The Bay-Delta Plan and Voluntary Agreements: Ensuring Effective Legislative Oversight

analysis full 2026-27 BUDGET The Bay-Delta Plan and Voluntary Agreements: Ensuring Effective Legislative Oversight GABRIEL PETEK | LEGISLATIVE ANALYST MARCH 2026 www.lao.ca.gov 1 analysis full AN LAO REPORT Cover photo: Prospect Island Tidal Habitat Restoration Project in Solano County in the Sacramento-San Joaquin Delta. This state- and federally funded effort plans to restore roughly 1,600 acres of previously farmed Delta land to tidal wetlands by breaching levees and reconnecting the site to tidal flows. The restored habitat is intended to support native fish species and includes acreage contributing to the Voluntary Agreements Program. Photo courtesy of the California Department of Water Resources (August 28, 2025). 2 LEGISLATIVE ANALYST’S OFFICE analysis full AN LAO REPORT EXECUTIVE SUMMARY Background Bay-Delta Plan Updates Needed for Protection of Fish and Wildlife. The State Water Resources Control Board (SWRCB) is in the process of updating the Water Quality Control Plan for the San Francisco Bay-Sacramento-San Joaquin Delta (Bay-Delta Plan). This regulatory plan establishes enforceable water quality standards—such as flow requirements—to protect beneficial uses of water (including municipal, agriculture, and fish and wildlife) in the Bay-Delta and the Sacramento and San Joaquin Rivers and their tributaries. These waterbodies are an important source of drinking and agricultural water around the state. The Bay-Delta system is culturally and spiritually significant for a number of native tribes and central to their traditional diets. In addition, this watershed provides vital habitat for hundreds of species of fish and wildlife. SWRCB is making updates because the plan has not adequately protected fish and wildlife, including several species of threatened and endangered native fish. Proposed Sacramento/Delta Updates Incorporate Voluntary Agreements (VAs). SWRCB is updating the Bay-Delta Plan in two phases. Phase one—adopted, but not yet implemented— concerned the Lower San Joaquin River and its tributaries and salinity objectives for the Southern Delta. Phase two—the focus of this report—concerns the Sacramento River and its tributaries, Delta eastside tributaries, and the Delta. SWRCB has proposed two compliance pathways for most Sacramento/Delta water users. One pathway—VAs—would apply to most of the water use in the watershed. The VAs reflect negotiated commitments among certain water agencies, the State Water Project, federally run Central Valley Project (CVP), and state agencies to provide flows, habitat restoration, and funding as an alternative to typical top-down regulatory requirements. The other pathway—more traditionally regulatory—would apply to water users that do not choose to be part of the VA program. Key features of the two pathways include: • VA Pathway Includes Flows and Habitat Projects. VA parties would provide additional flows to stay within the rivers—including from water purchases—above a set baseline amount, and complete roughly 47,000 acres of habitat restoration projects. The VA program—also known as the Healthy Rivers and Landscapes Program—would last eight years and could be extended if SWRCB determines it has been effective. Estimated implementation costs for habitat projects and water purchases total about $3 billion and would be shared by the state (paying about half), water users, the federal government, and the CVP. VAs would become binding commitments—not voluntary—upon SWRCB’s adoption of the updated Bay-Delta Plan. (The term “voluntary” derives from the fact that the parties came together voluntarily to develop an alternative approach.) • Regulatory Pathway Uses an Unimpaired Flows Approach. For water users that are not part of the VA program, the regulatory pathway would require 55 percent of unimpaired flows to be maintained in rivers year-round. (Unimpaired flow refers to the estimated natural flow that would occur absent human alterations such as dams, reservoirs, or diversions.) This percentage of unimpaired flows could be lowered to 45 percent or 35 percent in certain water supply circumstances. www.lao.ca.gov 3 analysis full AN LAO REPORT Key LAO Takeaways Long Delays in Updating the Bay-Delta Plan Further Threaten Native Fish. The Bay-Delta watershed supports residents, farms, tribes, fish, wildlife, and businesses, yet its ecosystem has been significantly compromised over the years. The current Bay-Delta Plan has not provided adequate protection of all beneficial uses, and long delays in updating the plan further threaten native fish. Making near-term progress on updating the plan is a critical step in beginning to reverse these trends. Board Likely to Adopt VAs, Which Theoretically Could Balance Multiple Competing Goals… Although it has not formally adopted updates to the Bay-Delta Plan, SWRCB has signaled its intent to move forward with the VA approach. While SWRCB’s regulatory tools— focused on flows and diversions—are essential, they cannot directly compel habitat restoration and, on their own, likely would not be able to fully restore fish populations or ecosystem health. In this context, the VA approach could theoretically offer some benefits—somewhat increasing flows while also improving habitat. Moreover, VAs are more flexible than traditional regulations (allowing adaptation in closer to real time), have fewer adverse impacts on water users, provide more certainty to water agencies, and could be implemented more quickly. …Yet Significant Uncertainties About VAs Remain. Despite their potential benefits, significant uncertainties about the VAs remain, including whether VA flows will be sufficient to support recovery of native fish. In addition, federal policy changes—including the CVP potentially pumping more water from the Delta—could undermine the VA parties’ ability to implement the plan. Given these considerable uncertainties, the VA program must be closely monitored. Legislature Has Important Oversight Role. SWRCB is likely to adopt the updated Bay-Delta Plan that includes VAs, potentially later this year. Given the high stakes for fish and water users, the Legislature can play a critical role in monitoring plan implementation. Because the VAs are designed to adapt as new information becomes available—and the board retains authority to terminate the VAs for some or all water users if they are not working as intended—performance will require ongoing evaluation. Legislative oversight can help ensure problems are identified and corrective action is taken when needed. To conduct its oversight, the Legislature could hold informational and/or oversight hearings, require reporting by SWRCB to the Legislature, require independent scientific evaluation of plan implementation and the VA pathway, and review how state funds are being spent. By holding SWRCB accountable to the Bay-Delta Plan’s objectives and shining a light on the successes, challenges, and unintended consequences of the VA program, the Legislature can help ensure the state achieves its environmental and water management goals for this important watershed. 4 LEGISLATIVE ANALYST’S OFFICE analysis full AN LAO REPORT INTRODUCTION The State Water Resources Control The purpose of this report is two-fold: (1) to Board (SWRCB) develops and manages the provide background for the Legislature on the Water Quality Control Plan for the San Francisco Bay-Delta watershed, the Bay-Delta Plan, and Bay/Sacramento-San Joaquin Delta Watershed the VAs, and (2) to offer suggestions for how the (Bay-Delta Plan) under its regulatory authority Legislature can help ensure the state achieves its provided by state and federal law. The Bay-Delta goals for the Bay-Delta watershed as laid out in the Plan seeks to balance “beneficial uses” of water— proposed updates to the plan. Although updating including municipal and agricultural water supply the Bay-Delta Plan is a regulatory—not legislative— and protection of fish and wildlife—primarily process, the Legislature plays an important through establishing water quality and flow oversight role to help ensure that it is implemented requirements. (Flow refers to the volume of water as intended. Because of the Legislature’s role in the moving through rivers, streams, or the Delta and process, this report does not consider or provide is typically measured in cubic feet per second.) recommendations about whether or not the board More than two-thirds of Californians and millions of should adopt the VA pathway, nor does it provide acres of farmland rely on water from the Bay-Delta a scientific or policy evaluation of which pathway— watershed. Two massive water infrastructure VA or regulatory—is better for the state. Rather, projects—the State Water Project (SWP) and the it assumes the board adopts the plan largely as Central Valley Project (CVP)—move water from currently proposed—and as recommended by the Delta to Central and Southern California for board staff—and raises some key issues for the municipal and agricultural purposes. SWRCB Legislature to consider as implementation begins. currently is updating the Bay-Delta Plan to improve This report has three major sections. We begin protection of fish and wildlife. Its proposed revisions with background on: the Bay-Delta; water quality to the plan include a regulatory compliance pathway control plans; the current process for updating the and incorporate an alternative framework known as Bay-Delta Plan; and specifics about the proposed the Voluntary Agreements (VAs), also known as the updates, including details about the VAs. We then Healthy Rivers and Landscapes Program. The VAs discuss key findings about the current draft plan represent a collaboration among water agencies update, highlighting the potential benefits of VAs, and the state and federal governments to manage key uncertainties about implementation of VAs, diversions, but also to implement habitat restoration questions about the potential effectiveness of projects—something that SWRCB alone cannot VAs or regulatory changes to protect native fish, directly mandate under existing law. and the urgency of board action. We conclude with suggestions to support effective legislative oversight of the plan’s implementation. BACKGROUND BAY-DELTA BACKGROUND Importance of the Bay-Delta Watershed In the section that follows, we describe the critical The San Francisco Bay and Sacramento-San role of the Bay-Delta watershed in supplying water Joaquin Delta Watershed Drain About for people and farms and in supporting ecosystems 40 Percent of the State’s Landmass. The for many species of fish and wildlife. We then explain Sacramento-San Joaquin Delta is located at the the nature of water quality control plans and how confluence of two of California’s largest rivers—the SWRCB uses the Bay-Delta Plan specifically to Sacramento and San Joaquin—which flow through manage diversions and flows in the watershed. the Delta and San Francisco Bay out to the ocean. www.lao.ca.gov 5 analysis full AN LAO REPORT The Bay and Delta form one of the country’s largest The Delta Has a Pivotal Role in Supplying estuaries (where fresh water mixes with salt water). Water Around the State. The Delta provides a Its greater watershed—including the Sacramento portion of drinking water for more than 27 million and San Joaquin Rivers and their tributaries people and agricultural water for more than (such as the Feather, American, Mokelumne, six million acres of farmland. Two major water and Tuolumne Rivers)—drains water from about projects—the state-run SWP and the federally 40 percent of the state’s landmass. Figure 1 run CVP—operate pumps at the southern end of shows the extent of the watershed’s reach across the Delta to move water into canals which convey the state. it to the Central Valley, coastal regions, and Fig NOa u rteiog Rno e r an flu IW e s g l e aildnld ifse 1 Harbor M O o re PnNg ur ao emtn s ioee Cnnrv aa te lv a e n s d 238 Cas M cNa o dan etui-om Sni eas nlk t iyou 66 KlamaAtlhtaFmaollnst 140 395 140 San Fr Cresc a entCity nc NaSti i ioxnRa s livFeorrses c t o Ba 96 y-Sacra 96 m R e esKearrvuakt n ion to-San 97 Joa NLaotwioR enr eaf K q lu lWg a e mildaltifhe u L MNa o i van atuioB m n ne ead nls t D 13 e 9 NlaCtitol R ena ear flu aLWg a eikldelife (Bay-De GLoaoksel e 395 ta) Watershed NatiSoRnh eae fll u dWg o