The goal of the Bay-Delta Water Quality Control Plan is to balance the needs of the environment, agriculture, and urban water users in the Sacramento-San Joaquin Delta, one of the state’s most critical ecosystems. The State Water Board’s update to the plan, in progress for over a decade, is considering changing how water quality standards are set and enforced, expanding responsibilities to a broader range of stakeholders through voluntary agreements.
In July, the State Water Board released a draft version of the updated plan for public comment and scheduled two days of public hearings at the end of September. With significant implications for water availability, environmental protection, and statewide resource management, the plan’s progress and proposed changes were the focus of a recent update presented to Metropolitan’s Imported Water Subcommittee. Rebecca Sheehan, an attorney with the Metropolitan Water District, gave the update.
The Bay-Delta Water Quality Control Plan update, initiated in 2009, is a two-phase effort aimed at establishing water quality objectives and standards for the Bay-Delta system. Phase one, which focused on the Lower San Joaquin River tributaries, was completed in 2018. Phase two, addressing the Sacramento River and Delta, has been underway since 2017.
Currently, water quality standards are governed by the State Water Board’s Water Rights Decision 1641 (D-1641), which has been in effect since the 1990s. Historically, these standards were tied to the water rights of the Central Valley Project and the State Water Project. However, the updated plan will expand responsibility for meeting these standards to a much broader group of stakeholders. This update is critical, as changes to the Water Quality Control Plan directly impact the availability of water for human use, carrying significant implications for statewide water management and resource allocation.
The July draft is an improvement over the previous draft, which was more of a menu of options for things that could be done. This update is more focused, and importantly, it includes the Healthy Rivers and Landscapes program as an implementation option. Ms. Sheehan said this is a new way to view compliance with regulatory programs as a more cooperative effort where the water community has a vested interest, as opposed to the top-down regulation approach.
Plan components: New beneficial uses, narrative objectives
All water quality control plans have basic components, including the designation of beneficial uses of water, such as agriculture or municipal use; water quality objectives to provide reasonable protection for those beneficial uses; and a program of implementation that includes monitoring and special studies to gauge compliance and effectiveness.
The update includes three new beneficial uses: Tribal Tradition and Culture, Tribal Subsistence Fishing, and Subsistence Fishing.
Tribal Tradition and Culture beneficial use is defined as, “Uses of water that supports the cultural, spiritual, ceremonial, or traditional rights or lifeways of California Native American Tribes, including, but not limited to: navigation, ceremonies, or fishing, gathering, or consumption of natural aquatic resources, including fish, shellfish, vegetation, and materials.” Of the three, only tribal tradition and culture beneficial use will be designated in the Bay Delta.
The Tribal Subsistence Fishing and Subsistence Fishing beneficial uses are to be adopted by the Water Board, but will not be designated in the Bay-Delta at this time. Ms. Sheehan said since there are already protections in D-1641 for fish and wildlife, the current update is very focused on adding new requirements for the protection of fish and wildlife, so while there won’t be a new objective targeting explicitly these new beneficial uses, it would be reasonably protected to the same extent through the existing and the proposed requirements.
Several new narrative water quality objectives are proposed for the protection of fish and wildlife. “A change in some of the narrative objectives is that it recognizes that flow is a way to meet them, but there’s also a way to meet the objectives through other actions. So there’s more flexibility ingrained in the language of some of the new objectives,” said Rebecca Sheehan.
Implementation pathways
There are two implementation pathways. One is the unimpaired flows approach, and the other is the Healthy Rivers and Landscapes program.
Unimpaired flows
The unimpaired flow approach is based on a percentage of the natural hydrograph—the theoretical volume of water that would flow through a specific point in a river or stream if the watershed were untouched by human-made dams, diversions, or other modifications. Ms. Sheehan pointed out that even in a completely natural, undeveloped environment, 100% of the hydrograph would not translate to outflow, as some water is naturally consumed by vegetation and lost to evaporation.
The State Water Board has set a target for unimpaired flow at 55%. However, during modeling for the 2024 draft, it became evident that this level of flow could compromise the reservoirs’ ability to maintain cold water, which is critical for salmon. In response, the Water Board has made adjustments to address these challenges while attempting to balance environmental and water management needs.
