Why instream flows should be law, not voluntary agreements.

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:

  1.  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.
  2. 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.
  3. 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.
  4. 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.



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7 responses to “Why instream flows should be law, not voluntary agreements.

  1. alectrojan

    How should regulations cover this scenario – If a wastewater plant creates enough effluent to create a river that supports recreation and fish and wildlife, does the community ever get a choice to keep their sewer effluent for Potable Reuse?

  2. dzetland

    You can cite me (a water economist) as a supporter of this policy, as I’ve held it for several years now (it’s the backbone of Living With Water Scarcity).

    Don’t forget that the implication is that “contingent valuation” and “ecosystem services” SHOULD not be used to examine environmental flows, as they re-establish the tradeoff between economic and social (environmental) uses.

  3. Well, OTPR, you’re right as usual, but you’re about 35 years behind the knowledge curve concerning CA water policy as it has actually played out …

    When Carla Bard http://articles.latimes.com/1997/nov/17/local/me-54879 served as Jerry Brown-the- 1st’s State Water Resources Control Board chair, back in the late 1970’s/early 80s, she determined, based on a good deal of Board deliberation that the SWRCB had a duty to determine the irreducible amount of flow that should be left in California’s streams in order to protect instream public trust resources.

    The Board launched a program to determine how much instream flow should be left in CA’s streams (precisely the exercise the SWRCB has launched with its documents leading up to a planned early-2017 proceeding http://www.waterboards.ca.gov/waterrights/water_issues/programs/bay_delta/bay_delta_plan/water_quality_control_planning/index.shtml – unless, as you suggest, the Gov is going to head it off – his 19 September ltr to Felicia Marcus) beginning up on Cottonwood Creek, the county line between Shasta and Tehama.

    This was a ‘battleground’ stream at the time, with Shasta wanting more protection for salmon/Tehama less.

    In the midst of this SWRCB exercise Ms. Bard’s reappointment came up and the water buffaloes began a campaign to block her reappointment.

    The late Jim Rote, then consultant to Senator Barry Keene’s Joint Legislative Committee on Fisheries and Aquaculture was dispatched to warn Carla to back off the Board’s instream minimum flow determination program – or risk her reappointment. Jim took me (I was the State Senate’s principal environmental policy specialist at the time) to meet with Carla.

    Despite assurances from Brown’s principal appointees that Brown would back Ms. Bard to the limit he did not.

    Carla’s name was ultimately withdrawn from the State Senate Rules Committee (this part’s tricky – did the Gov not care enough about Ms. Bard’s reappointment or did he simply lack the ‘juice’ to secure her reappointment – it was kind of a low pt in his days-of-power) and replaced with Jerry’s ‘kissing cousin’, Carole Onorato http://www.legacy.com/obituaries/sfgate/obituary.aspx?n=carole-anne-onorato&pid=89144655 – Gavin Newsom’s aunt.

    Ms. Onorato was no shrinking violet – it was she who ordered the shutdown of west-side San Joaquin ag drainage into the Kesterson Wildlife Refuge when the toxic water caused bird deformities there became national news

    But she never had the luxury of returning to Carla Bard’s determined effort to establish instream minimum flows needed to protect public trust resources – that which needs doing for all those well-established public policy reasons that you cite, OTPR.

    Have we any reason to think that Jerry will man up on this policy matter this time around?

    Bill Kier

  4. Jim Verboon

    The State Water Resources Control Board already has that power, but is
    properly constrained by the
    existing water rights laws in the water code and constitution. They need
    to enforce those, not try
    to create new ones that they are not legal to do.

    • Mr. Verboom, I’d say you’re about half right. The SWRCB may be constrained a bit by existing water rights (I don’t know about the constitution – there seems to be a lot of constitution-thumping this election cycle) but it has a very clear duty under the public trust doctrine, as spelled out in National Audubon v. Superior Court https://en.wikipedia.org/wiki/National_Audubon_Society_v._Superior_Court to determine how much water needs to be left in California’s natural systems to protect public trust resources. I appreciate that this public trust doctrine notion goes against the grain of the Wild West grab-it-before-the-other-guy-does culture, but it has very deep roots in American law, beginning with a turn-of-the-19th century U.S. case that upheld the right of the orphans of East Coast shellfish-gatherers to harvest shellfish with which to survive on from tidelands granted by the states to politically-connected fisheries operators. The court came down on the side of the orphans and in so doing launched a steady – albeit (what we used to call ‘glacial speed-’) judicial doctrine stretching all these 200-plus years to today’s discussion of how to protect the San Francisco Bay-Delta Estuary and the streams that feed it.

  5. Diane Livia

    Water rights do not get in the way of the SWRCB legally setting in-stream limits. This suggestion by OTPR is a no-brainer.

  6. Steve

    I agree – instream flows should be law. However, I think many people overlook the challenge of making them law. Making them law means adjudicating the water rights to apportion the contribution of each water right holder to achieving instream flows and water quality objectives. The board must hear from each and every water right holder his or her view on what their contribution should be, based on law and science. Each and every other water right holder, and the public, has an opportunity to dispute the facts of each water right. Then the board decides, and each decision is subject to appeal. There are approximately 10,000 water rights holders in the San Joaquin and Sacramento river basins. How long would such an adjudication take? The adjudication in the Klamath basin, with less than 500 water rights, has taken more than 27 years and it is just entering the judicial phase. It could reach 40 years. The water board already tried once to implement instream flows through water rights and failed. That was Phase 8 of the 1995 Bay Delta Plan update process. Phase 8 was grinding to a halt when the Bureau of DWR stepped in to say they would take the primary responsibility for meeting water quality objectives of the 1995 Bay Delta Plan — on a temporary basis. That was D-1641 in 2001. So what would lead us to think that an adjudication would be any more successful today than it was for the 1995 Bay Delta Plan update? I don’t see any evidence it would be easier today. Indeed, perhaps far more difficult. Do Central Valley salmon have decades to wait for improved conditions?