Friant’s Decision, Then and Now

Reprinted from the Visalia Times-Delta, October 13

Water is still a prime topic, and the debate over how water is used and how priorities are determined continues to be waged.

Fergus Morrissey

The San Joaquin River Restoration Settlement Agreement, and its effect on water users in the Central Valley, was a “fork in the road” moment. The decision to settle was made by the Friant Water Authority Board of Directors in 2006. Today, many question the wisdom of that decision.
To get some background on the decision, the Visalia Times-Delta spoke with Fergus Morrissey, engineer-manager of the Orange Cove Irrigation District.
Q: Can you explain some of the history leading up to the Settlement?
Morrissey: The Orange Cove Irrigation District’s contract, being the first contractor to sign a 40-year term contract with the United States in 1949, was up for renewal and in 1988 that process began. When U.S. agencies consider taking an action — in this case contract renewal — a public process is required. That led to a challenge and filing of a lawsuit by a multi plaintiff group led by the Natural Resources Defense Council over the operation of Friant Dam. The U.S. lost one court decision after another over an 18-year period. In 2004, U.S. District Court’s Judge Lawrence K. Karlton determined that the Bureau of Reclamation’s operation of Friant Dam was a violation of state law because it did not leave a historic upper San Joaquin River salmon fishery “in good condition.”
Q: What other options were there at the time of the Court decision in 2004?
Morrissey: Initially there was no option but to wait for the “remedy” determination, until Settlement discussions began in earnest in 2005. Then there were two options to consider:
• OPTION 1 – LET THE JUDGE OPERATE FRIANT DAM: Once Judge Karlton declined to rule on Friant’s defenses and decided that the operation of Friant Dam was illegal under state law, a trial was set to determine the “remedy” to be imposed by the Court. This determination would have dictated the quantity of water released from Friant Dam. Faced with this reality, Friant estimated that the loss of water supply would be 540,000 acre-feet per year, as that was the magnitude of supply need according to studies conducted by fishery experts. Such a magnitude of water loss (about 32% of unimpaired flow) would have been completely devastating to Friant Division agriculture.
• OPTION 2 – THE SETTLEMENT: In 2005 the NRDC, Friant and the United States began discussing a structured settlement. It took more than a year and the judge agreed to stay his remedy decision while discussions proceeded in good faith. In 2006, the settlement agreement was signed. Certainly, there was much uncertainty with this choice, but the Settlement created some assurance as to how the future was anticipated to unfold. Some of those assurances were benefits to water users (mitigation) that undoubtedly would not have been offered by a Karlton remedy. The Settlement defined impacts by year type and amounted to the requirement to pass through Friant Dam about 16% of contract supplies, or about 200,000 acre-feet, for the benefit of a salmon fishery. The Settlement structure is one that provides greater river releases in wet years, lesser flows in drier years and no flow in critically dry years such as this.
Q: Were there other factors that Friant considered?
Morrissey: There was more to the story in 2006 and that consideration remains in play today. In fact, its associated risk is amplified. Without the Settlement in place, Friant is exposed to risks of further water supply loss and uncertainty under the Porter-Cologne Water Quality Control Act.
Friant considered the 2005 broader waterscape and the increasing threat on Friant’s water supply by the State Water Resources Control Board, which implements the Porter-Cologne Act of 1970. The law applies to state and federal project water supplies to the extent it is not inconsistent with federal project purposes.
From its confluence with the Merced River north to the Delta, the San Joaquin is a regulated river.
In 2000, the State Board refined its then-current water quality (salinity) requirements established in 1995 at various Delta compliance points in its Water Quality Control Plan decision, D-1641. D-1641 punted on prescribing San Joaquin flows for salmon fishery needs because the Vernalis Adaptive Management Plan, a 12-year Bureau of Reclamation flows experiment, was just under way. It was thought this study would give time for science to answer the question of San Joaquin fishery flow needs in order to keep these historic fisheries in “good condition.”
Because Friant agreed to implement the Settlement and work toward restoration of the river’s salmon fishery, the State Board determined in 2006 that Friant would not be looked to for additional flow requirements for San Joaquin salmon fishery needs so long as the Settlement was in place.
Q: So, where does that leave us today?
Morrissey: Today, some of the uncertainty has been removed. For example, we now know:
• As of 2012 the VAMP experiment is over.
• The results of a 2009 paper by the California Department of Fish and Game for the State Board asserts that unimpaired flow requirements for San Joaquin optimal fishery needs are 60%.
• The State Board’s current preferred alternative, according to environmental documents released last year, would require tributary water users (the Stanislaus, Tuolumne and Merced rivers) to forego diversion of 35% of those rivers’ unimpaired flows.
According to the State Board, Friant was and is not included in that calculation because the Settlement is a structured program that endeavors to restore upper river salmon. Without the Settlement in place, the State Board could seek 35% of the upper San Joaquin River’s unimpaired runoff. On an annual basis, that would be a approximately 600,000 acre-feet, three times the amount of water relinquished under the Settlement.
When Friant agreed to the Settlement the Authority suspected the agreement’s success would fall short of that envisioned by the NRDC because cost estimates were too low.
This suspicion proved perceptive. It is now crystal clear that implementing the Settlement is fraught with challenges, the lack of available funding being the paramount concern.
Because Friant is a settling party, decisions on modifications to the Settlement Act require a process driven by consensus.
Today those discussions are ongoing and Congress is endeavoring to make some justifiable modifications. Friant is supportive of what makes sense.
Given all the factors, the Authority considers abandoning the Settlement as an uninformed and reckless choice given the alternatives.