The Delta Reform Act Explained
Photo: BLM
What is the Delta Reform Act?
The Delta Reform Act of 2009 established two coequal goals: securing a reliable water supply for California and protecting, restoring, and enhancing the Sacramento-San Joaquin Delta ecosystem and the fish, wildlife, and recreation it supports. The act recognized the Delta as an “evolving” environment and outlined a state policy of reduced reliance on Delta water exports, opting for a strategy of improved conservation, the development and enhancement of regional supplies, and water use efficiency.
The act established an independent state agency – the Delta Stewardship Council – to develop and implement a plan that facilitates the declared coequal goals. The act also established the Delta Independent Science Board and authorized it to research, monitor, and assess programs pursued under the Delta Plan, advising the Council of its findings.
Under the authority of the act, a Delta Plan was adopted in May 2013. It incorporated 14 regulatory policies and 73 non-regulatory recommendations that contributed to the realization of the coequal objectives, including reduced reliance on Delta exports; final approval and adoption of the Bay Delta Conservation Plan; enhanced water quality standards; protection of the Delta’s unique ecosystem; mitigation of the multiple stressors affecting the Delta; improvement of emergency preparedness throughout the Delta region; reduction of flood risk; and prioritized state investment in levee maintenance and upgrading.
Read the full text of the Delta Reform Act here.
Why is the Delta Reform Act significant?
It’s the first major attempt to reform California water law since 1851. It can be seen as “California Water 2.0”: an acknowledgement that the Delta is an ecosystem of national and international significance, that it’s in deep crisis due to water exports, habitat loss, and the impacts of climate change, and that concrete steps must be taken to reverse its decline and restore its ecological integrity.
How does the act characterize its “protection and restoration” goal?
“Protection and restoration” apply to agriculture, wildlife habitat and recreational activities, and the “balanced conservation and development of Delta land resources…”.
The act has been described as “pivotal” in the campaign to restore the Delta and implement equitable water allocations. What makes it different from earlier Delta protection legislation?
Unlike previous legislation, the Delta Reform Act explicitly invokes the public trust doctrine in determining California’s water allocations. The public trust doctrine requires the state to hold designated resources – i.e., water – for the benefit of the people. In 1971, that purview was extended to include fish, wildlife, wildlife habitat, and recreation.
Full implementation of the act would mean that the primary beneficiaries of California’s water policies – a small number of Central Valley irrigators – would have to share their water with all other stakeholders, including cities, Delta ecosystems, and fisheries.
How is implementation of the Delta Reform Act funded?
Funding is accomplished through a Delta Investment Fund established in the State Treasury. The fund may receive money from state, federal, local, and private sources.
Does the Delta Reform Act directly address water rights claims?
No. The act is specifically worded to avoid water rights claim disputes, noting the legislation “…Does not diminish, impair, or otherwise affect….[any] water rights protections…”.
Does the act affect the operation of any existing water project or government agency that manages water?
No. The act doesn’t apply to any regulatory action by a state agency, nor does it exert any authority over the federal Central Valley Project or the State Water Project – the two major conveyance systems that transport water from the Delta to Southern California cities and agricultural operations. The act establishes broad goals rather than dictating the management actions that must be taken to achieve those goals.
Are the act’s “coequal goals” of a reliable water supply and protecting and restoring the Delta simultaneously attainable? And if not, which takes precedent? Y
It depends on how the act is implemented. They are compatible goals, assuming “providing a more reliable water supply” isn’t interpreted as siphoning more water from the Delta. The Delta ecosystem can’t sustain increased water exports: it’s already on the verge of collapse, and it isn’t even supplying its contractors with the water government regulators promised when the State Water Project and the federal Central Valley Project were completed. The Delta’s water quality also is degrading steadily due to increasing salinity.
When the legislature drafted the Delta Reform Act, it described the public trust element as “paramount” over all other objectives. Ecosystem restoration is a foundational application of public trust water. Accordingly, revitalizing and protecting the Delta must take priority over water exports: the ecological viability of the Delta is “paramount” under the Delta Reform Act.
Water managers often talk about a “safe yield” for the Delta – the volume of water that can be exported without causing appreciable harm to the estuary’s ecosystem, fish, and wildlife. Does the Delta Reform Act cite such a figure?
The act does not define or even mention the Delta’s “safe yield,” and many Delta advocates consider this fact a deficiency in the legislation. Multiple studies confirm the Delta’s exports must be kept below 3 million acre-feet during average years to maintain the estuary’s biological integrity. But the State Water Resources Control Board currently allows exports of 4.2 million acre-feet in average years. This explicitly violates California’s public trust doctrine, which applies to the state’s water resources.
How will Californians obtain their water if exports from the Delta are curtailed or eliminated?
The solution lies in both diversifying supplies and managing water differently. There is enough water – even during drought – to supply California if multiple options are implemented. They include conservation, recycling, stormwater capture, groundwater recharge, retirement of salt-impaired croplands, development of local sources, and limited desalination.
The Newsom administration is promoting a “Single Tunnel” project to convey water around the Delta for delivery to Southern California’s cities and agricultural operations. Does this conform to the Delta Reform Act?
No. The Single Tunnel project would sustain ongoing and excessive exports of Delta water to impaired lands in the western San Joaquin Valley, making the “coequal” goal of Delta restoration functionally impossible. Further, the tunnel violates Article 10, Section 2 of the California Constitution, which stipulates there must be no “waste or unreasonable use” of California’s water – e.g., using a significant percentage of the state’s scant water resources to irrigate toxic lands for the benefit of a small number of San Joaquin Valley growers at the expense of the environment, Delta farmers, and urban ratepayers.
Have the goals of the act been achieved?
Many environmental groups felt the actions of the Delta Stewardship Council and its implementation of the Delta Plan didn’t match the avowed goals of the Delta Reform Act. Subsequently, the California Water Impact Network (C-WIN) successfully sued the state over jurisdiction, water quantification, and regulatory issues. The Delta Plan now exists as a guiding document, but it has yet to be applied to any meaningful degree.