Irrigation districts along three key tributaries of the San Joaquin River say they’re still willing to pursue watershed agreements with California regulators even as they’re suing to block the state water board’s recent minimum-flows decree.

Districts in the San Joaquin Tributaries Authority have filed an injunction request in Tuolumne County Superior Court challenging the state’s right to arbitrarily increase flows in the Stanislaus, Merced and Tuolumne rivers.

The suit follows the State Water Resources Control Board’s decision on Dec. 12 to require unimpaired flows of up to 40 percent to 50 percent in the three rivers after voluntary agreements with water agencies on the Merced and Tuolumne rivers proved elusive. Farm groups had implored the board to reject the mandate.

“We file suit not because we prefer conflict over collaboration,” says Peter Rietkerk, general manager of the South San Joaquin Irrigation District. “On the contrary, we continue to encourage and participate in settlement discussions on our rivers, and support science on the Stanislaus. But we also have an indisputable responsibility to reserve our legal rights and protect our ag and urban customers.”

Officials from the SSJID, the Oakdale Irrigation District and other members of the SJTA say they stand ready to return to the table if that door is opened under Gov. Gavin Newsom’s new administration, but add that the lawsuit is a necessary action to preserve the SJTA’s legal rights in court should that not occur.

PACTS STILL POSSIBLE

The remarks come after state water board Chairwoman Felicia Marcus said in December, “If people say if they have to litigate they’ll leave the table, they were never really engaged at the table.”

However, Marcus noted that implementing the minimum flows will require a separate rulemaking process, and “there’s still good opportunity for voluntary agreements in the future.” Indeed, the board wants to hear more details about conceptual pacts with watershed groups throughout the Central Valley that could provide as much as 1 million acre-feet of new water and up to $1.7 billion for habitat restoration, scientific research and other costs, according to Department of Water Resources director Karla Nemeth.

Partners would range from the Friant Water Authority, which agrees to send an additional 50,000 acre-feet through the Delta, to Sacramento River water agencies, which would make available 100,000 acre-feet of water by voluntarily fallowing 24,000 acres, says Charlton Bonham, director of the state Department of Fish and Wildlife.

Bonham and Nemeth say the voluntary agreements’ language will be drafted by Feb. 15 and submitted to the board by March 1.

IRREPARABLE HARM

The lawsuit – which you can read at https://bit.ly/2MezEb6 -- contends that the water board’s plan to require an average of 40 percent unimpaired flows between February and June “directly and irreparably” harms the SJTA members. The plan “will cause substantial losses to the surface water supply relied upon by the SJTA member agencies for agricultural production, municipal supply, recreational use, hydropower generation, among other things. Implementation will also cause direct impacts to groundwater resources relied upon by the SJTA member agencies.” These impacts will devastate local water supplies for ag and urban communities and severely impact the regional economy, the suit argues.

The lawsuit claims that “the board’s own analysis estimates the project will impact more than 1 million acres of agricultural land in the San Joaquin Valley, the majority of which, 65 percent, is designated as ‘prime’ or ‘unique farmland,’ or ‘farmland of statewide importance.’ ”

Among other claims, the lawsuit alleges the water board adopted a wholly different plan than it analyzed, violated state and federal due process laws, and unlawfully segmented the environmental review of the plan by initially requiring higher flows from only three of the lower San Joaquin River tributaries, excluding the upper San Joaquin River and the larger Sacramento River and its tributaries, which provides the majority of the water to the Delta, according to a news release summarizing the arguments.

The suit also argues that the water board does not sufficiently describe the legal authority to implement the plan on senior water right holders and on local and federally funded reservoirs.

PLAN ‘ILLEGAL’

The plaintiffs are the OID, the SSJID, the Turlock Irrigation District, and the City and County of San Francisco. Not listed is the Merced Irrigation District, whose board in December directed employees to pursue legal action against the water board’s decision.

“This (state) plan is illegal and it is not scientifically sound,” MID general manager John Sweigard said after the Dec. 19 closed session. “The state water board has put our entire region’s survivability at risk. Under this plan, unnecessary, devastating and avoidable harm will be forced on our domestic and agricultural water supply, and our local economy. And it does almost nothing to improve conditions or habitat for fish.”

In 2016, the MID unveiled its Merced River S.A.F.E. Plan, which stands for Salmon, Agriculture, Flows, and Environment. District officials say it would have called for immediate water releases on the river at key times benefitting the salmon lifestyle; restored 5.5 miles of salmon-rearing habitat destroyed generations ago by dredge gold mining; addressed predation from non-native bass; and made investments in the Merced River Salmon Hatchery to increase salmon populations.

“With regard to salmon, we have advocated a reasonable, comprehensive alternative to the state’s water theft,” Sweigard said in a statement. He added the proposal was consistent with what then-Gov. Jerry Brown and Gov.-elect Newsom had requested from water right holders last fall.

“The state water board decided it was not enough,” he said. “They want more water.”

Further, the district argues that documents for the state’s own Bay-Delta Plan state that the minimum flows in the Merced, Tuolumne and Stanislaus rivers would result in an annual increase in salmon ranging from just 2,059 to 7,637. In comparison, an average of 169,400 salmon were caught in California between 2012 and 2016, according to state Fish and Wildlife.

AGREEMENTS SOUGHT

State agency directors Bonham and Nemeth sought the voluntary agreements as potential alternatives to imposing minimum river flow requirements as part of the Bay-Delta Plan, a management blueprint for the estuary that includes the San Francisco Bay and Sacramento-San Joaquin River Delta.

The state reached pacts in numerous watersheds north of the Delta that were to be involved in Phase 2 of the updated Bay-Delta Plan, including the Sacramento, Feather, Yuba, American and Mokelumne rivers. The agreements include some additional flows at needed times while placing a big emphasis on improving habitat.

On the Tuolumne River, the Modesto and Turlock irrigation districts and San Francisco Public Utilities Commission agreed to establish a $38 million conservation fund to restore floodplain as well as river-rearing habitat while setting up a “robust” flows plan, Bonham says.

Talks with water agencies along the Stanislaus and Merced rivers failed to reach an agreement before the water board’s Dec. 12 hearing. Districts say they were unable to finish their negotiations by the water board’s hard deadline, despite being extremely close.

“It’s the decimation of a large portion of agriculture in the middle of the nation’s most productive food belt that should concern everyone,” says Steve Knell, general manager of the OID. “All this loss of productive agriculture to gain 1,103 more salmon a year – per the state’s own analysis – doesn’t make sense.”