Bruce Babbitt: Water in the West: Then and Now

Babbitt 2The former US Secretary of the Interior shares his thoughts on groundwater management, the Delta, and more …

At the Association of California Water Agencies fall conference held last week, the keynote speaker for the luncheon was former U. S. Secretary of the Interior, Bruce Babbitt. During his speech, he talked about implementing the state’s new groundwater legislation, as well as giving his thoughts about the Delta.

Outgoing ACWA president Tom Coleman introduced Secretary Babbitt, noting that he has had a longstanding relationship with California. “As Secretary of the Interior from 1993 to 2001, the Secretary probably spent more time in California than in DC or in his native home state of Arizona,” he said. “We have never seen a more active interior secretary in our state. During his tenure, Mr. Babbitt engaged constructively on addressing negotiation agreements on the Bay Delta and the Lower Colorado River. While governor of Arizona, he was instrumental in the enactment of the Arizona groundwater management act of 1980, and that’s part of the reason Arizona is doing relative well in the current drought that we’re all facing here in the West. Now the Secretary will provide his unique perspective on water issues and the environment. Please give Secretary Babbitt a very warm welcome.”

Bruce Babbitt then took the stage and began by saying that some people in the audience had asked him what brings him back to California. “It’s an interesting question because I don’t represent any water interests, I’m not out here that often, my day job is in South America where I commute regularly working with a lot of different groups on a sustainable development vision across the Amazon basin in Brazil and the Andean countries. So why am I here?,” he said.

Babbitt 1I think every water buffalo knows that this stuff is kind of addictive. You really can’t get away from it. And it reminds me … you are all familiar with the song, Hotel California? It’s an Eagles song and it’s got this great line in it: ‘Hotel California. You can check out any time you [like], but you can never leave.’ And that’s my feeling about California. It’s really great to be here.”

For those of you who are now thinking, is this guy going to say anything other than endlessly reminiscing about the distant past?, let me start with what was in my head as I watched all the acknowledgements and all the awards. This organization, ACWA, has really done something quite remarkable, and the fact that so many of you from so many different agencies with different interests from across such an extraordinarily diverse state have come together to hash out a common agenda for the necessary reform and progress of California water. It’s really quite extraordinary.”

Thinking about this on the way out and reflecting on what’s happened, especially in the last couple of years in California, I see your efforts behind an extraordinary number of successes,” Mr. Babbitt said. “I think the single most important thing that ACWA has done and is doing is bringing some understanding of the need for comprehensive statewide planning and attention to the interconnected nature and the way that we all in this state need to continually get all the pieces together and move toward a larger vision of where we’re going.”

I first heard about that from ACWA. It’s now incorporated in a very strong way in Governor Brown’s California Water Action Plan. Proposition 1, the water bond, which was a long and protracted process of hashing out a really important step forward, and I see ACWA beneath that. Obviously, there’s more to do there and your leadership is going to be important, especially in trying to prioritize the storage investments that are authorized in that bond.

I’ve got some ideas about that, but when I vanish from California tomorrow morning, my opinions will be of little interest, but I’ll offer them to you any way. I think the water storage really ought to look carefully at the Sites Reservoir surface project north of the Delta and the equally in terms of my sense of that, you should be looking at groundwater storage south of the Delta. Complex issues, but we need your leadership.”

Governor Brown’s demand reduction program is really an incredible achievement for the fact that it was put forth, but importantly, for the response that it has generated,” Mr. Babbitt said. “I think it’s really, really incredible that the people of California responded a way that has brought per capita consumption down by the figures that you know well. That says something important. Not just about the water saved, but about the capacity and spirit that can be evoked when a challenge is put forward in the right way. It’s an incredible demonstration of working together.”

Now what I’d like to do today is talk a bit about groundwater because it is a critical topic. It is quite extraordinary that California, at last, has come together and said we’ve got to put together a statewide vision of how we manage groundwater. Now it’s an interesting piece of legislation because there’s a couple of unique things in my experience that reflect a lot of what’s going on and I think is quite important.

The first one is in the legislative preamble and in the act itself, you’ve clearly opted for local management. Here’s the language from the statue: it says the objective is ‘to manage groundwater basins through the actions of local governmental agencies to the greatest extent feasible while minimizing state intervention to only when necessary to ensure that local agencies manage groundwater in a sustainable manner.’”

