Democrat correspondent

SACRAMENTO — The California Delta, where the San Joaquin and Sacramento rivers merge with the San Francisco Bay, looks like the human blood circulation system, with major vessels connecting to increasingly smaller channels and sloughs surrounding islands. It contains around 1,000 miles of waterways.

The Delta lands are primarily agricultural, home to farms for around 150 years. The waterways provide the most popular inland area for boating and fishing in the state, are subject to increasing urbanization and supply important ecological habitat.

Water management of the Delta has been an ongoing struggle for decades, played out in the Legislature, the courts and the executive branch from the Governor's Office on down through the agencies.

The periodic wins and losses in the battles over water affect all Californians, but are of particular concern to people in the mountain counties, the sources of fresh water for the state.

Basic problem No. 1: There is not enough water to go around. California is essentially a dry state.

Basic problem No. 2: Demand is increasing. Population is increasing in the state and in Northern California.

Local needs

In El Dorado County, the El Dorado Irrigation District reports it will need an additional 34,000 acre-feet (“af” — one foot of water covering one acre) by 2025. Georgetown Divide Public Utility District cites the El Dorado Water Agency “Water Resources Development and Management Plan,” which states that the district will need an additional 10,300 af to serve its customers.

Seventy-five per cent of GDPUD customers are agricultural; 25 percent are commercial or residential.

Both districts are working on means to increase capacity, but the remedies may require acquisition of new water rights. One question is whether waters that flow into the Sacramento River will need to be increased, providing fresh water to counter high salinity levels.

The answer is complex. The issues were laid out at a hearing before the State Water Resources Control Board on Jan. 5.

The focus of the hearing was a threatened violation of the requirement to meet a water quality objective for salinity designed to protect agricultural beneficial uses in the southern Sacramento-San Joaquin Delta estuary. When crops are watered with a high level of salts, they die.

“Beneficial use” is a legal doctrine contained in the California Constitution, which was adopted in 1849, before California became a state. Beneficial uses have included municipal and industrial uses, irrigation, hydroelectric generation and livestock watering. It has expanded to include recreational use, fish and wildlife protection and enhancement, and aesthetic enjoyment.

Who has rights to water?

Riparian water rights were established by the first California Legislature in 1850. Following English common law, owners of land bordering streams or bodies of water have a right to a reasonable amount of that water. Owners of lands not bordering a body of water have no right to the water.

Appropriative water rights developed from the practice of the '49ers to build extensive networks of flumes and canals to work their claims away from the original water source. Claim to the water went to the first miner to assert ownership, leading to the “first in time, first in right” principle of California water right law.

Riparian rights still have a higher priority than appropriative rights. The Water Commission Act of 1914 established the water right permit process and created the agency that is today the State Water Resources Control Board.

Delta crops on high-salt diet

The most accurate way of determining salinity levels is to measure electrical conductivity. Freshwater does not conduct electricity, but saltwater does. Scientists measure the objectives for the South Delta as 0.7 mmhos/cm EC to 1.0 mmhos/cm EC. The measurements are commonly described as “point seven” or “one point.”

The area of most concern is within the South Delta Water Agency, containing around 150,000 acres south of Stockton. The total irrigated land has declined from over 120,000 acres in the last three decades of the 20th century to about 100,000 acres in recent years. The largest city in the South Delta is Tracy.

The board established the southern Delta salinity objectives in the 1978 Delta Plan, based on guidelines from UC Cooperative Extension and a paper from the Food and Agriculture Organization of the United Nations. The approach involved determining the water quality needs of significant crops, the dominant soil type, and irrigation practices in the area.

The board set an objective of 0.7 mmhos/cm EC during the summer season (April through August) based on the salt sensitivity and growing season of the most sensitive crop, dry bean. It set an objective of 1.0 mmhos/cm EC for alfalfa during the winter irrigation season (September through March). Three salinity compliance stations are used to monitor the measurements.

In 2006 the board adopted the 2006 Bay-Delta Plan including the original salinity objectives.

In December 2006 the board identified Delta and Central Valley salinity as an emerging issue.

