A ‘Get Out of Jail Free’ Card for Stealing the Delta's Water

It’s time for the federal government to once again intervene to protect the Bay-Delta before it’s too late.

Farm fields and waterways in the Sacramento-San Joaquin Delta, California


Paul Hames/California Department of Water Resources

Governor Newsom issued an Executive Order this week that legalizes the State Water Board’s waiver of minimum water quality objectives in the Bay-Delta and pressures the State Water Board to approve violations of these minimum environmental flows.  It effectively gives the State Water Project and Central Valley Project a “get out of jail free” card for stealing water from the Bay-Delta environment – water that the two massive water projects promised to the environment decades ago in Decision 1641.  For the thousands of fishermen, Tribes, and communities that depend on a healthy Bay-Delta or care about its health, this executive order is an unambiguous signal that the State of California is unwilling and unable to protect salmon and the Bay-Delta environment.

For more than a decade, the State Water Board has repeatedly concluded that the existing Bay-Delta Water Quality Control Plan, which establishes minimum water quality and flow objectives to protect farms, cities and the environment and is implemented through Decision 1641, is inadequate to protect the health of the Delta.  Yet instead of strengthening the existing 1995 water quality control plan and implementing stronger environmental flows consistent with the best available science, the State Water Board has repeatedly weakened and waived the environmental rules the Board has acknowledged are inadequate.

In fact, despite publicly claiming that the State Water Project has and will comply with Decision 1641, the State Water Project and federal Central Valley Project have repeatedly violated their obligations under D-1641, filing temporary urgency change petitions to violate the Bay-Delta water quality objectives in 2014, 2015, 2021, 2022, and now 2023.  Under pressure from the Governor, the State Water Board has legalized these violations.  In addition to these legalized thefts of environmental water in the Delta, the water projects have routinely violated additional Bay-Delta water quality objectives over the past decade, which the State Water Board described in 2021 as the result of "operational decisions... that appear to have discounted the need to maintain regulatory compliance."  Each of these violations effectively steals water from the environment, and the cumulative effect is the ecological crisis we see in the Delta: numerous species heading towards extinction, proliferating harmful algal blooms, and the ongoing decline of the State’s salmon fishery.

Polling repeatedly finds that Californians support protecting the environment and endangered species.  Sadly, however, the State of California has a long track record of failing to protect the Bay-Delta and its native fish and wildlife, failing to implement some of the strongest laws on the books, including longstanding laws like section 5937 of the state Fish and Game Code. The result has been the listing of a series of native fish species under the federal Endangered Species Act, requiring federal intervention, starting with winter-run Chinook salmon in 1989 and continuing with the proposed listing of Longfin Smelt this year.  More than 30 years ago, the U.S. Environmental Protection Agency disapproved the State’s adopted Bay-Delta Water Quality Control Plan because it failed to protect the environment, leading to the adoption of federal water quality standards intended to protect the Bay-Delta environment.

With his Executive Order, Governor Newsom has chosen to put his thumb on the scale in favor of extinction in the Delta.  But his legacy of environmental devastation in the Delta is far from complete, as his Administration pushes to divert even more water from the estuary with new dams, an environmentally destructive proposal for the Delta tunnel project, and hollow promises of a voluntary agreement for the Delta, all of which will worsen the ecological devastation in the Bay-Delta.

It is clear that the State of California is unable and unwilling to protect the Bay-Delta ecosystem, and the thousands of jobs and communities that depend on its health.  It’s time for the federal government to once again intervene to protect the Bay-Delta, before it’s too late.

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