On September 25th, the Delta Protection Commission met in Discovery Bay. On the agenda, an update from retiring Delta Watermaster Craig Wilson and the Commission’s consideration of taking a position on Proposition 1, the water bond. This is the first of two-part coverage from the meeting and covers the presentation by the Delta Watermaster. Part two will post tomorrow and will cover the discussion of the water bond, plus additional notes from the meeting.
Delta Watermaster Craig Wilson has reached the end of his four year appointment and will be retiring at the end of September. At the meeting, he gave his final report to the Commission, updating them on his efforts and activities over his past four years as watermaster. He also presented his latest report on local water governance in the Delta, discussed the recent State Water Board workshop on central and southern water use in the Delta, and then lastly, gave his view on the future of the Delta Watermaster position.
Craig Wilson began by reminding that the Delta Watermaster position was created by the 2009 legislation that also created the Delta Stewardship Council. “The position was created as one tiny little section in the water code and it doesn’t provide a lot of clarity as to what exactly the watermaster was supposed to do, so I spent a bit of time pondering that question,” he said. “I spent the first six months in office just traveling around and meeting people. I accepted every speaking engagement, probably solicited a few, and went on tours of the Delta. I tried to make my presence known and tried to communicate to the water community that there was this new position that was created to try to provide some direction from the state government’s perspective regarding Delta water use and what’s happening in the Delta.”
He said he soon hit upon the theme of “certainty” as what he should be trying to do with his position. “Now there’s a lot of uncertainty in the legislature and the water community about exactly what was going on in the Delta and how many people are diverting water, what are their water right claims, where’s the water going, so we were able to use some expanded authority that the legislature put into the statement of water and use program to try to provide more certainty,” he said. “Through some pretty heroic efforts of my staff and assisted by people like Dante Nomellini, we had an unbelievable response by the Delta water users from the statements program.”
“For the four years that we have collected this information, we had over a 99% response rate from people in the Delta,” he said. “When I took office, the statewide rate was 60%, so I really want to commend the Delta community for stepping forward and providing a lot of information.”
Mr. Wilson said that a lot of that information has been incorporated into an interactive water map of the Delta that is available at the Delta Watermaster’s website which provides a lot of information including diversions points and links to the statements of water use. “I think it’s a really useful tool, and so I think we have been able to provide a lot more certainty about the water rights and the amount of water being used, and I feel pretty good about that.”
Mr. Wilson said noted the authority of the watermaster related not only to the legal Delta but also to the larger Delta watershed, which included the permits and licenses of people who affected conditions in the Delta. “The biggest of those are the two big projects, the State Water Project and the federal Central Valley Project,” he said. “What I tried to do was use that authority to provide more of a presence to bird dog those agencies to make sure they were complying with some of the provisions within those water right permits to protect the Delta. There are a lot of provisions in there regarding protection of agricultural uses in the Delta, a lot of provisions and conditions regarding protection of fish and wildlife, and quite frankly the water board hadn’t been doing that great of a job in birddogging that. I think we developed a lot greater presence and those agencies really are doing a better job of trying to comply with those provisions.”
[pullquote align=”left|center|right” textalign=”left|center|right” width=”30%”]“For the four years that we have collected this information, we had over a 99% response rate from people in the Delta. When I took office, the statewide rate was 60%, so I really want to commend the Delta community for stepping forward and providing a lot of information.”[/pullquote]
Lastly, the statute that created the watermaster stated that the watermaster was to submit reports to the Stewardship Council and to the State Water Board on various topics, he said. Mr. Wilson’s ninth and final report is titled Local Water Governance in the Delta, and covers the history of the North Delta Water Agency, Central Delta Water Agency, South Delta Water Agency and the reclamation districts. “I tried to go back and reconstruct the evolution of the water governance in the Delta at the local level, mostly related to the Reclamation districts and the three agencies themselves,” he said. “The purpose of the report was to outline the development of the local governance structure which mirrored the development of water in the Delta and how it evolved from a historical marshland to this present day thing which is mostly agricultural use with all the levees and the islands and the tracts. It’s not intended to be very controversial, it doesn’t make any significant recommendations; it’s a historical accounting of what’s happened in the Delta regarding local governance.”
Mr. Wilson then discussed the recent workshop held at the State Water Board. “The Board received a letter from both the Department of Water Resources and the Bureau of Reclamation, saying that the Board should invoke some powers that had been given to adopt emergency regulations to require people to provide information on their water rights and water use,” he said. “The regulations say that the premise behind that is that they had to make some sort of demonstration that there was a problem either with the water rights or with the amount of water being used and that set the stage for a workshop on this topic.”
“It was kind of curious that at the workshop itself, the projects provided a letter that said that the premise was that there was maybe some issues with the water rights, but that they didn’t want to fight over that. We just want the information, but we want information from people in the Delta,” he said. “But others, including south of the Delta, wanted also to have information on the water rights themselves, so you had to bifurcate that.”
