By Mark Hitchcock
Mark Hitchcock Legal Fellow, EDF
Earlier this month, California’s State Water Resources Control Board (“SWRCB”) unanimously voted to adopt flow criteria needed to protect public trust resources in the Sacramento-San Joaquin Delta. Newspaper reports have been filled with protests and dire predictions from the water user community. On one hand, some parties argue that the flows report has “no value”, is “immaterial”, “doesn’t really relate to the real world”, and that the findings represent “a purely theoretical exercise with no application in the real world.” At the same time, some complain that implementation of the flow determinations would “render California’s water system virtually inoperable” and “would – effectively – shut down California.”
What then, should we make of these Delta flow criteria that curiously appear to be both “immaterial” and catastrophic? In fact, neither accusation is accurate. The flow criteria are a valuable resource that legally must be used in Delta planning processes, and the findings will help us develop a way to balance environmental and water supply needs.
The Delta flow criteria’s importance is clearly defined by law. SBX7_1, the part of the November 2009 water legislation that called for the flows investigation, is explicit as to the intended use:
“For the purpose of informing planning decisions for the Delta Plan and the Bay Delta Conservation Plan, the board shall, pursuant to its public trust obligations, develop new flow criteria for the Delta ecosystem necessary to protect public trust resources.” (Water Code § 85086(c)).
Thus, the flow criteria will inform the BDCP, which will be incorporated into the broader Delta Plan being drafted by the new Delta Stewardship Council. The Delta Plan, as defined by new Water Code § 85059 is “the comprehensive, long-term management plan for the Delta as adopted by the [Delta Stewardship Council].” As the fundamental tool for managing the Delta, the Delta Plan’s focus is on implementing the coequal goals; under Water Code § 85302, “the Delta Plan shall further the restoration of the Delta ecosystem and a reliable water supply.” The legislation is clear that the flow criteria are material and the findings must be taken into account as long-term plans for the Delta are developed.
Further, it is hyperbole to claim that the recommendations contained in the flow report would “shut down California.” First, exports from the Delta, which are likely to bear much of the responsibility for some of these flow increases, account for only about 15% of California’s water supply. Second, it is far too soon to tell what the upstream impacts might be because the SWRCB has not evaluated upstream public trust needs — a task the legislation put off to a second round of evaluation. Finally, SBX7_1 states that the flows recommendations are for “informing planning decisions.” That does not mean that these flow recommendations will be incorporated into the Delta Plan verbatim, but rather that the BDCP and the Delta Plan must recognize the devastation wrought by massive exports from the Delta and consider the flows necessary to protect the Delta ecosystem.
Under National Audubon, application of the public trust doctrine requires a two-step process. In the first step, the needs of the public trust resources must be identified. In a separate later step, the public trust needs must be balanced against water supply needs. The flows report represents the first step in the process. Balancing will come later. As my colleague Cynthia Koehler pointed out in an op-ed yesterday, we have long been aware of the needs of the water users. The flows report provides the other side of the story. Far from representing a catastrophic disruption of our water system, the report represents a necessary illumination of the Delta ecosystem’s needs so that policymakers can now work towards achieving an appropriate balance in how California uses its water resources.
The conclusions reached in the flows report are not new. We have long known that the very best available science shows that excessive exports are damaging the Delta ecosystem. SBX7_1 makes clear that California remains committed to “the two coequal goals of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem” and the BDCP and the Delta Plan must take the report’s findings into consideration (Water Code § 29702). While fear mongers make exaggerated statements that increasing flows to protect the Delta ecosystem will “shut down California”, the state has already set forth a goal “to reduce reliance on the Delta in meeting California’s future water supply needs through a statewide strategy of investing in improved regional supplies, conservation, and water use efficiency.” (Water Code § 85021). It is time that we find a way to protect our environmental resources while meeting our water supply needs, and the Delta flow criteria represent an important step-forward in reaching that balance.
