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California policy protecting major rivers upheld in long-awaited court decision

Autor: Kurtis Alexander
The Sacramento River is seen in December 2019 in the area of Clarksburg (Yolo County). The Bay-Delta Plan is intended, fundamentally, to halt the decline of the Sacramento-San Joaquin River Delta.

The Sacramento River is seen in December 2019 in the area of Clarksburg (Yolo County). The Bay-Delta Plan is intended, fundamentally, to halt the decline of the Sacramento-San Joaquin River Delta.

Santiago Mejia/The Chronicle

​​A state policy that seeks to protect California’s major rivers and creeks by cracking down on how much water is pumped out by cities and farms can move forward despite widespread opposition, the Superior Court has ruled.

The long-awaited decision on what’s known as the Bay-Delta Plan denies 116 claims in a dozen separate lawsuits that seek to undo a 2018 update to the policy, most of which are from water agencies saying the limits on their water draws go too far.

The 160-page verdict, released Friday by Sacramento County Judge Stephen Acquisto, specifically notes that arguments made by San Francisco against the regulation fell short. The city, which gets most of its water from the Tuolumne River in and around Yosemite National Park, has claimed that regulators showed preference for safeguarding fish and wildlife instead of defending Bay Area water supplies, ratepayers and economic growth.

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“This is a win for the (state water) board and the board’s authority to help protect fish,” Michael Lauffer, chief counsel for the State Water Resources Control Board, told the Chronicle.

The Bay-Delta Plan is intended, most fundamentally, to halt the decline of the Sacramento-San Joaquin River Delta. The region is the hub of the state’s river flows and an ecological hot spot. However, decades of overpumping waterways from Fresno to the Oregon border has left less water flowing into the delta, undermining the estuary’s ability to both supply water to communities and nurture wildlife, notably salmon runs. It also means less fresh water flowing into San Francisco Bay.

Six years ago, following one of the worst droughts in modern times, the state water board approved what is expected to be the first of several updates to the plan seeking to keep more water in waterways that feed the delta. The update covered the lower San Joaquin River and its three main tributaries, the Tuolumne, Stanislaus and Merced rivers.

The update calls for no more than 60% of the natural flow of the rivers, on average, to be taken out by water users during certain months in winter and spring. The average flow now is less than 30% because of pumping, and at times, the channels carry less than 10% of what they naturally would.

“We have built an entire state and society on the backs of these rivers,” Lauffer said. “The 2018 plan update was designed to recognize the existing uses but pay attention to the native fish and the communities that rely on those fish.”

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The changes to the Bay-Delta Plan prompted lawsuits from mostly agricultural water suppliers, which use the bulk of the water in the lower San Joaquin River basin, including the Modesto Irrigation District, Merced Irrigation District and Westlands Water District. Municipal suppliers, though, were also involved.

The legal arguments in the suits varied, with challenges to the water board’s authority based on the Porter-Cologne Water Quality Control Act, the California Environmental Quality Act, the public trust doctrine and the California Constitution.

San Francisco was represented in a suit brought by the San Joaquin Tributaries Authority.

The San Francisco Public Utilities Commission, which manages water supplies for the city as well as about two dozen other communities, has maintained that tighter limits on water draws could force the agency to find new sources of water at a much higher cost to customers. The agency also has expressed concerns about not being able to maintain reliable supplies to support the Bay Area’s robust economy.

The SFPUC offered its own scientific assessment of ecological problems in the watershed, concluding that fish and wildlife habitat on the Tuolumne River could be improved without much increase in river flows. Its study flew in the face of what state and independent scientists have found.

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SFPUC officials declined an interview Monday, saying they were still reviewing the court ruling. But in a statement to the Chronicle, the agency reiterated its disapproval of the update to the Bay-Delta Plan.

“As a public water provider to 2.7 million residents and thousands of businesses in the San Francisco Bay Area, we remain disappointed in the environmental review that informed the State Water Resources Control Board’s 2018 adoption of the Bay-Delta Plan amendments,” the statement read. “This 2018 decision could significantly impact our water supply with rationing of up to 50% in extended droughts.”

Friday’s court ruling is widely expected to be appealed.

A few of the 12 lawsuits that were addressed in the court’s decision were filed by environmentalists, representing such groups as San Francisco Baykeeper, the Bay Institute and North Coast Rivers Alliance. These organizations had hoped to see the Bay-Delta Plan do more to protect fish and wildlife. The judge said these arguments, too, didn’t pass muster.

Felicia Marcus, who served as chair of the state water board in 2018 and is now a visiting fellow at Stanford University’s Water in the West Program, said she felt the board was validated by the court decision.

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“How do you improve the situation, which is dire for fish and wildlife, while not causing undue economic harm?” she said. “The water board’s task is to review all of (the information) and try to find a reasonable path through.”

The state is yet to begin enforcing the updated Bay-Delta Plan. The agency must first approve an implementation strategy, which could involve updating water rights or drafting regulation specific to water draws and releases. The agency is also looking to update flow requirements in the Sacramento River basin.

Gov. Gavin Newsom, who took office shortly after the new water restrictions were adopted, has advocated for a more collaborative approach between state regulators and water users. His administration has been trying to work out a deal with municipal and agricultural suppliers, known as the Voluntary Agreements, that could satisfy water agencies and protect the Sacramento-San Joaquin River Delta.

Environmentalists, however, have been critical of the negotiations. They say the talks are bound to compromise the health of rivers and creeks and that they’ve already gone on too long with nothing to show for it.

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Correction: An earlier version of the story incorrectly described the SFPUC’s scientific assessment of ecological problems in the watershed. The SFPUC concluded that fish and wildlife habitat on the Tuolumne River could be improved without much increase increase in river flows. 

Kurtis Alexander is an enterprise reporter for The San Francisco Chronicle, with a focus on natural resources and the environment. He frequently writes about water, wildfire, climate and the American West. His recent work has examined the impacts of drought, threats to public lands and wildlife, and the nation’s widening rural-urban divide.

Before joining the Chronicle, Alexander worked as a freelance writer and as a staff reporter for several media organizations, including The Fresno Bee and Bay Area News Group, writing about government, politics and the environment.

He can be reached at kalexander@sfchronicle.com.

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