July 13, 2015 - From the July, 2015 issue

State Water Resources Board Wisely Navigates Challenges of Drought

As California’s severe drought continues, the State Water Resources Control Board must balance human and environmental uses of the resource across the state, maintain quality, and operate within the confines of historic water rights rules. Felicia Marcus, chair of the board, updated TPR on how she and her colleagues navigate these challenges, addressing their multiple responsibilities while still planning for the future. She delves into Governor Brown’s priorities around the Sacramento–San Joaquin River Delta tunnels, the implications of new groundwater rules, and allocation of Proposition 1 funds.

Felicia Marcus

“The watermaster was able to encourage Delta farmers, who are among the most senior water-rights holders in the state, to voluntarily cut their water use under their riparian rights by 25 percent.” —Felicia Marcus

Felicia, begin by sharing, in some detail, the mission and challenges associated with the Water Resources Control Board, which you chair.

Felicia Marcus: The scope of our mission hits on all cylinders, particularly during the drought, which puts us in hyperdrive. All four of our major programs, plus another new one, are called into play. It’s “all hands on deck.”

The Water Rights Division is in charge of administering the century-old water-rights program. California’s water-rights system cuts off, “curtails,” junior water rights completely, in favor of more senior water rights, in times of shortage. This is similar to most western states. We also have to make challenging choices to adjust conditions on various water rights, to avoid situations that weren’t contemplated when those conditions—like water quality or fish protection—were created. 

For example, conditions to protect fish and wildlife are put on formal water rights. They’re set up for wet times, normal times, dry times, or even critically dry times—but not insanely dry times like we’re in right now. 

The board has exercised emergency authority to say: “We don’t have to empty all the reservoirs to meet certain conditions in the spring that would result in no water for fish in the fall. We shouldn’t empty out our storage to the point where we can’t maintain salinity control in the Delta or water for fish later in the season.” This is hotly contested by advocates for fish and wildlife, Delta interests, water users upstream of the Delta, and water users south of the Delta who rely on exports.

There are a whole series of these temporary urgency changes—one of which was the subject of yet another recent all-day workshop. We have hard choices between horrible outcomes for people, fish, and wildlife, because there’s so little water. Our executive director has to make them, working with the projects and the federal and state fish and wildlife agencies. We, as a board, ultimately affirm or amend the executive director’s actions. That review is in process now.

Our Water Quality Program is implicated in advising on these things, but also has its own role to play in augmenting supply, such as accelerating use of recycled water. We’ve done a lot to create low-cost financing, as well as streamlining permits for recycled water use for irrigation and other outdoor use, as well as groundwater recharge with our Drinking Water Program.

Our Drinking Water Program came to us from the Department of Public Health last year. They’re trying to help communities that are running out of water or that have contaminated water—sometimes exacerbated by the drought—to get clean, safe drinking water. That is our highest priority. We work with the Office of Emergency Services and the Department of Water Resources to aid communities so small that they’re not even covered by our regulations. We’ve been a part of delivering water in bottles and tankers, as well as helping fund drilling wells and running pipes to help myriad communities get through the worst drought in anybody’s lifetime. The program is also working with an expert panel to do a feasibility report on “direct” potable reuse of recycled water and regulations for augmenting reservoirs for “indirect” potable reuse that should be out for review this year or next.

Our Division of Financial Assistance is a big part of our program. It puts out funding through low-cost loans, but also administers grant funds, like the almost $2 billion of Proposition 1 money that has become available to us for recycling, stormwater capture, groundwater clean up, and assistance to disadvantaged communities for wastewater and drinking water.

On top of those basic core areas, the governor also gave us emergency authority to do mandatory urban conservation regulations a little over a year ago, which we’ve been implementing. A couple of months ago, we put a 25 percent on-average cut on major urban areas, to ensure they save water this year so that it’ll be there next year, in case it doesn’t rain this coming fall. This has gotten the lion’s share of media attention. Thankfully, May’s conservation rates were significantly higher than they have been.

Tucked into that comprehensive list of responsibilities, I gather, is also management of the Delta. Speak to the challenges of the Delta watermaster.

