The Board issued a strongly worded “cease and desist” order to the federal and state agencies for a “threatened violation” of their permit and license conditions requiring compliance with salinity objectives in the embattled California Delta.

Representatives of fishing groups, Delta farmers and environmental organizations greeted the order as an historic decision that could result in improved water quality on the Delta, benefiting both fish species and Delta farming operations that have been severely impacted by saltwater intrusion in recent years.

The decision comes at a time when Delta smelt, threadfin shad, juvenile striped bass and longfin smelt are undergoing an unprecedented population crash. One of the key factors in the alarming decline is increased water exports to the San Joaquin Valley agribusiness and southern California that deprive the Bay-Delta estuary of the fresh water needed to sustain the food chain.

“The order was a shock to me,” said Bill Jennings, chairman of the California Sportfishing Protection Alliance. “It is a historic decision and a huge victory for the Delta. The Board has finally stepped up to the plate and decided to implement the law. The order by itself may not save the Delta, but it is one of the cornerstones necessary for Delta restoration.”

For over two decades, the board has granted the agencies extensions to comply with the water standards. The board in 2005 granted a 10-year extension to DWR and the Bureau after they claimed they couldn’t meet the standards.

The Bureau, DWR, Westlands Water District and the Exchange Contractors mounted a furious but futile last minute effort to derail the order, according to Jennings. The order was preceded by an appellate court victory the previous week that ordered the board to enforce water salinity standards.

“Our victory in last week’s D-1641 appellate decision hovered over the board’s proceeding,” said Jennings. “Indeed, it led to a number of last minute changes.”

The water order holds DWR and the Bureau “jointly and severally” responsible to meet the salinity objectives, as described in Water Right Decision 1641 (D-1641), in the Delta at three compliance stations, the San Joaquin River at Brandt Bridge, Old River near Middle Near and Old River at Tracy Road Bridge.

The order says there is a “threat of violation” by the two agencies for implementing the salinity standards at these three stations between April 1 and August 1 of each year.

Salinity standards are measured by the electrical conductivity of the water. The salinity standard of 0.7 millimhos per centimeter of electrical conductivity must be met during this period, while standards of 1.0 millimhos per centimeter must be maintained the rest of the year.

“The decision was made primarily to protect Delta farmers from saltwater intrusion,” said Jennings, “but it also protects the fish. To maintain the salinity standards, DWR and the Bureau will have to take measures such as restricting pumping and increase water releases.”

Barbara Leidigh, senior staff attorney for the State Water Resources Control Board, said the agencies have a number of options to comply with the order, including releasing more water from reservoirs, slowing down export pumping and using temporary barriers in the South Delta to the best of their ability. “There are probably other things they can do also to meet the standards,” Leidigh said.

However, representatives of the Bureau of Reclamation and DWR claimed they were unfairly given responsibility for maintaining water quality standards when other agencies are also responsible for discharging water that impacts the standards.

“We will continue to maintain water quality where we are responsible for it,” said Jeff McCracken, spokesman for the U.S. Bureau of Reclamation. “However, it appears that the Board is holding the Bureau and DWR responsible for everybody's degradation of the Delta.”

“I’m very upset with the board’s decision,” said Jerry Johns, Deputy Director of DWR. “The decision is inappropriate and is a terrible precedent.”

He emphasized, "Reducing pumping doesn’t relieve the problem of Delta salinity. In fact, pumping could actually improve the circulation of the South Delta.” He stated that sponsoring the permanent gates in the proposed SDIP would move water more effectively and reduce salinity up to 25 percent.

“The water quality degrades in the South Delta because of local discharges, such as those from Manteca, Tracy and other cities and agricultural drains on the river below Vernalis,” said Johns. “The board, rather than controlling pollutants, is asking the state and federal water projects to release more water to dilute the pollutants. We’re not the ones who are discharging salt into the South Delta.”

DWR plans to ask the Board to reconsider the decision – and is considering other legal options. However, he pointed out that it is very rare for the governor to allow state agencies – such as DWR and the board – to sue one another.

“But I can definitely tell you that the water contractors are not happy. They may take legal action,” Johns stated.

Jennings responded that all of the salt added by Manteca, Tracy, Escalon and other cities and South Delta farmers is just a small amount compared to the salt delivered to the South Delta through drainage into the San Joaquin River by Central Valley Project contractors and by tidal intrusion of salt water up the Delta caused by export pumping. “The South Delta farmers and cities return some salt to the Delta, but the operation of the state and federal projects has created the vast bulk of the problem,” said Jennings.

Anglers, Delta farmers and environmentalists are celebrating this unprecedented decision and are preparing to counter any challenges to the historic order.

“The decision is certainly a major milepost in our battle to save the Delta,” said Jennings. “We will intervene and support the Board if DWR, the Bureau or others file legal action against the order.”    

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