While multiple projects and initiatives concerning water conveyance and use in the Sacramento-San Joaquin Delta have been in progress for several years, many of these projects are reaching new milestones now against the backdrop of continued extreme drought. A prime example of this is the signing of a Memorandum of Understanding (MOU) outlining the framework of the Voluntary Agreements in February 2022, which is an historic effort by water suppliers, state and federal regulators, and environmental groups to come to an agreement about water supply management in the Delta watershed that both ensures water users have predictable supplies and provides for habitat and environmental restoration projects.
The Voluntary Agreements are, in a sense, a “budget” for water and the environment in the Delta watershed. As outlined in the MOU framework, it consists of an adaptive management program with a 15-year time horizon and expands the tools available to address fish populations beyond solely increasing flows. The framework includes providing up to 900,000 acre-feet of new flows for the environment above existing levels in dry, below normal, an above normal water years, with other levels for critical years. It also includes restoring tens of thousands of acres of habitat for spawning and floodplains, among other goals. Additionally, the Voluntary Agreements include a robust and collaborative science program to strategically implement flow and non-flow methods for achieving water quality and fish needs. Perhaps the most important piece of this approach is that implementation is fast tracked, which means that both water and habitat are added more quickly than under the traditional regulatory process.
The Voluntary Agreements arose out of a desire to negotiate a collaborative approach for water supply and flows through the Delta in light of the State Water Board’s amended Bay-Delta Water Quality Control Plan (Bay-Delta Plan), which would have required a certain amount of unimpaired flow to pass through tributaries to the San Joaquin River in order to maintain fish habitat and meet salinity requirements in the Delta proper. The amended plan has been embroiled in litigation since its adoption in late 2018 due to disputes over the sufficiency of findings and evidence to support the plan. The Voluntary Agreements became a way for stakeholders, including the State, to come together to develop a solution for water in the Delta in a more flexible way than the stringent regulatory process would have allowed. In essence, this is an alternative to a directive from the State Water Board imposing top-down flow requirements the board deems necessary to achieve water quality standards.
The MOU executed in February 2022 is not the end of the road for the Voluntary Agreements but is a key milestone for the effort. With the MOU in place, the next phase of environmental review can begin before the State Water Board. Simultaneously, signatory groups will continue to refine the agreements themselves to set forth commitments in more detail.
In the meantime, dissatisfied environmental justice groups have recently filed a petition for review with the State Water Board, arguing that the Board should proceed with updating the Bay-Delta Plan and rejecting the concept of the Voluntary Agreements as an alternative to regulation. Concerns about salmon populations and harmful algal blooms feature among the petition’s allegations of issues that must be solved by a Bay-Delta Plan update. This petition could be a procedural first step toward litigation over the vision of Delta water management under the Voluntary Agreements. Because the Voluntary Agreements represent a new approach to water supply management in California, it is not surprising that the effort would draw threats of litigation.
Similar opposition took the form of AB 2639 (Quirk), which failed passage on the Assembly Floor last week. This bill would have required the State Water Board to complete updates to the Bay-Delta Plan by 2024 and prevented the State Water Board from issuing new water rights permits in the Delta watershed until the plan was updated. The bill ignored the existence of the Voluntary Agreements, and if it had passed, could have stymied progress on the review and finalization of the agreements.
With any luck, the Voluntary Agreements will continue to withstand opposition and become a model for creative and adaptive water supply management. Even now, the MOU for the Voluntary Agreements shows what stakeholders can achieve when in a collaborative posture rather than confrontational regulatory environment