einldlife ResYeurrvoaktion NatiKolnaamlaFtohrest QRueasretzrvVaatiloleny ModoFcorNeasttional 299 RXaLnRcahnecriha 3 5 139 NaRtieodnwaloPodark Up96per Sacramento River 5 89 139 395 101 HRoeospearvVaatiloleny 5 McCloud River 299 139 RDB oel csa kecrk CtR a/nHo y cigo khn Eureka 299 TriniFtyoNreasttional Weaverville EL Cna lagk ile re Clear Creek 5 5 ShasFtaorNeasttional 299 PitRLivaenrdTrust Redding RCeddoinwg Creek 44 139 395 36 36 An C d o e t r t s o o n n wo B o B d e a a t r t l C e r c ee re k ek 44 LaNsasteionnValoPlcaarnkic 36 Susanville C K o iNn n s ga Aet r Riro ev an aa nat glio e n 101 101 RRoeusnedrvVaatiloleny Cottonwo 3 o 6 d Creek Th E o l m de e r s C C re r R e e e e d k B k P luff a A y n n M t e D e i s l l e l o C e C p r r r e e C e 3 6e C e r k e k r e e k ek 32 36 70 89 LasseFnorNeasttional PlumFaosrNesattiona 3 l 95 HLoankeey P R y e ra sPm earii vud ateL ti a o k n e 70 446 F 1 ortBragg R S a hVn e 1 ac r 0 lw hl 1 ee oyr o i d a NaMtieonndaolFcionroest Stony Creek S Willows 45 B C i r g e e C 1 k 6B h 2 C u i t h c t i e c o o Creek Para B d Re is arr e nycChererieak 89 89 395 IRned R nia e on n -S o Cpoalorknsy 80 50 95 1 1 20 128 1 Ukiah 1 1 2 7 8 5 20 128 SantaR C o l s e a arlake Cache 2 C 200 ree Be 1 k 6 Lrray 1 ke a 2 es 8 c sa ra 5 m e n S to P u C a R V o t l a u i a 5 c c v s 0 a a 5 h v e il r l r e C a 4 r 5 e m ek W e ood n l 1 a 1 n 3 d t Liv o e Y O u a b k aYC 9 F Ou B 9 itl e iybv e e 5 a a h S a u t a r r h R c s t r e R a iv m r A i e v e E R R m n l r k e A 2 a t 0 n i o u G r e v cb r h C u r o e er v i C nr o c e r i R a it a r s o u s s n u e H v m R e ill ig e n i h v t e s e s r R 4 4 8 9 9 0 iv Gr e as r sVa 5 l 8 l 0 e 0 y 49 2 5 0 0 TahoFeo 8 Nre 8 asttional NatEioldnoarlaFdoorest Tr 8 u 9 ckee 4 88 50 28 580 395 Cars R o a n nW C c 3 Lha i 4 t aes y 1 n hsd oTe T r M u ra s aM i t Wn rio i n naue grnfa Ct C ar o eei N nr n p a t s t e iTo r oniayla 2 Fb 0 oe 8 5 r 0 est Yerington P S oNi e naa ttsiRohne oay rle es Petaluma San NS R aa a tni f o a RnP e e l aa flu bWg lo eilBdal 8 ify 0 e Napa Vallejo Fa C ir o f n ie c ld ord A 1 n 2 tioch 160 12Mo 99 k D S e t 9 r o 9l c y u k to m C n 1 r 0 n e 4 e e C k 1R2 4a iv la e v r eras Rive 12 r 2 4 6 49 Arnold Strawberry RBersidegrveaptoiortn NFaart S iaoR lnlo ean flu a WI g s S e liald n nldi a fse n F F ra ra n n c c i i s sc c o o 28 0 B S a anF y ran S c a i n sOc M ao a k t l e a o nd 880 SanLean 6 d 8 5 0 r 8 o 0 Fremon S S Dt a a e c n lt r a Li J vaerm o more a 4 e5 q 80n u t i o n580 Tracy WRS iilva de 1 n lir 2 f J e 0 No Raate qiof u unin gael 120 Mod T es u t S o o ta lu n O T m u a i r ks lo d n c laa k le e u R s i R v 1 e i0v8 r er 132 140 120 NaYtioosneamlPiteark 120 InyoFoNr 1 280 2 1 36 S S u a 1 n n 7 n t y a v C a r le uz SanJose Watsonville Gilroy 152 S5 an Jo Na a tiSoR an q e naflu L u Wg u e iis i ld M n l L if o e e s RB r a c n i e o v s d e R r ive A r twater 59 Merced 140 NRoarntchhFeorirak Madera 49 41 SierrFaoNreasttional 156 5 33 Clovis 1 Salinas 25 Fresn180o Fresno 180 68 Gonzales 33 99 201 Soledad 25 145 California 6 LEGISLATIVE ANALYST’S OFFICE analysis full AN LAO REPORT Southern California. The SWP provides water to streams, lakes, and associated wildlife and 29 different public water agencies that enter into ecosystems. These responsibilities are reflected contracts to receive water (“contractors”) and the in the California Constitution and state law, which CVP provides water to more than 250 contractors mandate the reasonable and beneficial use of (public water agencies, irrigation districts, local water and prohibit waste and unreasonable use. governments, and private farms/companies) in Balancing the full range of beneficial uses— 29 counties. In addition, numerous water agencies, including drinking water, agriculture, fisheries, irrigation districts, and individual farmers use water navigation, recreation, and environmental needs— upstream of and within the Delta. Delta supply is requires the careful management of water rights, one critical piece of the water supply puzzle for supply, and quality. This balancing act is growing many California water users. When Delta supply increasingly complex due to the impacts of climate is lower, for example, reliance on groundwater change, which are beginning to result in more increases, which can exacerbate groundwater severe and prolonged droughts, more intense overdraft and land subsidence issues. floods, and more extreme wildfires—all of which The Delta Also Provides Vital Habitat to threaten water reliability and ecosystem health. Hundreds of Fish and Wildlife Species. The Delta Using Water Also Comes With supports hundreds of fish and wildlife species, Responsibilities. Under the public trust doctrine including migrating fish through the estuary and and California law, water is not privately owned, and birds along the Pacific Flyway. Several species water rights holders also have obligations. Water that depend on the Delta have been designated users are expected to avoid harming public trust as threatened or endangered under state and/or resources and to mitigate environmental damage federal statutory definitions, including winter-run resulting from their operations. and spring-run Chinook salmon, Central Valley Water Quality Control Plans Are a Key steelhead, Delta smelt, longfin smelt, and the Mechanism for Regulating Water Quality. Under greater sandhill crane. state and federal law, SWRCB—along with its nine Bay-Delta Watershed Holds Deep Tribal Regional Water Quality Control Boards—develops Significance. The Bay-Delta is culturally and water quality control plans to regulate and protect spiritually vital for a number of tribes and central to water quality in California’s major water basins, traditional diets. For example, the Shingle Springs including the Delta. Band of Miwok Indians maintains ties to multiple These plans include three key elements: rivers, which are used for offerings, medicinal plant • Identification of Beneficial Uses That gathering, cultural education, and salmon harvests. the Plan Seeks to Protect. For example, State Uses Bay-Delta Plan to Help plans typically designate municipal and domestic supply (such as drinking water for Balance Multiple Water Uses communities) as a beneficial use. Water quality control plans—including the • Water Quality Objectives. These may be Bay-Delta Plan—are key tools the state uses numeric or narrative and are intended to to protect water quality and help manage ensure reasonable protection of the identified water resources throughout the state. SWRCB beneficial uses. For instance, for municipal implements the Bay-Delta Plan primarily through supply, a plan might include a limit on chloride rules about diversions and Delta exports. concentration in source water. State Has Public Trust Responsibilities • Program of Implementation. This for Protecting Waterways and Wildlife for outlines the actions needed to achieve All Californians. The public trust doctrine is a those objectives, including a time line and common law principle that requires the state to monitoring plan. protect certain natural resources for the benefit of all people. In California, the doctrine applies to navigable waters, tidelands, submerged lands, www.lao.ca.gov 7 analysis full AN LAO REPORT Federal law mandates that SWRCB review these comprehensive update occurred in 1995 and largely plans at least once every three years, while state guides management today. (The 1995 update law requires them to be “periodically reviewed.” concerned the entire Bay-Delta watershed and Updating a plan typically involves several steps, included substantive changes to water quality including preparation of a staff report, which serves objectives for fish and wildlife beneficial uses. as a Substitute Environmental Document under the By comparison, the 2006 update included relatively California Environmental Quality Act (CEQA). Other minor changes and the 2018 update concerned steps include preparing a scientific basis report, only one part of the watershed.) The 1995 plan’s holding public hearings, putting the plan to a board water quality objectives are implemented and vote, and obtaining final approval from the Office enforced through SWRCB’s Revised Water Right of Administrative Law. The U.S. Environmental Decision 1641, which modified the water rights Protection Agency (U.S. EPA) subsequently must permits for the SWP and CVP. review and approve the plans to ensure they comply The Bay-Delta Plan is not the only tool that with the federal Clean Water Act and contain government agencies use to manage water in the enforceable, scientifically supported standards. region. The nearby box describes some of the Finally, for the Bay-Delta Plan, SWRCB must primary ways that state and federal rules govern either hold individual water rights proceedings water use in the Bay-Delta watershed and how or adopt regulations to effectuate the plan’s flow they interact. requirements for water users. Regulating Flows Is SWRCB’s Primary Tool Both the state and federal governments require for Implementing the Bay-Delta Plan. Managing public participation throughout the plan review flow amounts and timing is the main tool SWRCB and update process. SWRCB must notify the uses to protect water quality under the Bay-Delta public of proposed changes, hold public hearings, Plan. The Bay-Delta Plan also sets water quality and consider and respond to written comments. objectives for salinity and temperature, which The board also may hold workshops or informal affect water quality and fish habitat, but similarly meetings to gather input. Additionally, state policy uses flow requirements as the primary method to (via executive orders and CEQA) directs agencies— manage these conditions. For example, increasing including SWRCB—to consult with native tribes freshwater flows into the Delta reduces ocean when decisions, such as updates to the Bay-Delta salinity intrusion. SWRCB regulates flows mainly Plan, may affect tribal interests. by managing water rights, which control how Bay-Delta Plan Applies to the Entire much water can be diverted out of the waterbody. Watershed. The Bay-Delta Plan identifies SWRCB also can influence flows by ordering beneficial uses, sets water quality objectives, and reservoir releases—for example, by requiring the prescribes a program of implementation for the CVP or SWP to release cold water from Shasta or entire watershed. SWRCB (rather than a regional Oroville dams, respectively, to lower downstream board) manages the Bay-Delta Plan because water temperatures during the critical spawning the watershed spans multiple regions and sets periods of endangered fish. flow requirements. Regulating flows often affects Although the Bay-Delta Plan includes water rights, which only the state board has the recommendations for other activities apart from authority to manage. The plan works alongside two flow amounts and timing that could protect regional water quality control plans—the Central beneficial uses (such as habitat restoration projects Valley and the San Francisco Bay Basin Plans—to to support native fish populations), SWRCB can align upstream and downstream water quality only encourage these efforts because it does not standards. Since the Bay-Delta Plan’s original have direct regulatory authority to require them. adoption in 1978, SWRCB has updated it several times—in 1991, 1995, 2006, and 2018. The last 8 LEGISLATIVE ANALYST’S OFFICE analysis full AN LAO REPORT Numerous State and Federal Rules Govern Water Use in the Bay-Delta Watershed Water allocations from the San Francisco Bay-Delta watershed depend not only on available supply from rainfall and snowmelt, but also on a complex framework of state and federal requirements contained in both statutes and administrative regulations. Congress and the state Legislature established the backbone for policies through laws such as the federal Clean Water Act and state Porter-Cologne Water Quality Control Act. The U.S. Environmental Protection Agency, State Water Resources Control Board (SWRCB), and other agencies then implement these laws by adopting regulations to establish and enforce specific requirements. • Water Rights (State). Use of water requires a valid water right—either riparian (for landowners next to a water source) or appropriative (for other users). Under the State