From the Legislative Analyst’s Office:
This report discusses the State Water Resources Control Board’s (SWRCB’s) proposed—and long-overdue—update of the water quality control plan for the San Francisco Bay-Sacramento-San Joaquin Delta, which includes an alternative compliance pathway for certain water users called voluntary agreements (VAs, also known as Healthy Rivers and Landscapes). Given that SWRCB appears likely to adopt the update including VAs, the report provides recommendations for legislative oversight to help ensure the plan achieves its objectives.
Bay‑Delta Plan Updates Needed for Protection of Fish and Wildlife. The State Water Resources Control Board (SWRCB) is in the process of updating the Water Quality Control Plan for the San Francisco Bay‑Sacramento‑San Joaquin Delta (Bay‑Delta Plan). This regulatory plan establishes enforceable water quality standards—such as flow requirements—to protect beneficial uses of water (including municipal, agriculture, and fish and wildlife) in the Bay‑Delta and the Sacramento and San Joaquin Rivers and their tributaries. These waterbodies are an important source of drinking and agricultural water around the state. The Bay‑Delta system is culturally and spiritually significant for a number of native tribes and central to their traditional diets. In addition, this watershed provides vital habitat for hundreds of species of fish and wildlife. SWRCB is making updates because the plan has not adequately protected fish and wildlife, including several species of threatened and endangered native fish.
Proposed Sacramento/Delta Updates Incorporate Voluntary Agreements (VAs). SWRCB is updating the Bay‑Delta Plan in two phases. Phase one—adopted, but not yet implemented—concerned the Lower San Joaquin River and its tributaries and salinity objectives for the Southern Delta. Phase two—the focus of this report—concerns the Sacramento River and its tributaries, Delta eastside tributaries, and the Delta. SWRCB has proposed two compliance pathways for most Sacramento/Delta water users. One pathway—VAs—would apply to most of the water use in the watershed. The VAs reflect negotiated commitments among certain water agencies, the State Water Project, federally run Central Valley Project (CVP), and state agencies to provide flows, habitat restoration, and funding as an alternative to typical top‑down regulatory requirements. The other pathway—more traditionally regulatory—would apply to water users that do not choose to be part of the VA program. Key features of the two pathways include:
- VA Pathway Includes Flows and Habitat Projects. VA parties would provide additional flows to stay within the rivers—including from water purchases—above a set baseline amount, and complete roughly 47,000 acres of habitat restoration projects. The VA program—also known as the Healthy Rivers and Landscapes Program—would last eight years and could be extended if SWRCB determines it has been effective. Estimated implementation costs for habitat projects and water purchases total about $3 billion and would be shared by the state (paying about half), water users, the federal government, and the CVP. VAs would become binding commitments—not voluntary—upon SWRCB’s adoption of the updated Bay‑Delta Plan. (The term “voluntary” derives from the fact that the parties came together voluntarily to develop an alternative approach.)
- Regulatory Pathway Uses an Unimpaired Flows Approach. For water users that are not part of the VA program, the regulatory pathway would require 55 percent of unimpaired flows to be maintained in rivers year‑round. (Unimpaired flow refers to the estimated natural flow that would occur absent human alterations such as dams, reservoirs, or diversions.) This percentage of unimpaired flows could be lowered to 45 percent or 35 percent in certain water supply circumstances.
Key LAO Takeaways
Long Delays in Updating the Bay‑Delta Plan Further Threaten Native Fish. The Bay‑Delta watershed supports residents, farms, tribes, fish, wildlife, and businesses, yet its ecosystem has been significantly compromised over the years. The current Bay‑Delta Plan has not provided adequate protection of all beneficial uses, and long delays in updating the plan further threaten native fish. Making near‑term progress on updating the plan is a critical step in beginning to reverse these trends.
Board Likely to Adopt VAs, Which Theoretically Could Balance Multiple Competing Goals… Although it has not formally adopted updates to the Bay‑Delta Plan, SWRCB has signaled its intent to move forward with the VA approach. While SWRCB’s regulatory tools—focused on flows and diversions—are essential, they cannot directly compel habitat restoration and, on their own, likely would not be able to fully restore fish populations or ecosystem health. In this context, the VA approach could theoretically offer some benefits—somewhat increasing flows while also improving habitat. Moreover, VAs are more flexible than traditional regulations (allowing adaptation in closer to real time), have fewer adverse impacts on water users, provide more certainty to water agencies, and could be implemented more quickly.
…Yet Significant Uncertainties About VAs Remain. Despite their potential benefits, significant uncertainties about the VAs remain, including whether VA flows will be sufficient to support recovery of native fish. In addition, federal policy changes—including the CVP potentially pumping more water from the Delta—could undermine the VA parties’ ability to implement the plan. Given these considerable uncertainties, the VA program must be closely monitored.
Legislature Has Important Oversight Role. SWRCB is likely to adopt the updated Bay‑Delta Plan that includes VAs, potentially later this year. Given the high stakes for fish and water users, the Legislature can play a critical role in monitoring plan implementation. Because the VAs are designed to adapt as new information becomes available—and the board retains authority to terminate the VAs for some or all water users if they are not working as intended—performance will require ongoing evaluation. Legislative oversight can help ensure problems are identified and corrective action is taken when needed. To conduct its oversight, the Legislature could hold informational and/or oversight hearings, require reporting by SWRCB to the Legislature, require independent scientific evaluation of plan implementation and the VA pathway, and review how state funds are being spent. By holding SWRCB accountable to the Bay‑Delta Plan’s objectives and shining a light on the successes, challenges, and unintended consequences of the VA program, the Legislature can help ensure the state achieves its environmental and water management goals for this important watershed.
