Bay Delta Conservation Plan (BDCP), Sacramento-San Joaquin Delta Reform Act of 2009, SWRCB, Water Quality

SWRCB grandstanding on the BDCP?

Courtesy of DWR.

Courtesy of DWR.

Since the package of water legislation passed in 2009, there has been a flurry of administrative activity to complete documents called for in the legislation. At least three high-profile plans concerning the Delta — the Delta Plan, BDCP, and what will be the first major update to the Bay-Delta water quality control plan (WQCP) in nearly twenty years — along with their associated CEQA documents are being prepared by different agencies at the same time rather than sequentially. Although these three plans serve different purposes, they are related and overlap in certain respects. What, then, is (or should be) the relationship among them?

A December 19, 2011 letter (PDF) from Tom Howard at the State Water Resources Control Board, addressed to Jerry Meral, does not go so far as to answer that outright, but it is still important for offering the State Board’s opinion as to how its update of the WQCP “meshes” with the BDCP. [1]

The letter, although brief, covers a lot of ground and contains many interesting statements, one of which — lest we forgot — is the State Board’s insistent reminders about its own authority:

“While regulatory requirements imposed through the [Habitat Conservation Plan] and [Natural Community Conservation Plan] processes and other requirements or permits issued by other agencies in connection with the implementation of the BDCP will inform the State Water Board’s decision-making, the Board has an independent duty to make its own findings and it will not be bound by other agencies’ requirements or permit terms in its own decision-making.”

The letter reminds Dr. Meral about the myriad Board approvals that will be required to implement the BDCP and, perhaps to emphasize that development of the WQCP is a distinct process that the Board is charged with carrying out to protect beneficial uses in the Delta regardless of the BDCP, also hints that there may be “other changes” to the water quality control plan beyond those executed in connection with the BDCP.  Also mentioned are the expected upcoming review of Sacramento flows and Delta outflow to complement the ongoing effort on the San Joaquin side. The water user community is no doubt happy to see that the State Board continues to be careful about couching the Delta flow criteria in constrained terms (noting that the flow criteria reflect the “narrow set of existing circumstances analyzed in the Report”) and implying that they represent an extreme bookend waiting to be whittled down.

The State Board, more so than any other in the long list of agencies, boards, and panels that touch Delta planning, acts as an arbiter or judge. So it is not surprising that Mr. Howard would take at least one opportunity to set the record straight about the Board’s role in disposing of petitions, including those related to the BDCP. But one cannot help but wonder whether this grandstanding will translate into any bona fide exercise of authority. The Board, under political pressure to conclude contentious and protracted disputes, has demonstrated a willingness, even preference, to import settlement agreements into plans rather than require its own staff, already stretched thin, to develop objectives independently. This tactic was the basis for adaptive management at Vernalis, and also the 1995 WQCP, which incorporated the key elements of the 1994 Bay-Delta Accord. Indeed, even the closing line to this same letter invites water users and resource agencies “to bring agreements on flows and habitat improvements” to the regulatory process. So while the State Board certainly has an “independent duty,” it may be far-fetched to expect it to actually exercise that authority in a meaningful way when presented with the more expedient alternative of approving, more or less as is, the package of BDCP elements placed before it. [2]

[1] There seem to be at least two versions of this letter — the December 19 version, linked to above, and an earlier draft dated December 14 (PDF). The two versions are very similar except for bits of text deleted from the December 14 version, such as the omitted reference to water right hearings that would have to be held following adoption of the updated WQCP.

[2] Contexts in which the State Board apparently prefers to exercise its independent authority include such cases of critical statewide importance as investigating potential waste of 2 to 6.05 acre-feet of seepage water, i.e., basically rounding error, in Granite Bay (PDF) and a pond lacking a permit (PDF) on the Safari West property in Sonoma County.

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Discussion

One thought on “SWRCB grandstanding on the BDCP?

  1. The water board pretends to regulate the SWP and CVP, and the projects pretend that they are being regulated by the SWRCB.

    “…the Board concludes that to require the United States to by-pass water down the channel of the San Joaquin River for the re-establishment and maintenance of the salmon fishery … is not in the public interest…”
    Decision 935, pp 41

    Posted by BoardWatcher | 17 January 2012, 11:18 am

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