Constitution, state statute, and the public trust doctrine, only reasonable and beneficial uses of water are allowed. When water is scarce, such as during droughts, California’s “first in time, first in right” system gives priority to water users with the most senior (oldest) water rights. SWRCB administers the water rights system. • San Francisco Bay-Delta Water Quality Control Plan (State). The Bay-Delta Plan—the focus of this report—identifies beneficial uses of water in the watershed. It includes water quality objectives to protect the beneficial uses and a program of implementation to meet those objectives. • Endangered Species Laws and Regulations (Federal and State). » Biological Opinions (BiOps, Federal). Under the federal Endangered Species Act, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service evaluate whether federal actions—such as Central Valley Project operations—jeopardize threatened or endangered species. For example, BiOps may restrict water exports or require mitigation, such as installing improved fish screens, to avoid or limit impacts on particular species. BiOps issued in 2024 currently are in effect. » Incidental Take Permits (State). Under the California Endangered Species Act, water users may need an incidental take permit from the California Department of Fish and Wildlife. These permits often include conditions—such as diversion limits or implementing habitat improvements—to minimize the incidental “take” (killing or harm) of state-listed threatened or endangered species. • Dredge and Fill and Discharge Permits (State and Federal). The U.S. Army Corps of Engineers and SWRCB and its nine regional boards issue permits to regulate dredged and fill materials and discharge (pollutants and stormwater) entering waterways from cities, industries, and farms. These permits are based on regional water quality control plans, which in the Bay-Delta include the Central Valley and San Francisco Bay Basin Plans. • Curtailment Orders (State). When water supplies become critically low, such as during droughts, SWRCB can issue curtailment orders that temporarily reduce how much water users can divert. SWRCB applies these rules based on seniority, curtailing junior rights holders before senior rights holders. • Delta Plan (State). The Delta Reform Act of 2009 established the Delta Stewardship Council and set two coequal goals for the Delta: providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem. The Council developed the Delta Plan (which is distinct from SWRCB’s Bay-Delta Plan) to implement and enforce these goals. While the Delta Plan does not directly govern water allocation, it regulates activities that significantly affect water use, ecosystem health, and certain infrastructure projects in the Delta. For example, relevant projects—such as levee improvements or habitat restoration projects—must demonstrate consistency with the Delta Plan before they can proceed. www.lao.ca.gov 9 analysis full AN LAO REPORT STATE IS IN THE PROCESS OF Long-Term Downward Population Trends Threaten Survival of Native Fish. A species UPDATING THE BAY-DELTA PLAN native to California, Chinook salmon are important The last comprehensive update of the Bay-Delta to commercial and recreational fishing, central Plan occurred in 1995. SWRCB has been working to many tribes’ cultural practices and traditional to update the plan since 2009. The protracted time sustenance, and integral to the state’s biodiversity line reflects the complexity of balancing multiple— and natural ecosystems. Yet the number of salmon often competing—goals, ongoing and potential returning from the ocean and migrating through the legal challenges, and the board’s willingness Delta to spawn in rivers has been declining over to allow time for development of a VA proposal. time. As shown in Figure 2, since the last major Below, we discuss why the Bay-Delta Plan requires update of the Bay-Delta Plan in 1995, Chinook an update and how SWRCB has structured the salmon have continued their downward trajectory. process into two phases. Salmon populations naturally fluctuate from year to year, however, they are particularly vulnerable Reasons for Updating the to low river flows, droughts, predation, and loss of Bay-Delta Plan habitat. As shown in the figure, recovery from dry Federal and state laws require that the Bay-Delta periods can take several years. As the state has Plan balance protection of multiple beneficial uses. begun to experience more severe and prolonged In recent decades, however, implementation of droughts, the Bay-Delta Plan has not provided the current plan has not adequately protected fish sufficient protection to support salmon health or and wildlife. Citing well-documented and extensive notable recovery. evidence of ecosystem decline in the Delta, SWRCB Populations of fall-run Chinook—the state’s most has been working for many years to update the abundant salmon run that supports commercial and plan with water quality objectives that would better recreational fishing—have declined by an average of support fish. Figure 2 Outdated Bay-Delta Plan Not Adequately Protecting Salmon Salmon Population Counts Declining, Exacerbated by Droughts 945,559 Droughts 486,921 347,192 177,264 99,809 72,222 1995 1997 1999 2001 2003 2005 2007 2009 2011 2013 2015 2017 2019 2021 2023 Note: Includes all runs of Chinook salmon returning to spawn in the Sacramento and San Joaquin River systems. Data from 2010 through 2024 are still preliminary. Source: GrandTab 2025.06.09: California Central Valley Chinook Escapement Database Report, California Department of Fish and Wildlife. 10 LEGISLATIVE ANALYST’S OFFICE analysis full AN LAO REPORT 2 percent annually since 1995. (A “run” refers to the alter the volume, timing, temperature, salinity, season in which the majority of adults return from and direction of natural water flows—often with the ocean to spawn.) Spring-run and winter-run harmful consequences for aquatic and riparian Chinook salmon have been listed as threatened or habitats—and create physical barriers that impede endangered under federal and state law for more fish migration. One of several goals the Legislature than 20 years. Populations remain low, however, expressed for the Delta through approval of the with no measurable improvement since adoption Delta Reform Act in 2009 (Chapter 5 [SB X7 1, of the 1995 Bay-Delta Plan. In 2024, only about Simitian]) was accelerating the process for 2,900 spring-run and 1,400 winter-run Chinook determining flow needs to protect public trust were counted while returning from the ocean to resources. In a 2010 report, SWRCB concluded spawn. These numbers represent about 25 percent that “current flows are insufficient.” The report and 8 percent, respectively, of their historic annual also acknowledged the need for non-flow habitat averages prior to being listed as threatened or improvements, noting that flow and physical habitat endangered under state law. Other fish that migrate measures are not interchangeable. In its 2018 through or live in the Delta also are listed as Bay-Delta Plan update, SWRCB stated: “While threatened or endangered, including Central Valley multiple factors are responsible for the decline [of steelhead and Delta smelt. native fish species], the magnitude of diversions State Failing to Meet Goal for Doubling out of the Sacramento, San Joaquin, and other Natural Salmon Population. In 1992, the federal rivers feeding into the Bay-Delta is a major factor government enacted the Central Valley Project in the ecosystem decline.” In several comment Improvement Act, requiring improvements in CVP letters to SWRCB over the years—most recently management for the protection of fish and wildlife. in January 2025—the U.S. EPA has concurred The law included a goal of doubling the annual that current flows are insufficient to protect fish, natural production of all runs of salmon relative acknowledging that the Bay-Delta watershed is in a to the annual average from 1967 through 1991. state of ecological decline. (Natural production refers to all salmon—whether Current Requirements Are Limited in Scope. they are caught or survive—that reach adulthood The Bay-Delta Plan’s current requirements for without the use of hatcheries.) The state added the protecting fish and wildlife beneficial uses remain doubling goal as a narrative water quality objective limited in scope. For example, for the Sacramento in the 1995 Bay-Delta Plan. Doubling natural River and its tributaries, flow requirements are production relative to the average annual 1967-1991 measured only at the town of Rio Vista, which baseline would mean nearly 900,000 naturally does not account for conditions upstream and in produced salmon annually. According to estimates tributaries that are critical to fish survival. Moreover, from the Delta Stewardship Council, California responsibility for meeting these flow objectives achieved only about 10 percent of the annual target falls almost entirely on the SWP (operated by on average between 2018 and 2023. the Department of Water Resources, DWR) and Recognition That Rivers Need More Water to CVP (operated by U.S. Bureau of Reclamation, Support Native Fish. Multiple different stressors USBR). This is because most other water users have led to the declining health of the Bay-Delta in the Sacramento River watershed are not watershed, including physical modifications during required to adjust their diversions to support these the state’s early gold mining history and more requirements. As a result, the SWP and CVP often recent impacts from climate change. However, have to compensate—particularly in dry years—for many of the most significant challenges facing upstream depletions by other water users, placing the watershed are directly linked to water use and a disproportionate burden on their operations and diversion, including exports from the SWP and customers. This allows many diverters to operate CVP. The watershed has been reshaped by a vast without contributing to environmental flow needs. network of dams, pumps, levees, reservoirs, and SWRCB is seeking plan updates in part to increase engineered channels to support water storage, the breadth of protection in the watershed and to water delivery, and flood control. These facilities apply the plan’s requirements to more water users. www.lao.ca.gov 11 analysis full AN LAO REPORT SWRCB Considering Latest • Southern Delta Salinity Objective to Updates in Two Phases Protect Agricultural Beneficial Uses. The 2018 amendment revised the salinity SWRCB Began Process to Update the objective in the Southern Delta. Bay-Delta Plan in 2009, Proceeding in Two Main Phases. SWRCB officially began the most …But Implementation Has Yet to Begin. recent update to the Bay-Delta Plan in early 2009. SWRCB has delayed implementing 2018 phase one It divided the effort into two phases based on amendments for two related reasons: litigation and geography, noting that each of the two major consideration of a VA. Petitioners—including water river systems is fed by snowmelt from different agencies, environmental groups, and the federal geographic regions, receives differing levels of government (as operator of the CVP)—challenged precipitation, has distinct topographies, and the amendments under CEQA and the public trust supports different at-risk fish and wildlife species. doctrine. Although the Sacramento Superior Court SWRCB organized the update as follows: rejected all 116 claims in March 2024, petitioners have since appealed the decision. Separately, • First Phase (Lower San Joaquin River/ SWRCB also agreed to evaluate whether VAs could Southern Delta): Affects the Lower serve as an alternative to the regulations. The San Joaquin River and its three main nearby box describes what a VA is. Ultimately, only tributaries—the Stanislaus, Tuolumne, and Tuolumne River water agencies submitted a VA Merced Rivers—as well as the Southern Delta. proposal. In September 2025, SWRCB released a The Lower San Joaquin River supports fall-run scientific basis report for this VA proposal, but, as Chinook salmon. of this writing, has yet to release a staff report or • Second Phase (Sacramento/Delta): Affects propose associated plan amendments. Regardless the Sacramento River and its tributaries, Delta of whether it incorporates the VA, the board will eastside tributaries (the Calaveras, Cosumnes, subsequently