The two most notable characteristics of the agreement are elimination of the San Joaquin inflow-to-export ratio and revival of the spring Head of Old River barrier (HORB), a rock barrier installed at the confluence of Old River and the San Joaquin. [2] The agreement also sets allowable ranges for negative (reverse) flows in Old and Middle Rivers (OMR) induced by the southern Delta pumping plants and outlines a procedure describing how the desired flows can be adjusted adaptively. This procedure is apparently aimed at increasing transparency and cajoling NMFS into considering water supply impacts before making decisions.

Head of Old River temporary barrier (HORB). Courtesy of DWR.

The goal of the spring HORB is to provide additional protection for steelhead moving through the Delta from the San Joaquin Valley by directing fish down the San Joaquin channel and away from Old River. NMFS data suggests that the survival rate of salmonids moving through the Delta via the San Joaquin channel is roughly double that of salmonids that select the Old River route. The data also suggests that survival of salmonids using the San Joaquin channel improves when flows in that channel are higher (PDF).

A 2007 order issued by Judge Wanger prevented installation of the spring HORB because it amplified the negative OMR flows, endangering delta smelt during the springtime period in which the biological opinions imposed export restrictions to protect both delta smelt and salmonids. Although the Bureau’s Bio-Acoustic Fish Fence installed at the confluence has seen some success in directing salmonids away from Old River, this non-physical barrier does not direct additional flow into the mainstem San Joaquin. Construction of an operable gate has been previously proposed to replace the seasonal rock barrier in the future.

Because the spring HORB induces higher magnitude negative OMR flows, the HORB has been presented as one instance in which different species that use the Delta have conflicting and seemingly irreconcilable needs. However, an examination of the combined influence of exports and in-Delta diversions serves as a reminder of the profound effect that exports have on OMR flows, and that, depending on how one sets policies and priorities, the ostensibly conflicting needs of species could be balanced in a way that protects both delta smelt and salmonids, even with the HORB.

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[1] See also Alex Breitler, Aquafornia, Brandon Middleton, and KMTG with initial news of the stipulation.

[2] Phase II of the inflow-to-export action, which would have been put into effect this spring, imposes ratios of 1:1 to 4:1 (increasing in wetter years) for inflow measured at Vernalis. Wanger’s opinion of this particular requirement was mixed. In 2011, he grudgingly acknowledged “marginal record support” for imposing an action taking the general form of a flow-export ratio, but he questioned whether the more strenuous 4:1 ratio in above normal and wet years was necessary.

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]

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[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.

The tricky part with transfers is avoiding “injury” to other water users and the environment.  The situation was perhaps especially precarious in this context, where the hierarchy established by the Seven-Party Agreement practically ensured that whenever one entity used less than its full entitlement, another entity with a lower priority would always be standing in line waiting to intercept the extra water.  But even negotiating around those issues does not resolve the conundrum of the Salton Sea.  Although it recognized that the Imperial-San Diego water transfer is a critical component of California’s strategy to live within its 4.4 million afa entitlement to the Colorado River, the State Board conditioned its approval of the transfer on implementation of mitigation measures to ensure that fish and wildlife would not be unreasonably affected.  Among these requirements was that “mitigation water,” generated by fallowing land in the Imperial Valley, would be provided to prevent the increasing salinity and lowering elevation of the Salton Sea.

This mitigation water is the subject of a new petition filed jointly by Imperial and San Diego.

The Salton Sea. (Photo: courtesy of Aquafornia.)

The petition (PDF) asks the State Board to eliminate the requirement for mitigation water from the year 2014 to 2017, unless the Legislature by 2014 adopts what has thus far been sorely lacking — a comprehensive and fully-funded plan to restore the Salton Sea.  Instead of providing mitigation water, Imperial and San Diego would rather implement what they call “accelerated alternative mitigation,” which aims to improve habitat even as it would reduce inflow to the Salton Sea.  This would free up additional water to be transferred, and so the petition also asks the State Board to approve a schedule allowing transfer of that water currently reserved for the Salton Sea between 2014 and 2017.

The petition serves as a reminder that the current regime to extend the life of the fragile Salton Sea was designed to be an interim stopgap measure and that, despite the glacial pace of progress and lack of funding for restoration, the clock is ticking.

The Salton Sea — hypersaline to the point that adding ocean water would dilute it — is sustained by drainage from the Imperial Valley.  This drainage is considerably more saline than the Colorado River water diverted by Imperial, but it is still beneficial even when mixed with polluted New River and Alamo River water.  Although Imperial’s conservation efforts create a source of newly transferable water — thereby increasing the efficiency of water allocation in a region where more efficient allocation is very much needed — these efforts likewise reduce the inflow that sustains the Salton Sea. As the Sea has no outlet, salt will continue to accumulate and concentrate as the water level lowers from both evaporation and reduced inflow. This increasing salinity, if allowed to continue unchecked, would eventually decimate the tilapia fishery that serves as a food source for birds. About 400 bird species, including eared grebes and American white pelicans, rely on the Sea and its adjacent wetlands for habitat and nourishment, making the Sea an important spot in a vastly diminished network of wetlands for migratory birds of the Pacific Flyway. Some of Imperial’s agricultural drains are characterized by vegetation and also serve habitat purposes.

Without mitigation, the Imperial-San Diego water transfer hastens the decline of the Salton Sea by increasing salinity faster than would otherwise occur without the transfer:

Salton Sea salinity (ppt) 2000-2080, with and without the transfer. (Courtesy of IID/SWRCB.)

Likewise for lowering the water surface elevation:

Salton Sea elevation (ft) 2000-2080, with and without the transfer. (Courtesy of IID/SWRCB.)

Recognizing that the water transfer exacerbates the situation, the State Board conditioned its approval of the transfer on mitigation water being provided to maintain the baseline salinity and water elevation for a fifteen-year period ending in 2017.  Yet the above graphs show that even adding mitigation water to maintain salinity at a level no worse than the baseline, while necessary to prevent a more rapid collapse of the ecosystem, will not resolve the ultimate problem — because the baseline is itself characterized by increasing salinity and declining water surface over the long-term.  In short, the long-term viability of the Salton Sea requires a true restoration plan.  If the alternatives developed in 2006 (PDF) are any indication, this plan would likely involve reducing the Sea’s footprint and managing it as a habitat resource.

