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The San Francisco Bay/Sacramento-San Joaquin Delta (Bay-Delta) is a vast and unique watershed, encompassing thousands of miles of land stretching from the northern reaches of the Sacramento River and its tributaries, down to the coastal waters of the San Francisco Bay area in the west, and the San Joaquin River and its tributaries to the southeast. The Sacramento Delta, which begins at the headwaters of the northern tributaries to the Sacramento River, down to the area just below the confluence of the Calaveras River and the San Joaquin River, supports both fertile farmlands and a variety of native fish and wildlife species. It has become the focal point for some of California’s most notable water policy debates.
Under the authority of both the federal Clean Water Act and the state Porter-Cologne Water Quality Control Act, the State Water Resources Control Board (“SWRCB” or “Board”) is responsible for the development of the San Francisco Bay/Sacramento-San Joaquin Delta Estuary Water Quality Control Plan (“Bay-Delta Plan” or “Plan”). The Bay-Delta Plan creates enforceable policy standards that identify both current and potential beneficial uses of water in the Bay-Delta and develop corresponding water quality objectives to ensure their protection.
The SWRCB is tasked with reviewing and updating the Bay-Delta Plan periodically. To accomplish this, most recently the Board initiated two separate processes to revise, adopt, and implement water quality objectives in the Plan. The first Bay-Delta Plan update process began in 2008 when the SWRCB considered potential changes to the San Joaquin River flow objectives to protect beneficial uses of fish and wildlife, as well as salinity objectives to protect agricultural beneficial uses in the southern Delta. The second process, referred to as the Sacramento/Delta Updates to the Bay-Delta Plan (Sacramento/Delta Updates) began in 2012, and focuses on the reasonable protection of fish and wildlife in the Sacramento River and its tributaries, Delta eastside tributaries (Calaveras, Consumnes, and Mokelumne Rivers), and Delta inflows and outflows. This environmental policy alert provides a brief update on the status of the Sacramento/Delta Update and the next steps in the implementation process.
On September 28, 2023, the SWRCB released a draft staff report in support of consideration of updates to the Bay-Delta Plan, known colloquially as the Draft Staff Report. The Draft Staff Report begins with an analysis of “proposed Plan Amendments,” which include new or modified narrative and numeric objectives, new inflow and cold-water habitat objectives for the Sacramento/Delta tributaries, new Delta outflow objectives, and new interior Delta inflow objectives.
The Central Valley Project, the State Water Project, and their various contractors, water infrastructure operators, local water agencies and other water users in the Sacramento River and Delta watershed are implicated in these amendments. One of the key components of the proposed Plan Amendments is the setting of new inflow objectives for Sacramento/Delta tributaries, which will be applied throughout the watershed to all water users except those with a de minimis effect on flows (less than 10-acre feet a year). The proposed Plan Amendments call for inflows from the Sacramento River, its tributaries, and Delta eastside tributaries at 55% unimpaired flow, with an adaptive range of 45% to 65% unimpaired flow. To meet 55% unimpaired flow, all water users would be required to limit their diversions to provide for this percentage of flow based on a minimum 7 day running average, measured at the confluence of the tributary with the Sacramento River or Delta or other locations as necessary to ensure compliance with the objective. The Draft Staff Report notes that because of these inflow objectives, in some water year types, water may not be available for all water users and any shortages would be borne in order of water priority, starting with the most junior water rights.
However, the proposed Plan Amendments are not the only options considered by the SWRCB, as the Board is required under the California Environmental Quality Act (CEQA) to evaluate a variety of alternatives that could achieve desired water quality objectives to support fish. Other alternatives include both lower and higher flow alternatives, ranging from 35% unimpaired flow to 75% unimpaired flow scenarios.
Additionally, the Draft Staff Report analyzes proposed voluntary agreements (VAs) set forth by state and federal water agencies, private companies, and a non-profit mutual benefit corporation. The proposed VAs advance a combination of flow and non-flow habitat restorations implemented and monitored over an 8-year period, including varying amounts of increased flows at different times of the year, and projects aimed at improving spawning and rearing capacity for juvenile salmonids, estuarine species, and other native fish and wildlife. The VAs also include proposed governance and science programs to direct flows, habitat restoration projects, conduct assessments, and develop strategic plans and annual reports. Additionally, as part of the Board’s analysis of the VAs, a Draft Scientific Basis Report Supplement in support of the proposed VAs (Scientific Basis Report Supplement) was prepared to document the science supporting the proposed flow and non-flow habitat provisions in the VAs. The Scientific Basis Report Supplement is still undergoing review and will be further evaluated in the coming months.
The Board is still considering possible pathways for updating the Sacramento/Delta Updates and alternatives discussed in the Draft Staff Report. The Board has not made any decision on adopting a specific course of action and will likely not do so until the end of 2024.
Following the release of the Draft Staff Report, the SWRCB announced a calendar of events to provide the public further information on the Bay-Delta Plan Update and opportunities for engagement. Past events included two Staff Workshops on October 19 and November 3, 2023, which provided an overview of the Draft Staff Report and the modeling tools used to develop the Report. A Board hearing was commenced on November 17, 2023, which allowed interested parties the opportunity to provide oral comments on the Draft Staff Report. Thus far, comments have ranged from support of the proposed VAs from interested parties in the agricultural, business, and local government sectors to opposition from tribal and environmental justice organizations. Some public commenters also called for a 75% unimpaired flow scenario in the Sacramento River/Delta watershed along with the official designation of Tribal Beneficial Uses (TBUs) as a beneficial use of water recognized in the Bay-Delta Plan.
The SWRCB also provided updates on the timeline for consideration of adoption of the proposed Sacramento River/Delta Updates to the Bay-Delta Plan. The release of the Draft Staff Report initiated a public comment period, both oral and written, that includes additional Board hearing dates on December 1 and December 11, 2023, and culminates in the written comment deadline of January 19, 2024. After a public review of the Draft Staff Report, certain alternatives may be rejected by the Board, as long as written findings explaining the reasoning for the rejection are documented in a revised Draft Staff Report. Additionally, after consideration of all public comments, the Board will develop and circulate regulatory text for the proposed Sacramento/Delta Amendments, including a program of implementation. Draft language is anticipated to be released for public review in 2024.
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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.
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