A scientific review of laboratory experiments titled “Salt Tolerance of Crops in the Southern Sacramento-San Joaquin Delta” was done for California Environmental Protection Agency and State Water Resources Control Board, Division of Water Rights, in 2009 by Dr. Glenn J. Hoffman, who participated in the 1978 study. The final report was published on Jan. 5, the date of the hearing.

Hoffman “recommended that a field experiment be conducted to ensure that the salt tolerance of bean is established for local conditions.” He further recommended that the experiment be repeated at different stages of the plant growth.

In conclusion, Hoffman suggests the signal crops of dry bean and alfalfa may be able to survive with lower than 1.0 mmhos/cm EC. In that case, the remaining crops of almond, asparagus, corn, grape, oats, safflower, tomato, walnut and wheat should be viable.

Dual management

of California's water

Two agencies have responsibility for water management in the Delta, along with accompanying water rights: The California Department of Water Resources and the U.S. Bureau of Reclamation.

The Water Resources Department operates the California State Water Project, which delivers water to two-thirds of California's population. Its main purpose is to store and deliver water to urban and agricultural water suppliers in Northern California, the San Francisco Bay Area, the San Joaquin Valley, Central Coast and Southern California. Approximately 30 percent of the water irrigates the San Joaquin Valley; the other 70 percent supplies water for residential, municipal and industrial use, mostly in Southern California. The project is also operated to improve water quality in the Delta, control Feather River floodwaters, provide recreation and enhance fish and wildlife.

The U.S. Bureau of Reclamation is in charge of the Central Valley Project, which was inaugurated in 1957. It is one of the world's largest water storage and transport systems. CVP water irrigates more than 3 million acres of farmland and provides drinking water to around 2 million consumers.

The Central Valley Project was originally authorized by the Legislature as a state project in 1933, but California was unable to finance the project. It was reauthorized by the federal government in 1937.

Salinity has been an issue since the beginning of interest in a comprehensive water plan in the 1920s. In an essay by Eric A. Stene titled “The Central Valley Project,” available on the Reclamation Website, the author states: “Salinity control, especially in the Sacramento-San Joaquin River Delta, became a major concern for Northern California water users, and a major component of the California State Water Project. The Delta frequently experienced salinity intrusion, which caused problems for Antioch and Pittsburg. Unless water flowed past Antioch at a minimum of 3,300 second-feet, salt water from San Francisco Bay moved into Suisun Bay and the Delta during high tide, making the water unusable for crops and industry.”

Releases from the Shasta Division of the Central Valley Project now help control salinity in the Delta Division.

Environmental laws

cover water management

A series of comprehensive environmental laws were created starting in the 1960s that added environmental responsibilities to providing water for consumer use and farmlands in the Delta.

Congress passed the National Environmental Protection Act in 1969. The state Legislature followed with the California Environmental Quality Act in 1970. Together they require extensive environmental reviews and mitigation on all federal and state projects.

The Endangered Species Act was passed in 1973, giving more importance to preservations of species and their ecosystems. It is administered by the U.S. Fish and Wildlife Service, which handles freshwater fish, and the National Oceanic and Atmospheric Administration, which is responsible for marine species. Some species are managed jointly.

The Central Valley Project Improvement Act of 1992 reallocated 800,000 acre-feet of Central Valley Project water (600,000 in dry years) from valley farmers toward the restoration of Central Valley fisheries and limited renewed agricultural water contracts to 25 years with no long-term renewals.

Hearing on Delta

water salinity

On Jan. 5, four of the five members of the State Water Resources Control Board held a hearing on whether to modify Cease and Desist Order 2006-0006. In 2006 the board issued the order against the Department of Water Resources and U.S. Bureau of Reclamation for threatened violation of the requirement to meet the minimum salinity objective of 0.7 mmhos/cm EC between April 1 and Aug. 31 and 1.0 mmhos/cm EC between March 31 and Sept. 1 in the interior southern Delta.

The July 1, 2009, compliance deadline was granted in order to accommodate the agencies' plan to meet the salinity objective by constructing three permanent operable gates in the Delta. The gates were supposed to decrease the salinity levels by improving water circulation. Construction was expected to be completed by early 2009.

