Temporary urgency, permanent extinction?
By: Tim Stroshane and Barbara Barrigan-Parrilla
Releasing his latest Delta water quality order late on March 5th, Tom Howard, executive director of the State Water Resources Control Board, added a loophole allowing state and federal water contractors reliant on Delta exports to tell the state and federal water project operators they need more health and safety water supplies.
State and federal operators must merely inform the State Water Board they will export more from the Delta to meet those claims for water.
This is a loophole you can drive a Mack truck through. Clearly the busloads of farmworkers paid to attend the February 18th Water Board workshop by Westlands Water District provided the necessary political theater for Howard and the Board to change the original exports limit.
Indeed, Howard acknowledged the political theater in the order: “The human face of suffering, tied to lack of drinking water and loss of jobs, was clearly evident at the February 18 workshop,” he wrote in the revised order.
He weakly justified the new loophole on the grounds that “unconditional approval of intermediate exports would tip the balance too far in favor of exports, with resulting unreasonable effect on fish and wildlife.”
But the revised order has the same practical effect.
The projects’ drought contingency plan for 2015 estimates that their customers have indicated a need for health and safety-related water supplies of 510,000 acre-feet.
To date in 2015, the projects have together already pumped over 699,000 acre-feet, about 84 percent of which Bureau records indicate has been stored at San Luis Reservoir west of Los Banos as of March 12th. It is not known how much of these exports are for health and safety purposes and how much is to satisfy farm demand south of the Delta.
The contingency plan also calls for operating the state and federal systems to “lessen critical economic losses” to agricultural, municipal and industrial uses without identifying what those uses are, something the Water Board did not push back on. Supplies would be made up through “voluntary water transfers…to the extent possible…” though no estimates were available from the plan on how much water would be available from transfers.
So far state and federal exports amount to about 35 percent of last year’s exports with barely 17 percent of 2015 under our belts. They’re on pace to continue mismanaging their supplies should it turn out 2016 is another dry year
Howard also acknowledged that, “all of the proposed changes are likely to have a negative effective on fish and wildlife.”
As a result of Water Board and water project actions last year, fish populations are at record low levels and cannot be considered resilient at all. The Delta smelt index is at an all-time low. The Longfin smelt index is at the second lowest level recorded. American shad, striped bass and threadfin shad are at near record low levels.
Exports also negatively affect aquatic resources through hydrodynamic changes in the Delta. This caused fish and much of their food supplies to be sucked to the massive export pumps near Tracy. And as water quality deteriorates further for fisheries that are barely hanging on, it will also deteriorate further for Delta agricultural and municipal uses.
Further, last year, loss of temperature control below Shasta Reservoir and upstream of the Delta killed 95 percent of winter-run and a high percentage of spring-run Chinook salmon on the mainstem. The remnant populations of these fish that survived are now in the Delta and need additional protection, Howard acknowledged in the revised order. He publicly apologized for these catastrophic loses back on February 18th.
But his chastening from this record of ecological destruction in February is now overthrown in March. “The changes approved will have a negative effect on fish and wildlife,” he wrote gravely, “but the tradeoff, when weighed against the water supply benefits, strikes a reasonable balance between fish and wildlife protection and best serving other needs for water.”
The Board has abdicated its public trust obligations in the face of contrived political theater from south of Delta water contractors. Mr. Howard’s order ignores Restore the Delta’s suggestion at the February workshop that the Board target any additional export water for these supposed health and safety needs to communities with the hardship cases the Board heard about.
Mr. Howard is trying to appear like he’s making the water projects and their contractors ‘earn’ more exports. But the order lets the contractors and the projects tell the Board what those needs are.
It’s just like PG&E telling the public utilities commission which judge it wants to hear its rate case. That’s the textbook definition of a captured regulatory agency.
NASA Jet Propulsion Lab warns that we have about one year of water left in California. That we have used 12 million acre feet a year of water from storage since the drought started. The personal responsibility campaigns will begin, which are important because we are in crisis, but California would have not ever reached this point if State and Federal Agencies had not allowed the State and Federal Water projects to over the deplete the system for years. To read more, click here.
# # #
As we noted in last month’s RTD newsletter, Department of Water Resources (DWR) staff stated publicly that DWR would prefer not to install three rock barriers to prevent salinity intrusion into the Delta this coming summer at Sutter and Steamboat sloughs and in western False River. We agree that they are and should always be last resorts.
With good reason: if installed, the Sutter and Steamboat Slough barriers would close off migratory corridors for fish, subject juvenile salmon and larval and subadult Delta smelt to new predation pressures (beyond those they already face), worsen water quality in some parts of the Delta for the sake of export pumping from the Delta elsewhere, and disrupt boating corridors during the busy summer recreation season, even with DWR’s proposed mitigation. Few boaters wish to spend precious recreational time porting their boats around a barrier if it can be avoided.
