Voluntary Settlement Agreements and SB1

Water Wrights: Exchange Contractors, Aug 2 meeting.

Under legislation White reported SB 1 has to be amended. White said no one asked Newsom if he’d veto the bill if unamended during the meeting he spent with him. But Newsom has been reported by several good sources as being very aware of the train wreck SB 1 could cause the voluntary agreements – agreements Newsom is in favor of.

Minasian gave his report saying the voluntary agreements are not moving forward, backward or sideways in light of SB 1.

Oh fuck no.

Look. I don’t like the VSA’s. There are all the usual reasons. I don’t believe the districts will offer meaningful water. If there is potential habitat restoration, then it is already owed to us. The enviros aren’t being included in the negotiations, and I certainly have no faith in Bonham to represent the river.

Further, it is morally wrong for the State to be negotiating the VSA’s as it is.  This might be more clear if our nations had Rights of the River, as other countries do. In that case, the river itself would have a fundamental right to exist with a living ecosystem. We don’t have that, but we do have the Public Trust. The people of the California have a right to a living, thriving river and the State has a duty to safeguard that. The VSA’s change the discussion from the primacy of the Public Trust, to bargaining within the riparian and appropriative rights system. Chris Shutes explained that here, where he writes:

[T]hese deals “preempt” a formal balancing of the public trust.  They don’t start from the premise that water for the public trust is primordial and fundamentally different than water for developmental uses.

The Voluntary Settlement Agreements are an initiative by water users, aided and abetted by the California Departments of Natural Resources and Fish and Wildlife, to substitute private agreements in place of balancing the public trust.  …  CSPA’s fundamental disagreement with the Voluntary Settlements is that they place the system of water rights priority before the public trust; water for the public trust becomes the sloppy seconds of business as usual.  The argument is with relegating the public trust to leftovers, not with the size or quality of the leftovers.

Governor Newsom understood the meaning of a fundamental right when he legalized gay marriage. He understood that when a fundamental right is at stake, it is wrong to bargain for functionally equivalent “civil unions” that could happen faster or get sued less. If he internalized the fundamental right of a river to exist (either for itself as an entity, or for the people of the State), he would understand that bargaining about it as an economic commodity is morally wrong.

So the VSA’s suck because the State is bargaining on morally faulty grounds, excluding some interests, and getting a bad bargain. Fine. We knew all that.

What I didn’t know before reading this report from the Aug 2nd Exchange Contractors meeting is that the Newsom administration is fucking up this negotiation. All other qualms aside, that first paragraph makes it clear that the water district interests think the Newsom administration want the VSA’s more than water districts do.  The water districts think that the Newsom administration wants the VSA’s so badly that he will veto environmental legislation in order to get the VSA’s.

Whoever is running these negotiations, up in Agency? You have fucked up. The only possible posture that the State could have taken is that you are dying to go ahead with the State Board’s instream flows, but out of the goodness of your heart and your sweet cooperative nature, you will give the water districts six months to make you their best possible offer.  After that, you will no longer be able to restrain that rabid beast Esquivel, and the State Board will go ahead with their process.

Instead, whomever is negotiating for the State has compromised so much that the districts have accurately come to the conclusion that the administration wants the VSA’s more than they do. They have stopped being afraid the State will enforce the BATNA. So they have the Newsom administration by the balls and they’re starting to squeeze (‘you can have the VSA’s if you veto enviro legislation’).  This is a complete reversal of the rightful negotiation power between the parties. The VSA’s were never a good idea, but seeing that the Newsom administration is getting played makes them that much worse.

I am afraid that the thing that the Newsom administration wants more than living rivers is a history of “deals” that they can point to when he campaigns for president in 2028. I picture Crowfoot imagining himself as Secretary of Interior and murmuring ‘the Crowfoot Compromises? Oh no, that’s too much. It’s just that I love a win-win solution so damn much.’