On December 10, 2025, the State Water Resources Control Board (Board) issued a revised draft version of its update of the Bay-Delta Plan. The draft includes a “partially recirculated” Chapter 13 of its September 2023 Draft Staff Report on the Bay-Delta Plan update. Both the Bay-Delta plan update and the new Chapter 13 of the Staff Report can be downloaded here.
The December Draft adopts a scientifically indefensible “voluntary” approach to flow requirements for the San Francisco Bay, the Bay-Delta estuary, and the Central Valley watersheds. The “Voluntary Agreement” that the December Draft proposes for the Board’s adoption would protect California’s water supply at the expense of fisheries and ecosystems. Over all water years, the largest annual water cost for water that isn’t paid for, in any region of the state, is 2%. The largest increase in meeting critical flow thresholds for any single species of fish under the VA is 2%.
It is truly the 2% Solution!
The December Draft of the Bay-Delta Plan Is a Do-Nothing-for-Fish Plan.
It has become increasingly clear over the last seven years that water supply will be the primary decision criterion for any flow standards the Board adopts for the Bay-Delta watershed. The Board has been backpedaling on protecting fish and the Bay-Delta ecosystem ever since the issuance of the Board’s 2010 Delta Flow Criteria Report.
The December Draft catalogues how miniscule benefits to fish will be under the Voluntary Agreement. See, e.g., Recirculated Chapter 13, Table 13.5-8, pdf p. 235, which shows that the Sacramento/Eastside Voluntary Agreement provides virtually no greater achievement of critical flow thresholds for fish than existing conditions.
The December Draft Proposes that Restoring the Bay-Delta Ecosystem Is Worth Virtually No Reduction in Water Supply.
A careful look at the analysis of water supply in the December Draft shows that the Voluntary Agreement will have almost no water cost at all. Recirculated Chapter 13, pdf pages 176-212 provide the water cost of the Voluntary Agreement, broken down by types of use and areas of the state (Emphasis in quotes below is added):
- For the Sacramento River watershed, “The average annual water supply reduction from baseline across all water year types is 110-223 TAF [thousand acre-feet], about 2-4 percent, depending on the sources of the unspecified water purchases.” (pdf p. 176). (Translation: if the reduction is 4%, half of the reduction will be paid for, and actual water cost is 2%.)
- For the “Eastside” watersheds, the water cost is zero. (Tables, pdf p. 188).
- For the San Joaquin River watershed, “across all water year types, the change in Sacramento/Delta supplies to the San Joaquin Valley region could range from an average annual increase of up to 51 TAF (2 percent) to an average annual decrease of up to 62 TAF (2 percent) depending on the sources of unspecified water purchases.” (pdf p. 197).
- For the San Francisco Bay Area, “the Sacramento/Delta supply to this region could increase slightly under the VA scenario. Across all water year types, this increase in average annual total Sacramento/Delta water supply could be 3 TAF (less than 1 percent).” (pdf p. 204).
- For the Central Coast region, “Across all water year types, total Sacramento/Delta supply would increase from baseline by 2 TAF (3 percent) under the VA scenario.” (pdf p. 207).
- For southern California, “Across all water year types, the increase in total Sacramento/Delta supply to Southern California could be 29 TAF (2 percent), under the VA scenario.” (pdf. p. 211).
Recent Background
This past summer, the Board tipped its hand in a July 2025 draft version of the update, which it rescinded in September. The December Draft makes no substantive improvements on the July draft. The December Draft consists of the revised plan that includes the new requirements, plus appendices. It also consists of a partial revision of the Board’s 2023 Draft Staff Report and substitute California Environmental Quality Act (CEQA) document.
The December update adds detail and more bad decisions to a bad plan and further justification for those bad decisions.
CSPA analyzed the fundamental structure of the Board’s proposed abdication to the voluntary approach in an analysis of the July 2025 draft, State Water Board Sells out San Francisco Bay its Estuary and its Watershed.
The December 2025 Draft Update Violates the Statutory Premises of the Delta Reform Act.
The Delta Reform Act of 2009 required the development of this report. The Delta Reform Act stated: “The Sacramento-San Joaquin Delta watershed and California’s water infrastructure are in crisis and existing Delta policies are not sustainable. Resolving the crisis requires fundamental reorganization of the state’s management of Delta watershed resources.” (Wat. Code, § 85001, subd. (a).)
In short, the December Draft does not consider the public trust resources of the Delta to be in crisis. It does not propose to fundamentally reorganize the state’s management of Delta watershed resources or anything else. It proposes to tinker around the edges and retains business as usual for water operations in the Bay-Delta watershed.
