It’s taken California too long to get serious about protecting the Bay-Delta ecosystem | Opinion

California’s Bay-Delta is in trouble, and its outdated water regulations need to catch up with the challenge.

For a generation, the State Water Resources Control Board has not updated legally required and much needed rules for sharing water between the environment and other water uses throughout the Bay-Delta watershed. These new rules should result in additional flows for this water-starved system to protect fish and wildlife and improve water quality.

Instead of finishing more than a decade of work and establishing long-overdue protections for the Bay-Delta ecosystem, the state is banking on voluntary agreements among water users to guide its actions. Some voluntary agreement proponents suggest there must be a choice between such agreements to provide flows and habitat and updated environmental protections.


But this is a false choice. The water board needs to update the environmental flow requirements for the Delta and the rivers that feed into it. Instead of competing with voluntary agreements, these requirements would motivate, inform and enable agreements that could pass legal muster.

The stakes couldn’t be higher: California’s economy and the livelihoods of millions of Californians hinge on what happens in the Bay-Delta watershed, as do entire populations of native fish and the people who depend upon them (including commercial fisheries, subsistence fishers and tribes), along with the people who live and work in the remarkable Delta region.

But the watershed’s ecosystems are collapsing and algae blooms are increasing. In some areas, water users regularly divert well over half (and as much as 80%–90%) of river flow in some reaches. Water flow is crucial for ecosystem health, creating habitat and keeping water temperatures cool so native fish can live and thrive. Sufficient flow also helps keep waterways fishable and swimmable as well as protecting communities’ drinking water.

California and federal law require the state to balance the benefits of water diversions for human uses with ecosystem needs. The process must determine what environmental water is needed and who should provide it. The water board, other federal and state agencies and the legislature have known that its regulations have been inadequate since at least 2009, but progress has been too slow.

Meanwhile, the state has prioritized developing voluntary agreements with water users. In theory, these agreements could couple habitat restoration with less additional flow to meet environmental needs. The promise of voluntary agreements is sweetened by the hope that they can be implemented quickly (new flow rules can necessitate lengthy administrative proceedings).

But the focus on voluntary agreements has come at the expense of fully updating the water board’s inadequate and overdue regulations for the Bay-Delta watershed.

California needs to finish the regulatory framework required by law. Fortunately, the water board is finally moving forward with the stalled regulatory process. It is assessing different options, including preliminary voluntary agreements outlined by other state agencies and a group of major water diverters, with the promise of advancing regulations soon. It must not falter.

To respond to the false choice between regulation and voluntary agreements and help set a bar for these agreements to meet, we recently published a UC Berkeley policy paper that lays out guiding principles for developing and evaluating such agreements.

Most fundamentally, the state must establish a strong regulatory baseline for voluntary agreements by updating the Bay Delta Water Quality Control Plan. This regulatory backstop is required but also needed to ensure effective agreements that could implement flow requirements in creative ways, not replace them.

Voluntary agreements also need to pass the science test. Their ecological outcomes must equal or exceed those expected from science-based regulatory requirements. They must also include explicit biological goals, a detailed pathway for implementation, adaptive management informed by robust monitoring and the best available science, clear consequences for failure and transparent and frequent assessment by the water board.

Our analysis suggests proposed voluntary agreements do not yet measure up, but they could with improvements.

Protecting the Bay-Delta ecosystem is the state’s legal responsibility, not something it can bargain away. It has taken California far too long to get the job done, and there is no more time to waste.

Felicia Marcus is the William C. Landreth Visiting Fellow at Stanford University Water in the West Program, a founding member of the Water Policy Group and former chair of the State Water Resources Control Board. Michael Kiparsky is the water program director at the Center for Law, Energy & the Environment (CLEE) at the UC Berkeley School of Law. Nell Green Nylen, a senior research fellow at CLEE, and Dave Owen, a professor of law at UC Law San Francisco, also contributed to this piece.