have to issue regulations or hold and Mokelumne Rivers), the interior Delta, water rights proceedings to fully implement the and Delta outflows. Four distinct runs of plan’s new flow requirements. Chinook salmon—including the fall-run and SWRCB Has Not Yet Adopted Second Phase endangered winter-run Chinook—depend on Sacramento/Delta Updates. The second phase the Sacramento River and its tributaries. of the planned Bay-Delta Plan updates—which SWRCB Adopted First Phase Amendments focuses on fish and wildlife beneficial uses in the in 2018… SWRCB formally adopted the Sacramento/Delta watershed—remains under Bay-Delta Plan amendments for the development by SWRCB and has not yet been Lower San Joaquin/Southern Delta in 2018. adopted. These updates have been delayed for The update includes two primary changes: more than a dozen years due to several factors. • Lower San Joaquin River Watershed Flow Chief among them was the board’s willingness to Objective to Protect Fish and Wildlife wait for a viable VA proposal from water agencies, Beneficial Uses. For the Stanislaus, state and federal agencies, and environmental Tuolumne, and Merced Rivers, the amendment groups based on the rationale that a collaboratively generally requires 40 percent of unimpaired negotiated solution could reduce legal risk and flow from February through June. Unimpaired foster broader support and compliance. In addition, flow refers to the estimated natural flow the board faced internal capacity limitations as staff that would occur absent human alterations were redirected to address emergency drought such as dams, reservoirs, or diversions. response activities during multiple extended Previously, the Bay-Delta Plan did not include dry periods. flow requirements for these three rivers but instead required a minimum volumetric flow at a single location on the mainstem of the San Joaquin River. 12 LEGISLATIVE ANALYST’S OFFICE analysis full AN LAO REPORT What Is a Voluntary Agreement (VA)? In water management, VAs—also sometimes referred to as settlement agreements—are negotiated arrangements among multiple parties to address water allocation, environmental flows, and ecosystem restoration. While VAs can result from litigation, they differ from regular court orders or traditional top-down regulations in that the affected parties negotiate a settlement to try to achieve agreed-upon objectives. Parties might include water agencies, irrigation districts, state and federal regulatory agencies, and/or environmental organizations. Each participant agrees to specific actions or concessions—such as water allocations, habitat restoration, flow contributions, and/or funding—in exchange for regulatory flexibility or other benefits. Some notable examples of previous VAs include: (1) the Quantification Settlement Agreement, adopted in 2003 to address longstanding disputes over Colorado River water rights and to reduce use of Colorado River water in California; (2) the San Joaquin River Restoration Settlement, agreed to in 2006 following an 18-year legal dispute, with the goal of restoring fish populations while reducing adverse water supply impacts on farmers; and (3) the Mono Basin Stream Restoration Agreement to implement court-ordered streamflow and restoration measures in the Mono Lake Basin beginning in 2013. In contrast to these historical examples, the proposed VAs for the Sacramento/Delta watershed were developed not directly in response to litigation but rather with the stated goal of trying to meet the needs of multiple interests and avoid future legal challenges. SACRAMENTO/DELTA VA proposal by March 1, 2019 that could potentially be adopted in lieu of the regulatory framework, UPDATES TO BAY-DELTA PLAN and directed SWRCB staff to provide technical and The rest of this report addresses the phase regulatory information to support such efforts. two update for the Sacramento/Delta currently VA Parties Submitted an Alternative Proposal under consideration by SWRCB. In this section, we in 2022. Water users missed the 2019 deadline to provide some history about the process and details submit a VA proposal to SWRCB. In March 2022, about SWRCB’s proposed plan updates—which they came forward with an initial Memorandum of incorporate VAs and tribal cultural beneficial uses— Understanding detailing terms to advance a VA for and then describe the VA time line and oversight the Sacramento/Delta. Over the next two years, mechanisms. We conclude this section with a VA parties renamed the program “Healthy Rivers discussion of the potential economic impacts of the and Landscapes” and released additional materials proposed plan updates. and details, including plans for governance, Evolution of Current science, flow accounting, non-flow measure accounting, and funding. SWRCB posted all of Sacramento/Delta Updates these materials on its website. SWRCB Began the Sacramento/Delta Update Figure 4 on page 15 displays current VA parties. Process in 2012. As shown in Figure 3 on the (Some environmental groups participated in early next page, SWRCB began the process of updating VA discussions but later withdrew, and tribal the phase two Sacramento/Delta portion of the participation has been limited. None of those Bay-Delta Plan in 2012. After finalizing its scientific groups or tribes participated in or signed on to basis report in 2017, SWRCB released a framework the final agreement.) These VA parties would in 2018 that proposed regulatory objectives for be responsible for meeting the VA program’s Sacramento/Delta inflows, cold-water habitat, Delta commitments. (Certain other water users on the outflows, and interior Delta flows. The board did not relevant tributaries also would be covered by the proceed with adopting these changes, however. VA program but not necessarily be responsible Instead, it invited submission of a watershed-wide for implementing activities.) Notably, the water www.lao.ca.gov 13 analysis full AN LAO REPORT SWRCB Currently Considering Figure 3 Draft Bay-Delta Plan That Incorporates VA Alternative. Time Line: Updating the In December 2025, SWRCB Sacramento/Delta Phase of the Bay-Delta Plan released a revised draft Bay-Delta Plan that includes a number of new narrative Sacramento/Delta water 2012 quality objectives, incorporates • SWRCB begins Sacramento/Delta update process. a VA compliance pathway into its implementation program, and 2017 adds tribal cultural beneficial uses. • SWRCB releases scientific basis report for the update. (The first and second drafts of 2018 the plan update were released • SWRCB releases framework for the update. in October 2024 and July 2025, • VA parties present VA framework to SWRCB. • SWRCB adopts updates for the Lower San Joaquin River respectively.) We discuss the major and Southern Delta salinity objectives and invites parties to components of the draft plan in submit a VA proposal for the entire Bay-Delta watershed. the next section. Over the course 2022 of developing draft updates to • VA parties present VA MOU to SWRCB. the Bay-Delta Plan, SWRCB has held numerous public hearings, 2023 • SWRCB releases draft staff report for the update. workshops, and working groups • SWRCB releases scientific basis report supplement for VAs. to collect input and feedback. This included workshops focused 2024 on VAs, technical working groups, • VA parties deliver additional materials to SWRCB. • SWRCB releases draft Bay-Delta Plan update. and tribal listening sessions and a workshop. The board has not yet 2025 released an estimated time line for • SWRCB releases two revised drafts of the Bay-Delta adopting the updated plan, but its Plan and a new chapter of the staff report. executive director has indicated Potential Future Actions (Timing Unknown) it could be ready to consider plan • SWRCB to adopt revised Bay-Delta Plan. • OAL to approve revised Bay-Delta Plan. adoption by this fall. Once the • U.S. EPA to approve revised Bay-Delta Plan. • SWRCB to adopt regulations to implement revised Bay-Delta Plan. plan is adopted, SWRCB expects (About two years after plan adoption.) it will take an additional two years • VA term to end. SWRCB to decide whether to extend the program. (Eight years after plan adoption.) to adopt regulations to effectuate flow requirements (assuming it Sacramento/Delta = Sacramento River and its tributaries, Delta eastside tributaries, and the Sacramento-San Joaquin Delta; SWRCB = State Water Resources Control Board; VA = Voluntary Agreement; MOU = Memorandum uses regulations, as it currently of Understanding; OAL = Office of Administrative Law; and U.S. EPA = United States Environmental Protection Agency. anticipates doing, rather than water rights proceedings). Because the VA pathway is based on negotiated rights associated with the VAs account for most agreements among water users, of the water use (roughly 85 percent) in the SWRCB could begin to implement VA requirements Sacramento/Delta watershed. Other water users upon the plan’s adoption and the revised draft plan in the watershed would remain outside of the VA indicates that implementation of the VA program program for various reasons. For example, they would begin no later than January 1, 2027 (with might obtain most of their water from another a possible delay of up to one year). However, to source, such as groundwater. Under the plan, these use its enforcement authority to protect VA flows water users would follow a regulatory compliance from other diversions, SWRCB would need new pathway (as discussed in the next section). regulations in place. 14 LEGISLATIVE ANALYST’S OFFICE analysis full AN LAO REPORT denied the state petition, noting it was in the Figure 4 process of trying to update the plan. While the Voluntary Agreement Partiesa U.S. EPA has not acted on the federal petition, it accepted the civil rights complaint for investigation, State and Federal Agencies California Environmental Protection Agency which has not yet been resolved. California Natural Resources Agency California Department of Fish and Wildlife SWRCB Proposes Hybrid Approach California Department of Water Resources With Two Compliance Pathways U.S. Bureau of Reclamation Water Agencies SWRCB’s Draft Bay-Delta Plan Incorporates Contra Costa Water District Both Regulatory and VA Pathways. For the water East Bay Municipal Utility District users regulated by the Bay-Delta Plan, SWRCB Friant Water Authority proposes two compliance pathways—one using Garden Highway Mutual Water Company traditional regulatory tools and the other using VAs. Glenn-Colusa Irrigation District Kern County Water Agency Under the proposal, requirements—regardless of Metropolitan Water District of Southern California pathway—would apply to nearly all water users Nevada Irrigation District (rather than primarily to DWR/SWP contractors Reclamation District 108 and USBR/CVP contractors) and to most rivers Regional Water Authority River Garden Farms and streams throughout the watershed (whereas San Luis and Delta-Mendota Water Authority now they do not). Both the regulatory and VA Solano County Water Agency pathways would attempt to achieve one set of water South Sutter Water District quality objectives for the protection of fish and State Water Contractors Sutter Mutual Water Company wildlife beneficial uses, including six new narrative Tehama-Colusa Canal Authority objectives. In addition, the proposed plan would Western Canal Water District designate a new beneficial use—tribal tradition Westlands Water District and culture—which is described in the box on Yolo County Flood Control and Water Conservation District Yuba Water Agency the next page. Figure 5 on page 17 summarizes a Three additional water agencies signed the Voluntary Agreement term the key requirements in the draft Bay-Delta Plan, sheet Memorandum of Understanding—Modesto Irrigation District, San highlighting the major differences between the Francisco Public Utilities Commission, and Turlock Irrigation District. Their participation concerns the Tuolumne River, which the State Water regulatory and VA compliance pathways. Of note, Resources Control Board has not yet addressed in the revised draft Bay-Delta Plan, and which is not the main subject of this report. several existing Decision 1641 requirements, including the current Sacramento River flow Tribal Coalition Has Raised Legal Concerns requirement measured at Rio Vista, would remain. About