The December Draft Does Not Protect Public Trust Uses “Whenever Feasible.”
One of the added sections of the December Draft is entitled “Public Trust Analysis.” (See Revised Ch. 13, pdf pp. 238-243). As a brief refresher, the public trust consists generally of features of the natural environment held in trust for the public good and public enjoyment, including the air and water. Fishing, ecological study, aesthetic enjoyment, recreation, navigation, and waterborne commerce, each constitute established public trust uses. Marks v. Whitney (1971) 6 Cal.3d 251, 259-260. Public trust easements “have been held to include the right to fish, hunt, bathe, swim, [and] to use for boating and general recreation purposes the navigable waters of the state.” Id.
This Public Trust section begins with an oft-repeated quote: “The State Water Board ‘has an affirmative duty to take the public trust into account in planning and allocation of water resources, and to protect the public trust uses whenever feasible.’ (National Audubon Society v. Superior Ct. (1983) 33 Cal.3d 419, 446.)” (Emphasis added.)
So, we have two questions:
- How is it that a two percent or less reduction in water supply defines the limits of feasibility for new flow requirements to protect (and restore) a Delta ecosystem “in crisis”?
- How is it that a two percent improvement in meeting critical flow thresholds for fish defines the limits of feasibility for new flow requirements to protect (and restore) a Delta ecosystem “in crisis”?
The Public Trust section of the December Draft provides a list of all the things Board staff analyzed and considered in developing its proposal to accept the Voluntary Agreement. But a menu is not a meal. A list of considerations is not an explanation of how and why the Board made its decisions. It is also not an explanation of how it determined the limits of feasible protections for public trust resources.
How did Board staff, under the Board’s direction, make its choices? We have no clue. There is only a conclusory statement: “Through the analyses and balancing efforts described above, the State Water Board has duly considered the public trust and concluded that the revised proposed Plan amendments will protect public trust uses to the extent feasible.” (Revised Ch. 13, pdf p. 242).
The Public Trust section also states: “In determining whether it is “feasible” to protect public trust values like fish and wildlife in a particular instance, the State Water Board must determine whether protection of public trust values and the degree of protection to be provided are “consistent with the public interest.” (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 778.)” (Revised Ch. 13, pdf p. 238). Okay. We have two more questions:
- Where is the explanation of why it is in the public interest to make a 2% improvement in the frequency meeting key flow thresholding when fisheries are “in crisis”?
- Where is the explanation of why it is in the public interest to limit water supply reductions statewide to no more than 2% in order to protect fisheries that are in crisis?
Again, we have no clue.
The Public Trust section also states: “the State Water Board must balance ‘competing interests in adopting water quality objectives and formulating a program of implementation to achieve those water quality objectives.’ (Ibid.)” One more time, okay.
Two more questions:
- Where can we see the balancing?
- Where does it say how the Board balanced different interests?
The Board doesn’t show any of its work. It just says fish lose. Too bad. So sad.
The reality is that the December 2025 Draft Update proposes to protect the public trust only to the degree that it is convenient for water purveyors and users of developed water resources. Feasibility has nothing to do with it.
The acceptance of the Voluntary Agreement “pathway” accepts the water user community’s pre-emptive offer of what water users can afford without breaking a sweat. Indeed, in many cases, the “voluntary” offer of water is predicated on payment to return the public’s water, diverted by water users, back to the rivers and the Bay-Delta estuary. In a 2019 post, CSPA characterized this by saying, “Voluntary settlements privatize the public trust.”
A Closing Note
The December Draft proposes a new paradigm for a “regulatory pathway” for the update of the Bay-Delta Plan. It proposes this regulatory pathway as a “backstop” to the Voluntary Agreement. It waters down the regulatory approach the Board’s Draft Staff Report proposed in 2023. The 2023 Report proposed that each water user in the Bay-Delta watershed bypass 55% of the unimpaired flow at its point of diversion. The new “regulatory path” proposes “water supply adjustments” to reduce the bypass flow requirement to 55% in the top third (wettest) of water years, 45% in the middle third of water years, and 35% in the bottom third (driest) of water years.
The partly recirculated Chapter 13 of the December 2025 Draft Update provides statistics for the water supply reductions and benefits to fish under this watered-down regulatory regime. Overall, this proposed regime performs better for fish and would require somewhat greater water supply reductions in some regions in some circumstances. But it could still do better. Most of the issues and questions posed above regarding the Voluntary Agreement, particularly a public trust analysis regarding it, also apply to the Board’s new proposed regulatory approach.