Melinda Terry and Dante Nomellini discuss water quality and water rights issues and how they are affecting Delta farmers
As the exceptional drought conditions continue, the impacts are being felt statewide, the Delta being no exception. At the September 17 meeting of the Delta Protection Commission, Melinda Terry from the North Delta Water Agency and Dante Nomellini from the Central Delta Water Agency briefed the Commission on the impacts the drought is having on the farmers inside the Delta.
MELINDA TERRY, Manager of the North Delta Water Agency
Melinda Terry is manager of the North Delta Water Agency, which encompasses about 300,000 acres in the legal Delta, spanning from West Sacramento to Sherman Island. The North Delta Water Agency does not deliver any water nor are they are not a water district; they were formed in 1973 to protect the North Delta’s water supply against salt water intrusion and to assure a dependable supply of water for North Delta landowners.
The North Delta Water Agency is unique in that they did sign a water supply and quality contract with the state of California in 1981. “Essentially we consider this kind of a drought insurance policy,” Ms. Terry said. “Under our contract, the state is obligated to maintain specific water quality. Our contract acknowledges the right to divert water within the North Delta Water Agency of our water users, and as part of our contract, DWR is required to furnish water not otherwise available under landowner water rights.”
She explained that due to the drought, the State Water Resources Control Board has curtailed certain water rights going back to 1908. “While those water rights in our agency may actually be curtailed for the individual landowners, they are allowed to continue to divert under the contract because they are being supplied water; they are allowed to divert the stored water that DWR has in Oroville,” she said. “In exchange for that, the North Delta Water Agency, on behalf of the water users, makes an annual payment to DWR for that.”
An important point to note is that in the contract, the agency did consent to the export of water, as long as DWR is in compliance with the contract, she said. “So if for some reason in the foreseeable future there are projects that come along and they are unable to maintain the obligations of the contract and the criteria for water quality, the agency no longer consents at that point,” she said. “But I also want to be clear that they do make every effort.”
This is the first time since 1981 that the drought provision has been triggered which allows some different circumstances in terms of DWR’s obligations under the contract, Ms. Terry said. “We can look to the State Water Board’s criteria to supersede ours as the Water Board does revise and relax those standards in a drought year, and those then become the new criteria that DWR is allowed to operate under,” she said. The contract also requires DWR to provide a water supply with the same contract water quality, or to establish a special claims process to compensate farmers. Ms. Terry added that they have been having weekly calls with DWR to try and keep everyone abreast of the situation.
In terms of water quality, Ms. Terry said their water quality was exceeded under their contract for 19 days in July, but since the drought provision was triggered, the D-1641 criteria superseded.
Ms. Terry said the other big impact the North Delta Water Agency has experienced as a result of the drought are significant legal costs for the last two years with respect negotiating an MOU for the drought barriers. The barrier proposed at Steamboat Slough had never been done before, and they were proposing two in the North Delta, so the cumulative impacts of having two sloughs dammed was quite serious, she said. “We had over 100 intakes that would be impacted by damming up these sloughs so we needed to do the MOU,” she said. “They ended up canceling the drought barriers last year because they decided they could really meet the water quality without having to dam up those sloughs. This year the fishery agency told them they preferred not to have those put in, but still we’re on the hook as an agency over $100,000 at this point, and they’ve rejected reimbursement.”
The drought provision in their contract requires the DWR to set up a special claims process to compensate landowners for the net losses to their acreage as a result of not being able to maintain water quality, and so there are legal and engineering costs to do that, and those are not reimbursable, either, she said. “So we’re really in for a lot of money when these droughts come along and it’s quite significant,” she said.
Ms. Terry then presented a graph of the salinity at Three Mile Slough, noting that the top line is Emmaton, the blue line is Three Mile Slough, and the dotted line is the D-1641; the red line is their contract criteria, which does changing depending on water year type. “This does show you on the blue line at Three Mile Slough where it exceeded in July. I was notified by my engineer that just Sunday they are exceeded it and they are continue to exceed it, and we’ve unfortunately not received responses from DWR today.”