SWRCB Process. In 2022, the Delta Tribal If the board adopts the current draft plan, the Environmental Coalition—comprised of the Buena included VA activities would become legally binding Vista Rancheria of Me-Wuk Indians, Shingle Springs and not voluntary. (The term “voluntary” derives Band of Miwok Indians, Winnemem Wintu Tribe, from the fact that the parties came together Save California Salmon, Little Manila Rising, and voluntarily to develop to an alternative approach.) Restore the Delta—filed two petitions and a civil Primary Difference Between Pathways Is How rights complaint. One petition—to SWRCB—cited to Handle Flows and Habitat Restoration. As a long delay in updating the Bay-Delta Plan and described earlier, SWRCB has a limited number of called for enforceable regulations instead of VAs, as regulatory tools under its authority. Consequently, well as designation of tribal beneficial uses. The civil the regulatory pathway would rely primarily on the rights complaint and other petition—to the U.S. management of flows to achieve improvements in EPA—alleges SWRCB discriminated against tribes native fish populations, while the VA pathway would and communities of color in its management of include both management of flows and habitat the Bay-Delta and requested federally enforceable restoration. The basic distinction between the water quality standards instead of VAs. SWRCB proposed requirements is as follows: www.lao.ca.gov 15 analysis full AN LAO REPORT • Regulatory Pathway Uses Unimpaired rules. The volume of water required would Flows Approach. This pathway would vary depending on the river, season, and require 55 percent of unimpaired flows (within type of water year. For example, on the a range of 45 percent to 65 percent) to be American River, VA parties would have to maintained year-round in the Sacramento provide 40,000 acre-feet of additional water River and its tributaries and Delta eastside in a dry year across the three months of tributaries. Under certain circumstances, March, April, and May. The plan requires VA “Water Supply Adjustments” would apply, participants to meet the cold-water habitat lowering the requirement to 45 percent or objective but does not include specific 35 percent—depending on how dry the requirements other than reporting. prior 12 months were—to reduce impacts to » Habitat Projects. The program would municipal and agricultural water supply. In require VA parties to help fund or specific tributaries, it also could be lowered implement about 47,000 acres of habitat or removed altogether depending on water enhancement or restoration projects. These storage conditions in certain connected projects would address fish spawning reservoirs. To meet the plan’s cold-water and rearing conditions, fish passage, fish habitat objective, reservoir operators would food production, and predator control. be required to develop long-term cold-water They could include activities such as management strategies. reconnecting and restoring floodplains, • VA Pathway Combines Specific Flow adding gravel to spawning and rearing Volumes With Habitat Projects. The VA sites, or installing fish screens on pumps. pathway includes both flow and habitat Specified projects initiated as of December measures that participating agencies would 2018—when SWRCB invited submission be obligated to implement: of a VA proposal—would count toward the total VA habitat commitments. » Flow Measures. The plan would require (As discussed in the box on page 18, this VA parties to provide specified volumes means that many projects are already of additive flows (and associated Delta underway.) Figure 6 on page 18 displays outflows) above a base. The base would be some additional details about the the amount of water that would have been projects included. required using today’s state and federal Draft Bay-Delta Plan Designates Tribal Cultural Uses, Requires Tribal Engagement The draft Bay-Delta Plan proposes to designate a new beneficial use to the entire Bay-Delta watershed—tribal tradition and culture—to support the cultural, spiritual, ceremonial, and traditional practices of native tribes, such as navigation, ceremonies, and fishing. The draft plan also “incorporates” two additional uses—tribal subsistence fishing and subsistence fishing—both related to noncommercial fishing for sustenance. Although the State Water Resources Control Board (SWRCB) does not yet propose to “designate” these uses to a specific river or stream (or the entire Bay-Delta watershed), incorporating them into the plan lays the groundwork for future designations and signals SWRCB’s intent to protect these activities even if protection is not yet required or enforced. Beyond beneficial uses, the plan would require enhanced tribal interactions, including an engagement plan, annual tribal listening sessions, regular updates for tribes, and a Bay-Delta Tribal Advisory Group. It also would require Voluntary Agreement (VA) parties to engage with tribes, consider tribal feedback, and include tribal participation in the VA science committee. 16 LEGISLATIVE ANALYST’S OFFICE analysis full AN LAO REPORT Figure 5 Major New Elements of Draft Bay-Delta Plan for the Sacramento/Delta Watersheda New Beneficial Use and Water Quality Objectives New Designated Beneficial Use Tribal Tradition and Culture: uses of water supporting cultural, spiritual, ceremonial, or traditional rights or lifeways of native tribes. New Narrative Water Quality Six new narrative objectives added related to the following: tributary inflows, cold-water habitat, Objectives Delta outflows, inflow-based Delta outflows, interior Delta flows, and fish viability. Implementation Requirements for Water Users Regulatory Pathway Voluntary Agreements Pathway How Implementation Actions Developed by SWRCB using traditional Negotiated among water agencies, DWR, USBR, Were Developed regulatory processes. CNRA, CalEPA, and CDFW. Binding once adopted. Who Is Affected Any water user not covered by VA Water users covered by VAs (VA parties and other pathway. identified water rights holders). Affected Water Sourcesb • Sacramento River and its tributaries. • Sacramento, American, Bear, Feather, • Delta eastside tributaries: Mokelumne, Mokelumne, and Yuba Rivers; Auburn Ravine; the Calaveras, and Cosumnes Rivers. Delta; Friant Area; and Putah Creek. • The Delta. • CVP/SWP exports. • Water purchases. Tributary Inflow Requirements Requires 55 percent of unimpaired flows Requires specified volumes of additive flows above year-round. Can be reduced under a base, defined seasonally, varying by water year certain circumstances and for specific type, and tailored to each water source. tributaries. Habitat Restoration Habitat projects encouraged, but cannot About 47,000 acres of instream habitat, new be required. spawning and rearing habitat, floodplain habitat, and fish food production. Term Ongoing until revised through SWRCB Eight years. Could be extended if various criteria are regulatory process. met. Implementation Requirements for SWRCB and VA Parties Tribal Engagement Requirements for both SWRCB and VA parties, including developing tribal engagement plans and considering tribal input. Science and Monitoring SWRCB will establish Bay-Delta Monitoring and Evaluation Program (BDMEP). BDMEP will incorporate supplemental science required of VA parties. An appendix to the plan, BDMEP can be updated regularly without amending the plan itself. Reporting • SWRCB to report/hold public meetings annually and periodically (every three years). • VA parties required to produce annual reports, periodic reports (every three years), and one ecological outcomes report in year six evaluating rationale for continuing VAs. a Sacramento/Delta watershed includes Sacramento River and its tributaries, Delta eastside tributaries, and the Delta. b The VA pathway requires specified amounts of additive flows from specific rivers, water purchases, and forgone SWP/CVP exports. While the regulatory pathway does not require a specific reduction in SWP/CVP exports, meeting the unimpaired flow requirements on rivers and in the Delta would necessarily lead to reduced exports. SWRCB = State Water Resources Control Board; DWR = Department of Water Resources; USBR = U.S. Bureau of Reclamation; CNRA = California Natural Resources Agency; CalEPA = California Environmental Protection Agency; CDFW = California Department of Fish and Wildlife; VAs = Voluntary Agreements; CVP = Central Valley Project; and SWP = State Water Project. VA Pathway Allows for Greater Water VA Term Would Last for Eight Years, Include Diversions Than the Regulatory Pathway. Reporting Requirements. Once adopted, the Generally speaking, both pathways would reduce VA program would last for eight years. VA parties the amount of water that users could divert from would be required to submit various reports rivers and the Delta, relative to current requirements. to SWRCB, including annual reports providing However, one key reason VA parties pursued the an accounting of the previous year’s flows and proposed alternative approach is that it would allow habitat projects as well as monitoring data on fish them to divert more water than they could under populations, and periodic reports every three years SWRCB’s proposed stricter regulatory pathway. describing the VA program’s progress toward helping In exchange, they would commit to implementing to achieve plan objectives. habitat restoration intended to benefit native species. www.lao.ca.gov 17 analysis full AN LAO REPORT Despite Plan Not Yet Being Adopted, Voluntary Agreement (VA) Projects Already Underway Although the State Water Resources Control Board (SWRCB) has not formally adopted Bay-Delta Plan updates with VAs incorporated, VA parties—including the state—have already begun implementing habitat projects that would count toward their future VA obligations. Under the draft plan, projects initiated as of December 2018—when SWRCB invited a VA proposal—would be counted toward the total VA habitat requirement and they must be completed by the end of the VAs’ eight-year term. As of this writing, VA parties have already started or completed about one-third of the total acreage (roughly 15,000 of 47,000 acres), and the state has provided about $1.5 billion in funding toward projects to date. By implementing projects before the state board had made a formal decision, VA parties essentially took a calculated risk that VAs would be included in the adopted plan. However, despite having invited a VA proposal, SWRCB is under no legal obligation to adopt a plan incorporating the alternative VA pathway. At the same time, the projects themselves—focused on habitat restoration and enhancement—likely will yield ecological benefits regardless of what is included in the final plan updates. if SWRCB has significant evidence Figure 6 that the program is not working. Habitat Enhancement and Restoration Included in the Should the program be terminated Voluntary Agreements (early or at the conclusion of year (In Acres) eight), affected participants would revert to the regulatory pathway. River Spawning Instream Rearing Floodplain Totals Potential Economic Sacramento 114 138 40,000a 40,251 American 25 75 — 100 Impacts of the Proposed Yuba — 50 100 150 Changes to the Feather 15 5 1,655 1,675 Putah Creek 1 — — 1 Bay-Delta Plan Mokelumne — 1 25 26 Below, we discuss the primary Delta — — 5,228b 5,228 factors that will affect the plan’s Totals 155 269 47,008 47,431 potential costs and benefits, a Of the total, 20,000 acres of floodplain will be restored to provide fish rearing habitat, and an additional 20,000 acres will support fish food production, such as by temporarily inundating rice SWRCB’s estimates of economic fields to promote natural insect growth. b Includes tidal wetland habitat and associated floodplain habitat. impacts of the VA pathway, VA parties’ estimates for the direct costs of the VA program, and the In year six, the plan would require parties to potential benefits of the draft plan. complete an ecological outcomes report assessing the scientific basis and rationale for the future of the How the Plan Affects Water Supply and VA program. SWRCB would then decide whether Fish Will Determine Costs and Benefits. The to extend the program beyond eight years—with main driver of costs associated with implementing or without modification—or terminate the