Don Pedro Dam and Powerhouse located on the Tuolumne River provides water and hydropower to Modesto and Turlock irrigation districts.
developing and enforcing water quality standards. The existing 2006 Water Quality Control Plan for the Bay-Delta was last reviewed in 2006 when minor changes were made to the 1995 Plan that came on the heels of the landmark Bay-Delta Accord. In 2009, the State Water Board adopted a report that identified the potential need to revise the existing Delta outflow objectives and export/inflow objectives. “There’s a number of factors driving the Board’s review of water quality objectives, including the Clean Water Act, that requires [us] to review our basin plan … and so the Water Board has been doing this every five to six years as a matter of review and the last time we actually changed the flows was in 1995,” said Howard, who noted that making no changes “is always an option.”
“The aquatic organisms and the habitat don’t have other choices – they have to be in the Delta and they have to rely on flow.”
– Gary Bobker, The Bay Institute
Those calling for more freshwater for the Delta say the change is needed to improve the base conditions upon which the ecosystem operates. “The consensus of the vast major- ity of independent scientists is that freshwater flows into, through, and out of the Delta throughout the year are far too low to support our valuable native species and beneficial ecosystem processes,” said Jon Rosenfield, conser- vation biologist with the Bay Institute. “Many things are wrong with the Delta and all potentially significant prob- lems should be addressed as quickly as possible. Flow is not only the one of the most important [things] but it is also conveniently the knob that can be turned most rapidly and so for both reasons it is the knob that should be turned first.”
Once water quality objectives are established for the Delta in a quasi- legislative process that is roughly equivalent to rulemaking, the State Water Board then begins the far more difficult quasi-judicial process of adjust- ing water rights, if necessary. One of the underpinnings of the water quality-water rights nexus is a 2006 legal decision in what was referred to as the “State Water Board Cases” by Third District Court of
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Appeal Judge Ronald B. Robie. Robie wrote that “when a water quality control plan calls for a particular flow objective to be achieved by allocating responsibility to meet that objective in a water rights proceeding, and the plan does not provide for any alternate, experimental basis, the decision in that water rights proceeding must fully implement the flow objective provided for in the plan.”
“Robie basically said, ‘if you set a water quality objective, you have to implement it,’” said Kincaid. “You don’t have the option of saying, ‘here is an objective, we will wait to imple- ment or we won’t implement it.’” The water quality plan must account for several factors – how much water comes from Delta tributaries, including the Sacramento and San Joaquin rivers, and their contribution towards maintaining salinity at a loca- tion in the Delta to protect various fish species, also known as the “X2” factor. In its task, the State Water Board will have to look at what are the “most sensitive” uses of water in the Delta and how they can be helped by a modi- fied flow regime, said Bobker. “The aquatic organisms and the
habitat don’t have other choices – they have to be in the Delta and they have to rely on flow,” he said. “They can’t do the equivalent of changing cropping patterns or fallowing for a year or going to an alternative water source from somewhere else. Other uses have more flexibility than ecosystem uses and I think that has to be reflected in the priorities set when you balance.” Ryan Bezerra, an attorney for sev- eral water agencies in the Sacramento Valley, said new Delta stream flow re- quirements could “severely undermine” existing agreements such as the Yuba River Accord and the Water Forum that deal with managing flows in up- stream rivers to promote both fisheries and water uses.
“Any Delta stream flow require- ments that would be based on percent- ages of unimpaired flows would be particularly likely to have this effect because the upstream agreements …