Before going more into these flow criteria, I would like to clarify a personal opinion briefly. My general stance on water issues often tend toward an environmentalist leaning. In the context of Delta issues, that means taking the time and effort to study carefully what the needs of the ecosystem are. It also means augmenting habitat and ensuring that fish have the flows they need, not just to survive, but also to thrive. The Delta should be made whole and healthy again: perhaps not all the way to its original rich level of productivity, but at least vastly improved over the broken status quo. That may well mean reducing reliance on the Delta for water supplies, increasing conservation, and other sacrifice. Human adaption to scarcity will be necessary in any case, and it is certainly worthwhile if it means setting the West Coast’s premier estuary on the path to achieving its former prominence.
The environmental community has eagerly seized the Delta Reform Act’s public trust language as an avenue to advocate for numerical flow objectives that recommend how much water the fish need. But as discussed in the previous post, it is not clear to me that a purely native species-oriented set of flow criteria is what the Legislature had in mind when it set this task for the State Board. Ecosystem health is clearly involved, but the public trust also embraces a broader set of values. Despite my overall environmental-leaning perspective, personal intellectual honesty requires pointing out the multiple viewpoints inherent in any issue. While careful study of the needs of fish is critical, I remain uncertain that the SWRCB’s flow criteria process is the intended avenue for making that determination. But I am also open to being convinced otherwise, because the Delta Reform Act is, to say the least, not a paragon of legislative clarity.
Speaking of unclear legislation and multiple viewpoints — there is another ambiguous point that already has been a subject of debate at the flow criteria hearings, and this ambiguity directly affects the final product. Should the State Board’s flow criteria be numerical or qualitative?
This issue, not surprisingly, has evolved into yet another opportunity for each faction in the water debate to emphasize the science that best supports its own perspective. Fishery interests and the environmental community support numerical criteria and have offered their own quantitative flow recommendations. Meanwhile, the water user community argues that in light of scientific uncertainty, less precise “narrative” criteria are sufficient, especially because the flow criteria cannot be determinative of water rights.
At the hearings, the State Board requested that all groups offering testimony submit their own recommendations for numerical flow criteria. This suggests that board members are interested in actual numbers. The Delta Reform Act, however, is vague on this point. It does not clearly direct the State Board to adopt either approach. Instead, there are scattered clues that support both positions:
- In support of narrative criteria, it is worth noting that the Legislature chose to use the word “criteria,” rather than the word “objective,” which is a common term for specific numerical standards. The Dept. of Fish and Game, for instance, is required to produce not just flow criteria, but also “quantifiable biological objectives” for species. This suggests that flow criteria are different from quantifiable objectives. But the State Board is specifically being asked to produce flow criteria — not quantifiable objectives. Perhaps that means that narrative criteria were intended.
- In support of numerical criteria, the legislation directs the State Board to discuss the “volume, quality, and timing of water necessary for the Delta ecosystem under different conditions.” Although it is possible to speak qualitatively about water volume, quality, and timing, these are readily, and perhaps most naturally, expressed in quantitative form. Since the Legislature specifically singled these out as crucial to discuss, perhaps it wanted specific numbers.
An intermediate solution might be the most sensible approach, particularly where there is significant uncertainty in the science. Such an intermediate solution could include ranges of numbers that indicate what flows are needed under different conditions, while clearly specifying the scientific, climatic, and other assumptions that underlie those variations. Number ranges could be further supplemented by qualitative statements that provide further guidance.
Even if the flow criteria are numerical rather than narrative, it is still unclear what practical role they will play in future Delta planning and management. On the one hand, they should clearly be afforded some consideration, given that the Legislature has charged the State Board with allocating its valuable time and resources to produce them. On the other hand, the proceedings that the Board convened in March 2010 were essentially informal interrogations, rather than formal evidentiary hearings. That informality, combined with the fast-approaching completion deadline of August 2010, suggests that the final criteria will be advisory guidelines carrying little, if any, binding authority.
That conclusion is consistent with the Delta Reform Act, which states that the purpose of the flow criteria is to “inform” planning decisions for the BDCP and Delta Plan. Indeed, the State Board itself is prohibited from giving its own criteria too much weight, in that the Board may not treat the flow criteria as predecisional when reviewing permits. So it seems more likely that moving forward, the flow criteria will simply become a resource for the BDCP and the Stewardship Council.
If anyone viewing this post actually happens to have read through this far, thanks for humoring me as we’ve looked into the legislation. We may have beaten this particular code section into the ground, so I hope to look next at some science in the near future.