C-WIN Submits Comments on the Bay-Delta Water Quality Control Plan
A PDF of C-WIN’s Comment Submission and Exhibits can be downloaded here.
February 2, 2026
State Water Resources Control Board
1001 I St.
Sacramento, CA 95814
Via electronic mail: SacDeltaComments@waterboards.ca.gov
Chair Esquivel and Board Members: As the country endures an increasingly violent and destructive fascist regime, communities are banding together to support vulnerable neighbors and stand against tyranny. In Minneapolis, Chicago, Los Angeles, and other cities, residents are stepping up in different ways: from observing and recording the heavily armed goons terrorizing our cities to providing food, laundry and other essential services to people terrified of leaving their homes. These actions speak to the incredible solidarity and courage of people who understand the moral imperative of this moment.
Later this year, the five of you will have a professional opportunity to demonstrate courage. You could stand against the Governor and the powerful allied interests pushing for Voluntary Agreements in the Water Quality Control Plan (WQCP) and instead vote for flow requirements that would give the ecosystem a fighting chance. You could acknowledge and condemn the exclusionary formulation of the VAs, criticize their inadequate flow commitments, and make clear that the profit motive for large agribusiness and the financial security of large water districts should not outweigh the greater public interest of a healthy watershed.
We have been witnessing what happens when independent institutions buckle under political pressure. History will remember those who caved. You are the voting members of an independent agency charged with setting and enforcing rules to protect the environment. The Governor’s term ends in less than a year. Will you be on the right side of history in the struggle to reform California’s inequitable water policies? Will you do the right thing?
WQCP Comments
In Section 3.1, the document lists the statutory considerations for WQCPs. One category is economic considerations. Although economic analysis is provided in Chapter 13 of the SED, the WQCP itself does not describe how economic analysis was weighed and incorporated into the proposed implementation measures described in Section 4. This lack of transparency is unwarranted and inconsistent with statutory direction. The WQCP should be revised to explain which economic impacts (positive and negative) the Board considers reasonable for different interests, including fish & wildlife.
In Section 3.4, which describes the water quality objectives for fish and wildlife, the document makes the bold assertion that “the narrative … and numeric water quality objectives … provide reasonable protection of fish & wildlife beneficial uses …” (Page 13). Through this statement, the Board has invented a “reasonableness” standard with no discussion of the rationale used to create it. Is it the Board’s contention that the water quality objectives will sustain a doubling of salmon populations (Page 117). Or, has the Board determined that “reasonable” protection means something else? Without clear explanation, this statement is tantamount to a claim that protection of fish & wildlife means whatever the Board deems it to mean at whatever point the Board deigns to assess their viability. While the Board has broad discretion to weigh competing objectives, the Board cannot make arbitrary and capricious decisions. , and this framing seems both arbitrary and capricious, especially given that the SED makes clear that the VAs will not protect or enhance fish & wildlife.
In Section 4.4.3, which describes the methodology for water rights curtailments, the Board discusses information it will consider to determine water unavailability. Nowhere in this list is the State Constitution, the Public Trust Doctrine, or relevant statutes mentioned – yet these laws are foundational for understanding the amount of water that is necessary for the environment and is therefore unavailable for water rights holders. A defensible curtailment methodology must apply these foundational laws first. Water rights and contracts, including those of DWR, remain subject to the foundational requirements of public trust and reasonable use and cannot supersede them. (See, e.g., Wat. Code, § 85023; United States v. State Water Resources Control Board (1986) 182 Cal.App.3d 82; National Audubon Society v. Superior Court (1983) 33 Cal.3d 420.).
The WQCP language also states that: “In implementing curtailments, the Board will consider and accommodate as appropriate relevant court decrees, settlement agreements, and other arrangements that affect water diversion and use to the extent consistent with the water right priority system.” (Page 61). While the Board has discretion to determine whether settlement agreements and other arrangements warrant inclusion in the methodology, it does not get to pick and choose which court decrees to follow. The Board must fully comply with court rulings on the applicability of the state constitution, the public trust doctrine, and statute to the water rights system.
