Delta Watermaster Michael George updates the Delta Stewardship Council on the activities of his office and the State Board to address the ongoing drought, as well as prepare for post-drought
At the May meeting of the Delta Stewardship Council, Delta Watermaster Michael George updated council members on the activities of the State Water Board and of his office, including drought and related data issues, near-term initiatives for post-drought, and watermaster activities as it relates to implementation of the Delta Plan.
“I am about five months into the job, and I would say I remain extremely enthusiastic about addressing the challenges and the opportunities in the Delta that are crystallized or brought into sharper focus through the drought that we’re going through,” he said. “The one thing that is so clear to everybody who focuses real attention on the Delta is that we are in a time of dramatic change and the status quo is not going to survive, even if we take all efforts to preserve it, so the question really is how are we going to learn so that we can manage that change intelligently?”
Drought and data related activities
Mr. George said the State Board is trying consciously to collaborate with the Delta water community. “We recognize that there is an immense amount of experience and knowledge in the people who are managing water in the Delta, day in and day out, and we want to make sure that we are cognizant of that and that we are taking advantage of it where we can,” he said.
The State Board made all the water use and diversion data collected from senior water rights holders available to anyone who was interested, and the response has been tremendously beneficial, he said. “One of the benefits that we anticipated is that a lot of very thoughtful people have taken a look at parts of that dataset and have analyzed that data in ways that have been interesting to us, may or may not have occurred to us, and certainly would not have been of a high enough priority that we’d get to it as quickly as others have gotten to it, so that’s been tremendously valuable,” he said.
The myth that there are a lot of unauthorized illegal diversions in the Delta is substantially reduced or challenged by the data, Mr. George said. “As we have gone through it, the statements of diversion and use are consistent across time and the data is pretty robust about the underlying evidentiary base for claims of water use in the Delta. Now it begs a lot of other questions, but that’s an important early hypothesis from the preliminary review of the data in the Delta.”
That said, Mr. George said the State Board is pursuing enforcement activities. “We’re still in the investigatory stage, starting from the data provided to us in the information order and in the prior information that supplied to us,” he said. “We have found some anomalies, we’re doing the investigation and we will be taking some enforcement action, probably toward the end of the summer.”
He then turned to curtailment efforts. “The Division of Water Rights is looking at the supply-demand curves and recognizing what critical supply shortages there are in the system this year, and bringing that to the attention of water rights holders when there is or is not water available at their water right, either from a riparian perspective or within the priority system and what the cutoff dates might be,” he said. “That is extremely serious business; giving a notice that there is no water available at a certain priority has real world consequences.”
“We have issued notices of the Division of Water Rights determination that supply in the system is below the amount necessary to meet all licensed water rights in the watershed, so that’s everything from 1914 and later, and those were curtailed on the San Joaquin system at the end of April, and on the Sacramento system at the beginning of May,” he said. “That has not had a tremendous impact because the physical facts that underlie that determination had already cut into a lot of diversions and use and there had been a lot of conservation anyway, but secondly, many water rights holders who use those post-1914 water rights moved their water use to other water rights that have not yet been curtailed.”
Mr. George noted that the State Board held a workshop on drought-related activities and curtailment issues in May to receive feedback from water user community and other interested parties. “That’s been one of the biggest differences between the approach to regulatory responses to the drought last year … the State Board has been much more active in seeking out input from the user community and that workshop last week was part of it.”
Water management in the drought is challenging to everyone, including the State Board, he said. “We’ve run into a lot of practical issues related to administration of our very complex water rights system, some of that is adequacy of data, some of it has to do with this transparency and the feedback loops that we’re creating that is constantly updating what we know, how we understand, and how we propose to proceed, and then finally, the really critical issues of due process. We’re dealing with very valuable water rights that will or will not be curtailed at critical periods that will have significant impacts on the ecosystem, on exports, and on the agricultural community.”
As part of the process, we’re systematically identifying the unresolved legal issues, compiling a top 10 list of litigable issues that need to be addressed, he said. “They go all the way from what is the nature and extent of the state board’s authority to curtail pre-1914 rights, and get down to the real nitty-gritty of if you’re going to curtail, do you do it on a spatial basis that is watershed wide, that is by major tributary, or that is by individual point of diversion.”
Mr. George said there’s the temporal issue about when you curtail and how you monitor it. They publish supply and demand curves and update them frequently. Those curves are based on monthly averages; they had anticipated issuing pre-1914 curtailments in May, but the recent cooler weather, cloud cover and late season precipitation which changed the daily supply compared to what we were anticipating in these monthly averages, he said. “It’s allowed us to defer curtailment, it’s allowed the system to work better and to leave water managers more leeway in managing the system in the interim.”
