Understanding the Bay Delta Conservation Plan (Part 2) – The Regulatory History of the Delta

Bay Delta Region Map
Bay-Delta Region

Delta water issues have been deeply contentious for over half a century.  To understand the recently released Bay-Delta Conservation Plan and its significance, here is a bit of historical context.

The Central Valley Project (U.S. Bureau of Reclamation or “Bureau”) began exporting water from the Delta in 1951, and the State Water Project (Department of Water Resources or “DWR”) began larger-scale water exports to the south through the California Aqueduct in 1972.

In 1978, the State Water Resources Control Board (“Water Board”) adopted a water quality control plan that set standards for salinity control and protection of fish and wildlife.  The Water Board also made “Water Right Decision 1485,” which modified Bureau and DWR permits in order to comply with the new water quality standards.  The Bureau and DWR appealed the decision in United States v. State Water Resources Control Board (or for you water law buffs, the “Racanelli Decision”).

Save the Bay and the Environmental Defense Fund jointly submitted an amicus brief arguing that the public trust required a higher level of protection for the Bay-Delta.  One important holding in the case was that the public trust doctrine permits the Board to reconsider past water allocation decisions and to amend water rights if necessary to protect fish and wildlife.  The court also held that the Board’s water quality role is not to protect water rights, but “beneficial uses,” including domestic, municipal, agricultural and industrial supply; power generation; recreation; aesthetic enjoyment; navigation; and preservation and enhancement of fish, wildlife, and other aquatic resources or preserves.

To comply with the Racanelli decision, the Water Board worked in the late 1980’s to set stronger standards requiring greater flows to protect the estuary.  But the Water Board was directed to withdraw proposals in 1988 by Governor Deukmejian and in 1992 by Governor Wilson.

In the midst of all that was going on at the State Water Board, a statewide ballot initiative in 1982 proposed construction of a canal to convey water directly from Northern California to Central and Southern California, bypassing the Delta.  Save The Bay campaigned against the Peripheral Canal at the ballot box, and the initiative was defeated 63%-37%, with Bay Area counties voting against the canal by  more than 90% margins.

California experienced a six year drought from 1987 to 1992, intensifying the debate.  In 1992, Save The Bay and a coalition of organizations united as “Share the Water” helped draft and win enactment of the Central Valley Project Improvement Act, one of the most significant water policy reforms in California history.  The federal law reallocated a portion of Central Valley Project water supplies to benefit fisheries and the ecosystem.

In 1994, the Environmental Protection Agency, the Bureau of Reclamation, the National Marine Fisheries Service, the Fish and Wildlife Service and the State of California signed an agreement to coordinate activities in the Delta – the Bay-Delta Accord.  The agreement set water quality standards and initiated a long-term planning process to improve the Delta and the reliability of its water supply.  Over the next ten years, this group of state and federal agencies known as “CALFED” worked together to formalize cooperation among state and federal agencies with management and regulatory responsibility in the Delta and agreed to work together on water quality standards, coordinate operations of the State Water Project and the Central valley Project, and work toward long-term solutions the Delta issues.

Fraught with complaints that CALFED was not accomplishing what it was created to do, in 2005 Governor Schwarzenegger called for an independent review of CALFED and in 2007, established a Blue Ribbon Taskforce to create a Delta Vision, a strategy for managing the delta sustainably to support environmental and economic functions.  In 2008, the strategic plan developed from the Delta Vision project articulated 12 recommendations, the first of which was that the ecosystem and a reliable water supply are the primary, co-equal goals for sustainable management of the Delta.

In 2009, the State Legislature passed SBX71, the Delta Reform Act, which provides a framework to achieve the coequal goals of providing a more reliable water supply to California and restoring and enhancing the Delta ecosystem, while protecting the unique cultural, recreational, natural resource, and agricultural values of the Delta.
The Delta Reform Act created the Delta Stewardship Council, charged with creating a comprehensive management plan for the Delta – the Delta Plan, and tasked the Department of Water Resources with drafting a multispecies conservation plan – the Bay Delta Conservation Plan.  The BDCP will be incorporated into the Delta Plan if it complies with the Natural Communities Conservation Planning Act, the California Environmental Quality Act, and the Endangered Species Act.

The Delta Reform Act also required the State Water Board to develop new flow criteria for the Delta ecosystem “for the purpose of informing planning decisions for the Delta Plan and the Bay Delta Conservation Plan.”  The Board’s 2010 report, Development of Flow Criteria for the Sacramento-San Joaquin Delta Ecosystem, concluded that increased freshwater flows to the Bay are essential to protect fish and wildlife.  The EPA’s comment letter on the administrative draft of the BDCP observes that the options presented for analysis “appear to increase Delta outflow, despite the fact that several key scientific evaluations by federal and State agencies indicate that more outflow is necessary to protect aquatic resources and fish populations.”

For years, the State Water Board has attempted to set water quality and salinity standards that would increase fresh water flow to the Bay.  The Board’s 2010 report clearly states that “best available science suggests that current flows are insufficient.”  Save The Bay and many partner organizations are concerned that without increased freshwater flow to the Bay, the BDCP will not be a successful multispecies recovery plan.

Learn more about the BDCP in my blog “Understanding the Bay Delta Conservation Plan (Part 1).”