While the Newsom administration is backing a set of voluntary agreements over freshwater flows, the U.S. EPA is siding with environmentalists and wants to commit 40-60% of the water to fish.
The conflict has quietly played out through comment letters between the federal agency and the State Water Resources Control Board within CalEPA. The board is preparing an update to its controversial Bay-Delta Water Quality Control Plan and the ramifications of the decision could severely impact water deliveries to San Joaquin Valley farmers.
The board faced political backlash after approving the first phase of an update in 2018 that required up to 40% of the waterflow from some rivers to run unimpeded through the Sacramento-San Joaquin Delta. The second half of the plan would set a mandate for as much as 60% unimpaired flows for rivers north of the Delta.
Gov. Gavin Newsom stepped in when he took office and directed agencies to pursue a voluntary approach with local water districts that would also fund habitat restoration projects and bring more flexibility and a watershed-scale perspective to the decision making rather than the traditional regulatory mechanism.
The administration has worked closely with the Bureau of Reclamation within the Interior Department to develop the framework for voluntary agreements (VAs). Yet the state has not swayed U.S. EPA from giving up on the flows-only paradigm.
In a comment letter this month, EPA Water Division Director Tomas Torres urged the board to “expeditiously adopt and implement long-delayed updates to the Bay-Delta Plan to ensure that this important ecosystem can continue to support these uses for future generations.” The agency reasoned that the more holistic approach can be appropriate in some cases, but it strongly recommended numeric flow objectives to serve as consistent and transparent targets. It proposed an alternative plan that would pair strict flow criteria with a flexible program for implementation. EPA charged that the water board has not provided sufficient evidence that the proposed voluntary agreements would protect the river and Delta watersheds.
Eileen Sobeck, state water boardIt also pushed for putting tribal uses “on the same footing” as other uses, such as supplying drinking water to cities and irrigation water to agriculture. In August EPA launched an investigation into a civil rights complaint that tribes and environmental justice groups brought against the water board. The groups argued the board has systematically discriminated against tribes and communities of color in managing water quality in the Delta.
The EPA took those concerns to heart and in its letter to the board mirrored many of the points that environmental, sportfishing and tribal interests have leveled at the board in resistance to the voluntary agreements. Those groups hailed the agency’s comments as a policy win.
Cintia Cortez, a policy analyst at Restore the Delta, one of the fiercest environmental critics of the administration, agreed with much of EPA’s analysis.
“The proposed voluntary agreements program is incomplete and inconsistent with the information provided and its analysis,” said Cortez in a statement. “Restore the Delta recommends the board dismiss proposed voluntary agreements in this iteration of the plan.”
Krystal Moreno, who manages the traditional ecological knowledge program for the Shingle Springs Band of Miwok Indians, added that the water quality standards must “protect California tribes and the unique way we utilize the waterways. Our culture, traditions, ceremonies, and identities are deeply connected to water.”
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On multiple occasions, the water board has defended its regulatory process against EPA accusations. In a lengthy rebuttal to EPA’s Office of External Civil Rights Compliance, Eileen Sobeck, who was serving in her final months as the executive director of the water board, stressed to the federal officials that the board has heightened its outreach to tribes, environmental justice groups and BIPOC and disadvantaged communities.
“There is no evidence that the state water board has engaged in intentional or disparate treatment of complainants,” she asserted, adding that EPA should dismiss the complaint.
Sobeck charged that the board is not at fault for the reduced flows that have impacted the communities. She pointed out that “more than 160 years of development, climate change, and other factors outside of the state water board’s control have caused low instream flows, harm to native fish species, impaired access to waterways, and led to the formation of [harmful algal blooms].”
Sobeck challenged EPA’s assertion that the voluntary agreements have delayed the board’s update to the Bay-Delta Plan. She explained that the proceedings are extremely complex and three prolonged drought emergencies have diverted resources and staff away from the process, adding that the board is on the cusp of completing the update.
The back and forth between the agencies has frustrated the water providers that have closely engaged in the Bay-Delta Plan process. Jennifer Pierre, general manager of the State Water Contractors, told Agri-Pulse that EPA’s scientific claims were also biased.
“It was fascinating that they were claiming the unimpaired flow proposal was essentially well defined, whereas the voluntary agreement proposal was not,” she said. “We see the exact opposite.”
Pierre explained that the plan for unimpaired flows provides no clarity on where the water would come from or what the timing would be. She pointed to a water board analysis showing that it would lead to major impacts to the cold water that is essential for salmon survival, posing a significant threat for fisheries, while cutting State Water Project deliveries by a third. The analysis found that in dry years the San Joaquin Valley would lose 700,000 acre-feet of water.
“I just don't know how the board can say that that's a balanced approach,” said Pierre. “The board has an obligation to balance uses, and the voluntary agreement is the balancing of those uses.”
EPA, on the other hand, focuses much more narrowly on environmental protection.
In comparison, the voluntary agreement proposal would boost populations for critical species by 10%—due less to flow and more to saturating floodplains to create habitat, explained Pierre.
She called it premature for EPA to judge the science behind the VAs. The board deployed the same methodologies to assess the science basis for both the unimpaired flows and the voluntary agreements. An independent research panel at UC Berkeley is still assessing the board’s report on the VAs, and Pierre anticipates the peer review will finish soon and provide the scientific rigor that EPA is seeking.
She lamented that despite the analysis and the increased engagement with stakeholders, both EPA and environmental justice communities have maintained that the VAs would not provide enough water, without providing any details on why that would be the case and where the deficiencies are.
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