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Tribes and Delta Activists: What to look for in New State Water Board Documents

For Immediate Release: 9/28/23


Stephanie Safdi, Stanford Environmental Law Clinic, (513) 324-1965, Ssafdi@standford.edu

Barbara Barrigan-Parrilla, Restore the Delta, (209) 479-2053, [email protected]

Max Gomberg, Shingle Springs Band of Miwok Indians, (415) 310-7013, [email protected]

Sacramento, CA – Today, the California State Water Resources Control Board (“Water Board”) released its Draft Staff Report for the Phase II Update of the Bay-Delta Water Quality Control Plan (“Bay-Delta Plan”), including an illegitimate voluntary agreement program alternative.

Coalition Partners, Shingle Springs Band of Miwok Indians, the Winnemem Wintu Tribe, Little Manila Rising, and Restore the Delta have filed a Petition for Rulemaking with the U.S. Environmental Protection Agency (EPA) seeking a timely and meaningful update of the Bay-Delta Plan, and are also complainants in an ongoing investigation conducted by the EPA under Title VI of the Civil Rights Act into the State Water Board’s discriminatory mismanagement of Bay-Delta water quality. Coalition Partners, joined by Buena Vista Rancheria, offer initial observations and comments.

Bay-Delta Plan & Voluntary Agreement Updates
The State Water Board is required to produce a Substitute Environmental Document to analyze the environmental impacts of an update to the Bay-Delta plan to comply with the California Environmental Quality Act (CEQA). The Substitute Environmental Document (also referred to as the “Staff Report”) includes an analysis of all potential environmental and economic impacts that would result from changes proposed to the Bay-Delta Plan, as well as an analysis of project alternatives and mitigation measures to avoid or minimize impacts. The current Staff Report is for Phase II of the Bay-Delta Plan update and addresses inflow requirements in the Sacramento River, the Delta, and eastern Delta tributaries, as well as Delta outflows, cold water habitat, and interior Delta flows.

In March 2022, the California Natural Resources Agency released a Memorandum of Understanding (“MOU”) Advancing the Term Sheet for the Voluntary Agreements (“VAs”) to Update and Implement the Bay-Delta Water Quality Control Plan, followed by the State Water Board’s January 2023 Draft Scientific Basis Report Supplement in Support of Proposed VAs for the Sacramento/Delta Update to the Bay-Delta Plan. The VA process has been proposed as an alternative pathway to update and implement the Bay-Delta Plan; however, the VA process has only further delayed the overdue update to the Bay-Delta Plan. The VAs, as they have been proposed, would reduce protections for the Bay-Delta ecosystem, including trading away increased instream flow requirements for scientifically groundless habitat mitigations. The proposed VAs stem from an exclusionary negotiation process for the benefit of large water rights holders, which barred the most impacted parties from sitting at the negotiating table: California Native American tribes and environmental justice communities in the Delta, as well a broad range of important stakeholders such as conservation and fishing groups. If the Water Board moves forward with the implementation of the VAs, it would formalize the exclusion of tribes and community stakeholders, further supporting discrimination claims set forth in the Title VI complaint and subject to ongoing EPA investigation.

Update For Bay-Delta Plan Needed
An update to the Bay-Delta Plan is long overdue. The federal Clean Water Act and California Porter-Cologne Act require the Water Board to conduct triennial reviews of the Plan and update standards as necessary to ensure the protection of beneficial uses. However, the Board has not comprehensively reviewed the Plan since 2009 or updated standards subject to the Staff Report since 1995. The Board’s 2018 updates for lower San Joaquin River flows and southern Delta salinity limits (Phase I of the Bay-Delta Plan update) have yet to be implemented.

While standards languish, the health of the San Francisco Bay/Sacramento-San Joaquin Delta estuary continues to decline. Poor water quality has impeded tribes from safely practicing traditional ceremonies and activities and has impacted subsistence and cultural fishing practices. The lack of adequate flows and the absence of any objectives for harmful algal blooms (HABs) have fueled the continued proliferation of HABs throughout the Delta, impairing tribal practices and the health and welfare of environmental justice communities. Imperiled native fisheries, from Delta smelt to Chinook salmon, continue to decline, impacting food sources for tribes and environmental justice communities throughout the Bay-Delta and jeopardizing the cultural survival of fish-dependent tribal communities. A proper Staff Report supporting the Bay Delta would codify and ensure the protection of Tribal Beneficial Uses, set quantitative criteria for HABs, and recognize inadequate flows as the primary variable in the decimation of native fish habitat and driver of HABs.

Throw Out the VAs
Voluntary Agreements serve as backroom deals that continue to leave Tribes, Environmental Justice communities, conservation groups, fishing communities, and other vital stakeholders out of the government-led planning process. These Voluntary Agreements will only continue to uplift senior water rights holders and water districts, entrenching marginalization and exclusion of tribal and environmental justice communities from water rights and management. Voluntary Agreements are also not in keeping with the best available science or with regulatory requirements for science-based, public decision-making. This process will not solve the ongoing fisheries and ecological collapse of the Delta, nor will it benefit the disadvantaged communities that will suffer from these repercussions. The VA process is inequitable and a failed effort to solve the Bay-Delta’s water problems.

The VAs are illegitimate for these and other reasons:

1. VAs exclude Tribes and environmental justice communities. Voluntary agreements are a result of private negotiations between senior water rights holders, powerful water districts, and government agencies. Tribes and environmental justice communities that would be most impacted by the VAs were not included in or consulted on negotiations; integrating VAs into the Bay-Delta Plan update will formalize the exclusion of these communities and other stakeholders from decision-making on water quality standards.

