How next week’s expected State Water Board vote could trigger a flood of lawsuits

Tuolumne River is cresting the La Grange dam, a rare event that happens only in time of abundant water. Photographed in La Grange, Calif., on Friday, May 26, 2017.
Tuolumne River is cresting the La Grange dam, a rare event that happens only in time of abundant water. Photographed in La Grange, Calif., on Friday, May 26, 2017.

Most signs point to the State Water Board approving a much-disputed river flow plan next week that will mean less water for farms and cities in the Northern San Joaquin Valley.

The board, also known as the State Water Resources Control Board, is set to vote Wednesday to require irrigation districts to leave more water in the Tuolumne, Stanislaus and Merced rivers in an effort to restore salmon.

Local irrigation districts and county and city leaders have promised a prolonged battle over the water board’s final plan released in July, saying it will devastate the region’s economy and won’t help the fish.

The San Joaquin Tributaries Authority, including Modesto, Turlock and Oakdale irrigation districts, has drafted a lawsuit that will be filed within days of next week’s decision.

Water districts on the tributaries have held regular talks since September with state Department of Fish and Wildlife director Charlton “Chuck” Bonham and former Interior Secretary Bruce Babbitt on possible settlement agreements. It’s conceivable that Bonham and Department of Water Resources director Karla Nemeth could decide enough progress has been made to postpone the hearing and work on more details of settlements.

But no one is betting that will happen.

“We don’t know as we sit here today what they are telling the state board if anything,” said attorney Tim O’Laughlin, who represents the tributary association. O’Laughlin, MID and TID officials met with The Modesto Bee editorial board Wednesday.

State representatives have been flexible on some elements of the Bay Delta update, such as the proposal for 40 percent natural flow in rivers from February through June, O’Laughlin said. Because of a confidentiality pact, the attorney said he could not share more details of possible agreements.

Wednesday’s decision also is expected to trigger lawsuits from environmental groups demanding larger water releases from Sierra Nevada dams to support fish in the Sacramento-San Joaquin river delta.

A San Francisco Board of Supervisors decision this week, to support the state plan, struck at the alliance between the city’s public utilities commission and MID and TID. San Francisco’s utilities agency has rights to Tuolumne River water in Hetch Hetchy reservoir, which supplies 85 percent of water for customers in the city and 26 other communities in the Bay Area.

“We are disappointed in the supervisors’ support for the State Water Board plan,” said Michelle Reimers, assistant general manager of external affairs for TID. Reimers said a Tuolumne River management plan backed by the irrigation districts and PUC is a better alternative for boosting salmon in the river.

San Francisco’s liberal supervisors wanted to break free from an alliance with President Donald Trump, who has intervened on behalf of Central Valley water users who oppose what they call the “water grab.” The board’s support for the Bay Delta update could weaken the PUC’s ability to challenge the water board proposal in court.

More frequent water shortages and higher water rates are predicted if less river water is diverted for the cities. Before the decision Tuesday, cities and water agencies in the Bay Area urged San Francisco to postpone the pro-Delta plan vote due to the ongoing settlement talks with the state.

In an email to the San Francisco board, Santa Clara Mayor Lisa Gillmor agreed with Gov. Jerry Brown’s support for negotiated settlements with cities.

“The city believes a balance between environmental preservation and protection of water supply for our residents and businesses can be achieved,” Gillmor wrote. “This is a critical issue for our city, and we believe that a negotiated settlement is the best way to provide an adequate and reliable water supply from the Tuolumne River, a vital part of the Bay Delta.”

Supporting the decision to back the state plan were the Natural Resources Defense Council, Trout Unlimited, the Sierra Club and Tuolumne River Trust. Those groups have claimed that 50 to 60 percent river flows are needed to revive species in the delta, amounts that would drain reservoirs in consecutive dry years, according to the Valley irrigation districts.

In written comments and at hearings, critics of the water board’s proposal say it contains vague goals for salmon restoration and lacks cohesive science, despite millions spent on studies in the delta. Scientists have suggested the delta, with its severely altered waterways, no longer operates as an estuary, creating conditions that favor nonnative bass, which eradicate young salmon before they can reach the ocean.

The state is aiming for a goal of doubling salmon populations in the three rivers, though experts say few natural-born salmon return to San Joaquin tributaries.

Peter Moyle, associate director of the Center for Watershed Sciences at UC Davis, wrote in the California WaterBlog in August that “the fall run Chinook salmon population in the San Joaquin basin are being sustained by straying hatchery fish from the Sacramento River system.”

Local irrigation districts, along with the San Francisco PUC, have wanted assurance that increased flows in the San Joaquin tributaries will stream through the delta to improve outflows. It’s known that water originating from the San Joaquin basin is soon exported by the Tracy pumps to water users in the southern San Joaquin Valley.

The Bay Delta issues have coincided with hearings on Gov. Brown’s delta tunnels project to improve the conveyance of Northern California water to agribusiness in the San Joaquin Valley and urban users in Southern California.

Courts are expected to see a flurry of lawsuits in the months following next week’s water board decision. The plan requires a signoff from the federal Environmental Protection Agency, which could approve or reject it in April.

Brenda Burman, a Bureau of Reclamation commissioner, has suggested a federal lawsuit could be filed if the Stanislaus flow requirements are not consistent with congressional directives for New Melones reservoir.

Despite all the talk of lawsuits, everyone from the governor to Central Valley farmers would prefer voluntary settlements they can live with.

“If there is an opportunity for an extension on that vote, that would be advantageous to us,” said John Davids, MID’s assistant general manager of water operations.

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