“One of those categories of adjustments is the water supply adjustments. And what they have done is taken the hydrograph and split it into thirds: the wettest, the middle, and the driest third, and assigned different percentages of unimpaired flow that are reduced under drier conditions. Some small watersheds could be off-ramped entirely to preserve cold water habitat.”
It’s unclear whether the water supply adjustments would be successful. “We looked at some of the preliminary modeling that came out last Friday, and there are still temperature impacts immediately downstream of major reservoirs with this approach, even with the adjustments,” said Ms. Sheehan. There are other ways that this approach could be adjusted, but it’s more of a negotiation going forward between different tributaries or individual water users and the water board, such as flow shaping, cooperative agreements, or future adaptive management. But we don’t have a lot of information on what that would look like.”
One of the new narrative objectives is the cold water habitat narrative objective to protect cold water immediately downstream of reservoirs. Under the unimpaired flow approach, there would be a new carryover storage requirement in September as well as some downstream temperature requirements. The carryover storage requirement has yet to be determined. The July draft includes a table with recommended starting points for discussion with reservoir operators, so adjustments to carryover storage and downstream temperature requirements are likely to be made.
Healthy Rivers and Landscapes
The alternative implementation option is the Healthy Rivers and Landscapes program, which is a comprehensive initiative that combines habitat restoration, new water flows, and a robust science-based monitoring and reporting framework.
The HRL program aims to provide up to 700,000 acre-feet of new water flows annually, with the exact amount varying based on the type of water year. Additionally, it includes 47,000 acres of new habitat restoration. Designed as an eight-year program, it also offers the flexibility of an extension if needed. To ensure transparency, the program includes annual and tri-annual reports, as well as public meetings to keep stakeholders informed.
Accountability to the State Water Board is a key component of the program. This includes flow accounting, where state and federal projects must demonstrate how the new HRL flows are provided in addition to the existing Decision 1641 flows. They are also required to report on actions taken to protect cold water habitats. The program incorporates physical habitat accounting, effectiveness monitoring, and a science program with rigorous monitoring to support and evaluate these efforts.
“The really is a change from the current scenario where everything is really on the shoulders of the state and the federal projects,” said Ms. Sheehan. “This program brings together almost all the major water users in the watershed, working together to provide flow and build habitat. They are assessing charges per acre-foot to help fund the program, so they are putting some significant assets on the table.”
In year six of the program, the Water Board will evaluate all the data collected during the implementation period. This review will assess the number of assets developed, the types of habitats constructed, and the findings from monitoring efforts. Based on this evaluation, the Water Board will issue a determination using a traffic light system:
- Green light: The program is on track and can proceed to year eight as planned.
- Yellow light: Adjustments are required to address identified issues before continuing.
- Red light: The program will be off-ramped, and the Water Board will make a new decision regarding how the HRL parties should implement the Water Quality Control Plan moving forward.
The Water Board retains full authority throughout the program and can off-ramp it earlier if significant issues arise. This could include failure to implement HRL commitments, risks to endangered species, or failure to protect beneficial uses of water.
Next steps
During the discussion period, Ms. Sheehan clarified what would happen if the State Water Board were to adopt the updated plan. “The water quality control plan isn’t immediately implementable until a second action is taken. The second action, historically, has always been a water rights proceeding, where the water board allocates responsibility for who in the watershed will reduce their diversions to meet the standards. It ultimately led to the State Water Project and the federal project stepping up as part of a larger plan that involved Cal Fed and other things. That was the step for how responsibilities were allocated.
“This time, I think what they envision doing is using their authority under waste and reasonable use, which they have been using more and more lately, to just do a regulation and allocate it to everybody in the watershed who’s not in the Healthy Rivers and Landscapes Program, and then have it based on water right priority.”
In conclusion
Ms. Sheehan concluded by noting that comments are due by September 29; two public hearing days are scheduled for September 24 and 25. If this schedule is maintained, she said the Water Board could adopt the updated plan by the end of this year.
DISCUSSION
A large portion of the discussion centered on the scope of authorities for the Regional Water Boards and the State Water Board, as well as the coordination of multiple plans. Chair Adan Ortega asked how water quality violations, which contribute to impaired water quality in the Delta, are considered in the Bay Delta Water Quality Control Plan.