Despite proclamations by both the state and federal government embracing this cause, the funding needed to follow through with a restoration plan is nonexistent.  Moreover, in 2010, Judge Candee invalidated the QSA.  Judge Candee reasoned that the State made an open-ended commitment to fund restoration costs exceeding the capped non-State contributions, thus violating the constitutional debt limit.  The appeal of that decision is pending, and until the case is resolved, the QSA’s fate hangs in the balance.  These obstacles are real, but they only emphasize the need to address both the Salton Sea situation and the allocation of water in Southern California.

The basic premise underlying the petition filed by Imperial and San Diego is that if no fully-funded restoration plan is adopted by 2014, it will be impossible for the plan to be implemented by 2017 in light of an estimated five years necessary to complete planning and permitting.  Because the mitigation water requirement was imposed by the State Board for 15 years to prevent the Salton Sea from worsening before a restoration plan could be developed, Imperial and San Diego argue that it would be futile to continue sending mitigation water to the Salton Sea after 2014, in anticipation of a restoration plan that at that point could not begin construction until well after the State Board’s deadline expires.  Imperial and San Diego propose instead that they implement additional mitigation measures on an accelerated schedule, presumably involving habitat creation and air quality mitigation.  In their estimation, these measures would provide greater ecosystem benefits than simply delivering water to the Salton Sea without a true restoration plan. To the extent that mitigation water is transferred instead of put into the Sea, the additional mitigation measures could be funded by the transfer proceeds.

The petition may seem premature in that no action can be taken on it yet.  Not only does it remain to be seen what progress, if any, will be made before 2014 toward restoring the Salton Sea, but Imperial and San Diego have yet to document in any detail the substance and environmental impacts of the alternative mitigation measures they propose. They should also demonstrate the ecosystem benefits of these measures as compared to delivery of mitigation water. But proactively proposing a change in strategy may be more effective for them than passively awaiting the extension of an expired deadline.

Another interesting aspect is the way in which the California Constitution’s requirement of putting water to “reasonable and beneficial use” has contributed to the ebb and flow of events in the Salton Sea debate. When setting the 15-year deadline to provide mitigation water, the State Board suggested that using water to maintain the Salton Sea’s salinity and elevation baseline was appropriate — but that at some point it may become unreasonable to insist that delivery of mitigation water continue indefinitely:

It would be unreasonable to require the continued mitigation of the impact of the transfer on the Salton Sea if the decline of the Sea continues to the point where restoration is no longer feasible, or if it becomes clear that no implementation plan will ever be developed. At the point when it becomes unreasonable to require continued mitigation of impacts on the Salton Sea, because there is no longer any hope for saving the Sea, the public interest in avoiding inappropriate burdens on this important transfer outweighs any harm to instream beneficial uses of the Sea.

(SWRCB Water Right Order 2002-0013, p. 44.)

This passage leaves open the possibility of finding mitigation water to be wasteful if it becomes clear that fixing the Salton Sea is beyond hope. It also provides an interesting counterpoint, given that the events leading up to this “important transfer” were instigated in the first place when the State Board decided in 1984 that Imperial wasted water — by allowing 1 million afa of irrigation return flow to enter the Salton Sea.

Given that there is a salinity range physiologically tolerable to delta smelt — and a subset salinity range that is not just tolerable, but actually suitable, for which there is a higher probability of finding fish in practice — salinity is an important factor when determining how delta smelt is distributed throughout the estuary.  It certainly is not the only factor, as delta smelt may, for example, shift to a higher salinity range than they would ordinarily occupy to avoid toxins.  The Fall X2 action nonetheless seems like one natural way to use salinity to influence delta smelt distribution by directing them toward superior habitat.  Yet it is not news that the statistical link between X2 and delta smelt and other pelagic fishes has not always proven to be as strong as one might hope for a prominent water quality parameter, and Judge Wanger found it to be weak enough to grant an injunction, preventing the desired X2 location from being set to 74 km or any other point west of 79 km.  (The injunction has since been lifted; see below.)

The 2010 NRC report was careful to include a disclaimer that its analysis of the Delta has “no bearing” on the adequacy of the biological opinions.  Nonetheless, the report’s conclusions could hardly go unnoticed.  Indeed, in criticizing the value of X2, Wanger relied on the NRC’s observations that the justification for the Fall X2 action relies on a chain of correlations, where each correlative link introduces an additional level of uncertainty that may call into question whether it is logical to link the endpoints of the analytical chain:

[T]he derivation of the details of this action lacks rigor. The action is based on a series of linked statistical analyses (e.g., the relationship of presence/absence data to environmental variables, the relationship of environmental variables to habitat, the relationship of habitat to X2, the relationship of X2 to smelt abundance).  Each step of this logical train of relationships is uncertain. The relationships are correlative with substantial variance left unexplained at each step, yet the analyses do not carry the uncertainty at each step to the next step.  (NRC Report.)

X2 is also formulated in terms of the abiotic characteristic of salinity rather than biotic characteristics like predation.  Both are relevant, though Reclamation’s observation that abiotic characteristics are often “necessary preconditions” is credible.  In recent years, researchers have also worked on life cycle models that focus on other characteristics.  None of these life cycle models found smelt abundance to be correlated with X2, which shook Wanger’s confidence in the scientific basis underlying the Fall X2 action and played an important role in his decision to grant the injunction. (*)  But Wanger also recognized that each of the life cycle models “asks different questions using different tools and inputs, and each result has its strengths and weaknesses. This is a classic scientific dispute.”  (Wanger, at p. 54.)  So we have a proliferation of models and a larger bank of information, but little in the way of precise, definitive answers.  That might be enough to convince Wanger that the “balance of equities” demanded an injunction in this case, but it’s not enough to strike the more difficult path toward species recovery.

Given the current state of the science, it is not surprising that different models performing disjoint analyses and relying on different data sets would arrive at different conclusions about what indices are significant.  If the BiOp’s analysis is to be deemed flawed for focusing on abiotic factors, then the Maunder-Deriso life cycle model, for example, should likewise be deemed flawed for not taking into account autumn prey density and the importance of turbidity in creating a habitat setting that would allow delta smelt to thrive — two factors contributing to the choice of X2 as the prevailing regulatory regime.  Although the purpose of this litigation has been to scrutinize federal science, the various models appear to suffer from a similar underlying “flaw” — namely, that no model is able to prescribe a complete and scientifically certain solution to the precipitous decline of delta smelt in the past decade.  In all likelihood, many or all of the identified abiotic and biotic factors play a role at some time or place.  What the science cannot yet do is deliver a definitive and indisputable ranking of the most important factors.

