Draft Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Watershed: Our Comments
Comment Letter – Sacramento/Delta Draft Water Quality Control Plan: California Water Impact Network
January 10, 2025
State Water Resources Control Board: Division of Water Rights
Attn: BayDelta & Hearings Branch
Via email: SacDeltaComments@waterboards.ca.gov
Re: Comment Letter – Sacramento/Delta Draft Water Quality Control Plan: California Water Impact Network
To the State Water Resources Control Board:
Summary
This letter provides comments of the California Water Impact Network (CWIN) on the October 2024 Draft Water Quality Control Plan for the San Francisco Bay/Sacramento San Joaquin Delta Watershed (WQCP). These comments are in addition to those of Sierra Club California, et al., which CWIN has separately joined. This WQCP purports to fulfill the Board’s responsibilities under state and federal water quality protection law, and to comply with other applicable laws (WQCP 1.3). Many of the elements of the WQCP do not comply with legal requirements and must be removed or modified. Absent these changes, the WQCP should not be approved.
In particular, the WQCP must eliminate consideration of the Voluntary Agreements, include additional actions for coordinated control of water quality, expedite implementation timelines, adopt and implement Tribal Beneficial Use designations, document economic considerations, and remove unreasonable and environmentally harmful delegations of authority.
As the Board’s Supplemental Environmental Document recognized, insufficient action has been taken to protect the Delta watershed. The WQCP can serve as a regulatory catalyst to reverse course and comply with the law. We present our detailed analysis and recommendations below.
Approving the Voluntary Agreements Would Violate the Board’s Legal Duties.
As several commenters have meticulously documented in comments on the SED and elsewhere, basing the proposed plan on the VAs is not only legally untenable, but would renege on the Board’s own recognized mission “to preserve, enhance, and restore the quality of California’s water resources and drinking water for the protection of the environment, public health, and all beneficial uses, and to ensure proper water resource allocation and efficient use for the benefit of present and future generations.” (SED 1-1).[1] Nevertheless, since the WQCP maintains the VAs as an option, we will restate some of these concerns. First, the VAs would violate the Board’s public trust responsibilities. They would abdicate the state’s role as a trustee by removing VA parties from regulatory requirements (WQCP 4.4.4), and they would contravene statutory directives for public trust protection, including Section 5937 of the Fish & Game Code (maintain fish in good condition), the Delta Reform Act (reduce reliance on the Delta), and the Porter-Cologne Water Quality Act (economic considerations). Second, the VAs would harm tribes, environmental justice communities, and the Trinity River.
The WQCP Does Not Satisfy the Requirements of Water Code Section 13241.
Section 3.1 of the WQCP lists the six factors that the Board must consider when adopting a plan to protect beneficial uses and prevent nuisance. However, the WQCP does not document how the Board is considering those factors in its Plan of Implementation (POI). In particular, the WQCP provides no discussion of economic considerations, nor does the Board claim that economic considerations were covered in the SED. Regardless, CWIN documented how that discussion was insufficient in our comments on the SED’s economic analysis. Additionally, we provide further analysis in Exhibit 1 below, from ECONorthwest, documenting deficiencies in the existing analysis and providing recommendations on what a responsible analysis of economic considerations would entail. See https://econw.com/about/ (detailing ECONorthwest’s experience, research team, and eminent qualifications).
Furthermore, the WQCP lacks an adequate discussion of how “coordinated control” of factors that affect water quality can be achieved. Instead, the WQCP describes existing habitat and water quality projects (WQCP 4.3.2.4) and omits factors that should be included. Specifically, the Board could exert its authority over the Coordinated Operations Agreement between DWR and Reclamation for the SWP and CVP, terms in water delivery contracts, the use of TUCPs, habitat restoration plans, and actions by the Department of Fish and Wildlife (CDFW). The absence of consideration of these factors directly contravenes the statutory directive. Even for factors that are discussed, such as temperature control and fish passage, the WQCP lacks a description of what could reasonably be achieved. There are no new proposed temperature objectives, despite the well documented inadequacy of existing temperature standards [2], and the POI does not contemplate specific fish passage improvement projects.
