only natural forests and plant communities of the Sierra Nevada and Coast Range, but also agricultural crop choice and selection toward varieties that get by with less—not more—irrigation water.

Those same higher temperatures will increase evaporation rates and harmful algal blooms at local, state, and federal reservoirs—including any new ones that might get built. Less water will be available for groundwater recharge, although underground water supplies are less vulnerable to evaporation from warming temperatures. New storage sites are evidence of a willingness to throw good money after a bad idea—another example of undead water policy. 

The other undead policy idea—voluntary agreements—also illustrates the water industry’s drive for control without responsibility to the public. Voluntary agreements’ zombie nature harks back twenty-one years. San Joaquin River basin water right holders—the four Exchange Contractors from the Mendota/Firebaugh area, the five major irrigation districts of the Stanislaus, Tuolumne, and Merced rivers, plus the state Department of Water Resources (DWR) and the US Bureau of Reclamation (USBR)—initiated a “San Joaquin River Agreement.” It was voluntary. It contained a twelve-year experiment called the Vernalis Adaptive Management Plan (VAMP) to study what water flows fall-run Chinook salmon needed in the San Joaquin basin.

The districts pledged a certain amount of water that biologists thought the fish needed at specific times of year. The State Water Board encouraged them to implement the VAMP flow regime in Water Rights Decision 1641 hoping that voluntary behavior on behalf of rivers and fish would succeed. It did not. A court decision in 2006 allowed the “experiment” to continue, but by 2011 most observers, including an independent review panel, concluded VAMP results had limited value.

Were voluntary agreements dead then? Oh my, no. This chapter of San Joaquin River history represents eighteen years of forfeited enforcement experience by the State Water Board (twelve years of the VAMP experiment plus six more before the new San Joaquin River Bay Delta Plan was adopted in December 2018) because its members believed a voluntary agreement on flows could improve conditions for Chinook salmon and Central Valley steelhead. Those eighteen years are gone forever.

In December 2018, attorneys representing major Sacramento Valley interests whose water rights holders date near to 1850 appeared en masse before the State Water Board. They function as sellers of water—for a price—to drought-desperate south-of-Delta state and federal water contractors. This moneyed relationship would be threatened by the Board enforcing flow objectives on them and their state and federal water project operators. It wouldn’t be a “flexible” situation, but their actions would at least be accountable to the Board and the public.

In 2018, the Board adopted for the San Joaquin a starting point of 40 percent of unimpaired flow from February through June, and sent aloft trial balloons for the Sacramento River suggesting a starting flow objective of 55 percent of unimpaired flow at some future date. The attorneys that December vehemently asserted that the Board’s water quality objectives for the San Joaquin River were unacceptable. They claimed their clients, DWR, and USBR could do better than the Board’s preferred flow outcomes.

In reality, they bluff. They bluff because bluffing worked before with D-1641 and the San Joaquin River Agreement. Bluffing creates delay; delay purchases precious flexibility for water market activity if there is a drought: and flexibility wards off state interference which benefits the water industry—at the expense of Central Valley and Delta rivers, wetlands, and estuaries, whose waters they divert and from which they profit. 

Justice delayed for flows is justice denied the fish and these many communities. Refurbished voluntary agreements will only keep the State Water Board from acting in the broad public interest of those communities who have had their water quality compromised and threatened for generations now, and seen their opportunities to subsist from fishing with dignity threatened continually with massive diversions that would primarily benefit wealthy growers and agribusinesses. Voluntary agreements for the Bay-Delta watershed are an undead water policy.

Foregoing protection by this gambit also came at the expense of environmental justice communities in the Delta, northern California Indian communities, and the coastal fishing communities of California who love catching, selling, celebrating, and eating these fish—to say nothing of the foregone ecological windfall spawning salmon carcasses provide Central Valley rivers and streams every year. The water industry never studies carefully the variety of ideas that have come from many quarters in California—from the tech sector, from radical and professional environmental groups, from average residents who offer a good idea. When we expect little from our water agencies, we get little.

