In 2009, the Delta Reform Act directed the State Water Resources Control Board to appoint a watermaster for the Delta. In 2010, Craig Wilson was appointed as the first Delta Watermaster. Since taking office, Mr. Wilson has initiated several activities, from compliance and enforcement actions and investigations of water users to the preparation of policy-level reports on key water issues.
In December of 2012, Delta Watermaster Craig Wilson spoke at a webinar on the roles and responsibilities of his office. Mr. Wilson began by discussing the factors that led to the 2009 water legislation package that created his position.
Prior to 2009, there was a lot of frustration over California water; there wasn’t a clear mission, there were no responsible agencies and no deadlines regarding actions, Mr. Wilson began. It was this frustration with the present system, how it operates and how it distributes water from north to south that culminated in the passage of the 2009 Delta reform legislation: “A lot of people think it’s the worst of both worlds. The distribution system doesn’t work very well, it’s not very efficient, and at the same time, it’s causing great harm to the ecosystem, especially the fisheries.”
The 2009 legislation set out a clearer mission for California water by establishing new agencies and reconstituting other agencies, resulting in what Mr. Wilson calls the ‘development of a pathway to decisions.’ With many agencies at work in the Delta, “what this reform legislation tried to do was give a better road map of how these agencies would work together towards some of these common goals,” said Mr. Wilson.
Currently, there are three major planning processes underway, he explained: the Bay-Delta Conservation Plan, a plan for how the projects are going to be operating to move water from north to the south and to do so in a way that complies with the endangered species act; the Delta Plan, a long-range management plan to meet the coequal goals being prepared by the Delta Stewardship Council, and the Bay Delta Water Quality Control Plan, the water quality plan for the Delta that the State Water Board is currently revisiting. The State Water Board, as part of its update to the water quality control plan for the Delta, will be revisiting some of the beneficial use designations, what the water quality objectives should be to protect those beneficial uses, and the flow standards: inflow standards for rivers coming into the Delta and outflow standards for how much water will be flowing through the Delta to protect beneficial uses.
The legislation also established the co-equal goals, which call for developing a more reliable water system for the state as a whole, while at the same time, to protect and restore the Delta ecosystem. “A lot of these strategies and goals work towards the idea of certainty, trying to provide more certainty as to where we’re headed and what we’re doing,” said Mr. Wilson.
Another issue that California must deal with is how to make do with what Mother Nature gives us, he said: “Basically from year to year, it varies; we have what falls on the earth plus whatever carryover storage we have in reservoirs. It is finite; and variable and sometimes it’s scarce and we have to deal with that. But I think through some of these planning efforts, we can make better use of what Mother Nature gives us, whether it’s through increased storage and conveyance improvements or habitat restoration.”
We’re going to have to determine what we want the Delta to look like, he said: “We want agriculture to play a major role in the Delta, I think that’s pretty much a given, we’re going to try and restore habitat inside the legal Delta and in the areas surrounding it, and make conveyance and supply improvements. And the question is how do we do that with the water that’s available? It’s a real challenge that everyone’s working toward.”
It was just one small section in the water code that created the Watermaster position, Mr. Wilson said. The position is for a four year term, appointed by the State Water Board and not subject to Senate confirmation. The legislation granted no new authority to the Watermaster; instead, it was authority that already resided at the State Water Board that was delegated to the Watermaster through a board resolution.
So what is the role of the Watermaster? Halfway through his term, Mr. Wilson gave his perspective. The Delta Watermaster has three main responsibilities: a delegated authority for monitoring and reporting or informational gathering in the Delta, a delegated authority for enforcement of water right claims in the Delta, and the responsibility to write regular reports to the State Water Board and the Delta Stewardship Council on water issues.
The role of the Delta Watermaster is different than the role traditional watermasters in the state. With a traditional watermaster, the water rights are usually well-defined, there are a small number of diverters located in a small geographic area and the watermaster is the one whose hand is on the spigot, making sure everyone if taking the amount of water they are entitled to have, no more, no less, Mr. Wilson explained.
However, the Delta Watermaster’s situation is quite different. For one thing, water rights in the Delta are very uncertain: most of the water rights in the Delta are not held by people who have permits or licenses from the State Water Board, but are water rights derived from other principles, such as riparian water rights from owning land contiguous to a water course or pre-1914 appropriative rights where people were diverting water prior to the water board and its predecessors being established, he explained. Because of that, there isn’t much information on water use in the Delta, and the informational gathering responsibility delegated to the Watermaster is to try and get a handle on that, he said. Also, there are a much larger number of diversions in the Delta than traditional watermasters have to deal with and they are spread out over a much larger area. However, unlike his traditional counterparts, the Delta Watermaster does have enforcement authority, he noted.