Additional missing analysis pertains to the housing and recycled water requirements. Recycled water provides supply for housing and reduces reliance on the Delta as mandated by statute. The WQCP must, at a minimum, evaluate how the regulatory and VA pathways would impact recycled water development projects. This includes understanding the relationship between the VAs and proposed water storage and conveyance projects, and how funding for those projects would impact recycled water investments. As is clear from ongoing budget discussions by the Metropolitan Water District of Southern California, funding the proposed Delta Conveyance Project (DCP) would generate significant rate increases and diminish the capacity to make additional recycled water investments. Approval of the VAs might make the DCP appear a more attractive investment because the VAs could allow more water to be pumped out of the Delta through the DCP, but regulatory requirements for unimpaired flows would restrict Delta pumping and further weaken the case for the DCP, elevating the likelihood of additional recycled water investments. Providing analysis of these interrelated processes is required for compliance with the statutory directive for consideration of “the need to develop and use recycled water.”
The WQCP Unreasonably Relies on Narrative Objectives for Environmental Protections.
Sections 3.2 and 3.3 provide detailed numeric objectives for municipal, industrial, and agricultural beneficial uses. Conversely, Section 3.4 provides mainly narrative objectives for fish and wildlife beneficial uses. If the Board was serious about achieving meaningful environmental protection goals, it would develop numeric objectives for different species populations based on utilization of the full suite of its authorities as discussed above. Narrative objectives that should have a numeric component include cold water habitat, salmon populations, and Delta Outflow. The WQCP presents no justification for why numeric objectives are infeasible.
A reasonable approach to developing numeric objectives would begin with a full analysis of “coordinated control” actions discussed above. For example, numeric objectives for cold water habitat could be developed through requirements placed on dam operators, modifications to the Coordinated Operating Agreement between DWR and Reclamation, and mandatory non-flow habitat projects included in water rights permits. By not including these elements and punting the development of critical POI elements to after approval of the WQCP, the Board is failing to fulfill legal obligations for environmental protection. Moreover, this approach is yet another in a long list of Board actions designed to avoid accountability for harmful environmental outcomes (see CWIN SED comments); an example of the Board’s pattern and practice of abdication of its trustee responsibilities in its actions relating to the Bay-Delta.
The WQCP Would Result in Unreasonable Delays.
The WQCP’s POI (WQCP Section 4) describes various actions the Board (and staff [3]) would take to achieve the numeric and narrative objectives. Several of them are to develop and evaluate methodologies and plans. For example, diversion curtailment methodology would be developed and adopted in regulations within two years of WQCP approval (Section 4.4.4). This would effectively delay meaningful flow improvements for two years or more as the WQCP has no provision for immediate and interim requirements. This delay is particularly galling given the fact that the SED was released over a year ago and other than holding workshops on the VAs, Board staff has been focused on developing the WQCP.
Moreover, while the WQCP contemplates the declaration of Fully Appropriated Stream Systems (FASS) (WQCP 4.4.11.1), it contains no timeline for the Board to act. This omission is problematic because an FASS prohibits the development of new water rights. Given the oversubscription of existing water rights by a factor of five (SED 2-115-122), an FASS determination is long overdue and should not be delayed.
At a minimum, the WQCP must be modified to provide immediate operational modifications to the CVP and SWP. Additional immediate actions should include mandatory non-flow habitat restoration projects, including those discussed in Sections 4.4.11.6, and feasible year-one temperature control actions by dam operators. Due to years of delays and environmental degradation, time is of the essence. Furthermore, owing to the incoming federal administration, stronger and expeditious state actions are critical to countering the rollback of federal environmental protections.
The Board has the authority and the obligation to exert control over factors that impact water quality.
