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Nit-Picking Decision 1641
Twenty-one petitions for reconsideration, four lawsuits - and counting - and criticism from stakeholders of every stripe greeted the State Board's December 29 water right decision allocating implementation responsibility for the 1995 Bay-Delta Plan among certain of the state's water users. The plan is designed to meet the ever competing needs of farmers, wildlife and cities.
Following 82 days of hearings over the course of 13 months, Water Right Decision 1641 is the latest in a 40-year series of decisions and orders regarding water quality and water right requirements for the Bay-Delta. The decision by no means answers all questions regarding who will be required to give up how much water to meet the plan's objectives. Indeed, the decision covers only the first seven of eight planned phases of hearings. Phase 8, potentially the most controversial, will begin in early June. Pending the outcome of Phase 8 - which will focus on the responsibility of Sacramento River Basin and Delta users as well as the Central Valley and State Water Projects - the decision assigns interim responsibility to the projects for meeting all the plan's Delta outflow and salinity objectives.
Decision 1641 does address the issue of how responsibility will be shared among users on the San Joaquin River, by adopting provisions of the San Joaquin River Agreement. Under that agreement, the biggest water rights holders on the river and its tributaries would provide up to 110,000 acre feet of water a year for the Vernalis Adaptive Management Plan (VAMP), a 12-year experiment designed to determine whether low flows in the river or high exports from the Delta have a greater impact on endangered salmon mortality. Although the VAMP enjoys modest - if not wildly enthusiastic - support from the environmental community, many enviros see the agreement itself as fatally flawed in that it allows any party to terminate the agreement in any year that it doesn't like the operations plan. "This part of the agreement has the potential to completely undermine the environmental benefits of the VAMP program," says Cynthia Koehler of Save the Bay, which has joined Environmental Defense (formerly the Environmental Defense Fund) in a petition for reconsideration of Decision 1641. However, according to the State Board's Nick Wilcox, the decision includes a provision that if the agreement is terminated, the Bureau of Reclamation would be responsible for meeting the Vernalis flow objectives set forth in the Bay-Delta Plan.
Other objections to the 211-page decision run the gamut from complaints that issues were inadequately noticed to concerns over area of origin protections to the decision's implicit endorsement of a completed San Luis Drain. One provision that has particularly displeased those contracting for Central Valley Project water is the Board's order that all of BurRec's water use permits be amended to include fish and wildlife enhancement as an authorized use of CVP water. (The State Board issues permits for the use of water that specify where, when and for what the water may be used.) "If including fish and wildlife enhancement as a permitted use results in reduced supplies, it would injure legal users of CVP water," says Westlands' attorney Tom Birmingham, arguing that the state's Water Code prohibits such injury. The Board's position however, is that the contractors are not legal users of water under the code, and therefore cannot be injured by the permit change.
Despite all the objections, Wilcox says he believes the Board's decision is a fair one. "If this decision is contentious it's a reflection of the fact that this is an over-allocated system and a zero sum game," he says. "No matter what, everybody is going to be somewhat unhappy."
Contact: Nick Wilcox (916)657-0446
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