DWR is jumping through two bureaucratic hoops right now. One is to satisfy the California Environmental Quality Act. Public comments on DWR’s CEQA documents are due March 18th. DWR’s other hoop is to obtain, using its environmental documents, a 10-year “program permit” from the US Army Corps of Engineers to operate the barriers three years out of the next ten. Public comments on the program permit application by DWR are due March 30th.
In effect, DWR casts the communities of the Delta in a lose/lose position so that the federal and state water contractors and projects can win. They pose a situation in which if they do not install the barriers, South Delta communities would suffer; if they do install them, North Delta communities, as well as fisheries, commercial and recreational fishing economies, and the Delta recreational economy will suffer. This is patently unfair to make Delta residents and ecosystems victims of the failures by state and federal water project managers.
In its CEQA documents, DWR fails to demonstrate the need for the barriers. Oh, we hear that it would “(1) render Delta water undrinkable and affect roughly 25 million Californians, (2) render Delta water unusable by agriculture, and (3) decrease freshwater habitat in the Delta for sensitive aquatic species.” These are fear tactics not justifications of need. DWR should have thought about these things when dissipating upstream storage on exports in 2013 and 2014.
If DWR wants their barriers to operate under a program permit, they should design a program that the public can understand through transparency and demonstrated need. Such a program should seek to keep dangerous salt water intrusion from harming fisheries and Delta communities, while allowing only for minimal exports for REAL health and human safety needs. Not fake almond grower health and human safety needs.
In RTD’s comments to DWR and the Corps we ask: what are the triggers, the specific climate and water management conditions under which installation of drought barriers would be authorized? It appears from its CEQA documents that DWR cannot answer that question yet.
If the Corps issues the barriers program permit to DWR, the barriers would no longer be a last resort. They would become another water management tool with potentially catastrophic consequences for fish and water quality.
The problem for fish is that the barriers can quickly become predation hotspots. (See Figure 1.) According to the Draft Bay Delta Conservation Plan, four noteworthy hotspots already exist in the vicinity of each emergency drought barrier:
• The Paintersville Bridge near the confluence of Sutter Slough with the Sacramento River (No. 7 on Figure 1);
• The North Delta Water Diversion facilities near Hood (No. 11);
• Georgiana Slough (No. 4); and
• Franks Tract (No. 6).
Juvenile salmonids benefit from multiple paths through the Delta to reach San Francisco Bay and the ocean. The barriers are expected to contain four 48-inch culverts with slide gates that will open when sufficient net downstream flow in the channel pushes them open. “Culverts are perfect blind alley for predators to ambush juvenile salmonids and other small fish daring to pass through,” notes Stroshane.
Predatory fish like largemouth bass, striped bass and others will be in close proximity to where they are already active, since they already occupy hotspots nearby (Figure 1). The False River barrier abutments could themselves become permanent predation hotspots west of Franks Tract, another known hotspot.
Under the TUCP Order, the Board authorizes the Bureau of Reclamation to open the Delta Cross Channel gates in real time when the Bureau, based on upstream fish data and central Delta water quality conditions, believes salmonids will not be present at Walnut Grove.
(Whether the Bureau can manage these gates in real time adequately to protect juvenile salmon, which are small fish, remains to be seen. We understand that the Bureau’s real-time method relies on a combination of early warning surveys that measure salmon presence upstream of the Delta, and closer in along the lower Sacramento River in mid-water and beach-based surveys. Despite these methods, fish may still go undetected.)
When the Delta Cross Channel gates are closed, at low flows in the Sacramento River mainstem, migrating fish are as likely as not to stray into Georgiana Slough, the aforementioned predator hotspot. When Cross Channel gates are open, there is more opportunity for fish to stray into the central Delta where small salmon are better off avoiding.
In sum, Restore the Delta is concerned that the drought barriers will increase the number of predation hotspots and decrease the alternative paths by which emigrating juvenile salmonids can exit the Delta to reach the Bay and Pacific Ocean. Mitigations could include encouraging amateur and professional anglers to use these locations to catch predator sport fish, but are not suggested by DWR in its documentation.
Restore the Delta is also concerned that the construction, operation, and removal periods of the drought barriers will overlap and interfere with migration periods of several runs of Chinook salmon, and perhaps steelhead.
Moreover, implementing the barriers project in three consecutive years could result in extinction for salmon as well as vulnerable fish like Delta smelt and longfin smelt.
DWR also failed to look into the problem of nonnative invasive clams spreading further inland if the drought barriers are installed. They are massive filter feeders and can easily outcompete small, young fish for badly needed food.
The barriers would increase the stagnation of waters in the western Delta and in zones immediately upstream and downstream of their culverts. Because flows would be staunched by the barriers (that’s their purpose) contaminants and salts may concentrate, causing unexamined water quality problems locally in the Delta. The effects of increasing salts in the western Delta on Antioch’s water supplies were not examined either by DWR.