In both the SED and WQCP, the Board characterizes its role in areas such as habitat restoration as passive. However, the Board has much more latitude than it implies in these documents. First, per established case law, the Board is a public trustee and both empowered and obligated to protect public trust resources. Second, there is no prohibition on the Board using its authorities to enforce statutory compliance beyond the water code (e.g., Fish & Game Code 5937). Indeed, one bright spot in the WQCP is that it contemplates requirements for dam operators to develop temperature control plans. Third, state regulatory agencies, including the Board, routinely exercise their authorities over other state agencies. The Air Resources Board, for example, regulates DWR’s greenhouse gas emissions under its cap-and-trade program. Meanwhile, the Board issues a statewide stormwater permit to Caltrans. These existing regulations demonstrate that the Board can and must apply its regulatory purview more widely in the WQCP. It should require habitat restoration projects in permits, modify existing water contracts as appropriate, and mandate the use of temperature control technologies. The hands-off approach, as documented in the VAs, water user-led working groups (e.g., STM working group, LCS), and the Board’s limited use of its authorities, is tantamount to an abdication of its duties under the public trust and statute.
The WQCP would perpetuate harms to tribes.
The WQCP discusses the potential for a tribal beneficial use (TBU) designation for the Bay-Delta watershed, which would be a tangible action reflecting the centuries of harm Western colonial governments have inflicted on native peoples. However, like several other potential WQCP actions, the TBU designation alone is insufficient. There is no identified timeline for setting numeric standards to protect TBUs nor are there identified pathways for incorporating TBU protections into regulatory controls. If the Board is fully committed to adopting and implementing TBUs, it should build tribal engagement and TBU protection into every WQCP implementation action. Those include the following:
Setting numeric flow and temperature standards for each river system;
Integrating tribal participation into existing and contemplated working groups (e.g., STM, LCS);
Require tribal co-management of habitat restoration projects;
Include reserved tribal water rights into curtailment methodologies affecting other water users;
Other actions requested by tribes in workshops and written comments.
Furthermore, the WQCP’s inadequate approach to the Trinity River would harm North Coast tribes that depend on the Trinity River ecosystem. Other than requiring reports from Reclamation, the WQCP omits actions necessary to protect the Trinity. As documented in CWIN’s comments on the SED, these actions, including revised temperature standards, are critical to avoid massive fish mortality events. The Trinity River provides cold, clean water to the Lower Klamath River when conditions are unfit for adult salmon to survive under a Reclamation 2017 Record of Decision.[4] Since 2002, 335,000 AF of Trinity water has been released for this purpose.[5] By failing to provide temperature protection and cold-water carryover storage for the Trinity River, the WQCP would doom the Klamath-Trinity salmon restoration to failure and destroy the cultures of the Hoopa Valley and Yurok Tribes who have federally-reserved fishing rights. The WQCP would also continue the devastation of the commercial and sport fishing economies that depend on healthy salmon runs. The Board is required to protect the Trinity River and the Bay-Delta Plan update is the right place to do so. Full Trinity River temperature protection was promised in 1989 in Water Quality Order 89-18 [6] and again in 1990 within WRO 90-5 [7]; we’re still waiting.
The WQCP unreasonably considers actions that would result in additional harm to the environment.
In the SED, Board staff make the case that an adaptive range of 45-65% unimpaired flow could reasonably achieve the narrative objectives for ecosystem health. However, the WQCP proposes a set of criteria that would effectively transform the range to 35-55% (WQCP 4.4.2.2.), undermining the minimally protective benefits of the range proposed in the SED. The justification for this change is to maintain cold water storage in reservoirs for habitat and water supply during drought periods. However, there is no accompanying analysis of how and why the thresholds were set. What we do know, however, based on analysis presented in the SED (including the Scientific Basis Report) is that unimpaired flows of 45% and below are not beneficial to fish species. As with facets of its analysis in the SED, the WQCP lacks transparency about the “behind-the-scenes” discussion and analysis used to justify proposed flow levels. If the proposed flow percentages were based on written or verbal comments provided by USACE or other flood control agencies, the Board should disclose and cite them. If Board staff ran its own analysis to determine when unimpaired flows of 45% and below would be reasonable, that analysis should be released. If the Board does not revise the WQCP to include its feasibility and balancing analysis, it may be an indication that the Legislature needs to intervene and require a more transparent process for the development of the Bay-Delta Plan.
