Cody Phillips, a legal intern with the Delta Stewardship Council, attended the September 24th workshop at the State Water Board, and gave this report to the Delta Stewardship Council at their September 25th meeting:
“I attended the workshop with Mr. Samsam. It was entitled “Central and Southern Delta Water Availability and Use,” and it addressed allegations of illegal in-Delta water diversions. The Delta Watermaster Craig Wilson reported to you on March 15, 2012 about similar issues relating to illegal in-Delta water diversions that was for a strategic workplan to address beneficial uses in the Delta and to settle pre-1914 and riparian water rights. The issue that was addressed yesterday at this workshop was similar in that it addressed illegal water diversions, but it was brought up in a different context.
“On July 2nd of this year, the State Water Board adopted resolution #2014-0031, an emergency regulation for statewide drought-related curtailment of water diversion to protect senior water rights. This resolution adopted California code of regulations section 879 which allows a Deputy Director for Water Rights to issue an order requiring pre-1914 and/or riparian diverters to provide supporting information on their basis of right, and that is if a complaint of information describing unlawful diversion is received. So subsequent to that, July 23rd, the California DWR and the USBR filed a complaint pursuant to these emergency regulations.
“In response, the SWB released a proposed draft order to start the conversation about how to solve the diversion issue. The draft order would have required in-Delta pre-1914 and riparian users to provide detailed usage information within 5 days of receipt of the order. The DWR / Reclamation letter and the draft order prompted responses in the form of two letters in support and six letters in opposition, and ultimately the decision to hold this workshop.
“The SWRCB held this public workshop [Sept 24] to receive comments and discuss the most effective process available to the SWRCB to determine the facts pertaining to water availability and water diversion and use in the Central and Southern San Joaquin Delta.
“I’ll just tell you a little bit about how the workshop itself went. It was an opportunity to hear everyone’s positions laid out in front of the board via these public comments. At the outset, the board made it very clear that there would be no formal action taken, and that at least yesterday, and the intent of the workshop was to identify the best available process of handling the water rights to the board.
“There was a brief introduction by their Council to the Board for the workshop which set up a brief history which was basically was what I just set out; he talked about the emergency regulations, the letter sent by DWR & USBR, and then the posting of the proposed draft order. Additionally, counsel identified one letter in particular by the CSPA as a separate complaint altogether and they would be not addressing it. The reason is because this comment contained a complaint which was alleging it was the DWR and USBR who are illegally diverting water upstream, not the in-Delta water users.
“Following the introduction, the chairwoman turned to public comments, which ran for roughly 3.5 hours, from 12 to 3:30. The public comments were in large part a reflection of and reiteration of the letters each party had submitted, and there were some commenters who were individuals and had not necessarily submitted a letter beforehand.
“Those who supported the draft order, Kern County, Westlands, and SWC, presented themselves as a panel, instead of going up individually. DWR and USBR presented their comments in a similar manner.
“The consensus seemed to be from all parties that five days was an untenably short period of time to produce the kind of information that the Board would be requesting. Additionally there was some discussion of the science behind where the users water comes from; and at the end of the comment segment, the Delta Watermaster, Craig Wilson, was asked to give a brief report on his thoughts of what had happened.
“Finally the chairwoman, after all the public comments, stated that the next stage in the process would be a ‘strategic internal thinking period,’ and that the Board wants to develop options to lead them out of this issue, based on what they found out yesterday. We will be monitoring this issue as the water board weights their options on what to do next.
A few questions …
Vice-chair Phil Isenberg asks if he has any indication about what the water board is thinking about doing with the counterclaims about alleged illegal actions by state and federal officials and water contractors?
“The water board did not show their hand so to speak in any one direction,” replied Mr. Phillips. “That’s not the feeling I got, anyway. I will say that in the letters that were submitted, both for and against the DWR letter, there was mention of adjudication. There were some suggestions by certainly those who are in opposition to what DWR had set out, they were leaning towards an adjudication and again, the water board didn’t say one way or another, but there were mentions of evidentiary proceedings, which may lead to adjudicatory proceedings … ”
Chair Fiorini asks if there was any discussion of the role of the watermaster in resolving some of these disputes?
“Not in that capacity,” Mr. Phillips said. “They were very interested in hearing his opinion. He was not prepared to give a report; he was prompted by one of the Board members to come and give his opinion. The indication to me at least, witnessing his testimony was that they found it very helpful. His report was this: he said he felt it went more or less as expected. He said that the in-Delta users seemed to be wanting to left alone, and the exporters seemed more or less to want to unravel diversion procedures which have been in place since the Spanish were in charge. His opinion is the answer lies somewhere in the middle between unraveling it all … he also said he was intrigued by the concept of satellite imaging to develop real time water usage information and statistics. He also stated the opinion that the individual order process, which has been tossed around, is the wrong way to go because it’s an inefficient, and he’s been through that in 2012. And then finally, he did say that conservation and efficiency programs for in-Delta users may be an effective tool. That was the jist of his report.”