Delta Flows 2/13/22: Voluntary Agreements Undermining Climate/Water planning in the Delta

by Barbara Barrigan-Parrilla

In December, the State Water Resources Control Board (SWRCB) announced that the Voluntary Agreement (VA) process had ended for the San Joaquin River watershed; that rule making and implementation planning would begin for the Bay-Delta Plan (Phase 1) for the San Joaquin River watershed (with physical implementation in 2023); and that the process for the creation of the Bay-Delta Plan (Phase 2) for the Sacramento River watershed would commence, while the VA process would continue for the Sacramento River watershed. On top of the delays in restoring water quality and quantity for the Delta caused by never-ending VAs, court cases remain pending for curtailment orders during the last drought; court cases continue in response to last year’s Temporary Urgency Change Petitions (TUCPs) to weaken Delta water quality standards during drought conditions; and a new TUCP order is pending for 2022 as the tool for managing the ongoing drought. 

The years march on; nothing changes to improve Delta management; and the estuary slides into further decline.

Since the December announcement, we have heard little from the SWRCB about Phase I implementation for the Bay-Delta Plan. We have heard rumors that rule-making and implementation plans are on a desk somewhere in Governor Newsom’s office. 

Officials from the Department of Water Resources, various water contractor leaders, and some members of the SWRCB continue to tout the Voluntary Agreements as the answer to the Delta’s water woes. What they really mean when one listens carefully is that the VAs are the answer to water export shortfalls.

Upstream water agencies with senior water rights do not want to give up water to protect the health of the estuary and fight curtailment orders in the courts. We do question their right to receive full water contract deliveries, like last year, while the Delta is dying and every other party in California is expected to give up a portion of their available water (including fish). We believe a water rights system that was built on genocide and the taking of land from California tribes, and that prevented immigrants of color from freely purchasing farm land –at a time, that Winnemem Wintu Chief Caleen Sisk notes, “Before women could even vote, or have a say in land or water rights”– fails to achieve the shared sacrifice that will be required of everyone as climate change induced drought depletes snowpack and water supplies.

Yet, we are equally skeptical of water district officials from export agencies who agree with us when we make these honest observations about senior water rights held by upstream irrigation districts. The desire of export water contractors for water law reform is to ensure that they receive greater contract deliveries from the current Delta export pumps and eventually for the new Delta-tunnel intakes.  Both sides, upstream and downstream of the Delta, don’t give two figs (actually almonds) about the health of the watersheds, the Delta, Delta communities, fisheries, Northern California Tribes, the San Francisco Bay, or any of these related economies. They want water for export crops and/or unfettered urban sprawl.

Never mind that in the last year, juvenile Sacramento River salmon had a 98% mortality rate; no Delta smelt were found in trawls; other fisheries continue to decline; and more than two dozen harmful algal blooms grew in the Delta.

Parties who will live with the current and future environmental degradation cause by backroom water deals (like the Voluntary Agreements) continue to be left out of the government planning process. State officials pushing forward with the Voluntary Agreements on Governor Newsom’s behalf have decided to completely squelch the public’s understanding and participation in the process by withholding public information about the process (paid for by California tax dollars) from non-government organizations.

Case in point: the Natural Resources Defense Council (NRDC) filed several Public Records Act requests with the California Natural Resources Agency (CNRA) and the California Environmental Protection Agency (CalEPA) regarding the VAs last year. These agencies only provided one public document in response to NRDC’s requests (which we will touch on briefly later in this blog). 