Perhaps science cannot yet tell us with certainty what our priorities and recovery strategy should be in different water year types, at particular points in the year, or in different places.  Perhaps the science is messy, but should that fact be used as a means to slow the collection of additional data points that could help clean it up? Should the lack of a perfect ranking of priorities excuse us from trying to improve at least a couple important habitat features?  And in an estuarine system whose outflow and salinity levels appear stuck in a perpetual state of drought, all but ceasing to reflect variability between wet and dry years, how can one properly know the manner in which delta smelt will respond over time to bona fide wet years unless they are provided with the flow and salinity cues they expect to see in wet years?

Fortunately, California’s reservoirs are in good shape this year, and in fact, as of the time of this writing, the Fall X2 action is being implemented inadvertently in spite of Judge Wanger’s best efforts to stop it.  Delta outflow, calculated at weekly and monthly averages, has exceeded 12,000 cfs (PDF), and at these flows X2 will be located at or west of the 74 km mark.  This will probably continue, although the average X2 location may shift a couple kilometers east later this fall.  Given that the Fall X2 action is being achieved anyway without state contractors losing their water supplies, Wanger lifted the injunction through mid-October, but that did not stop him from providing a candidly colorful assessment (perhaps to take advantage of his fast-approaching retirement) of what he deemed to be bad faith on the part of federal scientists testifying in this case.  (For further information, see PLF, KMTG, and Felicity Barringer’s recent blog post at the New York Times.)

It is the case, as water users and their chosen scientist witnesses have pointed out, that the existence of a substantial delta smelt population in the freshwater Cache Slough complex near Liberty Island shifts the habitat index curve up, thus revealing a larger habitat area even when X2 is located east of the Sacramento-San Joaquin confluence:

Curve showing delta smelt habitat area, measured in hectares, at 55 km < X2 < 95 km, with shifted curve to account for habitat in the Cache Slough complex. Excerpted from Hanson Declaration, via PLF.

The fact that delta smelt making their home in and around Cache Slough are apparently not tied to the low salinity zone should not necessarily, in my humble opinion, excuse the water projects from providing outflow that pushes the LSZ seaward to the extent that provision of this additional habitat aids delta smelt recovery.  Some research has hypothesized that delta smelt may correlate more strongly with certain water quality parameters at the scale of population subsets inhabiting smaller regions within the Delta, but that the correlation dissipates when evaluated at the scale of the full estuary.  Whether that dynamic is also at play with Cache Slough delta smelt, I could not say, but a finding of this nature suggests that agencies should be prepared to test and implement a diversified arsenal of recovery techniques.  Moreover, increasing delta smelt access to more suitable habitat areas would presumably only help the species become more resilient and improve its chance at future recovery.

Finally, it is worth noting that even though X2 is formulated in terms of an abiotic characteristic, the justification for this action is based in part on how the location of X2 interacts with other factors.  If a particular X2 location directs delta smelt toward more expansive parts of the estuary with abundant prey, less competition for that prey, and more turbid, predator proof waters, then this water quality parameter based only on salinity implicates both abiotic and biotic characteristics.  Although it may not yet be crystal clear (based on any of the models put forward to date) how these and other factors might interact to improve delta smelt abundance, a seaward placement of X2 this fall — as is being achieved in spite of Wanger’s decisions — allows this idea to be tested more robustly, and hopefully will enhance the ability of state and federal agencies to make the science-based water allocation decisions that contractors are supposedly clamoring for. (**)

There is still more to be said on the Endangered Species Act, including Judge Wanger’s final ruling on the salmonid biological opinion, in upcoming posts.

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(*) Wanger’s views on the science appear to be evolving, even as his previous, more sympathetic ruling is up for appeal; but these life cycle models were all published after USFWS issued the biological opinion and thus were not available to federal scientists at the time.

(**) Ironically, in one document filed with the court, the State Water Contractors disdain the federal scientists for their support, despite a lack of data, of the “untested hypothesis” that delta smelt would benefit from larger and higher quality habitat downstream — even as the contractors oppose the implementation of an action that would both provide more data and test this “untested hypothesis.”  Now that plaintiffs have demonstrated their insatiable curiosity for scientific pursuits, perhaps we can look forward to their future cooperation.

One action, the “Fall X2″ action, is triggered when the preceding year’s precipitation levels are classified as wet or above normal.  The Fall X2 action requires that enough water be allowed to flow out of the Delta in September and October so that X2, the location of the 2 psu isohaline, is either 74 kilometers (in a wet year) or 81 km (in an above normal year) upstream of the Golden Gate Bridge along the estuary’s axis.  Those two locations fall at Chipps Island and Collinsville, respectively.

When more water is allowed to flow out to the Pacific Ocean, whether by decreasing exports or by increasing inflow released from upstream reservoirs in the Sacramento Basin, the 0.5 to 6 psu “low salinity zone” (LSZ) where freshwater outflow meets salt water is pushed toward Suisun Marsh and away from the area upstream of the Sacramento-San Joaquin river confluence.  The LSZ salinity range is suitable for delta smelt, and the LSZ’s placement in the estuary in a given year influences the geographic range of delta smelt habitat in that year such that smelt are approximately centered on the 2 psu isohaline.  An underlying goal of the Fall X2 action is to increase outflow and push the 2 psu isohaline seaward, thereby increasing the area of suitable delta smelt habitat within the estuary.

The BiOp’s rationale is basically that in years when X2 is located too far upstream of the confluence, the area of suitable habitat is confined to narrower river channels.  When X2 is located further west, however, the area of suitable habitat can include the broader territory of Suisun Bay, Suisun Marsh, and Grizzly Bay:

Darker shades of gray indicate more suitable habitat, for X2 = 71, 85 km. Habitat for X2 = 71 km appears both larger and more productive than habitat for X2 = 85 km. Courtesy of USFWS, USBR.

If younger delta smelt can gain access to this comparatively more expansive area — as a result of salinity there being maintained at a level that well-suited to their physiology — then they have more space in which to prey on zooplankton while growing and maturing into adults that will later migrate upstream to spawn.  This observation suggests an association between Fall X2 and smelt abundance in the subsequent year.

This curve, which shows how outflow and X2 location can increase habitat area, is largely a function of estuary geometry. For X2 < 74 km, comparatively less habitat is provided at greater water supply cost. Further upstream, even relatively small upstream shifts of X2 decrease habitat area. Courtesy of USFWS, USBR.

