Then they’d be ready when the VSAs fall apart.

Reasonable people are writing to me, saying that the VSA’s are necessary because the alternative is that the water districts will sue the State Board’s instream flow requirements and the litigation will last for decades.

We have seen attempts at collaboration with the water users fail every decade since the Bay-Delta Accords. These ones do not look promising either and they are undermining the Newsom administration’s environmental intentions. Rather than try re-run failed collaborations, the State should work within its own powers to change the constraints. The problem statement:

water districts will sue the State Board’s instream flow requirements and the litigation will last for decades

gives at least two avenues that the State could pursue without good faith agreement from water users that it will never, ever get.

  1. If the problem is that we can’t ever do instream flows because adjudications take 30 years, then fix the adjudication problem. That doesn’t require kissing some water user ass. The State can do this unilaterally. Create an adjudications court system that will last for ten years, fund and staff it generously. One court per river. The Newsom administration could work with the legislature on a bill that gives those courts jurisdiction and consolidates all cases. It isn’t a law of physics that makes adjudications take 30 years. It is neglect. Fix that neglect instead of surrendering on the environment.
  2. Why the fuck is the Newsom administration negotiating with water districts like they are some foreign government? They aren’t Tribes! Water districts are creatures of the State government. Any powers and authorities they have derive from special district legislation by the state legislature. If water districts cannot convert from a 19th century purpose to a 21st century purpose, then they are no longer useful forms of government and their enabling legislation should be re-visited. Perhaps a majority of board members should be appointed by the governor. Perhaps technology and scale have changed enough that the Valley needs only four water districts. Perhaps the SWRCB should take them into receivership. There are lots of options, because water districts are themselves extensions of State government.

These may sound like difficult options, but all they have to be is “easier than CALFED” and they’re better and faster than the VSA path. Further, they do not require that water districts buy in. Who would be more pleasant to work with to deliver change? The water users or the legislature? I bet Toni Atkins would do a trade to get SB1 passed.

It isn’t an either/or choice for the Newsom administration. They could keep working the VSAs AND appoint task forces, one for solving the adjudication problem and one to look at re-forming special districts. There is no evidence that the Newsom administration knows how to make good use of a BATNA, but it wouldn’t hurt for them to develop a couple more anyway.



Filed under Uncategorized

4 responses to “Then they’d be ready when the VSAs fall apart.

  1. Hunter Cutting

    Just a quick email to say how much I appreciate your newsletter.

    Notes the like one below are particularly useful because normalized discussions in the media rarely look beyond the status-quo options. As a result if one isn’t deeply versed in the field those options beyond status-quo become invisible.

    Thank you for sharing your insights, clearly born of a lot of hard work.



    > On Sep 27, 2019, at 4:18 AM, On the public record wroteme : > > >

  2. Donald Ferguson

    As much as I enjoy your posts your use of acronyms is off-putting. Insiders know what they mean but I don’t.

  3. Anonymous

    “VSA”: voluntary settlement agreement (specific to State’s environment-related negotiations with San Joaquin and Sacramento River watershed water users).

    “SWRCB” (also “State Board”): State Water Resources Control Board

    “SB1”: Senate Bill 1, recently vetoed by the Governor. See and

    “CALFED”: Not really acronym; more like a portmanteau of “California” and “federal”; a former program focused on Sacramento-San Joaquin River Delta. See

    “BATNA”: best alternative(s) to a negotiated agreement. Negotiation concept that can help in all facets of life; what can happen if talks break down?

  4. The problem is not that water agencies will sue the State Water Board without cause, it’s that the State Water Board’s proposal for unimpaired flows is fundamentally flawed, and has already been challenged in the San Joaquin Valley, and will be challenged in the Sacramento Valley, if it were to go forward. The Voluntary Agreements address the issues that the Water Board itself admits are not part of its package – temperature management, habitat restoration, functional flows, etc. The Water Board and the rest of the State team are in the middle of comparing the unimpaired flows approach to the VA proposals, using two different hydrologic models and then habitat and temperature models (which were not used for the San Joaquin Valley water quality control plan), so statements that the VAs fail to include adequate flows and habitat contributions are premature, at best.