That policy obviously strongly affirms a commitment to local government, citizen participation in the management of groundwater basins,” Mr. Babbitt said. “It’s effectively an invitation to every citizen and all stakeholders to join together and participate in putting together these sustainable basin management plans, and it seems to me that if ever there was an opportunity to demonstrate ingenuity and innovation at the local level and to show that local government is in fact the best place for problem solving, this is the time.

The first task obviously is putting together the groundwater sustainability agencies and I would just leave you with one thought. The legislature understandably didn’t give much direction in the formation of those agencies. As I read the legislation, is says, ‘y’all figure this out’. And anybody who wants to be a local water management agency, go sign up. It’s an incredibly important first step for reasons that I will explain, and I urge all of you as member agencies of ACWA to pay careful attention to them, because in some areas and some groundwater basins, I suspect there will be very common sense of who the managing agency is, but the statute says virtually anybody can do it. Not quite, but it says if you’re a water supply agency, a water management agency, a local land management agency, or whatever, and it really is not the time to go back to the old style of water policy which is we’ll all line up at the water hole and fight. This is a time for everybody to get out front and for ACWA members to really think carefully and creatively and constructively about bringing together this cooperative spirit.”

Babbitt 5I’m going to talk about two specific things that I think are of importance that kind of flow out of the statute,” Mr. Babbitt said. “The first one relates to the gathering and reporting of information. … The need here is to establish a mandatory uniform statewide system of metering and reporting groundwater withdrawals and use in all high and medium priority basins. Now, the groundwater act does address reporting but not in a very adequate manner. The act contains permissive language; it provides that the groundwater sustainability agencies, when they come into existence some time down the road, may require measuring and reporting of groundwater withdrawal and uses. It’s permissive language; it says ‘may’.

There are some other slightly stronger requirements if you’re a probationary basin or if there’s no local agency coverage, but in my experience the importance of getting a quick start on the measuring and reporting of groundwater withdrawals and uses really can’t be overemphasized. The reason is without reporting data, you begin to lose the ability to really construct sound plans going forward, and the data which is not collected today is lost forever. Those of you who are in the business of looking at groundwater management, the data that is lost today is really critical because what you’re looking to do is measure trends over time. To have this longitudinal data that will make everybody’s life better for reasons I’ll explain shortly, it’s also imperative to help minimize the need for judicial intervention, a big red flag that I’ll talk about shortly.”

So I would really urge the legislature to go back and say it’s in everybody’s interest to have as soon as possible, mandatory reporting of withdrawals and uses at a statewide level in medium and high priority basins. It’s not all that onerous. You can require it from municipal providers, industry, agriculture, and you can exempt obviously the small domestic users which have a de minimis impact upon the basin.”

I can’t resist to say, I think it’s self evident, but if you really need some help, see what we did in Arizona,” said Mr. Babbitt. “In the active management basins from day one, there’s been mandatory reporting. It’s just taken for granted, it’s not a big problem.”

The other area I want to talk a little bit about in my time is this issue of the role of the court will play to an undefined extent in the process of implementing groundwater sustainability plans and managing them going forward. I think it’s important to recognize that what we have now is two diverging tracks. One is the California tradition of judicial management of groundwater basins, and now the legislature has come up with administrative management in the groundwater sustainability agencies and plans. Two very different concepts. In my judgment, appropriate for reasons I will explain, but I think ACWA and member agencies are going to need to pay a lot of attention making these working together.

It obviously begins with the judicial tradition. The legislature made quite clear that the new agencies are not defining individual groundwater property rights. That has been long established in the judicial system and the legislature appropriately recognized that. It says and I quote, ‘nothing in any groundwater management plan adopted determines or alters surface water rights or groundwater rights.’ That simply means that groundwater rights will continue to be defined by the courts within this tradition of judicial interpretation of the doctrine of correlative rights as it’s modified by another doctrine called prescriptive rights; that’s been the province of the courts.

Babbitt 4What it means going forward is that any affected party is going to retain the right of access to the courts to confirm or protect their property rights and the parties retain the right to seek a basin adjudication,” said Mr. Babbitt. “Now, I’m aware that some of you have had some adjudication experience. Some good; I’m seated next to Kathy today and she said, we’ve done this out in Cucamonga and it’s working okay, everything is great. I hear from other parts of California that say, oh God forbid, give us anything except a basin-wide adjudication.”

The trick is going to be as you go forward in each individual situation to think about the implications of these, and the fact is that basin adjudications typically, at least in my experience, tend to be pretty complex and costly and time consuming. There are a lot of cautionary lessons out there about these things degenerating into things that go on forever, and wind up in front of judges who don’t have any experience or technical expertise and get bogged down in the expenses as time goes on.”

