Report covers SB-88 implementation, recent water rights rulings, the New Delta Accords, and the status of the update to the Delta’s Water Quality Control Plan
At the July meeting of the Delta Stewardship Council, Delta Watermaster Michael George gave a lengthy update on the activities and the State Water Board, covering the implementation of SB 88, the settlement of Delta water rights issues for the Woods Irrigation Company, what is being done to analyze the information received from the information order issued during the drought and the Statements of Diversion and Use, the outcome of enforcement actions against two Delta diverters during the 2015 drought, a new initiative called the New Delta Accords, and an update on the status of the Delta Water Quality Control Plan.
IMPLEMENTATION OF SB -88: DIVERSION MEASUREMENT
In June of 2015, Governor Brown signed SB-88, a trailer bill signed in June, 2015 as part of drought emergency response to improve data. The legislation requires water diverters to measure their diversions and report that data with the largest diverters required to report their diversions beginning in January of 2017; smaller diverters being required to report as of January 1st, 2018. The State Water Board has implemented regulations after an extensive outreach and stakeholder involvement process, he said.
“As you can appreciate, that requires a lot of work by people who are diverting water either to retrofit or to upgrade measurement devices, meters, or other devices to accurately measure the diversion,” Michael George said. “The vast majority of diversions in the Delta have only been estimated heretofore, so it’s the first time that people will be required to actually measure them, so they are trying to figure out what devices to put in and so forth.”
“Secondly, you can comply with the regulation by coming up with a measurement method rather than simply putting a meter on it,” he continued. “We’ve found a lot of people in the Delta who are trying to figure out how to work together with their neighbors to develop a method for measuring diversions that will meet the same standard of accuracy, which is basically + or – 10% of actual.”
“Then finally recognizing that there are places where the conditions are such that you simply cannot measure within that level of accuracy, or it wouldn’t be practical, or it would have negative effect, the regulation does provide for the possibility of what’s called an alternative plan of compliance,” he said, explaining that it’s an avenue for water diverters and landowners to get together and propose an alternative plan that will measure diversions as well as can be done or in a fashion that is more appropriate for their circumstances. “We’ve had great cooperation with the North, Central, and South Delta water agencies as well as with Contra Costa water providers to figure out what works in all the different circumstances that we find throughout the Delta.”
Mr. George acknowledged there were some challenges that won’t be resolved by January 1st. “There are just some places where we’ve run into complications or the diverters have run into complications, and what we’re trying to do is create basically a plan for compliance over a longer period of time,” he said. “In order to do that, we’ve identified certain areas where we are promoting experimentation and using that as an experimentation station that we will be able to apply more broadly.”
Mr. George said that currently, there are only two alternative plans of compliance under development; one of those is with the Suisun Marsh Resource Conservation District. There are roughly 400 diverters in the marsh. “It’s brackish water and much of it is passive,” he said. “Most of the water use is for habitat – duck clubs and so forth, and it is controlled (to the extent that it is controlled at all) by the DWR Salinity Control Gate Mechanism. So it’s clearly a unique circumstance where we need to do something different than try and put control devices in what is essentially tidally controlled flooding; on the outgoing tide, we capture fresh water, try and hold it in the Suisun Marsh and close the gates when the tide is coming in. This is one area where we think we’re going to have an alternative plan of compliance rather than strict compliance with the strict plus or minus measurement.”
Mr. George noted that it is a big deal for water diverters in the Delta, and a lot of money is going to be spent on it. “We want to make sure we are taking advantage of the rapid improvement and lowering cost of devices, so jointly with Division of Water Rights at the State Water Board, we’re sponsoring an information fair on August 22 so all the people who are developing devices to reduce the cost or improve the quality of these measurement devices can come in and show their wares.”
In February of 2016, a settlement was negotiated in the long-running litigation and enforcement actions related to the Woods Irrigation Company, located on Roberts Island in the southern Delta. “There were about 50-60 individual diversions with individual statements of diversion which allowed a great deal of confusing, overlapping, and sometimes inconsistent of reports of diversion and use,” Mr. George said. “In this settlement, the Woods Irrigation Company agreed to consolidate and report on all of the 50 diversions so that there would be a better handle on it. Importantly, the settlement required that they carefully measure the diversions.”
“So one thing that happened is they went from 50 diversions down to three and they put sophisticated measurement devices on those three,” he continued. “In addition they put measurement devices on their outfalls on their drainage releases, so in this difficult south Delta lowland multiparty area, we’ve now got a settlement that requires and is now being implemented for consolidation.”