Ms. Terry said that even though they had a full year to complete an EIR on the drought barriers, they did not complete one. “I think they knew the Governor’s proclamation was coming out and I think they took advantage of that, frankly,” she said. “It is unfortunate because you do end up seeing unexpected consequences like the problem that they are having with the ferry down at the West False River. They also had a huge giant garter snake problem, when the pile driving started, the snakes started coming out of the rocks. And blue-green algae … that’s where they are seeing some of the higher concentrations.”
In terms of water supply, the good news is because they have a contract and a right to divert, even though their individual water rights are curtailed, they are allowed to continue to divert under our contract, so we feel fortunate in that respect, she said. Despite that, farmers have altered their planting decisions, sometimes just in recognition of the drought or due to concerns of losing money if things get drastically worse.
“The one biggest thing that they are having to do is look at timing their irrigation because there are huge daily spikes,” she said. “A lot of the agricultural diversions are siphons … when the water is low, the siphons won’t work, so I’m sure a lot of them are having to spend a lot of money on new equipment. Some of them have spent money on some actual monitors that will shut off automatically when the salinity gets high. We’ve also seen a lot of problems with the infrastructure where the siphon pumps not being able to work at the time when the water is the freshest, and the aquatic weeds are clogging up a lot of these systems and the drainage ditches as well.”
One of the concerning things is that there doesn’t seem to be a mechanism for DWR or the Water Board to notify people when D 1641 is being violated, she said. “DWR has a fantastic website with the water quality that you can look at it daily,” she said. “I couldn’t even find a written notice, and under the TUCP, they are supposed to notify the water board.”
Toxic blue-green algae is a common problem in drought years. “As soon as the water starts warming up and you get that slow movement and because of the less releases from the reservoirs, that’s where we’re seeing a real build up,” she said. “These are your county health department problems, because when it does get to a toxic level, they are required to post signs. … Last year, Toledo, Ohio had to shut down their whole water system because Lake Erie had blue-green algae.”
“The future – let’s face it, it’s unprecedented,” she said. “No one really knows what’s going to happen next year if the drought continues, and I honestly really hope we don’t have to find out. It’s going to get more difficult for the state and federal government. All the reservoirs only have so much water.”
“I didn’t really see enforcement of the D-1641,” said Ms. Terry. “I think what the state really needs to realize that we have a good relationship, we’re having weekly calls, we’re trying to really work with them, and we’re very fortunate to have the contract. For the most part, they really do try to keep our water quality consistent with that contract and we’re grateful for that relationship, but for them trying to build this other project, I think they need to recognize how that changes the trust, because on the one hand, the North Delta, we’ve done the contract and we think we have a good relationship as an agency, but for the actual people who are experiencing some of these difficulties, and then they don’t see the state, whether it’s the Water Board or DWR announcing the D-1641 violations when they are occurring. It’s really making it worse for those people, and I think they need to think about that, moving forward, because it is making those folks more skeptical.”
“And with that … “
DANTE NOMELLINI, Central Delta Water Agency
Dante Nomellini then spoke on behalf of both the Central and South Delta water agencies. “The Central Delta Water Agency and South Delta Water Agency are a little different than the North Delta Water Agency in that we do not have a contract with the DWR,” he said. “We worked for many years to get it, but behind the overall effort is the desire that has been in place for many years to build an isolated facility. Of course there’s less enthusiasm for protecting water quality in the central and south Delta because it’s more difficult to do. And I’ll also note that the tunnels don’t have any outlets, so even if they did want to let water out to maintain water quality, there is no facility to do so.”
He then spoke of the water quality impacts in the central and south Delta. “The water quality standards that we worked on for years are reflected in D-1641, and those have been relaxed by the State Board on numerous occasions,” he said. “We spent years working on those; we spent 82 days of hearings to set them, and those standards have critical year relaxations. The drought that we have today was anticipated in developing those criteria. In fact the criteria that we have today were the ones specified by the water contractors who want the export water, so their own criteria is in place, which they are now relaxing, time and time again.”