In Section 4.4.9, which describes the VAs, the Board asserts that it “may issue Government Code section 11415.60 decisions by settlement or other decisions, orders, or regulations to enforce HRL commitments …” This characterization highlights both the legal and moral deficits of the VAs. First and foremost, it raises the issue of whose voice counts for settlement agreements. The settlements reflected in the VAs were reached by water districts and the state and federal agencies that manage the major water storage and delivery infrastructure. Tribes, advocates, local governments (e.g., cities and counties) and other water users (e.g., commercial fishing interests) are not party to the VAs. Their interests were not included in the settlements that comprise the VAs. In effect, they are excluded as parties to the WQCP development, which created a two-tiered structure to a quasi-legislative process designed to advance environmental quality and the public interest. The legal basis for allowing only some parties to present settlement terms is dubious, and there is also no moral basis for prioritizing the interests of some participants over others. Just as water quality statute does not prioritize certain beneficial uses over others, the Board has no moral justification for prioritizing the interests of the VA parties over the interests of other governments and organizations that would, if permitted, happily present “settlement terms” requiring stronger environmental protections. Indeed, other state regulatory agencies have established procedures for ensuring more equitable access to “party status.” At the Public Utilities Commission, for example, advocacy organizations and local governments can request to intervene in a proceeding as parties, which gives affords them the same procedural rights as the investor-owned utilities (the regulated entities), including the ability to propose and formally object to settlement agreements. (Public Utilities Code, 1801-1812). Moreover, when approving settlements, the Commission must make specific “reasonableness” findings. (Commission Rule 12.1(d)).
Section 11415.60(a) of the Government Code states that “An agency may formulate and issue a decision by settlement, pursuant to an agreement of the parties, without conducting an adjudicative proceeding.” As the statute does not specify who counts as a party, it opens the door to challenges based on discriminatory intent. Excluding certain organizations from party status based on protected class characteristics, for example, would run contrary to both state and federal law, as well as the US Constitution’s Equal Protection Clause. As documented by the Title VI complaint submitted by the DTEC entities and accepted for investigation by USEPA, there is a long history of discrimination embedded in the water rights and water quality control plans processes related to the Bay-Delta watershed. That history is relevant to any claim that only water rights holders should be afforded party status for the purpose of settlements described in the Government Code.
In addition, the Board’s contrivance to modify the elements of the VAs into a legally justifiable plan strains credulity. Firstly, it creates a two-tiered compliance system that does not satisfy foundational legal requirements. VA parties are exempted from multiple requirements that would be imposed on non-VA parties. Yet, these differential requirements are not based on compliance with the public trust doctrine, state constitution, or other statute, but rather on whether a water user is party to a settlement. In addition, the SED clearly documents that the VA parties would provide lesser freshwater flows than they would if they were subject to the regulatory pathway. Thus, the Board is deliberately creating an implementation framework around settlements that will not achieve the goals the Board set out to achieve, as required by statute. Notwithstanding the question of whether the Board has the authority to approve the VAs, the choice to adopt their elements as part of a water quality control plan given their clear conflict with controlling legal requirements is itself a clear dereliction of duty.
Finally, approving the VAs would be a furtherance of the moral bankruptcy that has engulfed an alarming portion of the US population and elected leadership. The VAs are analogous to letting industry set regulations on terms most favorable to its interests. History is filled with examples of negative societal outcomes when this type of self-regulation is allowed.
In Section 4.4.9.1, which discusses potential future water projects (e.g., Delta Conveyance Project & Sites Reservoir), the Board commits to consideration of requirements that would “…support and maintain natural production of viable native fish populations.” This is essentially a non-commitment and epitomizes the Board’s complete abdication of its duty as a regulatory body. All native fish populations were viable prior to European colonization. The fact that post-colonial development made certain native fish populations (e.g., Delta smelt) extinct but for captive breeding programs does not absolve the Board of its duties under the public trust doctrine and statute to adopt rules that protect all native fish species, not just the ones the Board deems “viable.” Instead of offering future consideration, the Board could commit to tangible actions, including: adopting a moratorium on approval of new water projects for a set number of years or until certain water quality objectives are met; or requiring that new projects meet numeric flow and temperature requirements tied to numeric standards for fish and wildlife survival. The Board’s unwillingness to halt these water supply projects outright is further evidence that its independent authority has been compromised.