program. changes to the Bay-Delta Plan is the potential SWRCB would consider whether VA parties fulfilled reduction in water supply available for municipal their commitments and whether the program is and agricultural use. Such reductions could substantially achieving its targets and metrics. have economic impacts on water agencies and SWRCB also could decide to modify or terminate growers, which could have ripple effects on other the VA program for some or all participants prior to industries. In addition, the VA program has direct year eight if they fail to meet their commitments or implementation costs. Potential benefits of plan 18 LEGISLATIVE ANALYST’S OFFICE analysis full AN LAO REPORT changes depend on the degree to which they water year type. Because these declines are modest, increase native fish populations, which in turn could SWRCB estimates only very minor impacts to other have associated economic benefits to fisheries and sectors of the broader economy, such as agriculture fishing-related services and tourism. and construction. SWRCB’s Economic Analysis of VA Pathway VA Pathway Also Has Direct Implementation Provides Best Proxy for Draft Plan’s Hybrid Costs. Implementation of the VA program also Proposal. SWRCB’s staff report includes estimates includes direct costs, mostly one time, which for the potential economic impacts of the plan VA parties estimate will total approximately updates considering two different scenarios: (1) the $3 billion. Over the eight-year period, about one-half regulatory pathway (assuming all water agencies of the identified funding is planned to support were subject to it) and (2) the VA pathway. The habitat projects and scientific monitoring, while board did not estimate impacts specifically for its the remainder will support water purchases and current proposed hybrid approach. However, as infrastructure to help increase flows in rivers. (For noted previously, the water rights associated with example, water purchases could include obtaining the VAs comprise most of the water use in the water rights to keep water in rivers rather than being Sacramento/Delta watershed. Consequently, and diverted.) VA parties, the state government, and as noted by SWRCB in the new staff report chapter the federal government will contribute funding to released in December 2025, the economic impacts pay for VA costs. Based on current estimates, the of the plan’s proposed hybrid approach would be state is funding the largest share of costs—roughly most similar to the board’s estimates for the VA half, or $1.5 billion—as shown in Figure 7, and has pathway. While the costs of the hybrid approach already appropriated this funding through recent likely would be somewhat higher than SWRCB’s VA pathway Figure 7 estimates due to water supply The State Is Covering About Half the reductions that will apply to Cost of the Voluntary Agreement Program the water users that follow the regulatory pathway, SWRCB did not provide specific estimates for that particular segment of CVPIAª Sacramento/Delta water use. VA Pathway’s Estimated Water Supply Impacts and Associated Costs Are Relatively Low. In General Fund Federal assessing the effects of the VA Government pathway, SWRCB estimated very small reductions in water supply for municipal purposes and therefore assumed no economic impacts for participating water agencies and Bonds Public Water their municipal customers for this Agencies use. Instead, SWRCB assumed the water supply impacts would GGRF mostly affect growers who likely State Government would respond by shifting to less water-intensive crops or by fallowing fields. SWRCB estimated ª Funding administered by the U.S. Bureau of Reclamation. Includes funding collected from Central Valley Project relatively modest annual reductions contractors and federal funding. in crop revenues—one-quarter of GGRF = Greenhouse Gas Reduction Fund and CVPIA = Central Valley Project Improvement Act. 1 percent or less, regardless of www.lao.ca.gov 19 analysis full AN LAO REPORT budget actions. Under the plan, water agencies will fisheries. For example, for an unprecedented contribute about 20 percent of total funding, the three consecutive years (2023-2025), fishery CVP close to 5 percent, and the federal government regulators cancelled the state’s commercial Chinook about 25 percent. Thus far, VA parties have only salmon fishing season, resulting in millions of secured about one-quarter of the needed federal dollars of lost revenues annually for the industry. government funding. (They also banned recreational Chinook fishing in Unclear Whether Plan Would Lead to Benefits 2022 and 2023 and limited it in 2025.) If salmon for Fish and Fisheries. The draft Bay-Delta Plan populations stabilize and begin to grow, commercial could lead to improvements in the health and and recreational fishing, and any related services abundance of native fish if the amount of additional and tourism, could pick back up. On the other hand, flow and associated habitat improvements if salmon populations fail to improve or continue provide sufficient support for their recovery. If fish to decline under the plan, economic outcomes numbers improve, commercial and recreational could worsen for the fishing industry and services fishing also could experience gains. The decline and tourism. in salmon has had serious negative impacts on KEY LAO FINDINGS Although the board had not yet formally adopted offer a broader suite of tools. Below, we discuss the plan updates as of this writing, the revised draft potential for VAs to offer some key benefits. that SWRCB released in December 2025 signals Theoretically, VA Pathway Could its intent to move forward with the VA approach. Improve Conditions for Fish… One compelling In light of this, below, and as shown in Figure 8, rationale for pursuing VAs is that participating we (1) discuss the theoretical potential for VAs to parties would commit to restoring and enhancing balance competing goals, (2) note some of the main about 47,000 acres of habitat—something SWRCB uncertainties associated with VA implementation, cannot directly mandate under the regulatory (3) identify outstanding questions about the pathway. These habitat improvements—designed effectiveness of either pathway to protect native fish to support fish spawning and rearing, food fish species, and (4) point out the need for SWRCB to production, and fish passage—would begin to act quickly despite the uncertainties. address some of the historic alterations to natural systems that have been destructive for fish and VAs Offer Theoretical Potential to wildlife. Moreover, because the VA framework Balance Multiple Competing Goals attempts to align the timing, location, and amount Balancing the state’s many goals for the of flows with the life cycles and migratory patterns Bay-Delta watershed remains a complex and of native fish, it could, in theory, allow for an challenging task. Considering that SWRCB’s ecologically effective and water-efficient approach. authority is limited mostly to regulating flows, VAs Figure 8 Key LAO Findings 9 Voluntary agreements (VAs) offer theoretical potential to balance multiple competing goals. 9 Implementation of VA program still has some key uncertainties. 9 Degree to which either pathway would help native fish recover is uncertain. 9 Despite uncertainties, timely action is needed to protect the Bay-Delta Watershed. 20 LEGISLATIVE ANALYST’S OFFICE analysis full AN LAO REPORT For example, if the right amounts of flows are require that economic impacts not be the only delivered when and where fish need them, more driving factor in determining how to balance water water could potentially be diverted at other times use in the Bay-Delta, this comparison does highlight without undermining ecological goals. In addition, one additional benefit of the VA pathway. VA parties would be required to test a number of VA Pathway Provides More Certainty to Water scientific hypotheses, which would add to the body Agencies About Water Supply. Compared to the of knowledge about which activities are and are not regulatory approach, the VA pathway gives water promising for fish and ecosystem recovery. agencies more certainty about the specific volumes …If Scientific Analyses Are Sound and of flows they must contribute for compliance. For Selection of Habitat Projects Is Strategic. each water year type (wet, above normal, below The effectiveness of the VA approach, however, normal, dry, critical), the draft Bay-Delta Plan sets depends on having robust, regularly updated specific flow amounts that VA parties would be information; strong enforcement of flow required to provide. Because the water year type is commitments; effective monitoring; real-time determined only a few times per year, agencies can adaptations; and the strategic selection of habitat plan in advance and know the total flow for which projects. Both the VA and regulatory pathways they will be responsible. By contrast, the regulatory emphasize the use of science-based adaptive pathway requires a percentage of unimpaired decision-making—an appropriate approach given flow. While the percentage is fixed (for example, the importance of using up-to-date information 55 percent), the estimated unimpaired flow amount about environmental conditions and native fish itself could change regularly, making planning behavior to adjust flows. more challenging. VA Pathway Likely Offers More Flexibility to VA Pathway Could Take Effect More Quickly. Adapt. The VA pathway likely offers greater built-in Although the terms of the VA program would flexibility than the regulatory pathway since it is become binding upon adoption of the Bay-Delta grounded in collaborative agreements and would Plan, they are based on a set of negotiated not require the same types of regulatory changes agreements among water agencies and state and to modify flows. Successful implementation, federal agencies. This means that implementation however, will depend on strong collaboration of the VA pathway does not depend on subsequent and cooperation among water agencies and a regulations or water rights proceedings—VA parties willingness of these agencies to make adjustments can begin to fulfill their commitments upon if conditions change significantly and/or outcomes SWRCB’s adoption of the plan. (However, to are not materializing as anticipated. exercise its authority to protect those flows from Adverse Effects on Water Users Less Than other diversions, SWRCB would need to adopt Under Regulatory Approach. Because the regulations.) Additionally, as described earlier, VA VA pathway would allow comparatively more habitat projects have already begun. By contrast, water diversions than a broadly applied regulatory implementation of the unimpaired flow requirements approach, the water supply impacts for municipal for non-VA parties will not begin for at least another and agricultural customers would be lower under two years following approval of the plan, as SWRCB this approach. Because agencies could divert more will need additional time to adopt regulations. water, this also could ease reliance on groundwater Implementation of VA Program Still Has pumping. Moreover, given that water supply Some Key Uncertainties reductions are the main cost driver of changes to the Bay-Delta Plan, this means that costs for water While the VAs have the potential to offer some agencies and their customers, growers, and the benefits toward balancing water uses in the broader economy would be comparatively lower Bay-Delta, several uncertainties remain regarding under the VA pathway as well (even accounting for certain core elements of this pathway. The VAs’ direct costs for habitat projects and water outcomes of these outstanding questions will be purchases). While the public trust doctrine and important factors in whether or not this new water state responsibility to protect fish and wildlife management approach is successful. www.lao.ca.gov 21 analysis full AN LAO REPORT Effectiveness of Water Purchases Remains While the board includes language in the revised Uncertain. The VA program envisions meeting Bay-Delta Plan stating it would consider imposing a good portion of its flow commitments through requirements on future water rights to protect base water purchases (water rights sales or water flows, it does not set any specific rules or limits now