This allows more water to be exported, and the current crisis that we have was amplified by the draining of the reservoirs in 2013, Mr. Nomellini said. “There was a deliberate effort to take water and maximize the exports, leaving the reservoirs short of water for all the purposes. … Once all the water has been taken away, there’s really not too much to fight over because no matter what we do, we can’t recreate or bring that water back into storage.”
Mr. Nomellini said that for the central and south Delta, the water quality has deteriorated, and there have been some water quality violations, but not a huge number. “You have to recognize and we do, operation of the Delta is very difficult with the shortage of water in the reservoirs, and tides make a difference,” he said. “They are trying to operate so close to the line that they fall over the other side a little bit.”
It’s a totally different story on the San Joaquin River, he said. “Those standards have been violated for a number of years,” he said. “The water projects violated standards, the State Board took action against the projects, the Governor interceded and stopped them from going to court to enforce against the projects, so there’s been a continuous violation of these standards that’s gone on for a number of years, even before the drought. It just goes to show you that the State Board cannot operate independently; they are the Governor’s appointees on the Board, and traditionally governors have tried to influence the State Board. And I suspect it’s still going on today.”
When the water quality is worsened and the standards are violated, farmer are applying more salt to the soil and the need for leaching will be increased, he said. “It is not at a critical toxic level this year, but the buildup as we go on will eventually catch up with the cropping. There are some pockets of problems, but nothing that would cause very substantial crop losses.”
In terms of water quantity, the Delta is rather unique. “It’s connected to the bay, which is connected to the ocean, so if the bottom of the channel elevation is below the lowest tide, it will always have water, so from a water rights standpoint, Delta water rights in our opinion are always intact because the quantity is there,” he said. “This has been recognized for years; in fact it’s even recognized in the North Delta Water Agency’s contract that water right quantity is not an issue in the Delta; it’s the quality.”
“Now the State Board has tried to be responsive to the political efforts that come from the Governor’s office – the Declarations of emergency, the need to do things,” said Mr. Nomellini. “In our view, which is maybe not correct, is that they lean in favor of exports, but they took on the task of wanting to protect senior water rights. Now we of course believe we have the senior water rights. And yet, they are issuing the curtailments to our people, so their view of a senior water right is quite different than ours.”
What the State Board has done is they have used quantity as the basis for curtailing water rights in the system, he said. “I urged the board not to even go there, because water rights are very complicated – they are very site specific, they are individual … if you’re in the Stanislaus River, it’s a lot different than if you’re in the Sacramento River, and therefore it takes very detailed adjudicatory processes in order to fairly administer water rights.”
“But for the Delta, it’s easy because the Delta always has quantity, so a quantity approach to water rights for the Delta is in our view completely incorrect,” he said. “When they go through and they calculate the availability of water, they use Department of Water Resources determinations of what we call Full Natural Flow. They’ve attempted to make a calculation of what the natural flow of water would be in the system, and then they take the demands that are reported by water right holders in their reports, as you go on down the river, and they subtract those from the quantities that they have as Full Natural Flow, and they conclude that there’s not enough water available to serve all of those needs.”
If they had done that on an individual stream, looking at all the demands on it as well as groundwater pumping, they would have come closer to the mark, he said. “But we don’t think that it’s the job of the State Board to do that. We think that’s left to the courts or a referral back, but when you get to the Delta, it doesn’t matter whether water comes down or not because the Delta always has water quantity, so what matters is the water quality aspect.”
“I’ve spent a lot of years at this; this was never a problem,” Mr. Nomellini said. “People before this current drought understood. Either they don’t understand or they just want to create another issue now over quantity, but there’s no way we don’t have quantity in the tidal reaches of the Delta.”
“The water quality issue comes down to the obligation of the projects to provide salinity control in the Delta – it’s a statutory obligation,” he said. “Now we can’t demand a water quality better than what the State Water Resources Control Board sets as the standard, unless we want to try and get it guaranteed by contract. … The state and the federal project don’t have to give us an adequate quality, but they do have to provide salinity control. Salinity control is necessary to protect their water quality to the pumps, it’s necessary to protect the public trust, fish and wildlife, and in fact, it’s tied into to navigability where salinity control is part of the navigation responsibility of the federal project.”