Ms. Sheehan explained that they are two separate ‘buckets’. One bucket is the water quality permits that the regional board monitors; if a discharger is out of compliance, the regional board enforces. The other bucket is the water quality control plan, which sets standards, and the Water Board allocates responsibility for those standards.
Regarding water diversions and flows, “With the unimpaired hydrograph, the Water Board is still going to have to assess who is responsible for that and for how much,” Ms. Sheehan said. “And in that context, for example, if they found somebody was not cutting diversions as ordered, the Water Board itself would go after them. So it’s a dual process of enforcement, depending on what bucket you’re in. Curtailments, as far as unlawful diversions, are also the responsibility of the Water Board. They have a process in place that they believe is the water right and priority, and how to order people to cease their diversions in times when there isn’t enough supply.”
Through the agreements, the Water Board would retain the same authority it has now regarding enforcement actions. “The water projects, because they can do the accounting, will be showing that the water showed up. So if that water didn’t show up, we want to know where it went as well. There will be an assessment time period where we all work together to figure out what happened and why the water didn’t show up. It will always actually show up in the accounting, because the projects will end up covering it. If it didn’t show up, we would also want to know what happened and ensure that it doesn’t happen again. So it is a situation. We’re all in this together. It’s not just the water board monitoring us. We’re also a part of the accounting and a part of the reporting.”
“This is a water quality control plan under the Clean Water Act and Porter Cologne,” said Director Nancy Sutley. “It’s not a water rights proceeding around diversions and the water rights sort of structure. It also will result in obligations that will translate down into permits that the Regional Board issues, whether it’s NPDES permits, WDRs, or other things.”
“None of this is simple. It’s a complex set of moving parts, continued Director Sutley. “That question is what happens were the water board to adopt this by the end of the year. What are the real-world implications for permit limits? What does it mean for discharges in the Delta? How does it impact what water gets pushed south? Whether it’s the flow regime or the or the Healthy Rivers and landscapes, what is it actually going to mean in the next 5-10, years as these pieces come up, because there are things that are going on right now that have an impact on the whole structure … what’s going to end up being different if the water board adopts the plan sort of as it is, and adopts the Healthy Rivers and landscape as one of the implementation options? … “
“At the end of the day, all of this needs to accomplish the protection of the fish, and that’s the bottom line here, Director Sutley said. “Because otherwise we’re going to be back where we started from. And one of the reasons I think that we’ve been in this kind of hamster wheel for 30 years is because we’re not getting there. … So I think it is incredibly important to understand the implications of this in terms of the regulations. I think it is very much in Metropolitan’s interest to ensure that whatever comes out is implemented, enforced, and monitored. However, at the end of the day, it must achieve the objective of protecting the fish, and we need to keep a close eye on that as well. It’s not necessarily just Metropolitan’s responsibility, but that’s going to be the mark of success, or not.”
Subcommittee Chair Mark Gold noted that those unfamiliar with the water board’s work may be confused by the Water Quality Control Plan, which is essentially a flow management plan. “Read 1000 pages in and you’re asking, where’s the water quality, right? So, what’s going to be the interplay with Region Five? It’s a lot more in Region Five. It’s Region Two as well. They have their individual basin plans that are very complicated. How do you manage the water quality to protect beneficial uses within each one of those basin plans? … Then on top of that, you have the state plans, the Inland Surface Waters, Enclosed Bays, and Estuaries Plan, and the Enclosed Bays and Estuaries Plan. Both are very critical to the health of the Bay Delta.”
“What you don’t have is integration across the entire Bay Delta complex of these plans, which is unconscionable in light of the fact that this has literally been discussed for 40 years,” Director Gold continued. “It doesn’t work the way that it’s laid out. … Flow alone does not solve the problem in any way, shape, or form. And Region Two does not act the same as Region Five in any way, shape, or form when it comes to water quality. One region has a little bit of an enforcement history; the other one almost has no enforcement history. From the standpoint of everything we discuss here at Met, it’s one system in the Bay Delta, and that is not how this is being managed. And I think it’s really important for everybody to understand that going forward.”
“Increasing habitat could help with flow, but it’s not going to solve the nutrient problem,” he said. “It’s not going to solve the 6PD, PPD, quinone problem, and on and on … There’s no other place in the state that is managed this insanely … nothing is nearly as big and as complicated as the Bay Delta, and as a result, we end up having the same sorts of debates for decades.”
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