transfers) made with funding contributed by the to prevent these new projects from reducing them. state and VA parties. Currently, relatively little The vulnerability of VA base flows to the impacts of information is available about the mechanics of how these new projects likely would not be a major issue this strategy will work. Whether water purchases within the initial eight-year term of the VA program will work at a large scale is not yet certain. For given the time needed to build the projects. example, accounting for this water flowing through (If approved, Sites could take roughly eight years the Sacramento/Delta—and thus ensuring that it to build, and DCP about 15 to 20 years.) However, remains in the system for environmental purposes— these projects could be significant factors in future will be complicated. The stakes associated with water supply availability, and if they reduce base these uncertainties are high, as water purchases flows, they could undermine gains achieved by the are an important component upon which the overall VA program—a risk not addressed in the current success of the VA program depends. draft plan. New Water Projects Could Undermine Future Federal Policy Changes Could Impede VA Base Flows. The proposed Sites Reservoir Implementation. The federal government plays a and Delta Conveyance Project (DCP) could affect key role in the Bay-Delta Plan and several federal the amount and timing of water available to meet policy decisions could have important implications base flow commitments under the VA program. for the VA program: The nearby box describes these two projects. Two New Major Water Infrastructure Projects Could Affect Bay-Delta Flows Alongside updates to the Bay-Delta Plan, Governor Newsom’s administration is advancing two large water infrastructure projects: Sites Reservoir and the Delta Conveyance Project (DCP). While these projects are intended to increase water supply reliability, they also raise questions about how they might interact with the Bay-Delta Plan and alter the timing and amount of flows into the Delta estuary. Sites Reservoir Proposed in Glenn and Colusa Counties. Sites Reservoir is a proposed off-stream storage project in the Sacramento Valley. Its goal is to capture and store runoff from the Sacramento River during wetter periods for use in drier times. While designed to increase water supply flexibility, the new reservoir could change the timing and quantity of water flows in the Sacramento River system, raising questions about impacts on existing flow commitments. The DCP Would Divert State Water Project (SWP) Water Around the Delta. The DCP is the latest proposal to bypass the central Delta to convey water from the northern Delta to pumps south of the Delta as part of the SWP. Previous bypass concepts were controversial, heavily debated, and ultimately abandoned. DCP proponents—including Governor Newsom, the Department of Water Resources, and State Water Contractors—argue it would improve the reliability of the state’s water supply given the risks of climate change, salinity intrusion, sea-level rise, and earthquakes in the Delta. Opponents—including environmental groups, Delta residents and local governments, fishing groups, and some tribes—contend the project would jeopardize the Delta’s ecosystem and regional economy and advocate instead for strengthening Delta levees and increasing water conservation and recycling. While intended to improve water delivery reliability, the project could alter how water is diverted and managed in the Delta, which, in turn, could affect existing flows. 22 LEGISLATIVE ANALYST’S OFFICE analysis full AN LAO REPORT • Recent USBR Decision Could Lower fully in the governance and scientific VAs’ Base Flow Amounts. The state and activities associated with the program federal governments historically have worked appears uncertain. together to coordinate operations of the SWP • Will the Federal Government Provide and CVP, including management of major Sufficient Funding? As discussed earlier, reservoirs and Delta exports and compliance the VA program depends on funding from with state and federal endangered species water agencies (about 20 percent), the state laws and regulations. Together with existing government (50 percent), the CVP (5 percent), state requirements, the required flows and the federal government (25 percent). stemming from the 2024 federal biological While some federal funding has been provided opinions (BiOps) would form the baseline for already, whether the remaining amount will VA amounts. The new VA flow commitments materialize is unclear. How the VA program are intended to be additive to this base. In would adapt without this funding also is January 2025, the federal administration uncertain—either funding would have to be issued an executive order directing federal secured from another source or fewer habitat agencies to maximize water deliveries in projects and water purchases would be California. Later that year, USBR signed a completed, which could weaken the overall Record of Decision adopting an updated VA program. long-term operation plan for the CVP to • Will the U.S. EPA Approve Incorporation implement that directive. USBR asserts of VAs Into the Bay-Delta Plan? Under the that the updated plan is consistent with the Clean Water Act, the Bay-Delta Plan must be 2024 BiOps. It also indicates that the CVP approved by the U.S. EPA. In 2024—under could potentially increase deliveries (and thus the prior administration—the U.S. EPA raised reduce instream flows left in rivers), subject concerns that the VAs lacked sufficient to hydrologic conditions and coordination evidence to ensure protection of beneficial with the state. If the CVP were to increase uses. Whether the U.S. EPA will maintain this deliveries, it would reduce the flow base upon same stance about the revised draft plan which the VA program is built. As a result, the is unknown. If the U.S. EPA were to find VA planned net increase in flows to be achieved provisions insufficient, it could delay approval after adding new VA flow commitments or require revisions, potentially affecting may not materialize as planned, potentially Bay-Delta Plan implementation. undermining the benefits envisioned in the draft Bay-Delta Plan. Degree to Which Either Pathway Would • Will USBR Remain a Reliable VA Help Native Fish Recover Is Uncertain Participant? USBR, as operator of the CVP, In addition to the uncertainties noted above, was one of the original signatories to the many unknowns exist about the potential VA MOU in 2022. While the MOU was not a effectiveness of either the regulatory or binding commitment, it signaled USBR’s intent VA pathway—or about the effectiveness of to collaborate and contribute to the voluntary, implementing both approaches together—in helping multiparty alternative to the regulatory fish populations rebound. This makes assessing pathway. The 2025 Record of Decision noted the estimated merits of the plan’s proposed above states that USBR may modify CVP approach difficult. operations to facilitate implementation of Neither Pathway Has Been Attempted on VAs, provided all other VA parties fulfill their This Scale. While some voluntary agreements respective commitments. However, the extent have been implemented in California, none have to which USBR would contribute CVP flows— occurred at the scale of the VAs proposed for the particularly in light of its stated objective to Bay-Delta, and the results of previous efforts have maximize water deliveries—and participate been mixed. For example, for each of the examples www.lao.ca.gov 23 analysis full AN LAO REPORT mentioned previously (Quantification Settlement and significant, in our view, they do not merit further Agreement, San Joaquin River Restoration delays in adopting updates to the Bay-Delta Plan. Settlement, and Mono Basin Stream Restoration Given the significant declines in ecosystem health Agreement), implementation has taken longer than and native fish populations, as well as the expected originally planned and required substantial funding increase in droughts, SWRCB needs to act quickly over many years. The regulatory pathway also to improve conditions in the Bay-Delta watershed. includes approaches that have not been tested The responsibility to make improvements should at this level. For example, none of the existing be shared across all affected parties, with the state regional or statewide water quality control plans in playing a key leadership role. California use an unimpaired-flows approach (only Water Users Bear Responsibility for the 2018 phase one updates to the Bay-Delta Plan Mitigating the Negative Effects of Their Water for the Lower San Joaquin River include unimpaired Use… As noted earlier, scientists have found flows, but these updates have not yet been that water diversions for human use—including implemented). Moreover, none of the watersheds construction of physical barriers and changes covered by regional water boards are as large, to water flows and temperatures—have been a hydrologically complex, or legally contested as the primary driver of declining fish populations and Bay-Delta. Consequently, while both SWRCB and degraded habitat in the Bay-Delta. Accordingly, VA parties can model and predict outcomes, the expecting municipal and agricultural water users to reality is that neither pathway has been tested at play a substantial role in helping improve conditions this level—so potential outcomes, complications, in watershed health is reasonable, including by and unintended consequences remain uncertain. changing their existing practices and implementing Unclear Whether Amount of Flows Proposed new activities. for VA Pathway Will Be Sufficient. Regardless …But the State Also Is Accountable for of the pathway adopted by SWRCB, scientific Balancing Human and Environmental Needs. evidence has found that native fish in the Bay-Delta Although water agencies bear some obligation watershed need both additional flows and improved to help ameliorate the current conditions of the habitat to support their survival. Importantly, Bay-Delta watershed due to the impacts of their this means habitat improvements alone will not diversions, the state shares this responsibility—not be sufficient. When water levels are too low, only because it built and continues to operate the fish face elevated salinity levels, warmer water SWP, but also because of its role as regulator. The temperatures, and flow conditions that disrupt state led or sanctioned many of the alterations to migratory routes. Low flows also can reduce the the natural landscape that have served certain amount of available habitat, lower oxygen levels, human needs but harmed native species and increase predation, and concentrate pollutants— damaged aquatic and riparian habitats. In this light, adding further pressure on already vulnerable fish helping to fund habitat restoration projects, water populations. Whether the additive flows proposed purchases, and water infrastructure improvements by VA parties—and the timing and location of (as part of the VA program) could be considered those flows—will be sufficient to support the an appropriate state role. Moreover, the state long-term survival of native fish remains uncertain. maintains the legal obligation to balance beneficial The U.S. EPA—under the prior administration—also uses in the Bay-Delta and to protect water expressed this concern several times in letters resources in the public interest. to SWRCB. SWRCB Plays a Key Role in Making Sure VAs Are Successful. Assuming SWRCB adopts Despite Uncertainties, Timely its proposed hybrid approach that includes both Action Is Needed to Protect the regulatory and VA pathways, ensuring that all Bay-Delta Watershed parties meet their obligations will be essential. While the uncertainties associated with the VA Compliance alone does not guarantee ecosystem approach and fish recovery goals are numerous recovery, but it is a necessary first step toward 24 LEGISLATIVE ANALYST’S OFFICE analysis full AN LAO REPORT restoring the health of the Bay-Delta. SWRCB is Independent Monitoring of VA Parties Could responsible for holding parties accountable for Be Important to Support Accountability. Under flow contributions, habitat actions, monitoring, the current VA framework, much of the proposed and other performance metrics—some