The operation plan goes into effect this year for the first time, so this is the first irrigation system where they will be using the new equipment. “We’re working very closely with them to monitor it to make sure it is consistent with the settlement, and also to work with them to get all the information,” he said. “I talked before about using experimentation stations and Woods Irrigation Company is one. They are a little ahead of the curve because it was part of the settlement of this litigation, and it appears to be leading to significantly improved stewardship of the water; the costs are affordable once you bring all those landowners together and give them a common plan that they can fund. We view this settlement as an important illustration of how we can comply with SB 88 within the Delta.”
ON-GOING ANALYSIS OF INFORMATION ORDER RESPONSES
“As one of the emergency drought responses, the Division of Water Rights put out an information order requiring large diverters within the entire watershed of the Delta to report a certain amount of information,” Mr. George said. “A lot of that information was new information reported by water rights claimants in the Delta. Prior to 2009, there was not a requirement for most of them to report at all because most of the water claims in the Delta are based on either pre-1914 or riparian rights, so it’s a fairly new thing to have even a requirement for a Statement of Diversion and Use.”
“The information order went out to those responsible for 90% of the diversions in the entire watershed, and importantly within the Delta, it was the first time that there was a requirement to provide to the water board information and data and evidence that supports the claims of pre-1914 and riparian water rights,” he added.
The State Board received an ‘avalanche’ of information in response, rich with historical data and too much to grapple with initially, he said. “First, we wanted to make clear that this was not some kind of quasi-adjudication; it was not an attempt to separate claims of water rights into those that were valid and those that were invalid – that could only be done through an evidentiary proceeding on a case by case basis, but rather to get a better handle on what the information is and what further inquiry is necessary to understand how the pre-1914 and riparian rights work in conjunction with other licensed rights within the Delta.”
He said that the water availability analysis at the Division of Water Rights in 2015 did use the data, which included estimates of use on a monthly basis, thus giving the State Board more timely data to develop the water availability analyses.
They are now in the process of evaluating the data and figuring out how to correlate it with other information about Delta water use. “We’re trying to catalog it, cross reference it, and after we finish that part of the process followed by a pretty rigorous QA/QC process, it will all be posted on the web,” he said. “The importance of that is that we can get the crowd correction where we develop the database and put it out there for the crowd to correct, and we’ll get a much better database as time goes on. We think it will be very helpful for anybody who relies on water rights in the Delta.”
Mr. George noted that the recent budget does include additional limited-term employees to aid in the effort. “It’s a lot of information that will be used for a long time, but we really want to do an intensive job of getting that data out so that it’s useful to the whole community,” he said.
Jessica Pearson, Executive Officer for the Delta Stewardship Council, asked Mr. George if he had all the data he needs, and if not, what else does he need? Where do you think we will be 5 years from now in terms of sifting through the data?
‘I’m virtually certain we don’t have all we need, but the fact is that we don’t know yet what all we’ve got, which is why we have to manage this huge data damp and organize it in a way that makes it accessible and useful and susceptible to QA/QC,” Mr. George answered. “It is very clear that we really got some great information and in some significant detail. For instance, many water rights claimants sent us the original patent for their land, which is a rich source of data that it would have taken the state a very long time to develop. … It turns out that there is a very rich historical record here that has been preserved, that we’re now available to evaluate and sift through.”
“One of the good things about that is it is going to give the water board and particularly the Delta Watermaster the opportunity to respond to those who say there is a slew of unauthorized diversions going on in the Delta,” he continued. “It was my predecessor Craig Wilson’s view and now it has become my view that the incidence of unlawful diversion in the Delta is much lower than a lot of people outside the Delta seem to think it is, and so this database is going to be useful in terms of demonstrating that.”
Inevitably it will also demonstrate some places where the evidence to support the water rights claims is not so strong, so they will be doing more outreach on that, he said. “We’re going to be able to apply some fairly new case law in California more intelligently to this database, so I believe that a year from now we’ll be a light year ahead of where we were in 2014 when the Division was called upon to come up with strategies for helping water managers to manage the crisis. We’re going to be in a much better position to do that going forward.”
STATEMENTS OF DIVERSION AND USE: DELINQUENT FILERS
Mr. George began by noting that this is the first year for annual reporting instead of every three years, so people are just getting up to speed on this. Of roughly 2800 statements that are due, only about 680 are delinquent, he said. “That’s too many and we’re involved with outreach, but in the past, in the triennial reviews, we had a great deal of success. Even though there are 680 delinquent as of now, it was 800 as of Monday, so it’s coming down.”
He noted that about 100 of the delinquent statements are accounted for by just two entities: One is the Division of Water Rights, the State of California, and the other is the Nature Conservancy. “Those are two pretty responsible entities who are just a little late getting to the party, so we’ll be working with them, and we’ll be working with others. I have a high degree of confidence that we’ll get annual statements from everybody, and going forward as people get used to doing it on an annual basis, it will become easier.”
