One problem with the package of water legislation passed in 2009? The more you stare at it, the less you understand — and the stronger your head aches.
(I know: I promised that we would leave this behind and do science instead. We’ll do that next time.)
Two posts ago, we discussed some reasons for why the Delta flow criteria might be an all-encompassing task for the State Board, taking into account more than just flows for fish. But to make that case, I picked out certain phrases from the legislation, while omitting other phrases. I was hoping that someone would call me out on it, but no one reading (if anyone is reading) did. So I will now make amends by telling the other side of the story. The other side is that yes, actually, the flow criteria indeed might be all about how much water the fish need. How is it that the same section of the Delta Reform Act manages to support two approximately polar opposite interpretations? That would be an excellent question to ask Senator Simitian.
Here’s one reason why the flow criteria might be just about the fish and ecosystem. The words “for the Delta ecosystem” appear not once, not twice, but three times in the same code section.
Here’s another reason. In two previous posts (linked here and here), I quoted § 85086(c)(1) because that’s where most of the flow criteria action is. But I never mentioned the section that directly precedes it. It reads, in its entirety:
Water Code § 85086(b): It is the intent of the Legislature to establish an accelerated process to determine instream flow needs for the Delta for the purposes of facilitating the planning decisions that are required to achieve the objectives of the Delta Plan.
The key words are “instream flow needs,” which usually refer to fish and general environmental needs. § 85086(b) does not go into any more detail, so it’s likely that the Legislature meant to use the following section, § 85086(c)(1), to flesh out what the “accelerated process” mentioned in § 85086(b) will be. Confusingly, § 85086(c)(1) never actually uses the word “instream.” Nonetheless, it could be that § 85086(b) is essentially the mission statement for § 85086(c)(1). If so, then the two sections should be taken together. That means that the underlying purpose of the flow criteria process is to determine only the instream flow needs of the Delta. Consumptive uses would not play into the analysis.
Perhaps the best reason why the ecosystem should be the priority for the flow criteria is that there is a substantial gap in our knowledge where the ecosystem is concerned. The State Board’s “public trust obligations” extend only as far as reasonable use. That means that the Board, when resolving a water dispute, is obliged to analyze both ecosystem and water supply issues before reaching a compromise. But how can the State Board fully meet its public trust obligations if it possesses only a primitive understanding of the Delta’s ecosystem needs? The plummeting population of native fish species speaks for itself; we still have much to learn about how to repair this ecosystem. Even within the ecosystem there are competing demands, and the Board should have a good grasp of how different ecosystem needs compete with and complement each other.
So maybe the flow criteria process is just about the fish, after all. Like anything in the world of California water, it’s a matter of debate.
P.S. This legislation is shoddy stuff, and we honestly should have just sent it back to Sacramento for a redo — both the Delta Reform Act and the other parts. Alas, the water bond was decoupled from the rest of the legislation.