Side thoughts on why instream flow requirements should be law, not voluntary agreements.

Note: in this post, I am not positing that voluntary agreements would be as successful as instream flow requirements.

  • I welcome a court fight over instream flow requirements.  It is time to do this.  Why have F&G §5937, the Public Trust doctrine and the Reasonable Use doctrine if we never use them or if we use them after the fish are extinct?  If they are no good, let’s find that out.  They are equally no good if they are never used.

II.  This is exactly the role that the State should play.  Decisions of this sort will necessarily feel ‘unbalanced’ within the regions that have gotten used to using 80% of the flow of the river.  But it is right and proper for the State to balance the preferences of the entire state, including the 38 million people in other regions who want our salmon runs to continue to exist.  No one regional entity can take that perspective, and they are too close to their electorate to make a sacrifice like that even if they wanted to.  It requires authorities at the State level to see the statewide picture.

c.  I hope we are seeing the pendulum swing back from the State’s emphasis on “regional management”.  That always looked more like an abrogation of responsibility than a governing philosophy to me.

4.  I was pretty bummed about this letter from Gov. Brown.  I attribute it to a sense of urgency on advancing the tunnels before his administration ends.  But his single-minded focus on the tunnels has been a real shame.  It made his water policies risk-averse.  I believe he could have advanced water management in the state far more if his agencies hadn’t been absorbed by the tunnels.  Now I have to wonder whether the progress that the State Board made wasn’t because of Gov. Brown, but despite him.  (To my eye, the only thing he really viscerally cared about was turf removal.  We made a great deal of progress on turf removal.)

Anyway, we should hear back about whatever ‘voluntary agreements’ the Resources Agency was able to find in the near term.  That’ll be interesting.


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5 responses to “Side thoughts on why instream flow requirements should be law, not voluntary agreements.

  1. Chris Gilbert

    Trying to access Comments at the end but I get a bad link msg.

  2. caroleekrieger

    Dear On the Record,

    Wanted to share something I wrote about the public trust and why it matters…thanks so much for your honest perspective on these important issues.


  3. Noel Park


  4. The waste and unreasonable use sections of the California Constitution should be used by the SWRCB to limit/reduce water that is used to support the dairy and livestock industry. That re-allocated/redirected water can be used to protect and restore native fisheries in the future. In any case, I have filed a complaint with the SWRCB requesting this, with the basis for the complaint incorporated therein. You can download it (and the original documentation submitted to the SWRCB that is related to it) at my web page: See 9-29-16 SWRCB complaint.

  5. Thomas J Busse

    Why not then just have members of the regional water quality control board be elected by the public and set a new office of a statewide water commissioner? The current system is two times removed from the electorate, and the appointment of officials, with quasi-protected statuses representing “the public” or “a qualified environmental scientist” creates a system inherently unbalanced. Moreover, the state’s Voting Rights Act prevents any at-large board member from being elected to look at the big picture. We constantly have to deal with bait-and switch, where the Bay Ferries are now the “water emergency transportation authority” and the inland feeder project was sold as an emergency firefighting tool.

    In the old days, we set up these agencies to be elected: the South Coast Air Quality Management District or the Board of Equalization. The 38-million people you appeal to don’t use words like “impound” and “convey,” and the only statewide elected officials to care about water (our Senators) are at loggerheads and run on buzzword environmental terms and grandstanding social issues.