California Governor Gavin Newsom
California Governor Gavin Newsom. (Photo: Sheila Fitzgerald / Shutterstock.com)
Christine Souza
Christine Souza Assistant Editor, Ag Alert

By Christine Souza, Assistant Editor, Ag Alert

Gov. Gavin Newsom sounded an alarm last week as he announced a strategy to capture and store more water while investing in infrastructure to avert catastrophic impacts of an anticipated loss of another 10% in California water supplies by 2040.

Newsom’s water plan seeks to create storage space for up to 4 million acre-feet of water, in hopes of capturing more water in wet years. He also called for increased water recycling and conservation and building desalination plants for ocean water and salty water in groundwater basins.

As Newsom declared “we have a renewed sense of urgency to address this issue head on,” California farmers and ranchers were already severely impacted by water supply cuts and a third year of drought. And they were bracing for things to get worse.

Just a day before Newsom’s water message, the State Water Resources Control Board was hearing concerns about environmental documents for a proposed regulation to direct more river flows away from irrigators and down the lower San Joaquin River tributaries to benefit fish. The plan could make water for irrigation even more scarce.

California Farm Bureau Senior Counsel Chris Scheuring said the state’s proposal to implement flows as part of the water quality control plan for the Sacramento-San Joaquin River Delta, known as the Bay-Delta plan, “describes how the state is going to tell farmers and irrigation districts, some cities and others to stop diverting water under their water rights because a certain amount of the river is off limits to protect fish and water quality in the delta.”

The first phase of the Bay-Delta plan, adopted by the state in 2018, establishes water-quality standards and redirects 30% to 50% of “unimpaired flows” in the lower San Joaquin River tributaries—the Stanislaus, Tuolumne and Merced rivers.

Scheuring described the diversion of flows as a regulatory action that restricts the use of water rights. “From the perspective of people whose water will be taken away to service fish populations, which is dubious because you may not bring the fish back, it feels like a water grab,” he said.

Thomas Berliner, speaking on behalf of the Merced Irrigation District, said the water board is using its proposed regulation to redistribute water rights, which he said would set a terrible precedent.

“(The regulation) appears to be a very transparent attempt to lower the bar of legal review that would be associated with a regulation rather than going through a quasi-adjudication water rights proceeding,” Berliner said. “It suggests that the water board, on the basis of a relatively loose legal threshold, can come in and essentially take away water from one user and provide the benefit of it to another user just under the guise of a regulation.”

In the months after the state adopted the Bay-Delta plan, more than a dozen lawsuits were filed, including by the California Farm Bureau, water districts and urban water suppliers. Environmental and fishing groups also brought legal actions. Those representing districts and water-right holders say the plan is an overreach by the state. Environmental groups say it doesn’t go far enough to protect fish.

Scheuring said the cases were coordinated, and the matter is ongoing in Sacramento County Superior Court.

Voluntary agreements, which include flow and nonflow measures to address the needs of fish, were promoted by the governor and others as an alternative to the board’s flows-only approach and potential lengthy, costly litigation.

Berliner urged more flexibility. He called on the board to consider “voluntary agreements that hopefully could be used to protect the local interests, the river and downstream requirements.”

Michael Cooke, director of water resources and regulatory affairs at Turlock Irrigation District, said, “Both flow and nonflow measures are necessary to achieve (the plan’s) stated objectives.” The Turlock district jointly operates Don Pedro Reservoir on the Tuolumne River with the Modesto Irrigation District.

Cooke urged that voluntary agreements for the Tuolumne River be included in the implementation regulation’s environmental impact report, arguing that “unimpaired flow by itself will not achieve the purpose of the Bay-Delta plan.”

John Herrick, general counsel and manager for the South Delta Water Agency, said Central Valley Project and State Water Project operations have led to delta salinity, a major water-quality concern.

“Before the projects were involved, there was more water coming down the San Joaquin River than after the projects,” Herrick said. “As we go through this process, you have to make sure that the people that caused the salinity problem in the south delta do not escape responsibility.”

Defenders of Wildlife water policy advisor Ashley Overhouse said the plan “is long overdue” and encouraged the state to move quickly to implement the regulation.

Many anticipate the issue will be battled out in the courts in the coming years.

Stanislaus County farmer Nick Blom, a Modesto Irrigation District board director, said, “Between attorneys, staff and everyone working on this, we’re going to make sure that we keep the district whole. If it comes down to a lawsuit, that’s what it is. But we’re not giving away the farm, that’s for sure.”

Public comments on the draft to implement the Bay-Delta plan for the lower San Joaquin River tributaries are due by noon Sept. 9.