5 Questions About the New Proposed Delta Voluntary Agreement

While the State’s newest proposal for voluntary agreements in the Bay-Delta leaves a lot of unanswered questions, the initial analysis reveals a deeply troubling direction. Decades of unsustainable water diversions have left several salmon runs and other native fish species on the brink of extinction, with climate change—more frequent and severe droughts, higher temperatures, reduced runoff—worsening the challenge we face as a State. 

For twelve years, the State Water Resources Control Board has led a comprehensive, public, transparent process to review and update water quality standards for the Bay-Delta. As part of that process, the Board has evaluated a range of alternatives, and the scientific basis for these alternatives has undergone several rounds of independent scientific peer review—review by independent scientific experts. However, in a parallel process, aimed at avoiding regulatory action, a group of interested parties has been negotiating for a so-called voluntary agreement, often conducted in confidential meetings (which for years required state agencies, local water districts, and other parties to sign a non-disclosure agreement to participate in the discussions, notwithstanding the requirements of the Public Records Act).

The initial December 2018 voluntary agreement proposal, which was announced to great fanfare by the Directors of the Department of Fish & Wildlife and Department of Water Resources, proved to be nothing more than smoke and mirrors. Unfortunately, there are many reasons to believe the same is true with this latest proposal that was crafted without public input or review.

Here are 5 key questions and concerns about the proposal that was released last week:

1. Will the State Issue a Permit for the State Water Project that Weakens Existing Environmental Protections and Fails to Increase Delta Outflows?

First, the State suggests that its most recent proposal would increase Delta outflow compared to today. Delta outflow (the amount of water flowing through the Delta) is a crucial measure of the health of the Bay-Delta, and the best available science demonstrates that increasing Delta outflows is necessary if California is going to restore and sustain the health of the estuary, the native species that live in or migrate through the Delta, and the thousands of fishing jobs that depend on healthy salmon runs and communities in the Delta that depend on clean water. 

Yet at the very same time that the State suggests that the VAs will increase Delta outflow, in its Draft Environmental Impact Report the Department of Water Resources is proposing to rollback environmental protections for salmon and other native species that apply to operations of the State Water Project and to reduce Delta outflow compared to today. The State Water Resources Control Board wrote comments last month concluding that this Draft EIR was deeply flawed, writing that:

  • “it is not clear how the proposed project will not further degrade conditions for fish and wildlife”; (pages 4-5)
  • The more negative OMR flows and reduced outflows “would not be protective”; (pages 7-8)
  • The modeling and analyses indicate that “the pattern of fish population decline could continue and increase under the proposed project”; (page 15)
  • The proposed project likely “would result in considerable impacts to longfin smelt,” contrary to DWR’s conclusion in the CEQA document because DWR used a method in the DEIR that “is not an established statistical procedure.” (page 19) 

The State’s own Department of Fish and Wildlife also raised concerns with the DEIR (all of the public comments on the DEIR are available online here). Most notably, DWR found in the DEIR that reducing Delta outflow would not harm fish and wildlife, a position that is directly contrary to the findings of CDFW and the SWRCB, and seemingly in conflict with the proposal to increase Delta outflow. Why is DWR proposing these operations if the State is truly committed to increasing Delta outflow and better protecting species on the brink in the near term? 

So while it likely will be months before there is more detailed analysis of this VA proposal, in the next few weeks the public will see whether the State will really take action to increase Delta outflow when the California Department of Fish and Wildlife decides whether to approve DWR’s Trump-Lite proposal for operations of the State Water Project.

2. Does the VA Really Propose Dramatically Less Flow than the SWRCB Required and/or Recommended in 2018, as it Appears?

Second, based on an initial analysis, the flows that are proposed in the VA appear to be a small fraction of the flows necessary to protect California’s rivers, prevent species from being driven extinct, and achieve the longstanding salmon doubling mandate. For instance, the flows proposed in the VA appear to be dramatically less than the increases in flows required by the State Water Resources Control Board in its December 2018 update of water quality standards for tributaries in the San Joaquin River basin:

(TAF)

Critically Dry

Dry

Below Normal

Above Normal

Wet

VA proposal: Increased Flows in San Joaquin Basin

63

215

249

182

50

SWRCB 2018 WQCP (40% Unimpaired Flow): Increased flows required

283

246

426

429

146

Source: compiled from data in table ES-14 in the final SED

   

Similarly, the proposed VA flows appears to be only 31-47% of the Delta outflows proposed by the State Water Board in its 2018 Framework for completing the update of the Bay-Delta Water Quality Control Plan (616TAF average under VA compared to 1.3 to 2 MAF proposed).

