Mark Hitchcock Legal Fellow, EDF
EDF supported the 2009 water policy reform package passed by the California legislature, but we have always maintained that the true test of the legislation will be how effectively its provisions are implemented. An early test of the legislation begins on March 22-24, when the State Water Resources Control Board (“SWRCB”) will hold a public hearing to develop flow criteria for the Sacramento – San Joaquin Delta. The hearing is an immensely important opportunity for the SWRCB to determine how much water is needed in the Delta to restore and protect its natural resources.
The Legislation
The hearing is a central part of the Sacramento-San Joaquin Delta Reform Act of 2009 (“Reform Act’), one piece of the five water reform bills passed in November, 2009. The Reform Act established a new governance structure for state agencies responsible for the Delta with the goal of managing the Delta in sustainable way. The bill created a new Water Code §85086 that directs the SWRCB to, “pursuant to its public trust obligations, develop new flow criteria for the Delta ecosystem necessary to protect public trust resources.” Under the public trust doctrine, the SWRCB is entrusted with protecting the Delta’s aquatic resources for the benefit of the people of California. The doctrine protects a wide-range of Delta uses, including “navigation, fishing, recreation, ecology and aesthetics.” Thus, the Reform Act charges the SWRCB with developing flow levels that will ensure the biological health of the Delta estuary.
Keys to Success:
• Public Participation: The legislation requires that “[t]he flow criteria shall be developed in a public process” and that the hearing “shall provide an opportunity for all interested persons to participate.” Twenty-four parties submitted testimony to the SWRCB and will participate in the hearing, including state and federal agencies, cities, water districts and environmental groups.
• Use of the Best Available Scientific Data: The legislation requires the SWRCB to use the “best available scientific information” in its assessment of the Delta’s needs. This means that the SWRCB should rely on the most recent and rigorously peer-reviewed studies relevant to the Delta ecosystem. It does not mean that the SWRCB should adopt “certainty” as its evidentiary standard.
• Focus on the Specific Needs of the Delta: The legislation requires the SWRCB to focus on the basic flow requirements needed for a healthy Bay-Delta ecosystem without considering, at this point, how such flows would be implemented or the potential water supply impacts of such implementation. Indeed, the legislation is explicit that no water rights can be affected by the Board’s public trust flow determination unless and until a full adjudicatory water right proceeding is held at a later date
Links to a Successful Bay Delta Conservation Plan
A key benefit to having the State Board address public trust flow needs at this point is to allow the timely incorporation of its recommendations into the Bay-Delta Conservation Plan (“BDCP”). As my colleague Ann Hayden noted, the BDCP Steering Committee has struggled to determine the instream flows needed to protect and recover the ecosystem, and this flows determination will be important information that must be incorporated into the BDCP before the plan is finalized later this year. As the BDCP Steering Committee analyzes the biological effects of a new conveyance, it is essential that the needs of the Delta ecosystem be fully taken into account.
It’s Time to Get These Flows Right
With falling fish populations and the viability of the Delta ecosystem increasingly in question, the time is overdue to establish policies that guarantee a healthy and sustainable Delta ecosystem. That was one of the fundamental goals of 2009 water reform legislation, and now it is up to the SWRCB to restore the public’s trust and show that the legislation will truly be implemented in a manner that sets California on a path to long-term water solutions.