To date, the only salinity controls in the South Delta are three temporary seasonal barriers. The agencies completed their environmental impact report and environmental impact study, but permits for the permanent barriers have been held up by fisheries' concerns.

Water Resources originally anticipated that NOAA Fisheries and Fish & Wildlife would issue biological opinions on the program by November 2006. However, the fisheries expressed initial concern about the interrelatedness of the South Delta program with the long-term operation of the Central Valley Project.

Fish and Wildlife issued a biological opinion in December 2008 allowing operation of the gates subject to its approval to protect Delta smelt. That same month NOAA Fisheries released a draft biological opinion concluding the permanent gates would degrade critical habitat for Central Valley steelhead. NOAA also proposed a study to estimate the potential impact of the gates on salmonid predation. By May of 2009, Water Resources determined the gates could be completed in time for the 2016 agricultural season.

On June 4, 2009, NOAA Fisheries issued a final biological opinion that the replacement of temporary barriers in the Delta with permanent operable gates would adversely modify critical habitat. The agencies' plan to meet the salinity objective was dead in the water.

The board's order

The board's draft order found the agencies had been diligent in their efforts to obtain approvals to construct permanent gates. It extends the deadline for compliance with the salinity objective until after the board completes its review of the 2006 Bay Delta Plan and any subsequent water right proceeding. It set an outside date of Oct. 1, 2014, for completion.

During the interim, the agencies are directed to continue to implement the temporary barriers project. They are also directed to study the feasibility of controlling salinity by measures other than the temporary barriers project, recirculation of water through the San Joaquin River, and construction of permanent operable gates.

Before the study plan is approved, authority is delegated to the executive director of the board to require Water Resources of Reclamation to implement any additional salinity controls that are determined to be feasible and reasonable.

The San Luis Delta-Mendota Water Authority and Westlands Water District support extending the deadline until completion of the water quality control planning process. South Delta Water Agency, San Joaquin County, California Sportfishing Protection Alliance, and the California Water Impact Network oppose modification of the order.

At the hearing, John Herrick, counsel and manager of the South Delta Water Agency, argued, “Waiting is not going to accomplish anything.” In his written statement, he stated, “The draft order continues the State Water Resources Control Board's effort to avoid enforcing the water quality objectives which protect southern Delta agriculture.”

Herrick was followed by a representative from the Central Delta Water Agency, who concurred with Herrick on all points, adding, “The U.S. Bureau of Reclamation and Department of Water Resources have not been diligent in enforcement.”

Dee Anne Gillick, from the San Joaquin County Flood Control District, said the district was not satisfied with the modifications in view of water rights violations. “The current order continues the status quo,” she said “The Delta is in a sad state right now.”

Board Chairman Charles Hoppin, a family farmer in Yolo and Sutter counties, admonished the speakers, saying, “We are not here for enforcement action.”

In a post-hearing interview, Herrick said the issue is that the agencies are diverting water away from the Delta to the southern San Joaquin Valley. “It's the Delta farmers' loss and the desert farmers' gain,” he said. He explained that San Joaquin farms were originally supposed to receive water in high water years, after the Delta farms, whose rights take precedence. Recently the San Joaquin Valley farms have received water even in drought years, adding to the decline in water quality in the Delta.

Erick Soderlund, counsel for the Department of Water Resources, was put on the spot by Hoppin when the chairman asked, in a tone of exasperation, “Who is thwarting this (referring to efforts to meet the salinity objective)? What bureaucratic, red tape, bullshit reasons are there?”

“Fisheries,” responded Soderlund quietly, alluding to the recent biological opinion. “We need more information,” he continued. “The department is also frustrated that we have to go through a long process.”

Arthur Baggett, attorney, summed up the situation: “If this board were a czar, I think we would be up to the task. It's a quagmire, with so many outliers and variables. And now we have the Delta Stewardship Council and the Delta Watermaster and who knows what that will mean.” With that, he moved to adopt the order and it passed unanimously.

