Commentary: So, the flows plan has been approved—now what?

Issue Date: December 19, 2018
By Justin Fredrickson
Justin Fredrickson
Even though the state water board has approved its plan for unimpaired flows in three Central California rivers, negotiations on voluntary agreements to offer better solutions for fishery improvement can and should continue, a California Farm Bureau environmental policy analyst says.
Photo/Kevin Hecteman

What happens the day after the worst has already happened? That might be what farmers, dairy operators, farm employees and communities along the Stanislaus, Tuolumne and Merced rivers are wondering, now that the State Water Resources Control Board has voted to require unimpaired flows of 30 to 50 percent in the three rivers.

Irrigation districts, elected officials and residents of the affected communities spent many months, many meetings and much goodwill trying to show the board how its plan would harm their region without helping fish, and in developing and offering better solutions.

To wind up here, despite it all, stings. But thanks to epic work by negotiators for other state agencies and Central Valley water users during the month prior to last week's vote, there is some hope. More on that in a minute—but, first, it's important to understand what has happened, and what hasn't yet happened.

To begin with, it's not, as you might suppose, that the water board's adoption of the standards mean all that water will be immediately redirected from people who depend on the three rivers.

That's because, even though the board's Bay-Delta Water Quality Control Plan update has all the makings of a colossal train wreck, it's at least a slow-moving one.

The standards adopted last week for the three Lower San Joaquin River tributaries are what the water board calls "Phase 1" in an extended, three-step process. For the time being, that results in a piece of paper that calls for X amount of water, at such and such times, in such and such places.

The next step is what the water board calls "Phase 2," where it has tentatively proposed a whopping 45- to 65-percent unimpaired flow standard for the Sacramento River, the delta and their major tributaries.

The board revealed at the meeting last week that more documents related to these Phase 2 flows could be in its hands as soon as this month. For the board's aggressive schedule, a public draft for comment and associated workshops or hearings for Phase 2 would have to come next spring, with a target for completed Phase 2 environmental documents and proposed standards by December 2019.

It's only in a future step called "Phase 3" that the board would finally get to an actual water rights proceeding to "amend" existing rights in order to implement its standards from Phases 1 and 2.

At that stage, the board would have the task of assigning responsibilities, sorting out water rights priorities and resolving all of the various competing claims to water. When the water board finishes, it's all sure to go to some lucky judge—and from there on up the appeals court ladder.

Still, some matters are primed for court now and, with the board's Phase 1 San Joaquin standards now adopted, we will see an initial wave of lawsuits very soon (See Story).

We can expect these first lawsuits to focus on what has occurred so far—namely, the water board's adopted standards for Phase 1 under California water quality law and, also, its environmental documents analyzing alternatives and the various impacts of its action.

And the fact that lawsuits will be filed does not alter the need for an immediate continuation of the intensive negotiations I mentioned earlier—all as part of the impending push to flesh out details and eventually study potential environmental impacts of voluntary agreements that would serve as alternatives to the board's plan.

Under an amendment offered by water board member Joaquin Esquivel, state and federal agencies and affected water users will have until March 1 of next year to return with completed voluntary agreements that build on the tentative agreement for the Tuolumne River that was in place as of last week.

At the same time, work on voluntary agreements relating to similar proposals in the Sacramento Valley, in and through the delta, on the Stanislaus and Merced rivers and elsewhere in the San Joaquin River watershed can and almost certainly will continue in 2019 as well.

The unprecedented package of far-ranging flow and nonflow measures negotiators sketched for the board last week could head off that slow-moving train wreck, and the water board should remain open to these more balanced solutions as the parties reach final voluntary agreements.

While there is this potential path forward, however, we know none of it will be easy. Ironically, one of the most challenging tasks remains how to convince environmental advocates who say they want to help fish to endorse plans that would actually help fish.

This much is for certain: Both people and fish deserve an outcome better than what the board's proposed regulatory prescription can produce. Let's hope that outcome emerges during 2019.

(Justin Fredrickson is an environmental policy analyst for the California Farm Bureau Federation. He may be contacted at jef@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.




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