State water board must act to protect the Bay-Delta and California’s fishing industry

Re “Why State Water Contractors sued California over restrictions on water deliveries”; Commentary, April 30

When Jennifer Pierre of the State Water Contractors announced the end of negotiations to develop so-called “voluntary agreements” to protect the declining Bay-Delta ecosystem, it was the latest in a flurry of similar statements, including a State Water Contractors press release and a letter from the Metropolitan Water District of Southern California. The Metropolitan Water District went further, endorsing the Trump administration’s controversial new Endangered Species Act Bay-Delta biological opinions.

The debate over Bay-Delta flows represents one of California’s most longstanding and heated water conflicts.  The prospect of a negotiated solution had led to requests for the State Water Resources Control Board to delay regulatory action to update flow standards.  

State law requires the board to protect all aspects of the Bay-Delta estuary, including wildlife habitat, fishing, drinking water quality and more.  For more than 20 years, the health of that ecosystem has declined steadily and dramatically, triggering salmon fishing closures, growing risk of species extinctions and increased harmful algae blooms.  

A careful review by the water board concluded that additional ecosystem flows are required.  Yet for five years, the board has been waiting for a voluntary agreement to produce consensus flow standards.  The board has waited long enough.  

Federal law requires the board to review its current, 25-year old Bay-Delta Plan every three years.  Yet the latest, still-incomplete board review has taken 12 years.  No voluntary agreement has been forthcoming, and water users have now terminated negotiations.  

A scientifically credible, negotiated agreement involving flow standards and habitat restoration would be desirable.  Unfortunately, no such agreement is even on the horizon.  So the board should exercise its undisputed regulatory authority to finalize and implement new Bay-Delta flow requirements.  

At the moment, water users understandably suspect that the board may continue its regulatory delay – providing little incentive for them to negotiate.  But if the board demonstrates that it will act in the absence of an agreement, that will incentivize water users to commit additional water, funding and habitat restoration in future negotiations.  The importance of such a credible regulatory backstop has been well established in past key water agreements.

The board need not choose between voluntary agreements and the traditional standard-setting approach under state law.   By moving forward now to finalize and implement new flow requirements, the board could breathe new life into stalled negotiations.  To do otherwise risks both ecosystem collapse and the board’s reputation.  

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Rick Frank is professor of Environmental Practice and director of the California Environmental Law and Policy Center at the UC Davis School of Law.  Previously, he served as chief deputy attorney general in the California Department of Justice.