CONTACT US Sacramento Office: Fresno Office: Washington Office: 
FIRM PROFILE Somach Simmons & Dunn provides a unique combination of experience in the fields of water, natural resources, environmental, public land, public agency, toxics and hazardous waste, zoning, planning, and land development law. |
 | |
 |
State Water Board Takes Initial Steps Towards Establishing New Delta Flow Criteria To Protect Public Trust Resources January 13, 2010 by Brian D. Poulsen bpoulsen@somachlaw.com |
|
In late 2009, the California Legislature passed legislation requiring the State Water Resources Control Board (State Water Board) to develop new flow criteria for the Sacramento-San Joaquin Delta (Delta) ecosystem to protect public trust resources. As an initial step towards complying with this mandate, on January 7, 2010, the State Water Board held a pre-proceeding conference to prepare for and discuss procedural aspects of its upcoming informational proceeding to develop flow criteria for the Delta ecosystem. Background SB 1, enacted by the California Legislature on November 12, 2009, requires the State Water Board to “develop new flow criteria for the Delta ecosystem necessary to protect public trust resources” by August 12, 2010. (Stats. 2009 (7th Ex. Sess.) ch. 5, § 39.) The flow criteria must include the “volume, quality, and timing of water necessary for the Delta ecosystem under different conditions.” (Stats. 2009 (7th Ex. Sess.) ch. 5, § 39.) In order to carry out this mandate, the State Water Board has scheduled an informational proceeding for March 22-24, 2010 (Proceeding) wherein the Board will receive scientific information to inform the development of such criteria. Pre-Proceeding Conference The State Water Board held the pre-proceeding conference on January 7, 2009 to discuss and seek input on the procedures for and scope of the Proceeding. For example, the Board sought input as to how presentations should be organized and whether presenters should be sworn in under oath. The Board discussed practical constraints, such as the August 12, 2010 deadline to develop the flow criteria, and whether the Proceeding will result in actual numeric flow criteria, or whether “criteria” means something more qualitative. According to its published notice, the focus of the Proceeding will be on Delta outflow requirements. During the pre-proceeding conference, however, there was some discussion of incorporating inflow requirements as well. Given the practical constraints, the informal consensus from the Board was that the Proceeding would focus on outflow requirements. In particular, the State Water Board hopes to identify what volume, quality, and timing of Delta outflows are necessary for the Delta ecosystem under different hydrologic conditions to protect public trust resources. The State Water Board intends to restrict the Proceeding to gathering scientific information relevant to setting Delta flow criteria, rather than hearing policy positions from interest groups. The Board made no major decisions during the conference, but resolved to deliberate on a number of issues discussed, and possibly provide further guidance prior to the March proceeding. Implications Though the pre-proceeding conference was just a precursor to the upcoming Proceeding, water users and other stakeholders closely monitored the State Water Board’s initial steps towards establishing new flow criteria. It is unclear at this time what impact the Proceeding will have on water users since the Proceeding may not ultimately result in numeric flow criteria for the Delta. Further, and as explained by several Board members, whatever criteria are developed will not be binding in future proceedings. However, should the State Water Board develop numeric flow criteria, it is possible that such criteria will inform the State Water Board’s future water quality control plans for the Delta and/or related water rights proceedings. Similarly, any flow criteria will also be used to inform the Bay Delta Conservation Planning process and the ultimate building and/or operation of any future alternative conveyance facility around or through the Delta. Individuals that timely submitted a notice of intent to appear at the Proceeding must submit written introductions, witness identification lists, written testimony, exhibits, and exhibit identification lists by 12:00 p.m. on Monday, February 15, 2010. A link to the State Water Board’s Bay-Delta Program, including the Delta Flow Criteria Proceeding, can be found at www.somachlaw.com/bay-delta. For more information please contact Brian Poulsen at bpoulsen@somachlaw.com. Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn. |