The law says that the state and federal exporters don’t have to give everybody in the Delta an adequate water quality, but if they don’t have an adequate water supply and salinity control, they cannot export, he said. “That is where the leverage is; you can’t export,” he said. “Now these projects have been exporting for over an above without health and safety restrictions during this period of time. We have not tried to stop that. Our view has been, we’re in a crisis, let’s see if we can’t work together through this crisis to minimize the hardship to everybody, including those we consider our adversaries that are in need of water, rightfully or wrongfully.”
The State Board has issued curtailment notices to our landowners, and many have filed challenges, he said. There are currently five lawsuits on file, challenging the State Board process as well as their approach to formulating curtailments for the Delta, he said. “Because the Delta always has water, we’re particularly confident that we’re going to prevail on those issues,” he said.
Mr. Nomellini said that in the case he was involved with, they asked for a restraining order against the State Board from proceeding on their curtailment notice. The court granted the restraining order and found that ‘the curtailment letters, including the requirement that recipients sign a compliance certification confirming cessation of diversion result in the taking of petitioner’s property rights without a pre-deprivation hearing, in violation of petitioner’s due process rights.’ “We had explained to the Board that their process of ordering curtailments without first holding a hearing would do this, and the court found that to be the case,” he said. “As a result of that temporary restraining order, the State Water Resources Control Board issued a new notice, partially rescinding the prior notice of curtailment and qualifying it. We still think that it violates the process.”
The five court cases are all coordinated into one proceeding before a judge, he said. “We hope we’ll get to that issue, as well as get to the merits of the curtailment process, including the way the State Board calculates the availability of water, so we’re optimistic that we’ll be able to get some clarity,” he said.
In the meantime, the State Board has filed two proceedings: one is an Administrative Civil Liability claims against Byron Bethany for $1.5 million up to $5.3 million, and the other is a Cease and Desist Order against Westside Irrigation District. He indicated they would be joining the proceedings to help defend the two irrigation districts because ‘we think they are right’. “We think that those proceedings should not go forward in advance of the court proceedings because the State Board shouldn’t be ruling on their own wrongdoing,” he said. “They should be judged in the court, not judging themselves, so if they judge themselves, then we have to go to court after that and challenge that decision.”
Mr. Nomellini said that the Delta is also unique in that if farmers didn’t farm the Delta, they wouldn’t drain the land and wouldn’t maintain the levees. “If you didn’t drain the land and you didn’t farm, more fresh water would be consumed then by farming,” he said. “Field corn which is a fairly typical crop in the Delta uses 33.3 inches in this particular year; riparian vegetation and water surface, 67.5 inches, so where are we going in terms of helping anything by curtailing the farming in the Delta? It really isn’t anything other than in our view kind of just slapping us around; big boys are just kicking us. I describe it as the ‘dog killing chickens’. They are the dog and we look like chickens. So that process is going on.”
He then turned to the curtailment notices and the conservation program that some Delta farmers agreed to earlier in the year. “There was a conservation program developed that said if you can fallow 25% of your land combined with a reduction of diversions up to 25%, then you will not be prosecuted by the SWRCB for this drought,” he said. “Now what has happened is that many of the farmers have signed up for that and complied with that, so there’s been a substantial amount of fallowed land, which affects the economy. There’s been reduction in irrigation where farmers have cut back on irrigation of corn by turning it into silage which eliminates one month of irrigation or maybe a little more. They’ve cut back on irrigation of alfalfa by changing the amount of water, and that has deteriorated the crops and created chaos in the silage market. What happened is it collapsed the market for silage, so there is significant economic impact.”
He said that it’s unclear of where things are headed right now, but it should be clearer by October of November. “There’s been a substantial impact by reason of the curtailments,” he said. “The water quality has not been that detrimental. I think the barrier helped. I’m interested in seeing the results. I think it may have hurt the north Delta but I think it helped us in the Central and the South.”