Just last week, the State Water Resources Control Board appointed Michael George to be the new Delta Watermaster. He’ll be filling the shoes of Criag Wilson, who was appointed in 2010 to be the state’s first Delta Watermaster, a position that was established by the 2009 Delta Reform Act. On a recent trip to Sacramento, I sat down with Mr. Wilson to take a look back at his accomplishments as the inaugural watermaster. In our conversation, he talked about his four years in office and finding certainty in the Delta, his policy reports, what he thinks about the twin tunnels, and more.
Here’s what he had to say.
I asked him how he became the first Delta Watermaster.
The Delta Watermaster position came to me through a long series of events. I’d been working in the water field for many, many years. I was with the State Water Resources Control Board for many years; I was the chief counsel of the Board. I left state service and went into private practice. When the 2009 water reform legislation was passed, it created a lot of new law – and buried in the middle of all these hundreds of pages of legislation was this one little water code section that talked about the Delta Watermaster. I followed the legislation just in the course of private practice but I actually was talking to some people about the legislation. One thing led to another, and I interviewed with the Board. The Board must have liked my ideas on how to approach the job because they appointed me to be the state’s first Delta Watermaster.
It must be a challenge to take a sentence or two in a piece of legislation and turn that into a job, I said.
Yes, it was interesting. The first six months or so, I spent a lot of time just doing outreach, making sure that the water community knew about this watermaster position and what it did and what it was all about. I accepted every speaking engagement that came my way and went on tours with people in the water community, just trying to educate myself and get some ideas about how I wanted to approach the job but also make people aware that there was this position and what I thought it might be able to accomplish.
Certainty in the Delta
One thing I focused on was trying to use some of the new authorities in the 2009 water reform legislation to provide more certainty regarding water use in the Delta – how many people are diverting water and how much water is being diverted, because there was essentially no information about that. Most of the water rights holders in the Delta are not permittees or licensees of the water board so there wasn’t a lot of information about their water use.
There was an old program that existed since 1965 called the Statement of Water Diversion and Use program, but it exempted the Delta, and there was no penalty for failing to file the statement. It was a backwater program, but it was invigorated by this 2009 legislation, so I said, ‘I have a tool that I can use to try and provide more information.’
Over the four years at the job, I think we made great strides. We have an interactive map up on the Watermaster webpage that shows exactly where every diversion takes place in the Delta; it links to their statements of how much people are saying they are diverting. This is all based on information they are providing to us. I think the next step in this certainty thing is to field check a lot of this information, maybe do island by island audits and just compare the information that’s being provided by the water right holders, and try to truth check the whole thing.
I spent a lot of time cultivating relationships with some in the Delta, and we got a 99+% response rate on those statements of water diversions which is much higher than the response statewide. The Delta Vision Foundation had said the statement of water diversions program ought to be invigorated, and I think we did invigorate it and we received a lot of useful information. It’s all from the diverters, so you can argue how accurate is the information, but it’s there. We tried to provide that certainty.
I asked him about the exemption for Delta landowners regarding measurement – that if it wasn’t feasible to actually measure, they could use another technique. It was my understanding that they were using a model … ?
There were two aspects of the 2009 water reform legislation about water diversion and use statements. One was to provide information about where you are diverting and your water rights claim. The second aspect which kicked in two years later said that people had to provide either measurements of their water use or an estimate of their water use if actual physical measurements were not feasible. The law provided for that exception and most of the people in the Delta used that exception, saying it was not locally cost effective to put flow meters on siphons, it wouldn’t work, they are out in a rural area, it breaks down, and so on.
The Central and South Delta water agencies were largely instrumental in developing a program using a method that was sanctioned by the water board in the regulations as an alternative to actual flow measurement. They used crop duty estimates. They took a lot of the research from the various universities about how much certain crops used and certain acreages and refined that equation to fit the weather model and the soil types of the Delta. They developed an algorithm where you could plug in 500 acres planted in tomatoes and 500 acres in beans and your location, and out would pop a number of estimated water use. From that you could back-calculate how much water was probably diverted onto the field.
Some people criticized that, that they were taking advantage of a loophole, other people said it was probably more accurate than flow meters, especially out in the Delta where a lot of diversions take place by a siphon as they don’t have electricity. I tried some comparisons of the information we got based on some data that the Department of Water Resources had, and I thought it was in the ballpark regarding how much water was being used. To me, the holy grail in figuring out how much water is being used is to use satellites. With remote sensing, they have techniques where the satellites can measure the evaporation at the ground and calculate how much water has been used out on the field in a given period of time. You can do it for an individual farm, an area, or the whole state.