Moreover, even though water clarity is largely a function of non-flow factors — for example, the invasion of submerged aquatic vegetation like the Brazilian waterweed, Egeria densa — the higher turbidity of the expanded seaward habitat also better protects delta smelt from predators.  In short, the goal of the Fall X2 action is to influence salinity through outflow so that delta smelt can be directed to the parts of the estuary that will provide them with superior habitat in this pre-adult life stage.

The future of delta smelt is not certain, but the trend of the past ten years suggests a fragile population that is propelling toward extinction:

The arrows, directed chronologically from 2000 to 2009, outline a path collapsing toward the origin. Courtesy of USFWS, USBR.

2011 is the first wet year since the 2008 BiOp was issued, which means that this September was to be the first occasion to test the Fall X2 action.  As exports have increased, Delta outflows in wet years have been reduced.  The system variability that delta smelt is naturally accustomed to has been largely eliminated, so that outflow in wet years resembles outflow in dry years.  Likewise, fall salinity levels are more stable as wet years resemble drought years, and the LSZ now shifts landward for longer periods of time.  In short, the geographic span of X2 locations attained over all water year types has narrowed over time as the outflow regime has stabilized, and the wet year location of X2 has trended upstream over time, thereby directing more of the delta smelt population toward inferior habitat.

This autumn, following the 2011 wet year, thus presents a tremendous opportunity to study how delta smelt responds to higher outflows and the more expansive habitat provided thereby, establishing valuable data points that could lead to a refined approach in future wet years and inform Delta planning generally.  It offers an excellent chance to advance the state of delta smelt science, and it’s not clear when a similar opportunity will present itself in the future.

But the Fall X2 action, like other action measures contained in the biological opinions, was challenged by water contractors, and two weeks ago Judge Wanger granted an injunction to stop the Fall X2 action (PDF of decision).  To summarize the 140-page decision in one sentence, Wanger determined that the biological justification for Fall X2 was not sound enough to justify the water supply loss, which he estimated to be 300,000 acre-feet.  The Fall X2 action would not impact immediate water supply, but rather would reduce exports and prevent recharge of groundwater for use in future dry years.  NRDC disputes Judge Wanger’s water supply conclusions (PDF), suggesting that 300,000 acre-feet of State Water Project carryover storage may be lost in 2012 if Fall X2 is enjoined and San Luis Reservoir fills too quickly — water better “lost” to the Pacific Ocean this autumn where it could provide an environmental benefit.

Although Wanger did not completely reject the X2 framework — indeed, he formulated his order in terms of X2 — he rejected the claim that X2 must be placed at 74 km this fall.  His order required that X2 be located no further west than 79 km, forging a compromise that provides some outflow while reducing potential impact to water supply.

This discussion continues in the next post.

Thanks to Brandon Middleton at PLF, as well as KMTG, for making various court documents available for public consumption.

Last month Judge Timothy Frawley (at Sacramento Superior Court) issued his final decision regarding the City of Tracy’s wastewater discharge permit, the latest chapter in the long discussion of water quality in the Delta. Salinity objectives have long been established to maintain a salinity level suitable for agriculture: an April-August objective of 0.7 mmhos/cm electrical conductivity (EC), and a September-March objective of 1.0 mmhos/cm, measured at Vernalis and three interior stations in the South Delta. Tracy’s wastewater plant discharges treated effluent to the Old River at a location about four miles upstream of the nearest monitoring station (located at Tracy Road Bridge), and the salinity of that effluent (ranging from 1.0 to 2.4 mmhos/cm) exceeds these objectives. The plant has been expanded over the years, and another expansion is planned to increase treatment capacity from 9 to 16 million gallons per day.  The Old River in this area, on average, already bumps up against the salinity objective, meaning there is little assimilative capacity, i.e. capacity to dilute the Tracy plant’s saltier discharge.

Nonetheless, the Central Valley Regional Board issued an NPDES permit that excused Tracy from taking any serious steps (construction of a reverse osmosis plant) to bring its salinity in line with the South Delta objectives, as long as Tracy complied with the Regional Board’s lenient requirement to follow up with a “salinity plan.” CSPA appealed the permit, and in 2009 the State Water Resources Control Board rejected the permit, ordering that a revised permit be prepared consistent with the South Delta objectives (PDF). Tracy challenged the order, and now we have Frawley’s decision (PDF).

Frawley distributed winning and losing points to both Tracy and the State Board. For example, even though he found that the State Board did not establish the salinity objectives correctly, he did not actually invalidate these longstanding objectives that have been part of the conversation since 1978 — recognizing “the environmental harm that could occur if the water quality criteria were to be invalidated immediately.”  (Decision, p. 35.)  Instead, he basically maintained the status quo by halting the State Board’s enforcement of these objectives against Tracy and other municipal dischargers.  Tracy won this battle, but the State Board may still win the war.  It could eventually hold Tracy responsible after jumping through the right analytical hoops — in particular, evaluating the economic costs of requiring that municipal dischargers meet the salinity objectives.  (For more information, see Water Code § 13241.)

Courtesy of CH2M HILL.

One aspect of the decision I found interesting was how Frawley dances around what appears to be his personal opinion of the situation.  To be fair, the ruling does not award either side a total victory. Yet at least the immediate victory belongs to Tracy, and after reading the ruling, I cannot help but draw the conclusion that Judge Frawley’s overall sympathies are with Tracy, based on certain passages:

(1)  Frawley repeatedly emphasized that in holding Tracy responsible, the State Board fundamentally changed its approach to water quality in the South Delta.  Whereas the State Board had previously focused on the Bureau of Reclamation releasing New Melones water to reduce salinity, Frawley saw the Tracy discussion as a shift away from dilution and toward a new direction that reduces in-Delta municipal pollution.  The implication is that the shift caught Tracy by surprise, and that Tracy’s surprise was logical under the circumstances.  Frawley verged toward a criticism of the State Board when he wrote that this new direction could be “so fundamentally different that it constitutes a de facto revision … of the objective itself.”  (Decision, p. 25.)  But then he pointed out that this conclusion, which ostensibly represents his personal opinion, conflicts with legal precedent.  Frawley, to his credit, did follow the precedent; and whether it was to frame the issue for a possible appeal or for another reason, it was interesting that he devoted space to express sympathy for Tracy in a way that was not strictly necessary to render a decision.

