By Eric Buescher, Managing Attorney at San Francisco Baykeeper
Later this month, the State Water Resources Control Board is poised to update the Bay-Delta Water Quality Control Plan, the state’s most robust tool to address the ecological crises in San Francisco Bay and its watershed and to shape California’s water future. But, rather than protect the Bay by applying the law, principles of good public policy, and lessons learned from decades of scientific research, the Water Board is instead proposing to adopt a Plan update based on voluntary agreements (VAs) negotiated by Governor Newsom with major Central Valley water districts and the federal government.
The VA Program is pitched as a collaborative suite of actions pledged by water diversion agencies to avoid state regulation and private litigation. It offers small amounts of additional water for the environment in some years, money (much of it from taxpayers) to pay for earth-moving habitat restoration and other actions, and more scientific research in this already well-studied ecosystem.
Unfortunately, the VA Program won’t work. Indeed, it is almost certain to exacerbate the Bay’s problems over time. In Part 1 we explained some of the VA Program’s most substantive shortcomings. In this essay, we detail why the VA won’t work even as intended, aside from the substantive shortcomings of the plan. In future essays, we’ll explore the VA Program’s corrupt origins and then describe what can and should be done instead—a workable approach that addresses ecological problems throughout the Bay estuary and its watershed, while preparing California for the future.
As my colleagues wrote last week, the water and habitat commitments made by Voluntary Agreement parties are woefully inadequate to address the crisis in the Bay-Delta’s ecosystem and will not prevent water quality degradation, restore healthy river and estuary ecosystems, or revive flagging commercial and recreational fisheries, even if all the VA projects are fully implemented. Adding insult to injury, the VA Program is unlikely to deliver on even its own minimal water or habitat promises, and certainly will not do so in a transparent or timely manner. If the additional river flow does arrive, those additions (and then some) will be swallowed up by new water supply projects in the future. And there is no accountability or mechanism to change course when this likely failure comes to fruition.
If approved, the VAs will lock Californians into billions of dollars of taxpayer funded projects that will not solve the ecological crises throughout San Francisco Bay’s watershed, with no exit for nearly a decade. A program that relies on uncertain funding, unenforceable commitments, inflexible and unaccountable decisions, and that paves the way for more bad choices in the future is not a solution.
How Much Money? From Where?
The VA program cannot function or achieve any of its stated goals without funding that the state hasn’t–and won’t–secure. According to the Legislative Analysts’ Office, the proposed habitat projects and water purchases will cost roughly $3 billion. California taxpayers would pay around $1.5 billion, the Bureau of Reclamation (ratepayers and taxpayers) would pay roughly $740 million, and the VA participant water districts’ ratepayers would foot the remaining $760 million. Of the $3 billion dollars, just over a third ($1.13 billion) is slated for “water purchases,” with the remainder directed toward habitat improvements and the VA Program’s science and monitoring plan.
But there is no guarantee that any of that money arrives. And nothing in the Bay-Delta Plan set to be considered later this month requires a timeline or firm commitment of those funds. For the federal government’s share, President Trump has made no secret of his administration’s refusal to contribute federal dollars to “blue” states. Why does the Water Board expect that three-quarters of a billion dollars for California’s environment would be different? And when the federal funding fails to arrive, who will backfill those missing dollars?
Additionally, the only examples we have so far of water purchases under the VA Program indicate that the total cost will likely dwarf the estimated $1.13 billion currently identified for water purchases. One project, Fair Ranch, has been described by DWR as the largest VA water purchase to date and provides for the transfer of 5,000 acre-feet of water per year to the environment at a one-time capital cost of $36,000 per acre-foot. If other VA Program water purchases cost as much as DWR paid at Fair Ranch, the water purchase cost alone would approach $5.64 billion, not $1.13 billion, as advertised.
California’s taxpayers should not be on the hook for billions of dollars to pay private entities to buy water resources for the public. Water is a public trust resource, already owned by the people of California. We shouldn’t pay to buy it back for ourselves.
Reclamation is an unreliable partner
Since signing the VA Program’s Memorandum of Understanding in 2022, Reclamation has done an about face. First, in December 2025, it decided not to do “early implementation” of the VA Program’s export reductions that promise 125,000 acre-feet of additional Delta outflow to help support fish migration.
Then, after the Water Board announced its intent to adopt the VA Program in August of this year, Reclamation responded by saying the “Board’s current approach is not sustainable,” that it could not “support or participate in” the VA Program as contemplated, and that it would “cease any further participation or funding” of the VA Program.
Reclamation’s response is no surprise, nor is the agency’s insistence that it need not comply with California law. In July, the Trump administration wrote that the Water Board’s efforts to regulate Reclamation’s water rights in connection with Shasta Reservoir and Sacramento River temperatures exceeded the state’s authority.