The Delta Watermaster’s authority and the state and federal water projects
The second major aspect of this job which could be very interesting is that the Delta Watermaster’s authority not only extended to diversions within the legally-defined Delta, but to any diversions in the larger Delta watershed that affect conditions in the Delta, so that gave the authority a much broader reach. The most specific and biggest example is that it gave the Watermaster authority to deal with the water right permits of the major water projects – the federal Central Valley Project and the State Water Project.
When I started exercising that authority, the projects weren’t too happy – I think they were kind of surprised. I think in the past, there was some monitoring of the permit conditions, but it wasn’t very vigorous in my opinion. So I started actually calling them on some of the requirements regarding pulse flows in the rivers for fish protection, temperature limits in the south Delta, and I think we eventually gained a healthy respect.
The projects realized there was this watermaster and he had authority there and it was going to be looking at project operations and permit compliance, and so we had our ups and downs, but we developed a protocol where the projects would provide the board and myself early notification of any potential exceedances and oftentimes we’d work with them, if there was a fairly diminimus violation, maybe of the flow standards, we’d allow them to make up the next month with an additional factor built in and it worked pretty well. Another big aspect of the job is having some authority and more vigorous authority to deal with some of the project’s operations.
Stirring the pot with policy reports
The last major part of the Watermaster job were these policy reports. There, buried at the very end of the watermaster legislation is this statement that says that the watermaster shall provide reports to the water board and the Delta Stewardship Council on various water topics. And I chose the reasonable use doctrine as my first topic, knowing it’d be somewhat controversial – it was part of my method of bringing visibility to the watermaster office, although I didn’t think it would be as controversial as it proved to be.
I basically said that agriculture uses a lot of water in this state and some agricultural people are using water very efficiently, but in other areas, it’s not quite so efficient, so if you could have some incremental improvements in the water distribution systems and the way water is applied, you could do a better job. I said that one way you could try to effectuate improvements was making use of the state constitutional doctrine of reasonable use; I basically said that the inefficient use of water, especially during dry periods, is an unreasonable use of water. I thought that was fairly reasonable to say and I think events have kind of proved that out but at the time, a lot of the farmers really took umbrage at that, said the Wilson was saying farmers wasted water. That wasn’t what I meant to convey … the chairman of the water board at the time was a farmer, and he was not real pleased with my report, let’s put it that way.
I think it’s one of the underutilized tools in the state’s authority to regulate water issues is the unreasonable use doctrine. I think it can be used in areas of efficiency. I think it could be used in the groundwater area. You have this new groundwater legislation that sets up a process to do something, but it’s a very elongated process before you finally get to a situation where overdrafted groundwater basins are put on a diet and put into a sustainable category. Why not use the reasonable use doctrine to kind of hold the status quo until all that happens, because to me, overdrafting a groundwater basin, using twice as much water out of it as they put into it, is that a reasonable use of water? I don’t think so.
I think the Board, to its credit during this last year of drought, did invoke the reasonable use doctrine in a couple instances in a beneficial way such as in the frost protection issue,. Also, there were three or four small streams up on the upper Sacramento River that showed that business as usual would have probably dewatered those streams and there would have been an absolute loss of habitat, so there was a program set up to try and keep water in there but still maintain beneficial uses for consumption. I think it worked out pretty well. They had cooperative agreements, but again, the ultimate tool that was used to start all of that was the reasonable use doctrine.
Term 91 was another an interesting issue. Way back in the history when the water board was developing its water quality standards, the whole idea was to have everybody share the obligation to meet some of these flow standards, but eventually what happened was that the obligation was put virtually entirely on the federal and state projects. But with this backstop, certain water right holders that where junior to the projects would at certain times have to stop their diversion or lower it when only stored water was being released into the watercourse, because the law is very clear – even if you have a senior water right, you can’t be taking water that’s been stored by someone else in a prior year and is being shipped down to somewhere for beneficial use.
Term 91 had been around for quite awhile and one of my reports looked at extending it to apply to people other than the post 1965 water right permittees and licensees – maybe even to pre-1914s or riparians if you got into a bad enough situation. The Board decided not to go that way, but they did invoke some regulations and provisions to try and curtail water use this summer on a pretty wide scale. It was just another way of trying to achieve the same end, just trying to balance the use and making sure that you try to do balancing in a way that protects as best as possible some of the consumptive uses, protects as best as possible some of the instream uses and come up with something that’s somewhat equitable.