The Delta is the crossroads for a hefty portion of water supply for agriculture in the Central Valley and for urban Southern California. On average, 30 percent of the supply for each of those two passes through the Delta. It serves as a hub as it funnels water down from the Sacramento River and Sierras to the north and the San Joaquin and the southern Sierras through a web of Delta islands, which were created in the mid-1800s for farming out of a tidal estuary. Some of that water goes toward outflow, which maintains salinity control in what is still a tidal estuary and helps fish at various stages of their lifecycles, and some of it is pulled south for agricultural, urban, and refuge use through a set of pumps at the southern end of the Delta. 

During the drought, our Delta watermaster and the board are trying to manage competing interests. It’s not just fish versus farmers—it’s farmers versus farmers. We, along with the courts, are the umpires judging competing claims on water. Even as we’re trying to manage flows to protect water quality for folks who farm and drink water in the Delta, we’re also refereeing disputes between exporters, the state, federal projects, and Delta water users. These are long-standing, decades-old disputes. We’re determined to make some decisions and get some certainty, where in the past we’ve had competing rhetoric thrown across the transom at and about each other. 

Our new and very experienced Delta watermaster has done a tremendous job. As we did last year, earlier this year we issued curtailment notices to junior water-rights holders, who obtained their water rights after 1914. The hydrology is so bad this year that we have also issued curtailment notices to substantial numbers of senior water rights. The coming curtailments on senior water-rights holders will impact both those who were under the pre-1914 appropriative system and riparians, who take water off the stream or watercourse they’re next to. The watermaster was able to encourage Delta farmers, who are among the most senior water-rights holders in the state, to voluntarily cut their water use under their riparian rights by 25 percent early in the season, to be safe from any deeper cuts should curtailments became necessary later in the season. 

That was a big deal, because these senior water-rights holders have never been effectively curtailed. They decided they wanted to be part of the solution, as communities ran out of water and urban centers cut back through mandatory conservation. 

They also decided, on a pragmatic level, not to sit back and challenge our right to curtail them in the middle of the summer—or whenever the demand and supply curves crossed—when they might have already planted their crops. Instead, they decided they would rather take a 25-percent cut now. That way, if they planted 75 percent of their crops, they’d be able to bring them in at the end of the summer.

Felicia, elaborate on the board’s implementation of an updated water-rights system, involving the curtailing of junior water rights. 

In the last two years, the State Water Resources Control Board has implemented the water-rights system primarily by curtailing junior water rights (post-1914) and, in some cases, senior water-rights holders. Juniors need permits and licenses, because 100 years ago is when the modern water-rights system was born. 

We don’t have as much information as you would think on the actual amount of water people use. We have paper water rights on file, and annual reporting on the part of junior water-rights holders. The pre-1914s and riparians have had to report how much water they’re using every three years, but it was only in 2009 that reporting exemptions were lifted in the Delta and we received effective authority to enforce the requirements. In some cases, it’s just an estimate. We had enough information to make crude judgments last year.

But this year, through emergency authority from the California State Legislature, we were able to do emergency information orders that asked all these water-rights holders to give us more real-time data on how much they did use (not just what was on their paper water right), and how much they planned to use, so that we could do curtailments with more precision. 

This is the worst year ever on record—not just because there’s not a lot of water yet again, but also because there’s no snowpack. It’s off the charts. We don’t have melting snow to replenish reservoirs and watercourses, so we have to go deeper into the seniors than ever before.

Having more precise information is very helpful. We will continue to issue curtailment notices throughout the course of the summer, as flows in the rivers continue to drop. 

Could you share the significance of the state’s new groundwater rules?

Historic groundwater legislation passed last year. For the first time in 100 years, we finally dealt with an issue that other western states dealt with long before we did. The legislation has a fairly long time horizon for final implementation, although local agencies will need to start moving now. The legislation says that local areas over a groundwater basin have to organize themselves. They have to come up with an adequate plan to get their groundwater basins into balance in a relatively reasonable amount of time. It won’t make a difference in this drought, but it’ll help prepare for the next one. 

The legislation also removed some barriers and gave some new tools to local areas, like the ability to charge fees and explicit authority to limit pumping. Proposition 1 added $100 million to help local agencies accomplish this. 