Mr. George then turned to the voluntary agreement the Delta farmers made with the State Board to reduce their use by 25%. “Last Friday, that the State Board accepted a proposal by a group of in-Delta water users who came to the Board under the Board’s open door policy for voluntary agreements in lieu of regulatory responses. They said, essentially, without waiving any of our water rights, some of the most senior and reliable in the state of California, we recognize the extent and severity of the drought and the potential for even our riparian rights to be curtailed, and therefore we’d like to propose an upfront voluntary reduction in use that would allow for the system get real relief and allow us in the Delta to have some assurance about how the state board would exercise it’s enforcement efforts later in the season if curtailments cut more deeply than the 25%. It was a proposal to provide certainty both of relief for the system throughout the course of the growing season, and certainty for the growers as to how further curtailment of their riparian rights would be enforced against them.”
Mr. George explained that farmers in the Delta were given two paths. “One is to reduce by 25% the area that will be cultivated with crops in the next few months, so if you simply take a quarter of your land out of production and disc it so that it doesn’t grow weeds, that’s one path to getting the safe harbor that the board will not take further enforcement action if later in the year, riparian curtailments go deeper,” he said. “The second path to that safe harbor is to reduce your actual measured diversions by 25% versus the base year of 2013. Generally the notion was 2013 was a dry year, but it was before the significant drought regulatory apparatus was brought into play, so against that 2013 actual diversions of surface water to riparian lands, if you reduce it by 25%, you get into the safe harbor.”
The plan is voluntary; if the farmer chooses not to participate, it doesn’t increase their risk of enforcement or increase the likelihood of curtailment of their riparian right, it simply leaves them to the system prior to the voluntary agreement, Mr. George said. Those that choose to participate must submit a plan for how they will meet those objectives; those plans will be reviewed and checked over the upcoming months to be sure they are actually being implemented.
“If this program is successful, there will be a lot of people participating in it, so it’s important to have the user community understand the program and understand it’s objectives,” he said. “So in part to communicate that, the Central and South Delta Water Agencies had a workshop last Thursday, which they graciously invited me to attend to describe the program. There was a great deal of peer pressure among all the Delta water users to make the program work, to avoid cheating and the appearance of cheating, or attempting to do anything but create real verifiable water savings.”
The next major effort is the data enhancement process, he said. “We’re working very cooperatively with the water community to try and identify better practical approaches to measurement and monitoring,” he said. “We are also involved with a comprehensive consumptive use comparative measurement project across the entire Delta. We’ll collect data throughout this growing season that I think we’ll be fodder for phD candidates for years to come, because we’re going to compare eight different methods for measuring or estimating consumptive use, and figuring out how to calibrate them and apply them within the Delta.”
Mr. George said that there are a lot of people joining the study, and this has expanded the scope, schedule and budget for the effort. “That’s good and bad. It’s good in the fact that we’re gathering lots of people who care about this who want to contribute and want to make sure that their part of the Delta or specific concern is addressed within this study, and some of it is because as the study is developed, additional people have come to say I could use the results of this study things that we may not have considered, so we are in a process that is involving expanding the scope, schedule, and budget.”
“This drought, awful though it is, gives us a unique opportunity we dare not miss to collect data that will help us manage throughout the state and throughout our water management system going forward,” he said.
Near-term initiatives: Preparing for after the drought
“We need to consolidate the lessons that we’re learning,” he said. “We need to do forensic analysis of what’s happening that we are not able to respond to in real time, and among other things, that will involve pursuing intelligent litigation to get at those top ten litigable issues. One of the things that I’m doing in consultation with the Division of Water Rights, the Office of Chief Counsel, and the Enforcement Division is to try and avoid simply being inundated with tsunami of litigation, but instead, to see if we can identify and cooperatively develop factual case statements that will clearly present this list of issues that need to be litigated to conclusion. … It could be years before we have definitive final judicial non-appealable decisions on many of these litigable issues, but we’re committed to making sure that we use this opportunity to frame those issues as well as we possibly can and to try and head off the tsunami of primarily procedural litigation that is the usual circumstance in a water crisis.”
“We’ll also consolidate those lessons to try and improve our administrative management tool book,” he said. “We have to be in a better position to do substantially better in the future because this is going to be more likely to be a state beset with constant chronic shortages. And finally, we intend to continue the process of debriefing and involving stakeholders so that we can continue to capture their insight, their experience, and their suggestions about making things better.”
Second area we’re working on is to improve the usefulness of our data, he said. Besides making the data open and available, the State Board is developing an initiative to create more robust visualization and query tools. “We’re working very closely with your staff on GIS mapping to take this data and make it available in a robust multi-level GIS mapping environment so that you can hone in on one area, one field, one island, and find all the data in a place where you can see how it relates to all the other data. That’s one way we’re going to audit what happens as a result of this voluntary agreement. How are we going to be able to compare and contrast the experience of two farmers, one who took the risk, one who took the voluntary agreement. As things work out, this GIS mapping is going to help us visualize, understand, and internalize that learning opportunity.”
On the horizon after the drought, the State Board is going to increase the focus on water quality, he said. “We’re cooperating with the Central Valley Regional Water Quality Board as well as with the Reclamation Districts and drainage districts within the Delta who are responsible for returning water to the Delta water courses. The authority for this is pretty clear under the federal Clean Water Act and that authority is subvened to the State Board and then to the regional board, so we are a few weeks away from the first cooperative investigation and enforcement process with respect to water quality within the Delta.”