During his past two years on the job, Mr. Wilson has spent some pondering the few lines that established the Watermaster position and talking to people about legislative intent, and figuring out what is his goal: “I distilled down to one word: certainty. Trying to get a better handle on what is going on the Delta. How many people are actually diverting water in the Delta, how much water is being diverted in the Delta, and checking on the validity on the water rights claims in the Delta, and that’s what I’ve been trying to do for the last couple of years,” he said.
The Statement of Water Use and Diversion is a program that has been around for awhile, but it hasn’t been very effective until modified by the 2009 water reform legislation. Prior to the 2009 legislation, most diverters in the Delta were statutorily exempt from filing statements on water use, so there was very little information on water use in the Delta, he explained. Also, there were no penalties for failing to file a statement, as the law said very clearly that the failure to file statements would have no legal recourse. But that all changed in 2010 when the Delta was brought into the program and there were penalties associated with failure to file statements, he said. And beginning in 2012, a requirement was added that people will have to file a lot more detailed information about exactly how much water they are using. Those first reports requiring the additional information will be coming in July of 2013 and will be based on their water use for 2012.
Back in 2009, the Board was criticized because only 60% of the people that were required to file various reports were doing so, and not a lot had been done about those who were not filing the required reports. In the Delta, Mr. Wilson placed a lot of effort in trying to get reports in and was successful, achieving 99% compliance. However, 2011 was rather easy because there weren’t a lot of people who were required to file statements – last year, a little over 350 statements were filed, he explained. In 2013, substantially more people will be required to report water usage, with over 2000 additional statements expected to be filed.
To date, Mr. Wilson says we have a better handle on how many people are actually diverting water in the Delta. Next year, we’ll have more certainty when we have better information from those people coming in. “Both of these components of informational gathering fit into the big picture by answering some of the questions such as how much water is used in the Delta and how does that affect flow requirements, so it will be very useful to the big picture things,” said Mr. Wilson.
The second authority granted to the watermaster was enforcement and compliance, checking on validity of water right claims in the Delta. “When I first came into the job, people were telling me there was a lot of unauthorized water use out in the Delta, and you have to get people into compliance, Delta people were saying that’s not true, our water rights are senior in scope and you’re just out there harassing us, instead of focusing on other things. So we’re going through things case by case basis on these claims,” he said.
In dealing with compliance and enforcement issues, Mr. Wilson said that he first does an information investigation to figure out if there is a case or not. If there is an enforcement action, he initiates it using a cease and desist authority or an administrative civil liability authority, but it the action is contested, he steps out of the process at that point. He is not the hearing officer or prosecutor, but he does have the authority to settle cases: “I settled into this idea because the Delta Watermaster wears many hats. I am out there engaging in outreach and work with them, I do policy level reports and trying to get a handle on water use in the Delta, and I have this enforcement component, and I thought it was better if I not be the prosecutor or the hearing officer because it would better enable me to play these different roles. I think it’s worked pretty well so far,” he said.
To check on water right claims, he used aerial photos to identify islands that should be examined closer. If an island had irrigation taking place in the interior portions without any continuity with a water source, it would throw into the doubt a riparian right if that’s what’s being claimed, he said, so he then compared those parcels with the statements being filed. The properties that were identified for closer examination were properties that were using water with no board issued water right and no apparent physical connection. The main issue that came up with interior parcels was determining if there was an intent to retain a riparian right: “The law is pretty clear that even if a property is severed from a water course, that if there was an intent to retain the right that’s manifest at the time of the severance, that water right will continue to be valid.” Mr. Wilson also noted that in some cases, where there appeared to be a severance from the water course, there was still a connection to a smaller water body such as a slough. “In the majority of the issues, we were able to resolve that there was a right to our satisfaction and that we would not seek enforcement action … we thought there was substantial evidence,” he said.
Since assuming office, the Delta Watermaster has issued a number of enforcement actions with the majority of them being paperwork violations for failing to file a required report. However, in most instances, the cases were settled or a cease and desist order brought them into compliance.
Mr. Wilson did issue one notice of violation against the federal government dealing with compliance with one of their water right conditions, and he said that he is working with the two major water projects on some of the water quality standards they are required to comply with in the southern Delta, such as pulse flows, opening and closing of the Delta Cross Channel, and issues on export limits that are placed on their permits.
The third responsibility of the Delta Watermaster is to submit regular reports to the State Water Resources Control Board and the Delta Stewardship Council on water issues, such as water quality, water rights, and conveyance. This provision provides a way for someone affiliated with the board to bring up policy issues that board members themselves oftentimes cannot take positions on, he explained. To date, Mr. Wilson has prepared a number of reports, including reports dealing with water rights enforcement, Term 91, and the reasonable use doctrine.