of which monitoring, scientific testing and analyses, and SWRCB cannot normally mandate. Because the governance would be carried out by the VA parties VA pathway relies on more flexible actions rather themselves. While this structure may support than prescriptive standards, its success depends flexibility and collaboration, it also raises questions on ongoing oversight, robust monitoring, timely about whether resulting transparency, oversight, reporting, and credible adaptive decision-making and accountability will be sufficient. To ensure that based on generated and available evidence. implementation remains aligned with agreed-upon SWRCB will need to ensure these processes are commitments and ecosystem goals, independent operating at the appropriate scale, frequency, and monitoring by SWRCB and/or an outside entity at level of transparency—and that adjustments are key milestones may be appropriate and beneficial. made when outcomes fall short. ENSURING EFFECTIVE LEGISLATIVE OVERSIGHT Historically, the Legislature has not played a large Good Oversight Is Iterative. While the role in SWRCB’s regulatory water management Bay-Delta Plan is guided by formal regulatory decisions in the Bay-Delta, but rather has deferred processes, it also could be viewed as a living to the board to implement statutory goals through document. Both state and federal laws require the Bay-Delta Plan. While delegating a significant periodic review, and the dynamic nature of the portion of the implementation decisions to Bay-Delta—along with its many vital beneficial SWRCB—which has more technical expertise— uses—means the plan should be regularly updated might be appropriate, the Legislature still has a or designed with flexibility to support adaptive critical function in helping oversee implementation decision-making. Similarly, good oversight should of the Bay-Delta Plan. This is particularly important be iterative: it should be conducted consistently given the significant uncertainties highlighted and adapted over time to monitor key developments above about how VAs will be implemented and and milestones. That is, oversight should evolve what outcomes the program might achieve. Below, alongside the implementation process, allowing we identify some essential qualities of effective the Legislature to revisit priorities, refine its oversight and discuss some reasons why this role is questions, and shift its focus as new information so vital for the Legislature, identify some key issues becomes available. for the Legislature to monitor, and summarize Good Oversight Requires Good Data. potential avenues for conducting effective High-quality data will be essential for monitoring legislative oversight. compliance, tracking trends, and assessing outcomes. The draft Bay-Delta Plan outlines data Essential Qualities of Focused, Ongoing collection and reporting expectations under both Oversight and Why It Is Important the regulatory and VA pathways. The Legislature The Legislature has a critical interest in ensuring can use its oversight role to ensure that all that SWRCB implements the Bay-Delta Plan responsible parties are meeting their commitments, successfully given the watershed’s importance that SWRCB has access to the data it needs, and to California’s drinking and agricultural water that the information being collected is meaningful— supply, the survival of native fish species, and that it measures what was intended and can other beneficial uses. Legislative oversight will be inform adaptive decision-making. Additionally, essential to ensuring the plan is implemented as the Legislature may wish to request information intended and results in meaningful improvements to about whether any persistent data gaps emerge the watershed. and whether the data is publicly accessible, which could support independent review and promote www.lao.ca.gov transparency more generally. 25 analysis full AN LAO REPORT Good Oversight Focuses on the Most As shown, these relate to: flows, habitat, fish, Important Outcomes. Given the complexity tribes, accountability and funding, implementation, of the Bay-Delta watershed and Bay-Delta Plan and future planning. and the many parties involved, keeping the focus Legislature Has Several Tools to Conduct of oversight on the most meaningful indicators Oversight. The Legislature can oversee could help the Legislature understand whether implementation of the Bay-Delta Plan in various the state’s investments and regulatory actions are ways. Below, we outline several oversight having their intended effect. In the early stages mechanisms—also summarized in Figure 10—for of implementation, this might include monitoring moving forward with the updated plan. compliance, tracking progress on habitat projects, • Hold Oversight and Informational Hearings. assessing the quality and availability of data, and Legislative committees could hold oversight identifying any key data gaps. As implementation and/or informational hearings on key issues. progresses, oversight can begin to focus more These hearings could feature expert panelists; on ecological and policy outcomes—for example, updates from state and federal agencies trends in native fish populations, flow improvements and water users (including VA parties); and during critical periods, whether projects are input from tribes, environmental groups, and delivering anticipated ecosystem benefits, and community members. Hearings could be held how water agencies are managing with reduced as standalone sessions or integrated into Bay-Delta supplies. relevant committee hearings. Key Issues and Tools for • Create a Select Committee or Oversight Legislative Oversight Taskforce. The Legislature could establish a select committee or oversight taskforce Seven Key Issues to Watch. To ensure the focused on Bay-Delta Plan implementation. adopted plan aligns with and advances the state’s This would provide a dedicated venue for broader goals, in Figure 9 we summarize seven continued monitoring and engagement. In the key issues the Legislature may wish to monitor. lead-up to the 2009 Delta Reform Act and Figure 9 Seven Key Issues for the Legislature to Watch 9 Flows. Are flows increasing beyond what is currently required under existing regulations? (Under both the regulatory and VA pathways, flow levels should exceed those mandated by current rules.) Are flows occurring in the right places at the right times? 9 Habitat. Are VA parties fulfilling their habitat restoration commitments? Is new habitat acreage truly additive compared to the December 2018 baseline? Were projects strategically selected to maximize ecological benefit? 9 Fish. Are populations of native fish showing signs of recovery? While improvements may take time, has a positive trend begun to emerge in population numbers and overall fish health? 9 Tribes. Are native tribes meaningfully engaged in both implementation and scientific processes? Is tribal input reflected in key SWRCB and VA decisions? 9 Accountability and Funding. Are all parties (SWRCB and VA parties—including USBR and other water users) meeting their agreed-upon commitments? Have VA parties secured required funding? 9 Implementation. Are data being collected, shared, and used effectively? Are collaboration and real-time adaptation occurring as envisioned? What lessons is the state learning from the novel VA approach? 9 Future Planning. Is the state making progress in planning for the post-VA period? How will current and new habitat projects be supported and maintained after the eight-year VA term? How will SWRCB avoid long delays in adopting future plan updates? VA = Voluntary Agreement; SWRCB = State Water Resources Control Board; and USBR = U.S. Bureau of Reclamation. 26 LEGISLATIVE ANALYST’S OFFICE analysis full AN LAO REPORT independent evaluations from academic Figure 10 institutions or other entities with appropriate Legislature Has Several Tools to scientific expertise. Given that neither the Conduct Oversight unimpaired flows nor VA approach has previously been implemented at this scale • Hold oversight and informational hearings. or level of complexity, independent scientific • Create a select committee or oversight taskforce. assessments could offer valuable insight into • Require reporting to the Legislature. program effectiveness. • Require independent scientific evaluations. • Promote transparency. • Promote Transparency. SWRCB has • Review spending. committed to posting scientific and progress reports online, holding public meetings and hearings, and conducting tribal listening during discussions about a proposal to convey sessions. To ensure information is accessible water around the Delta via twin tunnels, the to all interested and affected parties, the Senate created a Select Committee on the Legislature could consider pursuing additional Sacramento-San Joaquin Delta and held measures. For example, it could require hearings. (The Assembly also held numerous SWRCB to share all VA-related materials, informational hearings through a standing data, and reports in a centralized location committee.) A contemporary version could and provide plain-language summaries of the support coordinated implementation and help latest science and progress updates. the Legislature remain engaged as the state moves from planning to implementation. • Review Spending. The Legislature has already approved substantial appropriations • Require Reporting to the Legislature. for VA-related habitat projects and water Although the draft Bay-Delta Plan would purchases. It may wish to examine details require VA parties to report to SWRCB at about how specifically these funds are being select intervals, the Legislature also may wish used, whether VA parties and federal partners to receive periodic reports from SWRCB. are contributing their shares, and whether For example, these could include updates on the funding is advancing the state’s goals flows and habitat projects, expenditures on in the Bay-Delta watershed as intended. the VA program, progress made on ecosystem It might also request information to determine health and native fish populations, changes whether habitat projects, scientific monitoring, in groundwater pumping, and economic and other activities will require ongoing effects—particularly on growers. funding and what funding sources would be • Require Independent Scientific appropriate to support them. Evaluations. In addition to SWRCB reporting, the Legislature could consider funding www.lao.ca.gov 27 analysis full AN LAO REPORT CONCLUSION The Bay-Delta watershed supports residents, offer some benefits. However, significant farms, fish, wildlife, and businesses, yet its uncertainties remain, including whether flows will be ecosystem has been significantly compromised sufficient, whether flows combined with habitat will over the years. The current Bay-Delta Plan has adequately support fish, and whether federal policy not provided adequate protection of all beneficial changes will undermine the VA parties’ ability to uses, and long delays in updating the plan further implement the plan. The VA program must therefore threaten native fish. Making near-term progress on be closely monitored. The Legislature plays a updating the plan is a critical step in beginning to critical role in this regard. By holding SWRCB reverse these trends. While SWRCB’s regulatory accountable to the Bay-Delta Plan’s objectives and tools—focused on flows and diversions—are shining a light on the successes, challenges, and essential, they cannot directly compel habitat unintended consequences of the VA program, the restoration and, on their own, likely will not be able Legislature can help ensure the state achieves its to fully rebuild fish populations or ecosystem health. environmental and water management goals for this In this context, the VA approach could theoretically important watershed. LAO PUBLICATIONS This report was prepared by Sonja Petek, and reviewed by Rachel Ehlers and Ross Brown. The Legislative Analyst’s Office (LAO) is a nonpartisan office that provides fiscal and policy information and advice to the Legislature. To request publications call (916) 445-4656. This report and others, as well as an e-mail subscription service, are available on the LAO’s website at www.lao.ca.gov. The LAO is located at 925 L Street, Suite 1000, Sacramento, California 95814. 28 LEGISLATIVE ANALYST’S OFFICE