(2)  A required component of water quality control plans is a “program of implementation.”  The 2006 WQCP for the Bay-Delta included a program of implementation that Frawley originally decided was satisfactory.  But for the final decision he changed his mind in Tracy’s favor, finding the discussion of municipal dischargers to be inadequate.  He then stated what appears to be, given the lack of citations, a new standard of his own invention.  He required that more specific details be included when new entities (here, municipal dischargers) are held responsible for meeting water quality objectives.  This requirement might not be all that burdensome, but I am not convinced that certain parts of a plan should be held to a higher standard of specificity than other parts.  In this case, the 2006 WQCP does lack detail about the responsibilities of municipal dischargers, but that lack of detail is not necessarily surprising because NPDES permits are typically the realm of the regional boards.

(3)  Frawley criticized the State Board for its poor enforcement of salinity objectives, even though the state and federal project permits are conditioned on achieving these objectives.  He then drew in DWR and the Bureau as well, while offering a defense on behalf of Tracy:

The salt in Tracy’s discharge may make compliance for DWR/USBR more difficult, but that does not necessarily mean Tracy is attempting to shirk its responsibility for the salinity problem in the southern Delta.  After all, one could argue that the reason there is no assimilative capacity in the Delta is because DWR/USBR have shirked their responsibility to release sufficient fresh water from New Melones Reservoir. [...] Tracy might argue that it is the victim here — because it is being requested to reduce its salt loading so that DWR/USBR may export more water by means of the SWP/CVP.

(Decision, pp. 39-40.)  Frawley shied away from resolving who did or didn’t shirk their responsibility.  But by devoting a few paragraphs to a policy discussion that he basically admitted was tangential to the legal issue at hand, he seems to have seized another opportunity to scold the State Board while expressing sympathy for Tracy.

Frawley’s decision raises the broader question of what balance to strike when implementing salinity objectives, which will be something to consider as the State Board is in the process of evaluating and potentially revising the objectives.  More discussion of this in the next post.

Tracy Pumping Plant. Courtesy of USFWS Pacific Southwest Region.

The spring season is often associated with uplifting imagery: Of nature reawakening and basking in ever-stronger sunlight, and of a new life cycle that emerges as the Earth sheds the frigid harshness of winter.  But at least in the world of California water, spring can be decidedly less romantic for various reasons — not the least of which are the Endangered Species Act skirmishes that take place in Judge Wanger’s courtroom in Fresno.  As springtime restrictions on water exports and south-of-Delta pumping are scheduled to go into effect to help protect delta smelt and salmonids, water users, environmentalists, and government officials continue a seemingly endless war over the federal biological opinions, quibbling over whether this measure or that measure should be put on hold.

‘Tis the season, and there have been developments in both the delta smelt and salmonid cases being heard by Judge Wanger.  Even though last week’s events are not as inherently theatrical as last year’s temporary restraining order battle, an update is in order.

Delta Smelt

Judge Wanger has now issued final judgment on the 2008 biological opinion (BiOp) for delta smelt.  The 2008 BiOp determined that coordinated operation of the state and federal projects could jeopardize delta smelt, and it included a Reasonable and Prudent Alternative (RPA) describing those action measures that should be taken to protect delta smelt while pumping water south.  The 2008 BiOp is itself a second version, prepared by the U.S. Fish and Wildlife Service (USFWS) to comply with a 2007 ruling by Wanger that found the first version to be flawed.

Yet Wanger still found the 2008 BiOp to be inadequate in certain respects that he described in detail in a 225-page ruling issued in December 2010.  His final judgment (PDF), issued in March 2011, is a short document describing what the federal agencies should do to cure the defects he identified in December.  It summarizes his prior ruling that the Bureau of Reclamation, not USFWS, violated the National Environmental Policy Act (NEPA) by not considering the BiOp’s impacts on the human environment.  The judgment also reiterates that the RPA should be revised to reflect the best available science (which could potentially result in a new set of action measures or simply a better justification of the current measures).

Wanger’s order provides deadlines for the federal agencies to follow.  By October 11, 2011, USFWS should have completed a new BiOp and RPA, except for certain written findings that are due on November 30, 2011.*  Reclamation is then required to complete NEPA review for the RPA by December 15, 2011, a little over two months after USFWS will release the new BiOp.  UPDATE (May 2011): Wanger agreed to extend the deadline to May 2013.

During this interim period until the BiOp is revised, a settlement agreement will be in effect through June 30, 2011 (PDF).  The settlement maintains pumping restrictions as necessary but also allows USFWS to experiment with reverse Old and Middle River (OMR) flows as high as -6,100 cfs calculated on a 14-day average, which is more aggressive than the -5,000 cfs upper bound called for in the RPA.  Under current hydrologic conditions, however, OMR flows at the end of March actually turned positive even when calculated on a 14-day average (PDF), and smelt salvage was low as of April 4 (PDF).

In a footnote, Wanger mentioned that the federal agencies and environmentalists plan to appeal his decision finding the BiOp inadequate.  It’s too soon to tell whether an appeal would overturn a significant aspect of Wanger’s analysis, merely tinker at the margins, or make no changes at all.

Early last week, the Ninth Circuit also decided a separate issue that had emerged from the delta smelt litigation — namely, whether it is constitutional to protect the delta smelt under the Endangered Species Act.  Remaining delta smelt will be relieved to learn that it is constitutional, but I hope to discuss that topic in another post.

Salmonids

Last year Wanger discussed problems with the 2009 salmonid BiOp developed by the National Marine Fisheries Service (NMFS), but he has not yet issued final judgment on the RPA.  This year, then, contractors sought an injunction to prevent Action IV.2.1 of the salmonid RPA from being implemented.  Action IV.2.1 calls for exports to be restricted as necessary to achieve certain flow-export ratios at Vernalis on the San Joaquin River.

As it turns out, hydrologic conditions have been favorable enough to avoid restrictions on exports, and Reclamation announced on March 28 that allocations for CVP agricultural contractors located south of the Delta would increase from 55 to 65 percent.  Action IV.2.1 is technically in effect as of the time of this writing (between April 1 and May 31), but it will not actually result in restricted exports unless flows on the San Joaquin fall below 21,750 cfs measured at Vernalis.  Because there has been no need to restrict exports yet this month, there is no action to enjoin.  The contractors withdrew their request for an injunction (PDF), and the salmonid dispute has cooled off for now.