2. Fail to provide adequate flows for fish and wildlife. Water flows outlined by the proposed VAs are inadequate and are not supportive of the restoration of native fish and wildlife species in the Delta. Native fish populations have long been threatened by the diversion of flows that benefit water districts.

3. Promote the proliferation of Harmful Algal Blooms. Harmful Algal Blooms (“HABs”) are a continued threat to fish, Delta communities, and native religious and cultural practices. This year proved that adequate flows in the system mitigate the proliferation of HABs. By trading away flows for scientifically baseless habitat mitigations, VAs would promote the proliferation of HABs and accompanying public health concerns and water use and access impairment.

4. Not protective of Tribal Beneficial Uses or respectful of government-to-government relationships with tribes. Tribes depend on healthy waterways for traditional, cultural, spiritual, religious, and subsistence use. Tribes are also sovereign nations, with formal rights to government-to-government consultation in decision-making processes that affect tribal lands and interests. Tribes have not been consulted on the VAs, and the VAs would substantively trade away protection of Tribal Beneficial Uses for other interests. The VA process undercuts the State’s commitments to respecting tribal sovereignty and repairing its relationship with tribal communities. And the State Water Board’s acceptance of the VAs undercuts its commitments in its 2021 Racial Equity Resolution to recognizing and protecting Tribal Beneficial Uses, meaningful engaging tribes, and establishing co-management practices with tribes.  

Questions for the Press to Consider When Reviewing the Board’s Documents
Coalition Partners will be working diligently in reviewing the Staff Report. We will be looking for the following:

1. Which of the unimpaired flow alternatives are grounded in the best available science? And which of the flow alternatives, along with the voluntary agreements, are grounded in political science?

2. How are tribal beneficial uses defined and analyzed in the document? Is there a clear pathway forward for Tribal Beneficial Use designations that are well received by tribes in the present?

3. Does the Staff Report set forth quantitative criteria to create objective targets for HABs? Are they incorporating the US EPA’s 2019 recommendations for HABs standards?

4. Do proposals ensure the recovery of California’s native fisheries, including salmon and Delta smelt fisheries? The board affirms its commitment to the goal of doubling salmon populations. But does the plan’s details indicate that implementation will achieve that objective narrative?

5. Is modeling and proposed management in keeping with California’s climate reality?

6. How does the Bay-Delta Plan Staff Report deal with Delta operations criteria, upstream storage, and cold water pools?

7. While the Plan does not continue to rely on waiver of standards through temporary urgency change orders in its baseline to manage Bay-Delta flows during dry years, why does the voluntary agreement alternative continue to do so? Is a voluntary agreement plan that encompasses continuous emergency drought measures really a science base plan? Or a political plan for take water on demand?

Statements by the Parties:

Ivan Senock, Tribal Historic Preservation and Cultural Resources Director for Buena Vista Rancheria:
“Without fully planning for, protecting, and enhancing the Delta through achievable water quality, equitable management, and tribal beneficial uses of Delta watershed rivers and the estuary, the Bay-Delta Plan staff report is woefully incomplete — which is particularly troubling after years of delays due to the closed door voluntary agreement process which left out Buena Vista Rancheria and the other Delta watershed tribes. Water flows are tied to the health of Tribes, Delta communities, fisheries, wildlife, and plant life — all parts of the environment that are tied to indigenous cultural practices and the overall health of Tribal people.”

Malissa Tayaba, Vice Chair of the Shingle Springs Band of Miwok Indians:
“Part of our Title VI complaint filed with US EPA focuses on the failure of the State Water Board to adequately engage and consult with tribes around Bay-Delta planning, which is part of required government-to-government consultation. California tribes were given insufficient notice on the Bay-Delta Plan Draft Staff Report release, demonstrating that the Board fails to understand what government-to-government consultation means for California tribes. If they cannot get the process right, it creates a great deal of distrust for working through the substance, or lack of substance, within the Bay-Delta Plan itself for tribal concerns.”

Gary Mulcahy, Government Liaison for the Winnemem Wintu Tribe:
“As we have said, there is something wrong when California Indians have to file a complaint with the Federal Government to protect our civil rights. A Bay-Delta Plan without a tribal beneficial use plan, lack of tribal and community protections from harmful algal blooms, and adequate flows for the recovery of salmon (Nur) for our people means that the Board is not taking our just demands seriously.”

Gloria E. Alonso Cruz, Environmental Justice Advocacy Coordinator for Little Manila Rising:
“The Draft Staff Report must include crucial concerns about the importance of freshwater flows for human and wildlife health. Impaired water bodies are already severely impacted by the proliferation of Harmful Algal Blooms in areas used for cultural practices, subsistence, and recreation. Not including these concerns fundamentally neglects health concerns.”

Concerning the Voluntary Agreements, “The processes to update the Voluntary Agreements (VAs) are not representative of the current demands to address environmental justice objectives in the Bay-Delta. Water negotiations should conduct comprehensive outreach efforts to consult impacted communities and grant privileges that go beyond providing input to consider.”

Cintia Cortez, Policy Analyst for Restore the Delta:
“The State Water Board has yet to create a protective HABs standard for communities that live adjacent to the Delta and its tributaries, or fully acknowledge the definitive science that links insignificant flow to the formation of HABs. Moreover, recently published research by the University of North California indicates what we have been positing – that cyanotoxins from HABs contribute to pollution in the Delta AB617 communities.”

She adds that, “The Voluntary Agreements are an exclusionary process for tribes and environmental justice communities. The communities we represent are being harmed by inadequate management of Bay-Delta flows. Voluntary Agreements will reduce flows in a system whose water quality is presently suffering from outdated water quality standards. The Board needs to direct its resources to complete the update to the Bay-Delta Water Quality Control Plan and away from VAs that continue to threaten public health.”