Ecosystem, Fisheries, Flow Criteria, Public Trust, Sacramento-San Joaquin Delta Reform Act of 2009, SWRCB

Flow Criteria for the Delta: Wading through muddy legislation

The declining delta smelt.

Populations of fish in the Delta have plummeted in recent years to historically low levels.  The Delta’s current configuration — diked, drained, and channelized — has restricted habitat for native species.  In light of this physical configuration, existing flows are not sufficient to ensure a healthy Delta ecosystem.  The Delta Reform Act passed as part of last year’s water legislation directs the SWRCB to develop flow criteria to protect public trust resources in the Delta, and the State Board is now engaged in this process.  The criteria should be finalized by the Board in August 2010 and will then be forwarded along to the Delta Stewardship Council, where they are expected to play a role in the BDCP and Delta Plan process.  These flow criteria are sometimes hailed as a determination of “how much water the fish need.”  Indeed, a careful determination to that effect is overdue.

But is that what’s really going on here?

Rather than providing a clear mandate and process, the Legislature instead issued a charge that is opaque at best, and nonsensical at worst.  The legislation not only declines to clarify, but actually muddies, important issues.  What do the flow criteria represent, and what should the final product look like?  What methodology should the State Board apply when working through the scientific evidence?  What authority should the Board bring to bear, and how will the Board’s view of its own role affect the final product?  Instead of providing clear direction, the Legislature only offers the following cryptic command:

Water Code § 85086(c)(1): … the board shall, pursuant to its public trust obligations, develop new flow criteria for the Delta ecosystem necessary to protect public trust resources.  In carrying out this section, the board shall review existing water quality objectives and use the best available scientific information. …

There are a few interesting aspects to this, but for this post I would like to focus on these two phrases: “pursuant to its public trust obligations” and “protect public trust resources.” Both phrases appear, at first glance, to suggest that the Board should ignore human demands like water supply, and simply concentrate on the flows that are needed to protect endangered fish and other public trust resources.  Not surprisingly, this is the position that environmental groups maintained during the flow criteria hearings.  But is that actually what this means?  I am not so sure, and I think there are at least four potential reasons to believe otherwise:

(1) Perhaps first and foremost, the State Board is charged with ensuring that the waters of California are put to reasonable and beneficial use.  What this means in practice is juggling complex factors and producing a compromise.  Since Mono Lake, we know that the Board is obliged to preserve public trust resources, but in a way that acknowledges beneficial consumptive uses of water.  In other words, the Board’s “public trust obligations” extend as far as reasonable use.  The Board regularly juggles both consumptive and instream uses; so it would be unusual for the Board now to recommend criteria that only account for part of the equation.

(2) Related to the first point: Once we understand the SWRCB’s role as an entity that reaches balanced conclusions after juggling competing factors, the very fact that the Legislature chose to involve the State Board may be significant.  After all, the Dept. of Fish and Game is also required to develop its own flow criteria (along with other biological objectives) while consulting with the federal resource agencies.  If the Legislature wanted flow criteria based purely on the needs of fish, why not just entrust the job to DFG?  Why involve the State Board at this early stage at all, unless it wanted flow criteria that reflected the Board’s expertise?

(3) According to § 85086(c)(1), the State Board is required to “review existing water quality objectives and use the best available scientific information.” One plausible interpretation of this is that the Legislature wanted the Board to maintain existing objectives from Decision 1641 as a baseline, but then deviate from D-1641 only when required to do so by the best available scientific information.  For example, if the best available science indicates that a D-1641 objective is flawed and cannot protect fish, then the objective should be revised.  If this is a correct reading, then the flow criteria are a more conservative exercise than some have suggested.

(4) The phrase “protect public trust resources” is interesting when viewed in light of the entire Delta Reform Act.  Numerous parts of the Delta Reform Act refer to restoration or enhancement of the Delta ecosystem.  In fact, one of the coequal goals is “protecting, restoring, and enhancing the Delta ecosystem.”  But protection and restoration are not the same thing.  Protection suggests shielding a species from harm, while restoration suggests that the species is able to sustain itself without human interference.  By using the more conservative term “protect,” was the Legislature trying to confine the Board?

I don’t have the answers.  My basic point is that the Legislature’s charge to the SWRCB, while seemingly clear at first glance, is unfortunately ambiguous.  Although the flow criteria are sometimes described as a chance to learn how much water the fish need, the Legislature’s actual charge to the State Board might be very different from that.  The Board will have to decide for itself what it means, and its interpretation could greatly affect what the final flow criteria look like.

Nevertheless, we should note that if Delta planning authorities are taking ecosystem restoration seriously as a coequal goal, then they will have to study in great detail what the fish need.  How that will align with the State Board’s flow criteria is, for now, an open question.

Further discussion of the flow criteria, including more on the science, will follow in future posts.

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