The Delta Reform Act Explained

In response to intensifying drought cycles and plummeting fish populations, the Delta Reform Act of 2009 established two coequal goals:

1. Securing Reliable Water Supply for California

2. Preserving the Delta Habitat

The act recognized the Sacramento-San Joaquin Delta as an “evolving” environment and made protecting, restoring, and enhancing its ecosystem a clear priority. It 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.

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 increased state investment in levee maintenance and upgrading.

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.

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.

“Protection and restoration” apply to agriculture, wildlife habitat and recreational activities, and the “balanced conservation and development of Delta land resources…”.

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.

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.

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…”.

At the beginning of the 20th century, excessive and inequitable water rights claims led to legal challenges by state residents. The California State Legislature responded in 1913, passing the Water Commission Act – the first attempt to administer new surface water rights. However, the act also gave legal cover for pre-1914 water rights, many of which were established through the illegal and violent appropriation of Native lands by white settlers.

California’s water management is still deeply inequitable and ultimately unsustainable. Our current water infrastructure was based on excessively optimistic assumptions about water supply volume and reliability. This error was compounded through water allocation laws that instituted and reinforced inequitable diversions. The Delta Reform Act’s clear failure to rectify historical water rights claims allows for the imbalanced and ecologically harmful consumption of water to persist.

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.

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 is also 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.

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. However, because the act does not define or even mention the Delta’s “safe yield,” 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.

Selenium, arsenic, boron, molybdenum, mercury and numerous other toxic salts and minerals are concentrated in the soils of large portions of the San Joaquin Valley. The Central Valley Project (CVP) has been supplying water to approximately 1.3 million acres of these drainage-impaired land since the late 1960s. By the early 1980s, thousands of migratory birds were dying from selenium poisoning at Kesterson due to toxic drain water. While farmers and water districts throughout the western San Joaquin Valley have been trying to reduce their drainage water, much remains to be done. With increased concentration of selenium and salts in the shallow aquifers of the San Joaquin Valley, risk of mobilization during flood events and groundwater transport grows. The continued irrigation of these impaired lands not only harms the health of the Delta ecosystem but puts the safety and quality of California’s water supply at risk.

Groundwater mismanagement is yet another example of water policy in California contravening the principles of the DRA. Water transfers via market transactions have been used since the early 1900s to ameliorate “inflexibilities” in water rights priorities. Groundwater substitution occurs when surface water is sold, and groundwater is pumped to maintain crop production. The surface water involved in these transactions is transported through the Delta to the massive CVP and SWP export pumps, a process that degrades Delta ecosystems generally and is responsible for extensive fish kills. While water transfers are intended to address water rights priority imbalances, they may also result in depletion of groundwater levels, overdrafts impeding aquifer recharge, and devastation to groundwater-dependent native vegetation and the wildlife these ecosystems support.

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. State investment in conservation, recycling, stormwater capture, groundwater recharge, development of local sources, and limited desalination is a necessary step in sustaining the Delta Ecosystem. Beyond shifting investment strategies, transitioning land use to maximize available water allocation will be vital.

Eliminating or greatly reducing irrigation on impaired lands would save up to 2 million acre-feet of water annually. Prioritizing water for the most productive farmland to grow “table food” would also minimize wasteful and environmentally harmful use as well as reducing the risk of food shortages in dry years. Moreover, as other analyses have documented, there are numerous agricultural water use efficiency measures, which, if widely used, could result in savings of 10-20% of total agricultural water use.

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.

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.

The consequences of “business as usual” should not be underestimated. The sheer lack of investment and enforcement of the Delta Reform Act’s policies jeopardizes California’s future access to a safe and reliable water supply and leaves the Delta estuary vulnerable to the ever-growing impacts of climate change. Building resilient ecosystems through restoration and conscious consumption is the only way to ensure the survival of California’s landscapes and wildlife.

Salmon will soon be extinct across California. Freshwater temperature increases due to diverted flows and surface warming raises the risk of toxic algae blooms that can wipe out entire aquatic ecosystems. The losses we are facing are not just the intrinsic value of Delta wildlife. Access to the dwindling freshwater supply will continue to favor agricultural giants. Local farmers, fishermen, hunters, and urban ratepayers will keep pulling the short end of the stick as our current water use model bleeds California dry.

We are at a tipping point. If we do not make significant changes to prepare for the implications of climate change, standards of living for Californians will plummet, the iconic species of California will disappear, and the economic profits we are currently prioritizing will diminish.