A lot of people were opposed to the legislation. But now that it’s passed, we’re hearing anecdotally that a lot of areas are doing a tremendous job to make it work. That’s happy news.

Are California’s water laws aligned with the practices that the governor is asking for and the Water Resources Control Board is administering?

The groundwater management law definitely is. It follows our philosophy: The goal should not be a top-down state regulatory program, but a framework for local action and success. We will do whatever it takes to help local areas take responsibility for what is, at heart, a community resource. 

The new law is very much in line with what we’ve been advocating. We’re working with communities that want our help. The Department of Water Resources is on the front line of that, just as we’re on the front line of dealing with groundwater quality.

Compared to Colorado or other western states, are California’s water laws and administration progressive enough, given the drought challenges that the board asserts the state must address?

We have a combination of at least three water-rights systems that have come together by accretion. We have the old English common law of riparian rights, and then we added miner’s rules—appropriative rights, where someone could tack a note on a tree to claim a lot of water as theirs to use—up until 1914. We added more rigor to the post-1914 rights holders. 


We haven’t ever spent the time and money to rationalize the system, either to adjudicate it or to settle people’s rights in relation to each other in any big way. It makes it harder to administer. We’ve made more progress in the last year of drought than we’ve made in the last 100 years, in terms of being given more tools and resources to manage that system, particularly in getting more real-time information about water use. 

Other western states have already spent the decades it takes to settle very clearly what various rights-holders’ relative rights are, compared to each other. They have a seniority system like we do—but their data has been laid out and proven. They have procedures for what to do when there are conflicts and when there are shortages. 

We’re gaining knowledge in a very short period of time, when other states have spent decades settling these issues. If we had done that, it would be easier to administer today. Folks would understand their rights. Now, folks may think they have a certain water right based on a piece of paper that has never been fully adjudicated or tested through a water-rights process. 

We will spend weeks, if not months, in hearings over conflicts between water-rights holders if the drought continues. 

We’re in much better shape than we were a year ago—but we have a fraction of the information or the tools that most of the other western states have. We’re cutting edge on a lot of air-quality, climate, and water-quality issues, but when it comes to our water-rights system, we haven’t had the focus on how to make it work well. 

The system could be run more effectively and efficiently if we had more information, including fish and wildlife needs and actual withdrawals and discharges. Then, we need to settle ahead of time how we’re going to act in these extreme shortage periods, because we’re likely to have them more often as climate change takes away our snowpack. On average, it adds a third more water as the snow melts and replenishes reservoirs and surface waters over the spring and summer. This year, there is virtually zilch.

Felicia, let’s turn to one of the electoral successes of the last election: the passage of Prop 1. Elaborate on your board’s responsibility in allocating the Prop 1 funds.

It’s fantastic. The California Water Action Plan was a path-breaking statement of administrative priorities a year and a half ago. We said: “Let’s stop arguing about what one thing will solve California’s water issues as we look toward the future, with climate change, population growth, and food insecurity. We have to do all of it: conservation, recycling, stormwater capture, desal in appropriate situations, fixing the Delta, dealing with ecosystem restoration ahead of the curve, and flood control. And, we need to ensure that all Californians have access to clean and affordable drinking water.” 

That plan—which was important to us and the public—laid the groundwork for successfully crafting a bond that everybody could see themselves in. It was clearly part of a plan—not your usual pork-barrel, earmarked bunch of money. 

The governor said he wouldn’t support a bond unless it supported his strategy, articulated by the Water Action Plan. He was right. We ended up getting it on the ballot, and it passed by over 70 percent, because it made sense and the governor campaigned for it. 

Now, we have the money to put those things into practice: conservation, recycling, stormwater capture, appropriate desal, and even money for cleaning up contaminated groundwater basins. We’ve recently been working with a variety of water agencies in Southern California on that last item, figuring out a faster way to clean up our contaminated groundwater basins so that we can use that water, but also so that we can use those basins to store recycled water and captured stormwater. That’s a much more intelligent way to manage our resources. 

The bond is a great down payment on the future. If we spend it wisely, hopefully we’ll get even more. 