Having said that, I want to offer you one example,” said Mr. Babbitt. “We’re all victims of our own experience and let me offer you this one. Back in ancient history, 1974, I happened to be elected attorney general of Arizona in that year, and as a good activist, I thought it was really neat to begin a stream adjudication on the Gila River which was commenced in 1974. Today, 42 years later with 24,000 claimants in front of the court, that adjudication is still going on and there is no end in sight. I hasten to add that is and was a stream adjudication, which illustrates the chaos in that sector of Arizona, but it does stand in sharp contrast to the state’s groundwater management act which is really a model act that I’m proud to be associated with.”

The California legislature has recognized the judicial issue as part of the groundwater package; AB 1390 has a number of procedural rules and it states a presumption that adjudications will qualify as what they call complex cases. It’s a good name, they are indeed complex. But that signals a legislative intent that these cases should be handled in special way of the rules of the California Supreme Court which are already in effect, and there are a lot of reasons for that, but I think one thing to remember is that the science of hydrology that underlies groundwater decision making has undergone a really incredible change in the last several decades. In the old days, judges decided cases based on all sorts of kinds of weird theories of groundwater behavior because they were mostly speculation about what was actually going on under the surface. Nobody really knew, but that’s all changed in a dramatic way.

There are new methods of gathering huge amounts of data, the use of computer assisted technologies, modeling techniques, the evolution of geological soil sciences, it’s really a different world out there, and therefore this notion that adjudications, when they happen, will take place under this complex rule thing I think is a wise and useful decision with mostly positive consequences.”

The big procedural question that is left unanswered in the legislation is the relationship between the basin plans that are now coming up administratively and the possibility of basin adjudications and raising the question that will to some degree be asked of all of you. Should adjudications occur in parallel with the formulation of basin plans, or in a given order, or not at all?,” said Mr. Babbitt. “I would just suggest that it underlies the importance of really going after these basin sustainability management agencies in getting the plans developed because if that process works and if the plans make sense, there’s going to be a lot less temptation for the courts to get involved. If plans are well done and if there’s a lot of data gathered to construct them, there won’t be nearly as much need for judicial intervention and if there is litigation, and in many cases there inevitably will be, it will reduce the need for the scope of the judicial decision making, because if the proper technical and data gathering has been done, I think it will be a cautionary signal in litigation that the judges are only there in this new system to adjudicate individual property rights, not to be basin planners, which in past adjudications I think has been to some degree a fair description of what they do.”

You can see the answer to my question,” Mr. Babbitt said. “We should think of a future in which the judicial track is in abeyance and the planning track goes forward, and the better the planning track works, the less temptation there will be for judges to revert into policy making going forward, as contrasted to the affirmation of individual rights.”

Finally, I think that if we do it correctly, there’s a very good chance that if the litigants show up in your neighborhood, what a thoughtful judge is going to do is either dismiss the litigation or put it on ice and say, to complainants, let’s wait until the administrative track works and thereby giving you time and space to work this out. It’s going to take a lot of effort and again, I revert back to the role of ACWA and the member agencies in getting on top of this.”

Babbitt 3Now, let me sort of phase out today with some comments,” Mr. Babbitt said. “I realize it’s very dangerous for even a temporary Californian to head into Delta issues. … The Delta must in some way be brought into a more clearly focused reliable central piece because the rest of the statewide plan, everything is connected and the Delta is the biggest source of sustainable surface water supply in this state by far. It really gets wrapped up in decisions that relate to conjunctive use, that relate storage issues and to groundwater storage. I suspect it’s going to be even more important with the onset of climate change in which the hydrology of the Delta is going to be even more variable with more drought that we already know about, but also bigger storms, which are the opportunity side of trying to work out something approaching a reliable framework.”

Now I’m telling you anything you don’t know when I say look Delta issues are so permeated with controversy that sometimes it’s tempting to say nothing can be done. But again I would remind you that back in the 1990s, we did come together, north and south, urban, rural, agricultural, municipal, and we did sit there, Felicia Marcus was there, Tim, a good number of you. And we sat around and went to it and actually produced the Bay Delta Accord, which is not perfect, not a complete solution, but it was a nice demonstration of the latent capacity of Californians to thresh their way towards consensus.”