Mr. Wilson said that he was asked to give his comments at the end of the meeting. “I recommended against issuance or orders on either one of those issues,” he said. “I advocated not to issue an order to require 1500 diverters in the central and south Delta to provide information largely that they’ve already submitted and that they would only have 5 days to do it under the emergency regulations. I also advocated against sending out some type of letter to this same group of people saying that their water rights are in question and to give us records about that. My feeling is that if there’s some question about that, there needs to be some burden on the people questioning these very senior water rights as to what their problem is. There’s a vehicle to file complaints where they would have to make at least a prima fascia case.”
Some people advocated to decide some of the very meaty water right issues, he said. “Are the people in the Delta illegally diverting stored water from the projects? Are the people in the Delta diverting water in excess of natural flows, or conversely whether natural flow should be considered the entire estuary and the way it works together? Perhaps petition to a court and have some sort of declaratory relief and put this thing to bed in one way or other. That could have some appeal to it and I said so last night.”
Mr. Wilson acknowledged that he did say that it shouldn’t be business as usual in the Delta during this drought. “You have a lot of people in other areas of the state who have zero allocations of water or a very low percentage and there are major curtailments of post-1914 rights, so maybe there are some things that could be looked at in the Delta regarding efficiency and conservation, especially if the drought continues,” he said.
The meeting itself in general wasn’t very surprising the way that the advocacy took place, he said. “Most of the Delta people were saying based on their view of the legal theories and the water right theories, they can operate the way they have operated for the last 150 years, and that they were here before the water projects – a long time after the projects came online. Why all of the sudden are people questioning our rights to use water?” he said. “I have great sympathy for that argument. I think some of the worst decisions governments make is when they try to change something that’s been a long-standing practice. When you have that a long-standing practice to me, you have to have a pretty compelling reason to change it, and frankly I don’t see that. The people south of the Delta making their arguments based on certain legal theories that there are or could be illegal diversions in the Delta, and the board heard all of that and took it under advisement.”
“I’m not sure exactly what they’ll do so you’ll have to stay tuned. My prediction is that I don’t think they’ll be orders issued to 1500 people that diver water in the south and central Delta to provide either additional information or challenging the validity of the water rights,” he said.
[pullquote align=”left|center|right” textalign=”left|center|right” width=”30%”]”I’m convinced that the water rights are senior and valid in the Delta to large degree. The question, if there is more of a question in my mind, it’s about how much people are taking in excess of what they are entitled to under those rights, and that’s the more important question maybe to get to.”[/pullquote]
Mr. Wilson noted that there’s nothing on the agenda at this time to work further to resolve the matter, and he pointed out that all the background material and the letters both for and against it is posted on the website. “About a dozen detailed comments were submitted; most of them were from Delta people who were advocating for the Delta position on both the water rights questions and the recommendation that the Board not issue orders for that information because that information is already largely available.”
So where does the Delta watermaster position go from here? “It’s been a very interesting four years, it’s gone by in a hurry and I think I have learned about the Delta that I didn’t know,” Mr. Wilson said. “The Board has advertised for the position, they’ve held interviews, so I think there will be an appointment fairly imminent. I did see the resumes of some of the candidates, I think there are some good people.”
Mr. Wilson said he thought the focus for the next Delta Watermaster is to do some field checking of the information that’s come in from the diverters in the Delta regarding their diversion points, water rights, and amount being used. “Go out, island by island, tract by tract, just going out and meeting with the farmers and diverters, checking on the accuracy of the data to make sure that our water right files are up to date, the diversions point are accurately defined, and maybe have some discussion, most that we can, to put something in the record as to the validity of the water rights.”
Mr. Wilson said he’d spent quite a bit of time his first year in office dealing with some of the questions about the water rights themselves. “In virtually all cases, if it was involving a riparian right, even if it was an interior parcel of land that had been severed from the main water course, there was evidence of a retention to retain the rights,” he said. “Some of the pre-1914 water rights, even if there weren’t a connection to the main water course, the Old River and the Middle river, there were historic sloughs where you could show there was a connection, so I’m convinced that the water rights are senior and valid in the Delta to large degree. The question, if there is more of a question in my mind, it’s about how much people are taking in excess of what they are entitled to under those rights, and that’s the more important question maybe to get to. I think these field checks will hopefully put to bed some of these questions.”
In closing, Mr. Wilson assured the Commission that he had made the commitment to the State Water Board that if the appointment occurs after he’s gone, that he would come back and spend some time with new watermaster. “I will make sure they know who you are and what you do , and one of the things I will highly recommend to them is that they regularly appear here before your Commission.”
“So with that … “
Vice Chair Mary Piepho asks if he is appointed by the Stewardship Council or the Governor?
“Neither one,” Mr. Wilson replied. “The way it was set up is the State Water Board in consultation with the Stewardship Council appoints the Delta water master. In fact, I did meet with Randy Fiorini a few weeks ago and did provide him with the names of the candidates and we talked a bit about it so I think we satisfied the consultation process, but the appointment is made by the State Water Board for four years.”
With no further questions, Ms. Piepho said, “Thank you very much. Good luck in your retirement. May it be long and healthy.”