Restore the Delta expects to be reasonable and demand the seemingly impossible of the water agencies to call their bluff. They want a tunnel project? Then build a climate resilient flood protection system for Delta residents; create a water circulation plan to keep the Delta free from harmful algal blooms all year long; protect surface drinking water, rural well water supplies and Delta irrigation water against drought, contaminants, and salt water intrusion; mitigate air pollution and construction impacts robustly; expand and enhance urban access to Delta waterways; and support and donate to a California State University campus in Stockton that will improve the lives, hopes and economic prospects of Delta region youth, communities, and economies.

They want new storage? They should support fish ladders and other proposals to get spawning salmon over and above the reservoirs that flood their natal streams to higher and colder streams and brooks where they can improve their future prospects to spawning during the reality of coming climate change. They should not build new storage, or enlarge existing dams, at sites that further disrupt California Tribal communities.

They want voluntary agreements? They should show their good will by accepting fish screens at the south Delta export pumps that they welched on after CalFED efforts fifteen years ago, in addition to any restoration work they sign up for. With a tunnel project, they will still need to pump at Byron and Tracy, and fish will still need protection there. They should honor their promise made to the State Water Resources Control Board in December 2018, that they would do better, not just with habitat, but with flows for the Delta. And if the long-term plan is really not for dual conveyance, but for new intakes moved upstream, then it is time to start explaining what those real impacts would be to Delta water users, and to the entire state.  Clearly at that point, the plan for protecting Bay Area and the Delta residents against sea level rise would be retreat.

Such examples are the kind of reasonable and “impossible” thinking we need to confront these undead policy ideas—to make them potential beacons of hope for the Delta region, and hopefully elsewhere in the Central Valley. State agencies and special interest water districts are not the sole public interest when it comes to water—the public interest is to be negotiated.

COVID-19 should force us to concentrate on what our real life-affirming needs are, and what our public policies should be. Food security is a vital part of community and public health. Life-promoting water policies fit the development and distribution of California’s fresh water supplies into larger policy frameworks as buttresses and supports for public health and environmental justice. Food security for all Californians means growing diversified and healthy food for consumption here and for other adjacent western states with whom California trades—not to continue the almond export-driven free-market mania that during a pandemic gives California’s food industry a frivolous and selfish face.

Focus state agriculture and water agencies instead on counteracting existing race and ethnic health disparities. Do this by continuing to ensure drinking water treatment eliminates viruses, about which the water industry has rushed to reassure their customers universally. Do this by ensuring California’s food security includes ensuring important native fish protein sources like Chinook salmon and Central Valley steelhead survive and thrive, and the small fish of the Delta and elsewhere recover once again to support native aquatic food webs. Food security means protecting public health through protected and thriving biodiverse foods from biodiverse agro-ecosystems—unlike the top almond mono-crop of recent years.

Voluntary agreements may now be in “disarray,” as the Sacramento Bee recently reported or perhaps “over” as indicated by blogger On the Public Record. But in the meantime, voluntary agreements for the Bay-Delta watershed are not dead; they manifest undead water policies. We will know they are dead when the State Water Board strikes them from its Bay-Delta Water Quality Control Plan and shoulders its authority to enforce flows that affirm the lives of fish and other aquatic species. We will know they are dead when the Board affirms the public health and lives of environmental justice, Indigenous, and subsisting communities throughout the Delta, the Central Valley, and California that rely upon our rivers, wetlands, and estuaries for solace and subsistence. It is then that we can revive California water policies by voicing shared public interests that must be navigated and negotiated with by an industry that is presently recalcitrant. Right now, the federal part of the water industry thinks its interests as water purveyors “trump” most others. That just means they rely on undead water policies. The state by degrees offers policies that are slightly better, but it is too willing to leave the undead water policies in place. Reviving, defending, and promoting the public interest in water management is the only hope we have of decoupling California’s recalcitrant water industry from our state government and creating life affirming water management policies for all Californians.

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