Even these small fractions of increased outflow may be illusory because of the contrary and simultaneous efforts of DWR and the Trump Administration to dramatically reduce Delta outflow. Based on a comparison of outflow modeling by the Bureau of Reclamation under the Trump Administrations’ ESA rollbacks (biological opinions) approved in October 2019 with the additional outflow proposed in the VA, the net effect of the VAs and the Trump biological opinions would on average result in a slight reduction of Delta outflow compared to today. Similarly, it appears that under this VA proposal, the State Water Project and Central Valley Project would likely increase exports from the Delta on average, as well as in dry and critically dry years. And the problem is likely worse, since both DWR and USBR’s modeling likely significantly underestimate the increases in water exports and reductions in winter/spring outflow that would result from the biological opinions and CEQA proposal, due to their unrealistically conservative assumptions about OMR. 

3. Does the Voluntary Agreement Proposal Substitute Habitat Restoration for Adequate Flows, even Though Habitat Restoration Doesn’t Depend on a Flawed Voluntary Agreement?

Third, NRDC supports habitat restoration, particularly floodplain restoration, to complement adequate flows. But habitat restoration is not a substitute for adequate instream flows. Moreover, for the past ten years, the State Water Project and Central Valley Project have wholly failed to meet their existing requirements to restore habitat. Since the VA appears to propose that state and federal taxpayers would pay for most or all of this habitat restoration, California should move forward on habitat restoration without accepting the inadequate flows in the VA proposal. 

4. Does the Voluntary Agreement Proposal Rely on Deeply Flawed Collaborative Science and Governance Schemes that NGOs have repeatedly rejected?

Fourth, the State touts how the proposal would enshrine collaborative science and management with local water districts like the Westlands Water District. Yet these are the same water districts that have spent decades fighting environmental protections for the Bay-Delta and, as recently as last month, continue to claim that “there is no legal or scientific basis for the actions… that require more outflow” (State Water Contractors 1-6-2020). Similarly, DWR has proposed that reducing Delta outflow in the winter and spring months would not harm Longfin Smelt, a position rejected by other state agencies and independent scientists. Will the State publicly state that the best available science demonstrates that increasing Delta outflow is necessary to protect and restore native fish species like Longfin Smelt? Giving these agencies—which have a vested interest in increasing diversions from the Delta—greater control over water operations and scientific determinations about how much water fish need is simply letting the foxes guard the henhouse.

In addition to this flawed governance model, the framework lacks adequate enforcement measures and backstops to ensure instream improvements are actually implemented (and not just diverted elsewhere), as our NGO partners have repeatedly pointed out.

5. Will Californians have to Wait Another 30 Years to Meet the Standard of Doubling Salmon that We’ve Already Been Waiting Decades for?

Finally, the State claims that this proposal would achieve salmon doubling in 2050. Setting aside the lack of any credible scientific data to support this assertion, it is simply wrong to delay this goal for another 30 years. In 1988, the State Legislature enshrined the salmon doubling goal into state law, setting the year 2000 as the target for at least significantly increasing abundance, if not fully achieving salmon doubling. In 1992, Congress enacted the Central Valley Project Improvement Act, which established the year 2002 for achieving salmon doubling in section 3406. In 1995, the State Water Board adopted salmon doubling as an objective of the Bay-Delta Plan. Fishing communities and all of us who care about salmon have waited decades already. The VA proposes to simply punt the achievement of the salmon doubling goal for decades… again. 

Conclusion

Governor Newsom presents this latest framework as new, but what would truly be novel would be allowing the State Water Resources Control Board to do its job: updating water quality standards for the Bay-Delta, based on the best available science, free of political pressure from powerful interests, in an open and transparent process, as the law requires. Instead, that process has repeatedly been held in abeyance in favor of negotiating voluntary agreements in backrooms that appear to have resulted in a deeply flawed proposal based on political science, not biological science, and that is being actively undermined by the Trump Administration’s biological opinions and the related CESA permit for DWR’s operations of the State Water Project. 

Thus far, the State has shared little detail about the proposal, and none of the modeling or scientific analysis that would justify the Administration’s belief that this proposal would be adequate or would achieve salmon doubling. We look forward to the State releasing all of this information, so that the public and scientists can evaluate this proposal in far more detail than a 12-page Powerpoint presentation. And there are many other questions about the proposal, like how this VA would ensure adequate water temperatures for salmon upstream, or how it would ensure adequate protections in the Delta from operations of the CVP and SWP (the SWRCB has proposed to address these issues in the update of the Water Quality Control Plan, including in its 2018 Framework). 

But in the near term, the State’s decision on the CESA permit for DWR's operations of the State Water Project will help show whether the State truly is committing to increasing Delta outflow and strengthening protections for fish and wildlife.

About the Authors

Doug Obegi

Director, California River Restoration, Water Division, Nature Program

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