But this may not be the end of the story.  As John Leahigh of DWR has explained, it may be too soon yet to forecast that flows will remain this high through May 31 (PDF).  Should Delta exports be restricted later this spring because of Vernalis flows dropping too low, the contractors may still revive their request for an injunction.

Thanks to Doug Obegi at NRDC and Brandon Middleton at PLF for making various court documents available for public consumption.

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(*) The Endangered Species Act generally prohibits economic considerations from tainting species protection, but an RPA should be economically and technologically feasible (50 C.F.R. § 402.02).  Wanger has previously shown irritation that there was no evidence in the smelt RPA that USFWS felt any need to “fully and honestly address water supply needs beyond the species,” alluding to human need for water.  Wanger requested written findings on this issue on top of the revised BiOp.

The permit, which will be considered again by the State Board in March, combines two separate applications and authorizes use of a joint intake facility to divert a maximum of 45,000 acre-feet per year from the Sacramento River, at a combined thirty-day average rate of 80.1 cfs.  The water can be used for municipal, irrigation, fisheries, and aquaculture research purposes within Davis, UC Davis, and Woodland.

Project map depicting intake and pipeline to treatment plant and local distribution facilities. Courtesy of Woodland-Davis Clean Water Agency (WDCWA).

The draft decision approves the permit despite the prominent concern that California’s rivers and the Delta watershed are over-appropriated, leaving no water to spare for new water rights — particularly in light of the Delta flow criteria report, which suggested that higher flows dedicated to environmental purposes would be necessary to restore the Delta ecosystem.  Nonetheless, what this permit does not do is confer upon Davis and Woodland the right to a guaranteed 45,000 acre-feet each year.  The quantity of water that could be diverted is limited by the terms on which the permit is conditioned.

Is There Water to Spare?

The State Board can grant a new water right only if it determines that unappropriated water remains in the stream.  This can be a contentious point, because summing the face values of water rights suggests that California waters are indeed oversubscribed.  But this simplistic approach can be misleading as a way of describing how much water is consumptively used, and besides, water rights are fragile: The extent of the right, as represented on paper, often does not equal the quantity of water actually diverted on the ground.  This is just how the system is managed (or mismanaged, if you prefer).  Those who advocate for “paper water” to be better aligned with “wet water” will not be particularly pleased with the Davis-Woodland permit because it only exacerbates the problem.  While the face value of 45,000 acre-feet states the maximum quantity of water that could be diverted in a given year, it may not accurately represent actual diversions each year.

Different flow regimes were modeled, and the conclusion is that surplus water is available for Davis and Woodland.  But the amount and reliability of that supply depends on how the watershed is operated.

Davis and Woodland’s original analysis determined that water would not be available for appropriation whenever Term 91 is put into effect, but that there would be water available at other times.  Term 91 is a condition that the State Board puts in permits, requiring in-basin diverters to curtail their diversions at times when the state and federal projects have released water that needs to move through the whole system — for example, to meet Delta water quality objectives.  In the absence of Term 91, permit holders could simply undermine the operational scheme by intercepting water needed to fulfill some purpose downstream of them.  Davis and Woodland, as a junior water right holder on the Sacramento River, would be subject to Term 91 but could divert at other times.  The Davis-Woodland project would not on its own have a major effect, diverting 0.3 to 0.5 percent of stream flow:

Sacramento River flow with and without the Davis-Woodland diversions. Courtesy of WDCWA.

Taken in combination with other foreseeable projects, however, the diversion could have a cumulatively significant effect on other factors, like the location of X2, which is correlated with delta smelt abundance.

The modeling analysis was later updated to study other operational assumptions.  For example, under the OCAP biological opinions (which Wanger is once again ordering to be revised), there is surplus water.  Except in some wet years, the available supply mostly falls short of the full 45,000 acre-feet.

Perhaps the most interesting thought-exercise is the Delta flow criteria report.  Even if these flows are implemented exactly as recommended in the report (which almost certainly will not happen), the model suggests that there would still be surplus water available in some years, particularly between December and March, although less than 45,000 acre-feet.  The flow criteria are non-binding and only informational at this stage, and the State Board is not using them to determine water rights.  At some point, though, the State Board will hold water rights hearings to allocate how users in the Delta watershed should share the responsibility of contributing additional flows to the environment.  That task, already monumentally difficult, is not made any easier by approving new permits.

A Conditional Water Right

Having determined that water is available, the draft decision approves the water right, keeping in mind some public interest considerations — the fact that the diversion will improve drinking water, while reducing salt loads and concentrations of selenium and boron in wastewater discharged into the Delta.

But there are also conditions placed on this water right.  As discussed above, Davis and Woodland are required to curtail diversions when Term 91 is in effect, but they also must be able to demonstrate that they have an alternative source of supply during these periods of time, such as water transfers with willing sellers in the Sacramento Valley.  Other permit terms give the State Board the flexibility to amend the permit in response to hydrologic conditions.  Davis and Woodland would also be required to install a fish screen on the intake, as well as implement mitigation measures that help maintain habitat and wetland buffers and avoid negative impacts to special status species.

]]> http://baydelta.wordpress.com/2011/02/17/swrcb-issues-draft-decision-approving-davis-woodland-water-right/feed/ 1 Davis_Woodland_projectmap baydeltablog Davis_Woodland_projectmap Davis-Woodland_sac_flow http://baydelta.wordpress.com/2011/02/03/water-rights-fees-decision-pity-moment-for-the-swrcb/ http://baydelta.wordpress.com/2011/02/03/water-rights-fees-decision-pity-moment-for-the-swrcb/#comments Thu, 03 Feb 2011 09:18:38 +0000 baydelta http://baydelta.wordpress.com/?p=1150 Continue reading »]]>

Ronald Reagan State Building in Los Angeles, where the water rights fees case was argued before the California Supreme Court in December 2010. Photo courtesy of Curbed LA.

This week, after hemming and hawing for four years, the California Supreme Court issued its long anticipated, but ultimately rather anticlimactic, decision (PDF) on the water rights fees imposed by the State Water Resources Control Board.  These fees have been contested for the better part of the last decade.  In 2003, the Legislature enacted Senate Bill 1049, which directed the State Board to devise a formula and institute regulatory fees on water right holders.  These fees were then deposited into a Water Rights Fund.  The objective was to fund the State Board’s Division of Water Rights with fees so that General Fund dollars could be directed elsewhere.  But SB 1049 was enacted with only a 53 percent vote in the Legislature.  Under the California Constitution, that’s good enough for a regulatory fee, but not a tax.  So the water rights fees were a sitting duck.  Naturally, water users scattered throughout California challenged the fee as being a tax in disguise.

