The San Francisco Bay/Sacramento-San Joaquin Delta Estuary Water Quality Control Plan (Bay-Delta Plan) is currently undergoing its periodic review of updates and amendments by the State Water Resources Control Board (State Water Board). Tribal representatives have requested the incorporation of recognized Tribal Beneficial Use (TBU) definitions to the Bay-Delta Plan. If these definitions are incorporated in the Bay-Delta Plan, the State Water Board must also amend or establish water quality objectives and implementation programs to achieve and maintain water quality sufficient for these designated beneficial uses.

The State Water Board’s Bay-Delta Plan

The Sacramento-San Joaquin Delta (Bay-Delta) watershed covers more than 75,000 square miles. The Bay-Delta is the largest tidal estuary on the western coast of the country and is critical habitat to many forms of aquatic, terrestrial, and avian wildlife, making it one of the most important ecosystems in California. Nearly half of the water flowing in the state’s rivers and streams starts as rain or snow that falls within the watershed and flows downstream through the Delta. Water quality control planning is usually the domain of the regional water boards; however, the State Water Board develops and adopts the Bay-Delta Plan because of its importance as a major source of water supply for the state.

The Bay-Delta Plan establishes water quality objectives intended to protect the beneficial uses of water within the Bay-Delta watershed. The current Bay-Delta Plan sets specific objectives for constituents including the protection of fish and wildlife, as well as agricultural, industrial, and municipal uses.

What are Tribal Beneficial Uses?

State policy for water quality control is intended to achieve the highest water quality consistent with maximum benefit to the people. Beneficial use designations serve as a basis for establishing water quality objectives and discharge prohibitions to protect and maintain a water body from pollution and nuisance resulting from waste discharges. TBU designations are intended to maintain the quality of water bodies for use by and for Native American cultures.

The State Water Board previously adopted definitions of “Tribal Subsistence Fishing” and “Tribal Cultural Use” in conjunction with California Tribes and Native advocacy groups to address the lack of water quality standards for mercury impacting the number of fish available at subsistence levels throughout the state. These definitions were incorporated into the Water Quality Control Plan for Inland Surface Waters, Enclosed Bays, and Estuaries of California – Tribal and Subsistence Fishing Beneficial Uses and Mercury Provisions in 2017.

The State Water Board is proposing to include three TBU definitions in the Bay-Delta Plan:

• Tribal Tradition and Culture (CUL): Uses of water supporting the cultural, spiritual, ceremonial, or traditional rights or lifeways of California Native American Tribes, such as navigation, ceremonies, fishing, gathering, or other consumption of natural aquatic resources (including fish, shellfish, vegetation, and abiotic materials). “California Native American Tribes” are defined as “Native American tribes located in California that are on the contact list maintained by the Native American Heritage Commission for the purposes of Chapter 905 of the Statutes of 2004.” (Pub. Resources Code, § 21073.)
• Tribal Subsistence Fishing (T-SUB): Uses of water involving the non-commercial catching or gathering of natural aquatic resources, including fish and shellfish, for consumption by individuals, households, or communities of California Native American Tribes to meet sustenance needs.
• Subsistence Fishing (SUB): Uses of water involving the non-commercial catching or gathering of natural aquatic resources, including fish and shellfish, for consumption by individuals, households, or communities to meet sustenance needs. This beneficial use does not apply exclusively to “California Native American Tribes,” but may, nevertheless, reflect activities of tribal governments as well as tribal members, tribal-focused organizations, and the public.

At present, all but two regional water boards are in the process of, or have completed, adding TBU definitions to their basin plans. The State Water Board’s proposed addition of TBUs to the Bay-Delta Plan may inform the regional water boards’ ongoing or future inclusion of TBUs in regional basin plans; however, the State Water Board’s amendment to the Bay-Delta Plan will not result in any automatic changes to the regional water boards’ plans or designate these beneficial uses for any other water bodies outside the Bay-Delta.

Environmental Justice Litigation

The State Water Board’s prior omission of TBUs for the Bay-Delta watershed is a central issue in pending litigation. In 2022, a coalition of California tribal nations and environmental justice groups petitioned the State Water Board to review and revise the Bay-Delta Plan to incorporate updated water quality standards in protection of beneficial uses in the Bay-Delta. Specifically, the petition sought protections to account for tribes’ reserved rights and interests.

The State Water Board denied the petition, stating that work to update the Bay-Delta Plan was already underway and a high priority. Subsequently, the coalition filed a Title IV (Civil Rights) complaint demanding that the U.S. Environmental Protection Agency enforce the State Water Board’s duty to review water quality standards in the Bay-Delta and update the standards for compliance with the Clean Water Act (CWA). The complaint requested two means of recourse: (1) a Title VI investigation into the State Water Board’s discriminatory water management policies and practices in the Bay-Delta; and (2) a rulemaking to adopt CWA-compliant water quality standards, including designating TBUs.

The State Water Board’s proposal to designate TBUs for the Bay-Delta watershed may address some of the coalition’s requested relief.

Next Steps in Incorporating Tribal Beneficial Uses in the Bay-Delta Plan

The State Water Board is holding an informational meeting on June 7, 2023, to discuss the potential addition of TBUs to the Bay-Delta Plan. Tribal representatives and any interested persons will have an opportunity to provide feedback at the meeting, as well as during public review and comments on an upcoming draft staff report assessing potential changes to the Bay-Delta Plan, which is set for release this summer.

For additional information on this issue, please contact:

• Krisha Yadav-Ranjan , kyadavranjan@somachlaw.com
• Michelle E. Chester, mchester@somachlaw.com

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