We’re hoping to set up the criteria for stormwater and contaminated groundwater cleanup dollars in a way that leverages dollars from the public and private sector, prioritizing projects that yield real, additional water supply. 

We also got $500+ million to deal with safe drinking water and waste-water cleanup for disadvantaged and severely disadvantaged communities, along with a lot of money for recycling, which people are going gangbusters on.  That money will start going out the door this year. We expedited and simplified the application procedure based on our years of practice.

We are laying a foundation for a much smarter water future.

Were the recent conversations in Long Beach with Southern California water-related agencies also a part of laying a foundation for a smarter water future?

Folks are looking to align various regulatory actions and authorities, as well as get some dollars at the federal, state, and local level, so that we can work together on making these water basins a more reliable resource. How do we get recycled water and stormwater into it? How do we prevent contamination? How does the federal government bring their Superfund authority? How do the Department of Toxic Substances Control, the state, and regional water boards bring their cleanup authority? How do we bring our drinking water/recycled water rules and our dollars together in a given place? 

Efforts are happening all over the state. It’s wonderful. Historically, contamination-cleanup regulatory agencies worked on cleaning stuff up, going after responsible parties, and spending a lot of time in court. Water agencies worked separately—when, in fact, you want water agencies in the room because they’re the ones that are going to use the water and they are problem-solvers by nature. 

Collaborative efforts are relatively new, other than in the San Gabriel Valley, where the San Gabriel Basin Water Quality Authority has been doing it for a couple of decades. The Orange County Water District and other San Gabriel Valley water districts have been doing a good job, as well.

There’s also movement all over toward integrated water management: bringing people together across geographies and silos, whether it’s different jurisdictions or even different parts of the same agency, to solve problems with people on the ground, rather than just implementing their authorities independently. This is happening all over the state, not just in urban areas.

This issue of TPR includes an exchange between LA Times Publisher Austin Beutner and Governor Brown about water and drought. Brown reconfirmed his commitment to the Delta and its engineering fix. Can you comment on his focus?

Figuring out how to both restore the Delta and deal with our infrastructure issue, so that we can manage the Delta more effectively for fish, wildlife, and human use, is one of the big issues of our time. 

We must do it in a manner people can trust, particularly those who fear their interests could be thrown under the bus. Whatever project comes forward will have to come before my board—therefore, I shouldn’t opine on anything specifically.

However, whatever proposal comes forward will need an amendment to the state and federal project’s water rights permits to add an additional method of diversion. That permit will require an open, transparent, evidentiary, adjudicatory hearing where everyone will have their say. We will need to find that the project won’t injure other water users, and that it won’t unduly affect fish or wildlife for the worse. 

The current infrastructure is bad for fish and wildlife, and it is challenging for human uses. We will look toward a proposal that improves things for all, because the current situation is not ideal for anyone.

Lastly, Felicia, you have quipped in past interviews that you misheard a description of the word “ecosystem,” thinking it was “ego-system.” Could you explore the challenges of maintaining and managing an “ego-system” for the purpose of managing an ecosystem?

Part of the challenge we face is that people have strongly-held beliefs. They have a tendency to repeat themselves louder and slower at each other, rather than asking: “How can we solve both our problems?” This is not unique to water, but is surprisingly prevalent in the field compared to other issues. 

Breakthroughs in California water over the last few decades—whether it’s groundwater legislation, the Bay-Delta Accord I was privileged to work on in the ’90s, or the ’09 legislation I was also privileged to deal with—happened because players in different stakeholder groups looked across traditional divides. They said: “I would rather work together and actually make something happen than sit back, repeat myself, feel right, and boast in a bar with my buddies. I’d be happier making a compromise where I get some advantage, but so does somebody else.” 

When I think of “ego-system” management, it’s about stepping outside one’s own stakeholder group and trying to understand and empathize with those advocating for another purpose. That’s the only way we ever move forward in public policy. Solutions only come when people take action to connect with other people around a table, rather than standing in separate corners with their engineering, legal, or otherwise technical points of view. That requires real insight, self-awareness, self-management, and empathy for those with different interests—and a strong desire to make progress in the real world rather than blaming others for things. At heart, it’s managing ourselves first, rather than trying to manage others.


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