California Water Board: Approves Bay-Delta Voluntary Water Agreements

• California's State Water Resources Control Board approved major changes to the Bay-Delta water plan with a 4-1 vote.
• The updated plan introduces two paths: voluntary agreements or a regulatory path requiring minimum unimpaired flows.
• Voluntary agreements, endorsed by Governor Newsom, offer flexibility but require funding for environmental restoration projects.
• Environmental groups and tribal members opposed the voluntary agreements, arguing they would not reverse fish population declines.
• The board acknowledged tribal concerns and added a process for gathering information on the Trinity River.

The core of the updated Bay-Delta water quality control plan lies in its two distinct regulatory pathways.

California's State Water Resources Control Board recently enacted significant revisions to the state's comprehensive water plan, approving the changes by a 4-1 vote following two days of extensive public commentary. This updated framework establishes critical water quality objectives for the San Francisco Bay/Sacramento-San Joaquin Delta, a vast watershed that supplies drinking and municipal water to approximately 30 million residents and irrigates 4 million acres of agricultural land. The multi-year process to modernize this essential plan culminated in a decision that introduces a dual approach to water management.

The newly adopted plan departs from previous regulations that mandated all water agencies restrict pumping to maintain specific minimum water levels in rivers and the estuary. Under the revised guidelines, agencies now have the option to pursue voluntary agreements, which provide greater flexibility in managing water diversions. These agreements, part of a program championed by Governor Gavin Newsom and known as the Healthy Rivers and Landscapes initiative, require participating entities to invest in projects designed to enhance water flows and restore vital floodplains and fish habitats.

The core of the updated Bay-Delta water quality control plan lies in its two distinct regulatory pathways. Water agencies can choose to enter into voluntary agreements, a route favored by many agencies serving both agricultural regions and urban centers, as well as various business groups. These agreements offer a more adaptable framework for water usage, contingent on the agencies' commitment to funding environmental restoration efforts. Several water agencies expressed their intent to utilize these voluntary agreements during the board meeting.

Alternatively, for agencies that do not opt into the voluntary agreement framework, the plan mandates a separate regulatory path. This path requires maintaining a minimum level of unimpaired flows throughout the year, with specific conditions subject to prevailing water availability. This provision ensures a baseline environmental protection standard for those not participating in the collaborative voluntary agreements, marking a significant shift in how California manages its critical water resources.

The board's decision to approve the updated plan, particularly the inclusion of voluntary water agreements, elicited strong opposition from various stakeholders, including numerous tribal members and environmental conservation groups. Critics argued that the voluntary approach would not adequately address the ongoing decline in fish populations. Jon Rosenfield of the San Francisco Baykeeper, for instance, contended that these agreements would fail to reverse such trends, while attorney Christie Ralston, also with Baykeeper, warned that resulting flow levels would be insufficient and water temperatures detrimental to aquatic life. Many opponents advocated for a mandatory minimum of 55% unimpaired flows.

Tribal representatives voiced profound concerns, emphasizing the deep cultural significance of the watershed beyond its utility as a resource. Joe Jerry highlighted his tribe's reliance on the rivers and fish for cultural survival, noting that algae blooms have prevented water ceremonies and hindered traditional sustenance practices. He accused the board of engaging in opaque dealings that excluded tribal perspectives. Georgiana Gensaw further articulated the tribal belief in the interconnectedness of the entire water basin, asserting that decisions impacting the Bay-Delta would inevitably affect other waterways, such as the Trinity River, despite its location outside the immediate watershed. Gensaw underscored that the Trinity River is currently "sick," indicating broader ecological distress.

In response to these powerful testimonies, Board chair E. Joaquin Esquivel acknowledged the state's ongoing struggle with the "dark past" experienced by tribal communities, recognizing the deep mistrust and the need for continued improvement. The board subsequently amended the updated plan to incorporate a process for gathering information specifically concerning the Trinity River. Diane Riddle, an assistant deputy director at the water board, addressed criticisms regarding the plan's scientific basis, affirming that both regulatory paths are founded on two independently peer-reviewed scientific reports demonstrating benefits for fish and wildlife. Esquivel also noted the "lack of obvious agreement" among stakeholders, despite the board's efforts to foster collaborative solutions.

Lawyers advising water agencies, agricultural interests, or environmental groups in California must understand the new Bay-Delta water plan, particularly the regulatory implications of opting into voluntary agreements versus adhering to the unimpaired flow requirements, to guide clients on compliance and potential legal challenges.

Source: Original reporting via Courthouse News