Breaking Down C-WIN's Comment Letter on Sacramento/Delta Draft Staff Report
The Purpose of Public Comments:
The Administrative Procedures Act of 1946 requires federal agencies keep the public informed on proposed rules or regulations under consideration by the U.S. government.
The public is given a 60-day period following publication of the proposal to submit relevant feedback. The opportunity for the public to have influence on rulemaking is an integral part of our democracy.
The agency is then legally required to read and respond to the comments received. If a public comment presents compelling information, the final draft of the regulation, or document must include the agency’s proposed resolution.
The Report:
In September of 2023 the California State Water Resources Control Board published a Draft Report and Supplemental Environmental Document (SED) for Phase II of the Sacramento/Delta Bay-Delta Water Quality Control Plan.
This document claims to comply with the California Environmental Quality Act (CEQA) requirements as well as “preserve, enhance, and restore the quality of California’s water resources and drinking water for the protection of the environment, public health, and all beneficial uses, and to ensure proper water resource allocation and efficient use for the benefit of present and future generations.”
While the SED recognizes the lack of action to protect the Delta watershed and ecosystem, the glaring omissions and avoidance of critical regulatory provisions and adequate environmental and socioeconomic analyses are bewildering. Revision is the only solution to a document that blatantly disregarded the legal requirements and written commitments, of the Human Right to Water, the Delta Reform Act, racial equity, tribal rights, waste and unreasonable use, and fish passage.
The absence of clear and meaningful goals throughout the SED makes evaluation of the efficacy and equity of the regulatory program it ultimately adopts impossible. C-WIN suggests the Board make a significant course correction, and address what it can do within the full scope of its authority to restore these ecosystems and repair legacies of injustice.
Read the full report here.
Comment Summary:
Ceqa Violations:
The primary principle of CEQA is “to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language”.
Yet the SED undermines this fundamental requirement consistently. The SED is obligated to evaluate the impacts of a regulatory program such as the Bay-Delta Water Quality Control Plan. Including Voluntary Agreements (VAs) between water management agencies as a feasible alternative to mandatory and enforceable rules is incomprehensible. In order to ensure CEQA compliance, water management agencies need clear regulatory requirements to hold them accountable.
Additionally, the SED is conveniently missing a public trust analysis. The lack of any cost benefit evaluation in combination with the impending consequence of climate change on hydrology is deeply concerning. Not to mention, the SED excluded an impact analysis on the Trinity River which provided substantial amount of water into the Sacramento River on an annual basis. This omission is particularly egregious given the Trinity ecosystem is integral to the cultural heritage and survival to many local tribes that the Board has committed to repairing relations with.
Narrative bias:
The SED is riddled with unsupported claims and mischaracterizations, the most egregious of which are:
The claim that fixed flow requirements would not allow for adaptive management.
Fixed flow requirements would ensure there is enough cold water flowing for species survival, particularly in dry years.
Under the Board’s previous adaptive management strategy, Temporary Urgency Change Petitions (TUCPs) were granted during droughts waiving the existing water quality requirements and resulting in massive fish mortality.
The claim that more protective unimpaired flow requirements are infeasible due to cold water storage limitations.
The SED’s projections shows that not all reservoirs would face significant depletions in cold water storage. Shasta, the state’s largest reservoir would actually increase and Oroville the second largest would see less than 10% reductions in critically dry years.
The assertion that the Board’s actions (and inaction) did not contribute to the current state of ecosystem degradation.
Fish populations in the Delta watershed declined precipitously during the 2011-2016 drought period when the Board was granting TUCPs.
A government body that is not able to evaluate the impacts of its actions accurately and honestly is not capable of taking actions to repair those harms.
The characterization that voluntary implementation pathways could achieve the environmental objectives.
Voluntary actions do not constitute a project under CEQA; nor can they fulfill the Board’s public trust responsibilities.
The Board also claims erroneously that certain measures, such as habitat restoration, are outside the scope of its regulatory purview.
CHapter deficiencies:
2: Hydrology and Water Supply
Fails to identify or evaluate mitigation measures needed to address the vast gap between water rights claims and total water availability and simultaneous potential for additional water demand due to population growth and pending water rights applications.
The absence of climate change analyses leaves Board procedure for water rights claims under different in-stream flow scenarios unclear.
Omission of diversion impacts on the Trinity River, violates public trust obligations and written commitment to tribal equity when current declines in salmon populations, are jeopardizing the livelihoods of the Yurok, Karuk, and Hoopa Valley tribes.
5: Proposed Plan Changes
SED evades its legal responsibility to analyze environmental impacts, rendering the SED incomplete; proposals and analysis for other water quality components needed:
Temperature: numeric objectives and tangible regulatory proposals to protect ecosystem function, particularly with the implications of climate change.
Fish passage: specific regulatory proposals to mitigate impacts of dam blockage on fish populations such as investments in trap and truck or construction of fish ladders.
Habitat restoration: habitat restoration requirements for state and federal government agencies and public and private utility permit holders that own and operate reservoirs and water conveyance infrastructure.
Drought and climate change response: adequate drought specific measures to mitigate the higher fish mortality rates.
6: Changes in Hydrology and Water Supply
Reliance upon fisheries agencies to establish protective standards is not a feasible mitigation measure.
Without stronger regulatory requirements, voluntary measures based on existing standards will continue environmentally destructive levels of water diversions.
The release of the SED without climate change analysis is not only a CEQA violation, it also directly contradicts the Board’s own climate change resolution, which calls for climate analysis to inform the Board’s decision making.
Risk management actions and disaster preparedness strategies are insufficient without considering the implications of climate change.
Critical exception of discussion about proactive agricultural water conservation actions when the need for permanent reductions in irrigated acreage is well documented.
7: Environmental Analysis
VAs are infeasible because they are not a regulatory program, subvert public trust protection requirements, and violate racial equity commitments.
“Low flow” scenarios (35 & 45% unimpaired flow) would not accomplish the ecosystem restoration goals when research suggests benefits to fish under those scenarios would be “marginal” at best.
8: Economics
No references to the Board’s racial and climate equity commitments.
Focuses primarily on potential impacts to agricultural revenues based on 2010 data that does not account for increases in tree nut production.
SED made no attempt to develop comprehensive quantitative benefits estimates to assess values and ecosystem services or economic benefits from commercial fisheries, recreation, and tourism nor does it apply a racial equity lens to the included benefits and costs analyses.
The chapter as a whole is an affront to tribes and communities who have been and continue to be harmed by excess water diversions, minimizing their suffering.
Conclusion:
These failures are inexcusable. The Board is forcing the public’s hand as it continues on a path riddled with insufficient climate safeguards and inequitable distribution and diversions. Court cases are being filed on behalf of children whose futures are in jeopardy. The plaintiffs are young people whose lives have been turned upside down by the consequences of climate change. They are seeking relief from the courts because the regulatory agencies have failed to fulfill their duties. Future generations do not need a guaranteed export market for nuts and rice and chronically failing watersheds; what they need is a healthy environment and a just transition to a California that truly works for all.
Read C-WIN’s full comments by Max Gomberg, Senior Policy Consultant and Carolee Krieger, Executive Director here.