Notes from the 5-0 vote
– Tim Stroshane, Policy Analyst, Restore the Delta
SACRAMENTO (August 3, 2021) – Tonight the State Water Resources Control Board adopted emergency regulations that will authorize water diversion curtailment orders for the Bay-Delta watershed—reaching from near to the Oregon border to Mendota and Fresno area along the San Joaquin River.
With their 5-0 unanimous vote, the Board sets in motion a set of far-reaching rules that give it access to demand data from water right holders for comparison with flow data from the watershed’s rivers. Staff analysis of these comparisons are intended to improve accuracy of shortage estimates for every watershed in the Bay-Delta region, the basis by which Board will issue curtailment orders yet to come.
Such orders, once issued, will require those receiving them to stop diverting water from rivers and streams until further Water Board analysis shows water exists in their watershed to supply legal diversions. No one knows for certain when that will be, but it could be as early as this fall.
Nearly all public commenters, Water Board appointees, and Board staff acknowledged at today’s meeting that there has been no rain, and that reservoir storage is at historic lows and decreasing well into October, nearly three full months to come.
This morning, California Department of Water Resources director Karla Nemeth, U.S. Bureau of Reclamation regional director Ernest Conant, and California Department of Food and Agriculture director Karen Ross each expressed unequivocal support for Board action to protect water supplies for the remainder of the water year.
During a drought update this morning, the Board heard that the federal Shasta Lake on the Sacramento River is at 25 percent of capacity and 35 percent of average storage, as are the federal Folsom Lake on the American and Lake Oroville (a state reservoir) on the Feather.
The best performing reservoir at this time is New Melones Lake on the Stanislaus is at 71 percent of average storage and 44 percent of capacity. The Bureau’s Ernest Conant stated that New Melones was being used not only to meet Delta water quality standards from the south but also to help shield Lake Shasta from some releases in order to nurse that reservoir’s cold water pool intended to protect Chinook salmon runs directly endangered by high water temperatures and low flows later this summer and fall.
San Luis Reservoir, which is the first storage stop for state and federal water exports from the Delta near Los Banos, holds just 42 percent of its average volume and just 21 percent of its capacity, not a pretty picture with nearly two full months left in the usual irrigation season in the San Joaquin Valley.
Eric Orellano of the Community Water Center in Visalia asked the Water Board this morning to be mindful of the impacts of surface water curtailments on many small communities in the San Joaquin Valley dependent on groundwater wells. “When agricultural neighbors lose their surface water, they start pumping,” he said, adding “Domestic wells in these communities fail and lose their supplies.”
As in past droughts, water users, especially those in the San Joaquin River tributaries, alleged Delta agricultural irrigators generally of illegal diversions. No specific culprits were named in public comment. However, Delta irrigators typically have riparian water rights, which are considered “paramount” in California’s hierarchical system of water rights.
Many Delta islands’ water right holders trace their property’s existence to the 1860s when Delta islands were first reclaimed from the vast tule marshes that existed prior to colonization. During the last drought, the Delta Watermaster, who is appointed by the Water Board, acknowledged that Delta irrigators conserved water by about 25 percent.
If such accusations against Delta irrigators were to gain traction, more Delta flows would possibly be made available for export to the San Joaquin Valley, which is why water coalitions like the San Joaquin Tributaries Association and Westlands Water District (headquartered in Fresno) make this gesture during each drought.
Delta-based attorneys and engineers contributed a number of observations to today’s meeting.
Dante Nomellini, Sr., general manager of the Central Delta Water Agency, reminded the Water Board that it needs to do a study of what the state and federal projects can deliver in the next four years. The Central Valley Project and State Water Project, he said, were supposed to provide enough stored water to mitigate a six year drought. But the system, he said, is over-appropriated. He urged the Water Board to work with the Bureau and the Department of Water Resources to do such a plan. “We need to know what our firm yield is,” he concluded.
Jennifer Spaletta, an attorney representing several north and east Delta water agencies, told the Board at last Tuesday’s workshop regarding the emergency regulations, that “trust is at issue. It is critical that any orders under the emergency regulations not be based on unsubstantiated facts,” particularly for pre-1914 appropriative water right holders in the region, she said.
Engineer Susan Paulsen, representing both the City of Antioch and Byron-Bethany Irrigation District, addressed the issue of how long Delta inflows remain in Delta channels, and urged the Water Board to recognize her clients’ data showing that it is there longer than the Board’s assumption of one-month’s “residence time” of water.
“Right now,” Paulsen said, “residence time is two to three months, so a one-month assumption” for the Board’s water supply model “is incorrect.” Water here now in the Delta “entered in April and early May” and is still here. She stated that a shorter residence time assumption benefits those relying on stored water for Delta exports, while recognizing a true longer residence time benefits Delta diverters, including her clients, indicating how such technical issues can make a difference in how Delta water is allocated and to whom.
One staff decision that clearly benefits Delta irrigators and diverters: Ms. Riddle stated that Delta users cannot claim both riparian and appropriative rights, but those claiming both will be considered by the Board riparian, which carries a more senior status in California’s water rights system.
Riddle noted too that if supply conditions deteriorate further, “correlative reductions among riparians would trigger a Water Board workshop.” Riparian right holders by law are required to share the burden of reduced flows, and the Board has not had to address this before. Such a workshop would investigate how that would be done specifically with riparian water users.
During the meeting, Board Chair Joaquin Esquivel noted that the Water Board received in this year’s state budget “$30 million for a new water rights information system for administering water rights.” It will be implemented over several years.
Staff hope that it will improve the Water Board’s ability to administer the system during droughts. With such a system, and what today’s emergency regulations decision will help with, said water rights division deputy manager Diane Riddle, is to enable the Board to “have information in July to project water demand for August, coupled with supply data from rivers and streams,” thereby basing curtailment orders on current and timely information.
Board member Laurel Firestone stated prior to Board approval of the new regulations, said she was “sobered by the reality of this drought, including for next year.” She expressed concern for vulnerability communities dependent on groundwater if surface water is curtailed. “This won’t be resolved by our action here today,” she acknowledged adding, “these are blunt instruments we’re using. Health and safety needs need to be beefed up somehow within this framework, with incentives for storage to protect vulnerable communities.”
The Delta is itself home to about 75 community water systems, about 70 of which are groundwater dependent. A major concern expressed in staff’s presentation on the regulations is whether state and federal water operations in the Bay-Delta watershed can protect against salinity intrusion from San Francisco Bay if the drought continues into 2022. Apart from fear of impacts to Delta exports and in-Delta diverters, these small water systems will be far more vulnerable next year if Delta waters turn salty and intrude into Delta groundwaters, where the salts will require even more freshwater to flush them out. Avoiding such an event must be a high priority for everyone, especially the State Water Board.