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River agreements stall amid focus on delta litigation

Issue Date: July 22, 2020
By Christine Souza

With state and federal administrations fighting in court about delta water operations—and with a pandemic and election year both underway—work has slowed on voluntary agreements meant to avoid severe cuts to northern San Joaquin Valley water supplies.

At issue is the first phase of a State Water Resources Control Board plan for the Sacramento-San Joaquin Delta. Adopted in 2018, the regulatory regime would require water users in San Joaquin River tributaries to leave 30% to 50% of unimpaired flows in the Stanislaus, Tuolumne and Merced rivers to benefit protected fish. Water users have pressed the state to pursue voluntary agreements that could achieve the same fisheries goals without the significant water-supply impacts.

California agency leaders say conversations on voluntary agreements continue, though slowly.

"Right now, we are in what has been a pause as far as implementing voluntary agreements," California Secretary for Natural Resources Wade Crowfoot told the State Board of Food and Agriculture last month.

Early this year, state water and resource agencies released a framework for voluntary agreements among agencies and water users that rely on the San Joaquin River tributaries.

"We have to turn that framework into a legally enforceable agreement among a range of water users and third parties," Crowfoot said, adding that the effort has become more challenging, given the dispute between state and federal governments over delta operations and how best to protect endangered species.

The two administrations have been in court regarding new federal biological opinions that determined the proposed long-term operations of the federal Central Valley Project and State Water Project do not jeopardize continued existence of protected salmon and delta smelt. In response, the state issued an environmental permit for the SWP that could place its operation in conflict with that of the CVP.

California Farm Bureau Federation Senior Counsel Chris Scheuring said the effort to create voluntary agreements on delta tributaries has stalled in the meantime.

"We look at the voluntary agreements with so much hope, but now with some exasperation, because it's a process that's been hung up and the recent descent into litigation in the delta is not helpful," Scheuring said. "We hope the state and the federal governments can reconcile delta operations, so that the Sacramento-San Joaquin system can go forward on a reasonable basis to find ways to distribute water under vested water rights, while doing good things for fish species."

For the state's part, Crowfoot said, "The goal, frankly, is to move beyond that legal process as quickly as possible to find a settlement with our federal partners on the biological opinions and to resolve legal disputes on our state permit. Settling out these legal issues will allow parties to get back to the table on the voluntary agreements."

At a virtual meeting regarding the delta last week, state Department of Water Resources Director Karla Nemeth said the state continues to meet with tributary stakeholders.

"Specific to the incidental take permit and the voluntary agreements, there is a degree of potential interaction between those things, should the voluntary agreements be completed over the course of the next months or a year or so," Nemeth said, adding that the state agency is "in communication with our federal colleagues around how we might bridge some differences between the biological opinions and the California ESA permit and the voluntary agreements."

Speaking to the CFBF Board of Directors this spring, U.S. Bureau of Reclamation Commissioner Brenda Burman said she would like "to see the state come to the table as far as looking for real long-term solutions," and said state and federal agencies have continued to coordinate daily delta operations.

The Modesto Irrigation District, which with the Turlock Irrigation District owns the Don Pedro Hydroelectric Project on the Tuolumne River, remains in discussions about voluntary agreements for the river, according to district spokeswoman Melissa Williams.

In addition, Williams reported progress in relicensing the facility through the Federal Energy Regulatory Commission, which last week issued the final environmental impact statement for the project.

On the Merced River, the Merced Irrigation District concluded a years-long FERC process for the New Exchequer Dam this month.

Farm Bureau's Scheuring noted that the FERC process gives government agencies and advocacy organizations additional opportunities to seek more water requirements or other concessions from reservoir operators. Under the federal Clean Water Act, the state water board has qualified authority to review, condition and certify consistency of FERC relicensing decisions with state water quality law.

Should voluntary agreements on the San Joaquin tributaries eventually be reached, the process would include finalizing governance, policy and legal issues, and submitting a proposal to the state water board for review.

A second phase of the board's bay-delta plan affecting Sacramento River tributaries has not yet been released.

California Assemblymember Adam Gray, D-Merced, said he and many stakeholders in his district, which includes Merced County and part of Stanislaus County, remain committed to finding voluntary agreements.

"Unfortunately, we're not there yet," Gray said, "and it seems like it's been difficult to get people to the table in a meaningful way with the polarization and political posturing by both the state and federal government."

Private water-rights attorney Tim O'Laughlin said he expects to have a better idea of progress for the voluntary agreements in two or three months.

"Right now, the agreements are just in limbo, hanging out there," O'Laughlin said. "There are some preliminary discussions, but with COVID and litigation, they definitely got pushed back. They may get resurrected, but I just don't see that any time soon."

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at csouza@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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