Fixing the Delta
Q: If you could wave a magic wand and do anything in the Delta, what would you do?
If I could wave a magic wand, I’d try to deal with the two major problems in the Delta – one, that the conveyance system doesn’t work really well, and two, it operates in a way that is harmful to the ecosystem in the Delta.
If you could wave a magic wand and price was no object, there are a lot of things you could do to try and make things better. You could improve the conveyance system and there are a lot of different ways to do that. There are ways to protect the Delta from levee failures other than just strengthening the levees, although that’s important. I talked in one of my reports of a flap-gate system down below the confluence of the Sacramento-San Joaquin River – there are projects like that in Europe already that could work much like a pinball machine flapper where if you had a problem with a Delta levee breach or for whatever reason, you could slam these things shut. They may be open for ten years, but you could slam them shut and it would avoid a catastrophic event of not only the Delta going totally saline but the water at the pumps being saline, so there are things you can do.
I think the magic wand would probably have some sort of portfolio approach. There’s not just one thing that can be done; there’s a whole mix of things. Storage is the answer; particularly to me it would be offstream storage south of the Delta. If you could increase the size of the Los Vaqueros off-stream storage reservoir, or increase the size of the San Luis Reservoir, then we’d have the ability to take these big gulps when Mother Nature provides the water.
The conveyance system is to me obviously the thorniest problem of all and it’s just not an easy nut to crack. To me, it’s just kind of hard to see how taking a whole bunch of water out of the Delta before it gets there can in any way help the ecology of the Delta, unless at the same time, you are pouring a lot of water into the Delta. And if you don’t do that, I don’t think you could provide more water south and maybe even less. There are some of these ideas and some people just pooh-pooh them because there is so much momentum for the tunnels, but there is another idea of using through-Delta corridors where you isolate the fish passages from the supply corridors, or even this western option where you let the water flow naturally and then convey it from the western edge of the Delta over to the export pumps. Which one of those is the best? I don’t know. If I could wave a magic wand, some genie would tell me which one would work the best, because you want to have a situation that does provide more water and more water availability for our growing population and growing needs but at the same time, protects this large estuarine system, not only for the protection of the environment but for the protection of the huge farming community within the Delta itself.
Moving forward, the Gordian knot is what do you do about the conveyance. It’s just a tough nut for me to get a handle on, because on the one side, a lot of the experts and the projects seem to be dug in – ‘we’ve studied this, we have the right of ways, and we have everything set up for the tunnels,’ and you have the people in the Delta and a lot of the environmentalists dug in on the other side. If you have the flow standards done in a robust manner, I’m not sure you can provide more water through an isolated facility and still meet standards. And if you try to do both, I don’t think you’re providing any more real water, and the whole thing may crash just on economics grounds because under the law, it’s supposed to be the end users that are paying for this, whether they get the water or not. The positions seem to be so dug in, it’s tough for me to see an easy way out.
The problem with the ecosystem is that the natural east-west tidal flow regime has been changed into this north-south flow and so the fish get confused and they end up in the wrong places. Obviously the isolated facility would ameliorate that, so would a through-Delta or a western Delta. For me the problem with the tunnels – if you really address that and are trying to get the same or more water around the Delta to the export pumps but still provide enough water to the system and you’ve taken all this water out north of the Delta – the numbers just don’t add up to me. If you really met the flow numbers and the salinity standards, I don’t think you can divert much, if any, extra water than what’s being done right now.
I’m a believer that storage is definitely part of the portfolio solution. I like the idea of either off-stream storage or maybe enlarging something that we already have. I think I’m for enlarging Shasta Dam. It’s the largest watershed in the state by far which is why it was the first major project. The hydrologists knew that in that the watershed, they could create a tremendous amount of water. But I think more importantly is having this south of the Delta off-stream storage so that when you do have extra water, which seems hard to fathom now, you can get it down there and park a sizeable amount of water and either bank it in the ground or put it in these off-stream storage facilities.
Q: So what is achievable in the Delta, given what you know and the characters in play?
I don’t think the status quo is tenable, and I think a lot of people realize that. If we keep going down the same path, things are just going to get worse and worse, and it’s going to be just more of a fight, so I am just hopeful that at some point people are willing to maybe negotiate out a portfolio type of solution. It comes back to what can people agree to, and I am just not real optimistic right now because people seem to be so dug in on various sides.