In Section 4.4.9.2, which discusses VA flow commitments, the Board gives the VA parties a pass on meeting any temperature standards, stating:
“…The HRL commitments are required to be implemented in a manner to improve temperatures to the extent possible and avoid redirected impacts to water temperatures. As part of the annual and periodic review processes, the HRL participants will be required to report on measures they have undertaken to address temperature impairments in their stream systems in coordination with HRL implementation measures….”
This permissive structure is particularly egregious given the well-established connection between water temperature and fish survival, previous temperature management orders (e.g., Water Rights Order 90-5), and Fish & Game code provisions and supporting case law placing temperature management actions as unambiguous requirements for dam operators. Indeed, the Board’s proposed regulatory provisions for non-VA parties regarding temperature demonstrate that the Board is fully aware of these mandatory duties. Here again, we see the illegal and untenable nature of the VAs.
In Section 4.4.10.1, which pertains to the Trinity River, the Board continues to require nothing more than annual reporting despite ample evidence that there have been and will be redirected impacts to the Trinity River ecosystem. As described by Save California Salmon et. al. in their comment letter, the WQCP “… in effect treats the Trinity and Lower Klamath Rivers as a salmon sacrifice area.“
In Section 4.4.10.2, which discusses the use of Fully Appropriated Stream System (FASS) designations, the Board commits to updating the FASS for the Delta and tributaries without a timeframe. If the Board were serious about reducing the “paper water” problem it identified in the SED (SED 2-115 to SED 2-122), it would set a goal date for updating the FASS designations. Ideally, the FASS updates would be adopted in conjunction with the water rights curtailment methodology, which the Board has committed to completing within two years.
In Section 4.4.10.4, the Board discusses actions it will take to ensure compliance with state law (e.g., the Sustainable Groundwater Management Act) and to promote groundwater recharge during high-flow events. This language is at odds with the provisions in the VAs that allow for groundwater substitution in certain tributaries. Even in basins that are not in critical overdraft, additional groundwater pumping (up to 20,000 acre-feet annually for the Sacramento River watershed and substantial amounts in the American and Feather River watersheds, see pages 68-69) creates the potential for negative consequences, such as subsidence, especially during dry years. If the Board were fully committed to sustainable groundwater management, it would not allow for any groundwater substitution.
In Section 4.6.1, the Board discusses climate change in a single paragraph, essentially stating that it will continue assessing climate change impacts. This is problematic on multiple levels, starting with the fact that every action, plan, and policy the Board adopts is a response to climate change, and that the WQCP, as drafted, is designed to maintain status quo water use in a rapidly changing climate where status quo water use is incompatible with continued ecosystem function. In Section 1.3, the Board notes its goal of “…developing water resources in an orderly manner.” A fundamental question for climate change adaptation is whether unavoidable actions, such as moving or abandoning coastal infrastructure as sea levels rise, will occur in an orderly manner as opposed to a rushed and potentially chaotic manner. It is well documented that reductions in irrigated agriculture are unavoidable. 1 The Board thus has the opportunity with this WQCP to set flow standards that would catalyze the orderly retirement of farmland in the Sacramento Valley. If the Board were committed to its own stated goals, including its climate and racial equity resolutions, there would be no question that a strong regulatory approach is both necessary and more resilient than VAs.
Comments on Substitute Environmental Document (SED) Chapter 13
These comments are offered to inform a better regulatory plan and a more robust environmental and economic analysis meeting the requirements of CEQA and numerous other laws, including the “constitutional principle of reasonable use and the public trust doctrine,” the “foundation” of state water management policy particularly important to the Delta (Wat. Code, § 85023.)