Mr. George said they were also developing a process for a more robust application of the cooperative initiatives to improve overall water quality. “That has benefits for everybody, but especially for the export projects and for the southern Delta farmers who are always beset with salt issues.”
Another initiative underway is to encourage water use efficiency in conjunction with improved agricultural practices that improve yield. “We’re really talking about adapting for use within the Delta a lot of strategies and tactics and technologies that have shown promise and been successful elsewhere,” he said. “We don’t underestimate the difficulty of adapting those strategies, but because of the better communication and closer collaboration we’ve had with water users, we’ve begun to explore lots of experimentation that’s going on in the Delta for improved efficiency, which is turning into improved crop per drop.”
“It is probably also worth keeping in mind the potential opportunity to reopen productive negotiations for Delta water supply contracts,” he said. “There is currently a water supply contract only for the north Delta, so that is an opportunity that we should be mindful of for the south and central Delta.”
The other thing the State Board will be working closely with the Council on is preparing for their role in processing for Cal Water Fix and the Cal Eco Restore, he said. “Our part is such that it will come before the State Board in the context of the export projects petition for additional points of diversion upstream as part of the Cal Water Fix, but in addition, the State Board is going to be involved with an update of the Delta Water Quality Control Plan with revised conditions for the export licenses, D 1641, as well as for spreading responsibility for Delta water quality more broadly then just across the two projects.”
Implementing the Delta Plan
“In terms of implementing that Delta Plan, we’re looking forward to what we’ll do as we get these better tools as we approach water shortage on a more consistent long-term basis rather than on an emergency basis,” he said. “The Delta Plan, as it will be updated, is going to be the plan that people will hopefully follow and implement, and certainly the Delta Watermaster’s responsibility for helping that process is pretty clear.”
“Beyond the Plan itself, the coequal goals and the need to preserve those things that are special about the Delta even as the Delta is beset with change, is to develop and consistently articulate a long-term vision for the Delta,” he said. “I think of it as describing the Delta we’d like to proud to hand over to our children and our grandchildren, and one thing that I’ve found even in my early days as Watermaster is when you start a conversation or move a conversation to that vision of the future, it completely changes the conversation. It starts to open up the dialog about how change could work for you; it doesn’t mean that all the old antagonisms or all the real basic disagreements go away. They don’t. But when you focus on the longer horizon, you begin to get more flexibility and more trading capability, so that people start to see what’s in it for them and what’s in it for their legacy, and I think helps.”
When there is a compelling long-term vision, it creates some energy and it also creates an important benchmark against which to measure your day to day decisions, he said. “Is this more likely to get us closer or further away from where we hope to be when we hand the Delta to our grandchildren, so that’s part of what I’m trying to do is to create opportunities for interactions over that longer-term vision … To hold parties who claim to share that vision accountable for their actual, on the ground interactions, and make that accountability transparent, and if we’re successful in doing that consistently over time, we’re going to increase trust.”
“I talked about water before as the most valuable and precious asset in our ecosystem, but I actually think that trust may be in shorter supply and more difficult to reestablish,” he said. “The whole point of this is to empower real change management.”
“I also think that over the longer-term, I’m coming to believe that we need to recognize that the in-Delta interests and the Delta export projects, notwithstanding all the disagreements they have with each other, are locked in a symbiotic relationship that I think California has an interest in developing, managing and maintaining on a more productive basis. To me, that means an understanding among the export projects, their contractors, and their rate payers and constituencies that sustainable profitable agriculture in the Delta is critical to their objectives. In fact it’s indispensible because it’s impossible to think about how we would manage that land mass without productive agriculture at work managing on a day to day basis.”
“By the same token, it strikes me that the investment and attention that the export projects and their constituents bring to the Delta is critical in terms of bringing the necessary investment, expertise, and basic interest that’s going to be necessary to manage this critical part of water system and ecosystem going forward, and I think with an understanding of that symbiotic relationship, we should be able to do a more enlightened job over time of true adaptive management,” he said.
“The other day, I used a term I borrowed from Peter Moyle at UC Davis, which was ‘reconciliation ecology,’ the notion as Peter has developed in his work over the years is that there has been dramatic human intervention into the natural ecosystem, and restoration of what was is a fool’s errand, so what we ought to be doing is reconciling so we get better outcomes for ecology as well as the changed human engineered system,” he said. “I got slapped down because I was told that reconciliation ecology is code for letting those who would rape and pillage the ecosystem off the hook and so I hesitate to use it, and yet I think it is reconciling the ecology to the human engineered system that is the challenge of handing on the Delta to our children and grandchildren, so I don’t think of it as a an excuse for those who would rape and pillage, I also don’t think of it as the fig leaf behind which we can pursue policies that are able to be reduced to a bumper sticker like ‘fish versus people’ or like ‘stop the tunnels, save the Delta.’ So that’s kind of where I hope to go.”