I wish there was a way to just get a bunch of smart scientists in the room and say here’s the thing that works the best to provide more water to the south, to protect the Delta as an agricultural community, and to protect in-stream uses and values – whether it’s some type of through Delta system with a whole bunch of extra little gates and barriers, whether it incorporates this major barrier project to the west that would definitely protect both the pumps and the salinity in the Delta itself – perhaps if some project like that was feasible, maybe the Delta people would be a little more amenable to some kind of conveyance system compromise.
More flow for the Delta, but from where?
Q: The State Water Board is considering seeking more flow for the Delta, but nobody’s raising their hand. Where do you think extra flow in the Delta should come from?
There are only a couple of options, either providing additional flow by curtailing people that are using water right now or coming up with additional supplies. Right now, the obligations are mainly on the Bureau of Reclamation and the Department of Water Resources to meet flows, and as you saw this spring and summer, there were a series of modifications made to their water right permits to try to have a compromise. To provide more flows to the Delta, assuming the water board comes up with more robust flows than are there now, there are only two options to me – curtailing people somewhat from what their diversions are or providing some type of additional new storage so there is the capability to provide more flows; maybe it’s even a combination of the two – some curtailments and also some additional facilities built, whether it’s enlargement of Shasta, Sites Reservoir, whatever.
The State Water Board today
Q: The State Water Board seems to have taken turn with Felicia Marcus now at the helm. What’s your opinion? Do you think they are moving in a good direction?
I think the Board’s makeup is pretty good now. I think the Board members all understand the mission of the board and they realize that it’s a balancing act; it’s trying to figure out what’s reasonable, how to try to meld all these different uses that are competing against each other, and come up with something that makes sense and is reasonable. I think they’ve taken a lot of steps in that regard. They’ve gotten kind of sidetracked by some of the flow standards because the drought has overwhelmed everybody.
I think the board during this drought has performed rather admirably. They developed this real-time operations team of fisheries people, project people and water board people. I served on that team myself and we made a lot of good decisions to try and balance things. I think the board made a lot of good decisions on the curtailment end this year. I think their idea of coming up with the urban water curtailment thing was brilliant, and even though it wasn’t that enforceable in the end by the board itself, it really put a searchlight on the issue, and at least at the end of summer, we started seeing some fairly dramatic reductions in urban water use.
Now I still would like to see something akin to that done in the agricultural area, and have some more efficiency and more water savings done at that area as well, but I think the Board has done a good job under some pretty trying times.
The Board has a lot on its plate and limited resources to perform its job, but I think under the circumstances they are doing a good job. The Delta Vision Foundation on its report card gave the Board the highest grade of all the agencies and I think they deserve it.
Advice for the next watermaster … ?
Q: Someone’s going to follow in your footsteps. What’s your advice for the next watermaster?
The next watermaster, I think he or she should make themselves well known to the community. Get out there much like I did the first time and say to people, ‘hey there’s a new watermaster, here I am, this is what I’m all about.’ They should develop their own agenda as to what they think can be accomplished in the four year appointment. Like I said, the statute itself is fairly vague and general, and a lot of leeway, and that was one of the beauties of the job, I had a lot of discretion and a lot of interesting angles to pursue.
If was going to give any advice at all, it would in this area of certainty – to truth check some of the data that’s been provided by the diverters in the Delta. There’s this controversy that rages to this day. I think most people I think will concede now that the water rights are valid in the Delta, but that there’s still issues whether the Delta water right holders are diverting more than the natural flow or whether they might be poaching stored water, and I think there’s some serious legal issues on that. I think maybe developing a test case to see where those issues come out might be a good idea. The idea of an island by island audit and going in with a team to truth check the information that’s on file, and see if the diversion points are properly plotted and whether the statement information is accurate, I think that would be very useful.
I think if I were going to recommend an initial report topic by the new watermaster, it might be this idea of going a different way on water measurement with this whole idea of using the satellites and the remote sensing for Delta water use, but it has more statewide applications, even for groundwater consumption.
What’s next for Craig Wilson?
Q: So what’s next for the former watermaster?
I just really enjoyed the job. I thank the Board very much for appointing me. I think it was a very interesting job to have, especially during these drought times. It’s kind of sad that the reason it was interesting was that a lot of people were suffering, but it was just kind of an interesting time to just try to balance different things, and I truly liked the job.
As far as the future, I’m retired. I made a decision, I did not want to seek appointment for four for years, I have some other things on my bucket list that I want to try and accomplish, so if something came along in the water field that was part time, I might be interested in it …
Q: Fishing in the Delta … ?
I love the Delta, I go there all the time, but no, I don’t fish …
… but maybe a position on the Delta Stewardship Council …
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