The clear need for recirculation and course correction comes at a time of rapid federal retrenchment from existing legal duties and assumptions about cooperation underlying the proposed VAs. Last December, not long before issuance of the new plan draft and updated Chapter 13, the Bureau of Reclamation (Bureau) issued a new Record of Decision (ROD) shifting to the “Action 5” operations plan, 2 which seeks to expand reliance on exports from the Delta watersheds despite massively oversubscribed watersheds and laws requiring the opposite. Board staff aptly described the negative consequences of this (likely illegal) action in a November 10, 2025, letter to the Bureau (Exhibit 1). Unfortunately, rather than using this opportunity to reject the VAs in favor of meaningful flow requirements, the Board directed its staff to release the revised draft plan and updated chapter 13 later the same month. The Board’s immoral and unsupported bias in favor of the VAs permeates the recirculated Chapter 13 of the SED. In particular, as described further in the attached expert analysis provided by ECONorthwest (Exhibit 2), the Chapter contains the following deficiencies:
The economic findings are qualitative and incomplete for ecological, recreational, and cultural effects, including tribal impacts, while quantified for agriculture and water supply.
The SED does not identify the full costs to the public, nor the affordability consequences of these costs for households and small businesses
The staff report does not evaluate or describe the distributional effects of benefits and costs, particularly for vulnerable populations with limited resource access
In general, the Board’s approach seems to be to describe several factors that have positive and negative consequences but then assume on net positive outcomes without a comprehensive and quantitative analysis to justify these findings. This is particularly important for non-market outcomes for the public as a whole, including effects on fish populations and other ecological and culturally relevant consequences. Although the Staff Report cites many reliable and useful literature sources that could be used to quantify the value of market (commercial) and non-market (recreational, cultural, existence) values associated with fish for example, it does not provide any calculation of the magnitude of benefits or costs across options. It begins with an assumption of net benefits for fish, despite ample evidence that the cumulative impact of the WQCP will be detrimental and introduce increased risk of population collapse for resident and migratory fish populations.
Similarly, the Staff Report provides several references to per-unit costs of water supplied from various available sources in California but does not calculate the overall costs or benefits associated with various water supply options or scenarios. In particular, there is no consideration of the most cost-effective set of options to address water scarcity for domestic use, despite well-established state policy designating it as the “highest use” in California. (Water Code, § 106). Californians are facing a nationally recognized water affordability crisis. This requires strong prioritization of any efficiencies to find lowest-cost supply options, including reappropriating agricultural water for domestic uses. The Staff Report does not consider or address this issue.
In addition, evaluating the effect of the distribution of benefits and costs is particularly important. When considering benefits and costs, a distributional analysis is most critical when benefits are concentrated and enjoyed among groups with substantial resource access (including financial) and costs are borne by vulnerable populations with limited financial and mitigation options. This includes efforts to distribute costs across geographies and populations unlikely to experience benefits. The Staff Report should provide reliable identification of communities, populations and businesses likely to bear costs, particularly when disproportionate to benefits.
Conclusion
Inevitably, when this WQCP is challenged in court, attorneys representing the Board will predictably argue that the Board used its discretion to weigh trade-offs and adopted a Plan that satisfies all of the Board’s procedural and substantive requirements. However, the Board’s discretion is far from absolute, and as C-WIN’s, DTEC’s, and other comments make clear, the Board’s actions clearly violate its legal requirements. Moreover, the Board has failed to live up to its own written commitments on racial justice and environmental protection. Tribes, environmental justice, and ecosystem advocates have clearly and consistently urged the Board to course correct away from the VAs. Those pleas have fallen on deaf ears.
With this WQCP update the Board had the opportunity to establish strong rules for improving the health of a declining ecosystem. The Board’s failure to stand up to political pressure is more than extremely disappointing – it is potentially calamitous. California’s economy can withstand, and could even benefit from, a reduction in agricultural water supply. In contrast, the watershed may not survive this betrayal.
Respectfully submitted,
Max Gomberg
Senior Advisor and Board Secretary
California Water Impact Network
1 See: https://www.ucs.org/sites/default/files/2025-05/roadmap-just-land-transition-ca-policy-brief.pdf, and https://www.ppic.org/publication/managing-water-and-farmland-transitions-in-the-san-joaquin-valley/, accessed January 28, 2026.
2 See https://www.usbr.gov/mp/nepa/nepa_project_details.php?Project_ID=54661 (ROD).