On March 29, 2022, California Gov. Gavin Newsom released a signed memorandum of understanding (MOU) that outlines the terms for an 8-year program that would provide additional flows to and create habitat in the Sacramento-San Joaquin River Delta. The set of voluntary agreements outlined in the non-binding MOU are designed to meet the objectives of the Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary, which establishes water quality objectives to protect native fish, wildlife and other beneficial uses of water. The State Water Resources Control Board (SWRCB) is currently updating the Bay-Delta Water Quality Control Plan. Various federal, state and local water agencies are signatories to the MOU.
Goals, Funding and Governance
The voluntary agreements could generate up to an additional 825,500 acre-feet per year of flows and create or restore over 25,000 acres of wetland and floodplain habitats, 20,000 acres of rice fields to be used for fish food production, approximately 200 acres of instream habitat, and approximately 150 acres of spawning habitat.
The total cost to implement the voluntary agreements is $2.6 billion, with approximately $668 million coming from local water agencies and the rest a combination of state and federal funding. The water agencies would levy new fees on customers in order to fund the implementation of the voluntary agreements. A governance and monitoring framework is also outlined in the MOU, which will allow federal, state and local partners to analyze the progress and effectiveness of the voluntary agreements in order to determine if the agreements should be continued, modified or potentially terminated at the end of the eight-year program.
Implications
Water agencies in the Bay-Delta region that have not voluntarily signed on to the MOU may face more strict regulatory requirements to be established by SWRCB in order to comply with the Bay-Delta Water Quality Control Plan. However, the process will be left open, and they will be allowed to join the effort in process. There are two pragmatic reasons for participation: (i) to have a role in designing and coordinating compliance efforts and (ii) avoiding the adjudicatory proceedings. The MOU is currently non-binding, and there is no waiver of a party’s rights and remedies by participating.
Next Steps
- SWRCB must give final approval of the voluntary agreements to ensure they will help achieve the water quality objectives of the Bay-Delta Water Quality Control Plan.
- Once approved by SWRCB, specific measures will have to undertake project-specific environmental review as needed, which could lead to potential challenges.
- Water agencies must obtain final approval of the obligations under the voluntary agreement from their respective board of directors.
- Settle ongoing litigation over endangered species protections in the Sacramento-San Joaquin Delta.
This document is intended to provide you with general information regarding an 8-year program that would provide additional flows to and create habitat in the Sacramento-San Joaquin River Delta in California. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.