Another POI element that could perpetuate additional harm is the development of Local Cooperative Solutions (LCS) described in Section 4.4.2.4. As described in the WQCP, LCS would provide water users with flexibility in meeting unimpaired flow and cold water habitat requirements on individual or multiple tributaries. However, the WQCP provides no explanation for why LCS are desirable or beneficial. But the LCS example provided clearly demonstrates that LCS would be beneficial to water users at the expense of the environment. The WQCP contemplates that LCS could allow water users to “operate lower in the required inflow range” (page 60), again raising the discredited talking point that “habitat” could substitute for “flow.” Effectively, LCS are VAs that would allow water users to document why they should provide the lowest unimpaired flow levels allowable under a regulatory format. There is no need for this façade. If the Board believes that adaptive management means lower unimpaired flows in all but the wettest years, then it should own that position and do away with the conceit that it is facilitating cooperation. Moreover, the LCS concept duplicates the flawed VA process by allowing water users to develop their preferred operations plan and then bringing it to tribes and fisheries agencies for feedback. The Board needs to learn that truly cooperative processes place all parties in the room together from the beginning.
Conclusion
In the WQCP the Board asserts that its three major goals are: “develop water resources in an orderly manner; prevent the waste and unreasonable use of water; and protect the environment.” (WQCP 1.3). The POI, as written, does not fulfill any of the goals. First, the state Constitution does not use the word “orderly.” Instead, it requires that the “the water resources of the State be put to beneficial use to the fullest extent of which they are capable.” (Cal. Const. Art. X, § 2.). Achieving this requires that the state designate and balance competing beneficial uses. The Board cannot perform the necessary balancing unless and until it designates TBUs, addresses water rights over appropriation, and fully considers the economic benefits of leaving more water in the rivers.
Second, the Board must evaluate whether current uses of water are wasteful or unreasonable given the need to protect TBUs and the public trust. Rather than just temporary or water-year dependent curtailments, this includes long-term adjustments consistent with “[t]he longstanding constitutional principle of reasonable use and the public trust doctrine,” which “shall be the foundation of state water management policy and are particularly important and applicable to the Delta.” (Wat. Code, § 85023.) Legally, the “public welfare” and the public trust must take precedence over uses of water rights inconsistent with these principles, without exception. The WQCP’s consideration of the VAs and other mechanisms that would shortchange the public interest are both contrary to law and the declared policy goals of the Legislature and the Board itself.
Third, environmental protection, as codified in the public trust doctrine and multiple statutes, requires tangible and enforceable regulatory action. The VAs are the antithesis of what the law requires. Even within the regulatory components of the POI, however, the Board misses the mark. The WQCP suffers from inadequate justification for regulatory provisions, lack of economic analysis, unnecessary delay, limited regulatory scope, and insufficiently protective standards. The Board must revise the WQCP to actually exert “control” over water quality.
There is a feasible regulatory pathway towards an improved Bay-Delta ecosystem and reasonable attainment of all beneficial uses. The Board should not bow to political pressure to undermine its authority and maintain the status quo.
See C-WIN’s comment letter here.
Read the joint comment letter C-WIN signed on to regarding the Draft Water Quality Control Plan for the Bay-Delta here.
[1] CWIN comments on September 2023 Draft Report and Supplemental Environmental Document (SED), dated January 18, 2024 (CWIN SED comments), p. 1 (quoHng Board’s mission statement).
[2] See CWIN SED comments, pp. 4-8, 20-25.
[3] Staff is noted here because the WQCP contemplates many decisions being delegated to the Board’s Executive Director.
[4] Record of Decision for the Long-Term Plan to Protect Adult Salmon in the Lower Klamath River, U.S. Bureau of ReclamaHon, 2017, accessed at https://www.trrp.net/library/document/?id=2465.
[5] See Column F, Trinity River Flow Volume Summary, accessed at https://www.trrp.net/restoraHon/flows/summary/
[6] See SWRCB Water Quality Order 89-18, pages 18-19, Accessed at https://www.waterboards.ca.gov/board_decisions/adopted_orders/water_quality/1989/wq1989_18.pdf
[7] See SWRCB Water Right Order 90-5, pages 31-32 , accessed at https://www.waterboards.ca.gov/waterrights/board_decisions/adopted_orders/orders/1990/wro90-05.pdf