The Fees

Two broad categories of fees are involved: (1) charges to water users who divert water under a permit or license; and (2) charges to Central Valley Project contractors, who pay the fees for water rights held by the Bureau of Reclamation.

The fee formula raises a number of problems.  There is the overarching issue that riparians and pre-1914 appropriators are not charged any fees and yet still benefit from the orderly administration of water rights.  There is also the issue that the annual fees were designed to subsidize costs for processing one-time permit applications and change petitions, so that one-time fees would not be too high.  How accurately, then, does the fee formula reflect the Division’s regulatory activities?

And then there are the CVP contractors.  Reclamation holds permits and licenses for 116 million acre-feet of water, including rights for hydroelectric power generation, but CVP water supply contracts account for only 6.6 million acre-feet of those rights.  Yet even with a discount for the hydroelectric permits, the contractors paid fees in individual prorated shares that collectively account for 86 million acre-feet — much more than the small proportion of rights corresponding to their contracts.  Should the CVP contractor fees have been limited to the 6.6 million acre-feet?

The Decision

The Supreme Court found that SB 1049 itself was valid.  SB 1049 requires that fees be imposed so as to recover the exact costs of the Division’s regulatory and enforcement activities.  The fees should generate revenue equal to what the state budget allots to the Division, and the legislation allows the State Board to adjust the annual fees as necessary to get these numbers to line up.  The legislation was careful not to authorize new general revenue streams and thus presents no constitutional concern.  It also did not impose a real property tax because the water right is based on use, not ownership.

Although SB 1049 is constitutional, there is still no true resolution here because the Supreme Court decided that there was not enough detailed information available to say conclusively whether the fee formula devised by the State Board was valid.  It’s up to the lower court to learn the details and come to a conclusion.  But the Court was also quick to caution that government agencies need some flexibility when setting fees: A fee does not automatically become a tax just because some individual water users might have paid disproportionately high fees.  That’s one point in favor of the State Board.

As for the CVP contractors: Given that their interest extends past their contracted supply and embraces the entire CVP system that provides them with that water, the Court said it is fair to impose fees that cover more than just the 6.6 million acre-feet.  So how much more?  We don’t know; that was also left unresolved.  But even this unquantified statement is another point in favor of the State Board.

Pity Moment for the State Board?

Whatever the Supreme Court may have written in the decision to justify its conclusion, one cannot help but wonder about another, purely practical consideration that may be the unspoken rationale behind this result: In this post-Proposition 26 era, it’s no longer even possible for the State Board to institute a new charge that’s not a tax.

Proposition 26, approved by California voters in the November 2010 election, is a response to “Sinclair Paint” fees, in which the government would require regulated entities to pay a fee for the purpose of mitigating or “cleaning up” the pollution or other damage caused by those entities.  These regulatory fees needed only a majority vote to pass and were not considered taxes, even though the entity paying the fee did not directly benefit from the fee.  But Prop 26 now classifies these fees as “taxes,” which means that a supermajority vote is required to approve these types of charges as they are imposed for a specific purpose.  Prop 26 also requires agencies to keep close track of how benefits and burdens are distributed when enacting new charges.  If someone is charged for a benefit they did not receive, then the charge is a tax.  But also: Even when the paying entity does benefit, if another entity who isn’t charged incidentally receives a benefit (i.e. is subsidized by the paying entity), then the charge is still a tax.

These draconian requirements of Prop 26 explain what a difficult position the State Board is in.  The State Board has no direct regulatory authority over the significant quantity of water used by riparians and pre-1914 appropriators, and thus it cannot collect fees from these water users.  It can only charge the appropriators that divert water under permits and licenses.  But the regulatory and enforcement activity carried out by the Division of Water Rights administers California’s waterways for all users, whether or not they are paying the water rights fees.  In other words, a Division activity funded by a water rights fee will inevitably benefit both the paying entity and some other non-paying entity — and that means it’s a tax under Prop 26.  The peculiarities of the State Board, taken in combination with Prop 26′s restraints, essentially make it impossible for the State Board to assess a charge that’s anything other than a tax.

But Prop 26 does not extend to the original water rights fee legislation.  SB 1049 was enacted in 2003, well before even Prop 26′s retroactive reach.  Charges that are assessed under SB 1049 will remain regulatory fees, even though the exact same charge would be classified as a tax if similar legislation had been enacted this year.

And that may be the key to the Supreme Court’s decision.  Even if there are problems with the State Board’s fee formula, the underlying legislation authorizing the fees, SB 1049, remains valid: No new legislation is needed.  Had the Supreme Court completely dismantled SB 1049, a new bill would have to be enacted by a two-thirds vote in the Legislature, for the reasons stated above.

But SB 1049 only passed the Legislature with a 53 percent vote in 2003, and it is difficult to imagine the current Legislature assembling a supermajority endorsement, which Prop 26 now requires for any new taxes that smell like the regulatory fees of yesteryear.  Practically, then, invalidating SB 1049 would likely have defunded the Division of Water Rights, forcing the State to either reach back into the General Fund or severely impair an already underfunded division.

Although the State Board’s fee formula was sent back to the lower court for further analysis, the Supreme Court also gave an implicit nod of understanding to the delicate balance of interests the State Board faced as it crafted the formula.  There is room within this guidance for the lower court to approve the fee formula as is, or it could find that the formula is flawed and needs revision.  But either way, regulatory fees can be collected moving forward without resorting to a new tax.  That’s no doubt a relief for the State Board.

Courtesy of Aquafornia.

This week the State Water Resources Control Board was briefed on a report prepared by Craig Wilson, the new Delta Watermaster.  Although Mr. Wilson’s authority as Delta Watermaster to enforce permits and licenses is limited geographically to the boundaries of the Delta, the Legislature, when creating this new position, also directed the Delta Watermaster to inform the State Board on water issues generally.  The Watermaster’s first report (PDF) broadly examines the “reasonable use doctrine”: the constitutional principle that forbids waste and mandates that state water resources be used reasonably and beneficially.  This concept is a water rights trump card that applies to all water use in California, but this report was concerned mostly with the politically-loaded topic of agricultural water use efficiency.

Craig Wilson both opens and closes his report with the following statement:

“Inefficient water use is unreasonable water use.”