I’ve already suggested that that spirit seems to be in the air and what we need to do now is to continue to communicate, listen carefully, hear proposals without dismissing them, and get underway. Now, Governor Brown has advanced a credible plan for an export framework for the Delta. I’ll start off by saying his plan really has not received the kind of consideration that it deserves. I mean widespread consideration, not just the insider kind of stuff, but really a big wide-ranging public debate which I think is essential for most progress. What is seems to have done is reawakened the adversary spirit of the past, the old kind of contentious stuff, we don’t need to worry about this, something will happen, we’ll get some water from Alaska or from icebergs or from Arizona … wherever. So we really need to think more seriously about that.

Let me just offer a few thoughts,” Mr. Babbitt said. “Whether or not the Governor’s proposal, the twin tunnels, is ultimately implemented, we need to bear in mind that Delta policy really isn’t primarily about infrastructure. The issue here is finding the means to an end and the end towards which we must grapple is to provide a stable reliable environmentally appropriate framework for Delta exports, among other things. At the present time, there is no sustainable, reliable, stable framework for Delta exports. Delta exports are left by default to a whole gaggle of regulators, federal, state, local, from Washington, from Sacramento, all kinds of different agencies whose views always seems to be conflict, and which are always subject to modification the next time the scientists get a new idea, the next time there’s a new administration in Sacramento, or the next time there is a new administration in Washington.”

We have to do better. In my judgment the most important concept that the Governor has put forward in his successive iterations of the proposal which is now known as the Water Fix, is that it does in fact propose a minimum baseline for water exports and then with a provision for increased exports in wet years. It is actually a miracle range, a framework which in my opinion is the key issue in the Delta because this issue of reliability is not going to go away, and it has to be resolved or at least greatly improved.

Now the Governor’s proposal, if you look at it, the exact numbers are not so significant; it’s the concept of increasing the quantity and reliability in wet years with a floor in dry years that has to be dealt with, irrespective of whether or not the twin tunnels or an alternative infrastructure proposal is approved or not approved. We have to stay with the framework.

The difficulty with the export framework that’s in the Governor’s current plan is the lack of regulatory certainty; I won’t get into a lot of detail about that, but it’s a complicated issue,” Mr. Babbitt said. “The Governor’s original proposal, the so called Bay Delta Conservation Plan, had a quantitative framework which provided a measure of certainty with a habitat conservation plan for reasons that are complex and not here relevant, that didn’t work, and so the proposal before us now drops back by default again to this regulatory uncertainty with state and local and federal regulators all over the place waiting to see what emerges and heads into the future of uncertainty.”

The result of course is understandable and predictable. The water contractors from Southern California – their vision or their nightmare if you will, is that something goes forward and the regulators just start ratcheting everything downward into an indefinite future. Up in the Delta, their interests, their nightmare is that without any kind of regulatory certainty, any proposal is just the camel’s nose under the tent; there will always be more and exports will be ratcheted up at the relative whim of the next generation of administrators. My point is simply in the space between these conflicting visions or nightmares if you will, there ought to be space for finding consensus. I would submit to you that the high and low range that are contained in the Governor’s current proposal is a good starting point for discussion from which it ought to be possible to widen the discussion, get some public engagement, and think of a possibility of legislation to set a framework.

Now I know the idea of a legislative fix doesn’t appeal to everyone in this room, but to me it’s the one place where this multiplicity of conflicting laws, regulations, and regulators that stand in the way of a reliable export policy can actually be harmonized,” said Mr. Babbitt. “I would remind you that if we don’t do it in Sacramento, there’s going to be an increasing call to do something in Washington, and I can guarantee you that is not an optimum solution for California’s future. We really ought to look to Sacramento and say let’s think seriously be about a legislative solution, and for those of you who say well, that’s just a dream, it’s impossible, let me remind you that a year ago, two years ago, all observers were saying it’s impossible to get groundwater legislation and look what you’ve done.”

Let me conclude that I hope the climate scientists are right. You heard from them yesterday that an El Nino event is hopefully on its way even as we meet here in Indian Wells. But just remember when the drought cycle lets up as it inevitably will, history tells us that public interest and support for the needed changes always tends to kind of fall off as the rain begins to fall. What we need to do is not let up on our efforts to maintain momentum.”

If I could characterize in conclusion, my feeling for what it is that you’ve done in the last several years, and what it is that ACWA is doing, it is that you are in process in this state of creating a new cultural and political environment, a new culture in the way that water is dealt with, moving away from this adversary past toward a future of broad engagement, of cooperation, and of putting these issues directly into the arena and the political culture of the future.”

I think it’s happening, and I simply urge you to continue making such extraordinary efforts to make it happen,” concluded Mr. Babbitt.

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