More studies and lawsuits

Following the hearing, Herrick said the South Delta Water Agency “will challenge the order. We will file a request for reconsideration to the board. They will no doubt turn us down and we will file a lawsuit. This has been going on for 30 years and the board simply refuses to enforce the water quality standards,” he said.

He is also worried about the possibility of a peripheral canal. “It would put south Delta agriculture out of business,” he said. “The only answer is to increase supply — whether it is above ground, underground, instream or offstream — doesn't matter.”

Another party that plans to seek relief from the court is the California Water Impact Network (C-WIN), a nonprofit “that advocates for equitable and environmentally sensitive use of California's water, including instream uses.” C-WIN is headquartered in Quincy and represented by attorneys Jackson and Tuerck.

Following the hearing, Julia Jackson said they were disappointed but not surprised by the board's decision. “The deadline for compliance with the interior southern Delta salinity standards has long since passed, and must be immediately enforced to ensure the protection of agricultural and ecological interests. If the SWRCB is unwilling to hold DWR and USBR accountable for meeting their permit obligations, we will seek relief from the courts.”

Tim Stroshane, C-WIN's senior research associate, explained the organization's position:

“Delta-located water rights are not the problem, in our view. It is the over-appropriation of water to the State Water Project and the Central Valley Project (and their contractors in the southern and western San Joaquin Valley) that cause the majority of the Delta's ecological and fisheries collapse. The over-appropriation of water rights began in the late 1920s and continues.

“The collapse of the fisheries ramifies up the Feather River to where the reservoirs like Oroville and the others are operated, not with the watersheds of origin in mind but with the distant water contractors as first priority. A prime example of this is how low Oroville and Shasta have gotten from just three years of dry conditions. This leaves the water that remains to be shallow and easily warmed through the hot days of summer. When released into the streams it renders the quality of the streams unsafe for cold-water preferring salmon and steelhead returning to spawn. Also, the projects' owners are long overdue for creating adequate fish passage above the dams so that these migratory species may return to the Sierra Valley to spawn someday.”

Erick Soderlund said in a post-hearing interview that the Department of Water Resources staff went into a huddle following the hearing. “Staff got together and are drafting plans for studies under the interim measures. The initial studies were done 30 years ago. The science has not been updated. We need better information, better understanding. The modelers and tech staff are developing information. The timeline is two months to develop plans. When the plans are approved, we have six months to do the studies. We hope the information will be useful in identifying feasible salinity control measures.”

Referring to the chairman's question at the hearing, Soderlund said ,“The fisheries agencies thwarted the process. They didn't feel permanent operable gates ever will be OK, but they didn't come up with any alternative, which they are required to do. DWR doesn't have authority to build the gates and there is no other method that can simply be put in place.”

Department of Water

Resources ramps up

Water Resources is adding staff and expanding public outreach. Vol. 1, Issue 1, of the online California Water Rights Newsletter, available online at waterboards.ca.gov, was published this month.

Senate Bill 8, adopted into law last November, authorized funding for 25 new enforcement positions in the Division of Water Rights. Executive Director Dorothy Rice reports, “It is estimated that these new staff will nearly triple our ability to protect California's waters from illegal, unreasonable, and wasteful use.”

New penalties are set for water diversion. Water use reports can now be done online.

Rice reports, “The California State Water Board began requiring water diverters to file Statements of Diversion and Use in 1966, but until this year, there has not been a penalty for not filing. This lack of enforcement ability has undermined our water availability data for decades. .…California's new laws are the first step towards a greater understanding of water availability, which will benefit the environment, economy and people all over the state.”

Water will be

major topic in 2010

California's Legislature passed major water laws in 2009. The legislators created the Delta Stewardship Council and the position of Delta Watermaster. They voted to put an initiative on the November ballot to fund a peripheral canal to deliver water to Southern California.

An army of scientists is gathering in the region to study the Bay-Delta. Will their findings point to solutions and action? Or will they become arrows in the quivers of adversaries? Without increasing capacity, the battles for existing water resources will continue to intensify. All the while, the Delta crops are on a high salt diet.