So bold and elegant in its clean, unclouded simplicity, is it not?  The report acknowledges that although the reasonable use doctrine is the “cornerstone” to California water rights, the doctrine is rarely invoked and has not come into its own as an effective enforcement mechanism.  Comprehensive study of what it means and how it can be leveraged is overdue.  But even as the report outlines certain techniques that conserve agricultural water, it merely hints at the challenges of using this slippery notion to encourage or require substantial improvements in efficiency and conservation.

The 2009 Legislation

It’s simple enough for an appointed Watermaster to make a bold pronouncement in a relatively isolated setting, but it’s quite another matter for elected legislators to do so when drafting a bill.  The Legislature turned down the opportunity to do exactly that when passing SB X7 7 as part of the 2009 package of water legislation.  SB X7 7 enacts the 20 x 2020 water conservation plan, which requires urban water suppliers to reduce per capita water use at least 10 percent by 2015 and 20 percent by 2020.  Although SB X7 7 imposes numeric conservation targets on municipalities, it excuses agricultural water suppliers from achieving similar targets.  Instead, the bill requires that agricultural suppliers adopt certain efficient management practices, including measurement of water deliveries, and that they prepare agricultural water management plans by 2012, which will be updated again in 2015 and every five years thereafter, just as municipalities do now.

Although conservation is regarded as a tool to prevent waste, SB X7 7 does not clearly equate a water supplier’s failure to meet these requirements with unreasonable use.  Indeed, the legislation shields urban water suppliers from administrative or judicial proceedings based on the failure to achieve their numeric targets.  So even if an urban supplier is behind on meeting its target and thus seems to be “wasting” water, its right to the extra water cannot be yanked away just because someone waves a piece of paper crying waste and unreasonable use.  All bets are off once 2021 rolls around; but even then, it’s not clear that there would be a finding of unreasonable use.

The bill could have turned out differently.  The Legislature had an opportunity not only to create more aggressive conservation requirements for agriculture, but even to declare that categories of inefficiency are unreasonable.  It did neither.  As it stands now, SB X7 7, if nothing else, serves as a reminder that extracting concessions in the legislative process is never easy.  But it may also present an opportunity for the State Board to take a more proactive approach.  SB X7 7′s requirements for agricultural conservation are not comprehensive, and the State Board has room to maneuver by establishing a separate but complementary regulatory program involving the reasonable use doctrine.  At the same time, though, there are many reasons why the State Board should proceed with care.

Water Conservation in the Agricultural Sector

There is clear value to increasing water conservation efforts in the agricultural sector, particularly given the large share of water in California that is allocated to agriculture.  Craig Wilson’s recommendation that the reasonable use doctrine be used more proactively to achieve conservation goals has merit.  And yet, Mr. Wilson’s equation of inefficiency with unreasonable use, while offering an elegantly simple principle, does little to simplify the practical complexities inherent to agricultural conservation.  Presumably, this is the type of discussion that would take a place at the summit that the report has recommended be convened.

One important concern and source of complication is return flow.  Irrigation results in some water being consumptively used through evapotranspiration (ET), which includes both water that evaporates and that which is transpired by crops.  Return flow, on the other hand, is not consumptively used and instead joins the stream, either as surface runoff from the field, or as percolation to the aquifer that later discharges to the stream.  Even if an upstream grower uses a lot of water to irrigate in a way that’s not particularly efficient, the balance of water that isn’t consumptively used by the upstream grower eventually joins the river as return flow, where it then can be used downstream (although the quality of the return flow may be degraded).  This has prompted the observation that the best way to study water use efficiency is at the scale of the whole basin or watershed rather than the individual grower.

Stated differently: in order to successfully achieve conservation in agriculture, there should be a reduction in the quantity of water that is consumptively used at the basin-wide scale.  Patching up leaky canals might increase efficiency of the irrigation system, but if it doesn’t reduce the volume of water consumptively used through ET, then it’s reducing return flow without getting to the heart of the conservation question.  Consumptive use can be reduced through many different practices.*  Ultimately, though, it is difficult to estimate how much water could be conserved in the aggregate because we lack good data as to how much acreage is already being managed using these practices.

Conservation measures that reduce the quantity of irrigation water applied to crops will correspondingly reduce return flow.  If the State Board identifies measures that reduce consumptive use, it should also strive to minimize adverse impacts that accompany a reduction in return flow, including impacts to both fish and wildlife and supply.  The precise nature and extent of those impacts will likely vary from system to system and depend on local conditions.  For example, suppose that an upstream grower uses flood irrigation, which is generally less efficient but generates substantial return flow.  The portion of return flow that percolates is delayed before it discharges to the stream, thereby providing downstream growers with water late in the irrigation season.  If the upstream grower were to suspend flood irrigation and instead adopt more efficient irrigation techniques, the delayed return flow would diminish.  This would, in turn, impact downstream growers, who would lose a once-reliable source of irrigation water.  Although it may be tempting to simply declare that flood irrigation is an inefficient — and hence unreasonable — use of water in all situations, that categorical declaration will overlook local conditions.  Considering case-by-case details is necessary to understand the impacts but will ultimately complicate the State Board’s task of deciding whether a particular irrigation practice should be deemed unreasonable.

It’s a complicated topic, and we’ve only scratched the surface here.  The Watermaster’s report is just an initial effort — but it makes an important statement, and I agree with Mr. Wilson’s basic premise that the reasonable use doctrine can be leveraged as a more proactive enforcement tool for the State Board, provided that adequate administrative resources are allocated to the task.  It is both logical and fair to require that the agricultural sector more uniformly pursue best practices in effective conservation.  But that doesn’t make it any easier to reconcile broad, constitutional principles with complex, on-the-ground realities, all while attempting to achieve substantial water conservation statewide.  It is too soon to say whether this effort will succeed, but it is almost certainly guaranteed to be interesting.

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* Management techniques are not limited to fallowing or shifting from field crops to vegetables that require less water (a practice that limits farmers’ flexibility to adapt to market conditions).  Other techniques include scheduling irrigation on the basis of daily ET information supplied at weather stations, as well as using regulated deficit irrigation, in which less water is applied during periods when crops can tolerate it, thereby saving water while avoiding negative impacts to yield.  Although the State Board could conceivably focus on these techniques as examples of reasonable use, implementation requires capital investment in on-demand irrigation systems, which give growers the flexibility to apply water when and to the extent that it’s needed.