Instream flows for Californian rivers should be State Water Resources Control Board decisions with the force of law rather than voluntary agreements for several reasons. For this post, let’s posit that voluntary agreements would work as well to bring back salmon. Even were that true, I list below several reasons the State Water Resources Control Board should still continue with their Draft Flow Objectives process and set instream flows as State law.
My top reasons:
- To (eventually) reduce conflict by reducing uncertainty. As it stands, our cobbled together water rights system contains enough unresolved questions that most parties can put together a plausible argument for continuing to fight. The earliest water districts can argue that they pre-date the SWRCB so the SWRCB has no regulatory authority over their water use. There are unused codes and doctrines to protect fish, and we don’t know how strong those are. Even if the Resources Agency can cobble together voluntary agreements that can do what instream flows would do, those would leave the contradictory and unsolved legal questions about water rights in place. Answering those questions will take conflict in the short term. But getting clear answers will reduce conflict in the long term.
- People who want a water market should support these instream flow requirements. One of the risks of a water market is that it becomes a super-efficient siphon of water out of the environment. With instream flows protected, water markets would only be buying and selling the water that humans would be using as an economic commodity. Legal instream flows are a foundational part of the structure for a water market. They would greatly simplify a programmatic EIR for water transfers as well.
- Enforcement of State Board decisions would be more straightforward for instream flows than for a statewide hodgepodge of voluntary agreements. Further, I don’t understand what remedies are available for failure to meet “voluntary agreements.” Fines? To whom? Targeted how? Cease and Desist orders? Personal civil charges? What happens when a restoration project with every good intention runs five years behind and the species becomes that much more precarious? How is that resolved, and how should the State agency pursue and enforce it? How should a State agency follow up on multiple similar situations, with multiple local partners each with slightly different agreements and authorities? Instream flows would be more readily monitored and enforced.
- It is their job. The State Water Resources has a legal duty to regulate the waters of the state and a moral duty to follow the science where it leads. Anything besides following the best available science on questions that are essentially biological is arbitrary.