NRDC had specifically requested a copy of “the October 18, 2021 Draft Memorandum of Understanding Advancing a Term Sheet for the Voluntary Agreements to Update and Implement the Bay Delta Water Quality Control Plan, and Other Related Actions.” Both CNRA, under the leadership of Secretary Wade Crowfoot, and CalEPA, under the leadership of Secretary Jared Blumenfeld, denied the PRA request for this specific document. CNRA claimed that this specific document was privileged under the attorney-client privilege, even though this document was shared with the Federal Government and local water districts, thus waiving the right to attorney-client privilege. CalEPA denied that exact same request, claiming that it was exempt from disclosure “pursuant to the Governor’s Office correspondence exemption (Gov. Code, § 6254 (l)).” We understand that this document was sent by CNRA, and not from staff of the Governor’s office, to the involved public institutions, in which case the exemption under the Governor’s Office correspondence rule would be inapplicable.
Either way, it is troubling that California’s two environmental protection and planning agencies could not get their stories straight about why the public cannot see the term sheet for the VAs. It is also disheartening that everyday Californians who will be impacted by the Voluntary Agreements, with diminishing public trust resources and further deteriorating environmental conditions, cannot review what California’s public agencies are planning. The SWRCB maintains that the VAs will be reviewed in a public process conducted by the Board once agreement is reached, but by that point, it will become a done deal because the Board feels obligated to enact whatever plans Governor Newsom brings forward. Stakeholders are locked out of the process, unless they have a water right tied to land ownership, or a water project contract.
Turning to the one document that was provided to NRDC, it seems that the amount of water flow set for the Delta tributaries is less than what officials presented to the SWRCB in 2019. There is some discussion of refill criteria for dams, and the volume of the shortfall of water needed for this regulatory scheme to function, even with the lower flow targets. There are also very troubling proposals relating to governance, assurances, and adaptive management.
For instance: “The State [is] to collaboratively study effects of climate change and effectiveness of the VA before Year 9.” Why would the State wait to begin such a study so long into the process when numerous climate change models already reveal the forecasts of drought conditions, and we already understand current drought impacts. As far as studying the “effectiveness” of the VAs, isn’t the idea of adaptive management based on real-time monitoring – rather than waiting 7 or 8 years to see if the “experiment” on fish worked – especially for fisheries already in such serious decline? 
In addition to questions around how Federal and State taxpayers will be paying for VA funding for big agribusiness and special water districts representing primarily corporate interests, the public needs to dig even further into this document to understand what is at stake with each element proposed. We simply need more information from the State.
Time and money continue to be wasted when climate change analysis shows that we are moving closer to the tipping point of irrevocable climate chaos. With the Delta’s watersheds oversubscribed 5 times for normal water years, and an incomplete VA plan that looks to deprive the Delta of more flow, we are looking at failed management of the Delta within the State’s climate change planning strategy. Add in the truth about diminishing water supply and state officials feel compelled to suppress the details from public scrutiny.

Further proving the accuracy of our analysis, readers can simply read from a recent report by the Legislative Analyst’s Office:
“Swift Adoption and Implementation of Plan Updates Is Important. Updating the water quality objectives for the Delta watershed is long overdue and should be a high priority for the state to complete. As noted, the last major update was nearly 30 years ago. Water uses, ecosystem conditions, and the statewide population that depends on water that passes through the Bay‑Delta all have changed significantly since then, producing a critical need for an updated operating framework. Additionally, the impacts of climate change—including higher average temperatures, more frequent and prolonged droughts, more wet and warm atmospheric river storms, and rising sea levels encroaching into the San Francisco Bay and Delta estuary—already are beginning to affect conditions in the Bay‑Delta and its source rivers, and will increasingly do so in the coming years. These changes will render the existing water quality objectives even more outdated. The current standards and regulatory framework have not been sufficient to protect fish and wildlife in the watershed. If current trends continue, the state is poised to lose some of its native species to extinction. Moreover, the prolonged process of waiting for new water quality standards to be specified and implemented creates uncertainty for water users and thereby complicates their planning and operational decisions.” 

The 2022-23 Budget: Water and Drought Response Proposals and 
The 2022-23 Budget: State Water Resources Control Board—Bay-Delta Plan Update

State agency officials under the leadership of Governor Newsom are giving cover to the Governor’s political/economic priorities for water (and economic) winners and losers in California. The Delta and its people are being relegated to the losers’ column.

We cannot let this stand. So, we won’t. Keep reading in the months ahead.

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