DWR’s barriers document failed to consider the cumulative impacts on the Delta of their temporary urgency change petition (see previous story), DWR and the Bureau of Reclamation’s drought contingency plan for 2015, the Delta Plan, and other habitat conservation plans in the vicinity of the proposed emergency drought barriers.
Finally, Restore the Delta joins with the California Sportfishing Protection Alliance to call on DWR to prepare an Environmental Impact Report, and for the Army Corps of Engineers to require one prior to issuing a program permit, and to develop the triggers necessary to make the barriers project a program worthy of greater public confidence, rather than the drought improvisation program (“DIP”) that it appears to be.
This Tuesday, March 17th, the State Water Resources Control Board will resume its slow slog toward addressing paper water when it discusses and readopts emergency drought regulations that authorize it to demand water rights information from Central Valley water users, including Delta users.
The Board issued a “drought information order” back on February 5th requiring all Central Valley and Delta water users to submit information documenting their water rights. But the emergency regulations under which the Board issued the order expired February 28th.
To follow through legally on their original order, the Board must readopt the regulations at its March 17th meeting.
By obtaining this information, Board water rights staff will begin the process of evaluating the quality of the water right claims in an effort to determine water demand more accurately during the drought in 2015.
Up and down the Central Valley, the prospect of the Water Board curtailing supplies for a third consecutive year worries many water users. The data the Board obtains from the February 5th order will help it figure out how many users may be affected. The Board could also begin eliminating “paper water” from Central Valley water ways.
“In the meantime, just about everyone in the Delta has complied in good faith with the drought information order, even though they only gave water users 30 days. Only a few are late, but they’re getting their data in.”
The State Water Board could have asked for the water rights data a lot earlier and avoided the crunch and their online reporting system had a number of glitches, especially for users with older, senior water rights. But on the whole, the process went reasonably well for most.
Paper water is the practical reality in California that there are far more water rights claims to use water than there is actual water to allocate to them—especially during droughts.
More users chase less water, which can have serious consequences for water users and the environment.
Already during the drought, state and federal water projects have seen very low allocations because of their junior water rights, as have many other large and small water right holders throughout the Central Valley. And 95 percent of young winter-run Chinook salmon were killed in the Sacramento River because of insufficient cold water supplies to protect them late last summer.
The Board’s draft resolution connects paper water to curtailment as an accounting problem.
“In 2014,…many persons who received curtailment notices for a post-1914 right claimed a riparian or pre-1914 right for continued diversions. In many instances, the claimed right had never been reported to the Division [of Water Rights], even though riparian and pre-1914 diversions must typically be reported under [the] Water Code,” says the resolution.
When someone holds more than one water right, they divert “first under any applicable senior right,” the resolution goes on, “with diversion occurring under a more junior right only after the senior right has been satisfied, the large number of such claims suggests accounting problems, failure to file claims, and/or falsification.
“The Division [of Water Rights] will use informational orders, authorized under the emergency regulation, to obtain information on previously unclaimed rights and also regarding certain known claims. This information will include diversion amounts and the basis and extent of claims.”
Many water users from the south Delta have been challenged before the State Water Board in recent years and their rights have been found by the Delta Watermaster to have a sound basis in law and practice.
It remains to be seen how many valid water right claims exist in the Sacramento and San Joaquin Valley.
If you have time to attend the State Water Board meeting on Tuesday in Sacramento, here are some messages you might convey:
Water users with Delta water rights may assert their compliance with the regulation in good faith, despite the regulation’s expiration before the drought information order deadline for submitting your information.
One important message from RTD supporters is to thank the Board for including ALL water rights holders up and down the Central Valley watershed, not just singling out Delta water rights as DWR and the Bureau 9 months ago with their complaint to the SWRCB.
Another message is to ask the Board and staff to conduct their review of water rights fairly and equitably, and prevent waste and unreasonable use and unreasonable methods of use and diversion as our state constitution and water code call for.
Delta speakers may also urge the Board as it implements the regulation to always keep its public trust obligations in mind, that ALL water rights are subject to the public trust, not just the Delta, and that protecting public trust resources like fish and other ecosystem resources is critical to getting Delta ecosystems and fish through this drought and for the long-term.
Once they pass this resolution, the Board will be on record as opposing paper water, and should be thanked for that as well. Elimination of paper water is good for reliability of real water rights claims and good for fish, and will help the State Water Board regulate increasingly scarce supplies during the drought.
The Board’s Emergency Drought Regulation item is found here.
There may be only limited opportunity for individuals to give public comment, so when you arrive use the Board’s blue cards at the back of the room to sign up for these items.
State Water Board meeting specifics:
Date: March 17, 2015
Time: 1:00 PM for item 9
Place: Coastal Hearing Room, 2nd Floor, CalEPA Building 1001 I Street (at 10th Street), Sacramento
Parking across I Street from the CalEPA building in the City of Sacramento parking structure.
The Coastal Hearing Room is disabled accessible via elevator off the 1st floor lobby.