The VA Program does not work without Reclamation’s financial, habitat, and flow commitments. But despite Reclamation’s refusal to participate, the Water Board continues to move forward as if the federal commitment is immaterial to the success or failure of the VA Program.
Worse, Reclamation is far from the only VA Program participant to threaten to abandon the approach they negotiated. After Reclamation backed out, other water users promptly followed suit. On September 4, Westlands Water District stated it “will not continue in the Healthy Rivers and Landscapes Program.” And myriad other VA participants wrote to the Water Board in September asserting the Board’s planned adoption of the VAs was “inconsistent” with the 2022 MOU they signed, that it “jeopardized the ability to implement the Bay-Delta Plan,” or accused the Water Board of making “fundamental[] change[s]” to the VA parties’ MOU.
That the Water Board still expects to adopt the VAs after its creators have threatened to abandon their commitments if the Board actually tries to enforce them is a testament to the unworkability of the approach. Rather than identify a functional and effective plan to address the crises the Bay-Delta faces, the Water Board elected to give away its regulatory authority to the regulated entities. Now it is refusing to change course even after those entities have turned their back on the VA Program.
The VA Program Is a Shell Game
When VA negotiations started, the stated theory was that the program’s resources would be additive to existing rules, recognizing the existing regulatory baseline was woefully inadequate to protect the ecosystem. Then, as those existing requirements have eroded over the last seven years, the VA Program has eroded with them – reducing the “base” on which it claims to add. The result is that the minimal river flows in the proposed Bay-Delta Plan’s VA Program are even less than originally envisioned and agreed to by VA parties.
In response, the Water Board added a requirement that some future reductions in that “base” flow caused by changes to endangered species act requirements would need to be made up by the VA parties. The VA Parties object to these provisions as well, based on their belief that such requirements are unlawful and unenforceable. So, how will the requirement be enforced? Based on the existing plan, it won’t. Just last week, the Water Board announced changes to several provisions of the proposed Bay-Delta Plan, including those related to the “make-up water” requirements. The change explains that VA parties must propose a way to provide make-up water if future CVP or SWP operations reduce Delta outflow from the “base” conditions contemplated in the Plan. Then the Board’s Executive Director will determine if that plan will work. And if the Water Board and VA parties disagree, the requirement is, quite literally, to talk about whether any actions should be taken. More delay, more unenforceable promises, and no guarantee of any action.
In addition, the Water Board plans to allow future reductions to the “base” that come from proposed new water diversions like the Delta Conveyance Project (DCP, aka the Delta Tunnel) and Sites Reservoir. The Board will not require VA parties (or anyone else) to “make up” that water. In most years, the diversions from those two projects alone will dwarf the additional water provided by the VA Program. The Water Board plans to allow this net loss despite the overwhelming evidence that more flow, not less, is necessary.
In reality, proponents of both Sites Reservoir and the DCP understand that their expensive and unnecessary projects are unworkable if the VAs are not adopted. Governor Newsom has supported projects slated to cost between $30 and $110 billion dollars to divert more water from the Bay-Delta. And those projects cannot work unless the Water Board abandons its regulatory authority and adopts the VA Program. So now, to support these misguided projects, the Board has agreed to let the foxes guard the henhouse at the same time the foxes are crafting new ways to more efficiently kill more hens in the future.
An “Experiment” that will Encourage Litigation and that is Destined Fail
Last, the VA Program locks the Board into eight years of regulatory inaction despite the evidence already demonstrating the urgency of acting today. The program lacks meaningful milestones or interim requirements to ensure that actual progress matches the commitments that were promised. And even where the State Board has attempted to impose interim goals, VA Program participants have steadfastly maintained the Water Board cannot exercise even this minimal oversight.
Nevertheless, the Water Board has provided the VA parties with numerous opportunities to litigate about the oversight, both now and in the future. At nearly every instance where the Water Board empowers itself to require the VA parties to act, it explicitly notes that such decisions are subject to petitions for reconsideration by the VA parties–a precursor to litigation over those actions. And if and when the Water Board elects not to allow the VA “experiment” to continue, it must provide yet another decision and another opportunity for the VA parties to file suit.
Good policy makes informed decisions based on existing evidence. The VA Program is not a plan for swift action directed by evidence and science-based choices. It is a plan for delay, litigation, a worsening status quo, and appeasement of water users, despite their continued threats not to do the things they initially proposed. The VAs ignore what we know already and restrict the ability of future decision-makers to change course.
More coverage of the Voluntary Agreements on Maven’s Notebook …
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