They will be taking these records and cross checking them with other databases: there is the data from the voluntary diversion reduction program in 2015, the information order, and now the annual reports. “There’s a lot of data that we’re trying to work through and do a better effort of managing, of getting it out there, and of doing the QA/QC. That’s really where there’s a lot of effort below the surface at the water board these days because we have got so much more information that it’s testing and it’s really overwhelming some of our data management capabilities. in an era of big data, we’re trying to come up to speed. It’s very difficult to do as you’re all aware through the California state contracting process, and so we’re working through it as best we can in meeting all the requirements, but it’s a big challenge.”
FINAL DECISION OF SUPERIOR COURT IN TANAKA CASE
Recently, the Sacramento Superior Court issued a final decision in a case affecting Delta water rights, known as the Tanaka decision. It’s the result of a case that was filed originally in 2011 by the Modesto Irrigation District against a water right claimant in the Delta named Tanaka.
“The decision found that this piece of property failed to maintain its former riparian right at the time it was severed from the larger riparian piece by Mrs. Robinson’s grandfather, prior to 1914,” Mr. George said. “Secondly, the court found that the development of a right of diversion was not properly developed through the water licensing process because it did not exist prior to 1914, and so the court found no ability in this process for Mrs. Tanaka to demonstrate or take advantage of a pre-1914 water right. Basically through the court’s reasoning, one after another, they ticked off no other water right, so the outcome is that you’ve got a piece of very productive in Delta land that has been in continuous agricultural operation and irrigated for well over 100 years, that today has been ruled by the Court to not have a viable water right.”
The judgment on that decision has not yet been filed, so the appeal period has not yet started, and it seems inevitable there will be an appeal, he said. “In the meantime, the surface water to that piece of property has been suspended; they are doing dry farming on it, in conformance with the judge’s decision, and we’re trying to figure out what the implications of that case are for other water rights in the Delta. As a Superior Court case, it’s directly dependent on the facts of the case, so in order for the law of that case to be applied any more broadly, it would have to go through the appellate court process, but it is an important decision that has some significant implications for a not-insignificant subset of Delta irrigation diversions.”
“Would these diversions be in the sphere of influence of the Modesto Irrigation District or broader speaking, with these other questionable diversions be in the sphere of influence or already within a district?,” asked Councilmember Mary Piepho.
“The Tenaka diversions from a ditch system called the Woods Robinson Vasquez system, which isn’t’ anywhere near Modesto or Modesto Irrigation District’s service area, so one of the issues in this case early on was whether MID had standing to object to, even if it were an unlawful diversion,” he said. “The court determined fairly early on that any water user in the watershed of the Delta has an interest in preventing an unlawful diversion, which is after all a trespass under Section 1052 of the water code, so Modesto Irrigation District surmounted the defense of Mrs. Tenaka that they had no standing to object to her, even if it were an unlawful diversion.”
“It’s one of a suite of cases that were started by outside of Delta but inside the watershed interests, trying to figure out how much unlawful diversion there is or was, so this is a part of a suite of cases and we’re going to get more guidance from the appellate courts as we go forward, as we’ve gotten in the Millview case and the Young and the Light, Phelps, El Dorado – there’s a whole bunch of them since 2005-6 that bring some more clarity to the law.”
OUTCOME OF ENFORCEMENT ACTIONS AGAINST WESTSIDE IRRIGATION DISTRICT AND BYRON BETHANY IRRIGATION DISTRICT
“The most embarrassing news I have to share with you is the outcome of Delta enforcement actions that we took,” Mr. George said. “On June 7, the water board dismissed the two enforcement actions that we brought. I was part of the prosecution team on this against the Westside Irrigation District and the Byron Bethany Irrigation District. Those are two South Delta water districts, they are both members of the San Luis Delta Mendota Water Authority, and we brought enforcement actions, claiming that they had unlawfully diverted water during at time when the Division of Water Rights had determined that there was insufficient supply at their priority of diversion.”
“The water board determined that the prosecution team had failed to carry our burden of proving the violation, and notwithstanding the fact that those enforcement actions have been dismissed, as often happens, the issues that are raised there live on in litigation actions,” he said. “There are six cases that have already been consolidated for adjudication in the Santa Clara County Superior Court. There were three more cases that were filed last month here, or earlier this month here in Superior Court in Sacramento County. We expect those to get consolidated so there will be a total of 9 and maybe more consolidated actions in Santa Clara County, where we’ll have a contest over the extent of the jurisdiction of the water board’s jurisdiction, and secondly, we’ll have litigation to determine whether a watershed-wide analysis of water availability is ever sufficient to support an enforcement action against a claimed unlawful diversion at a specific point.”
“Those are issues that need to be decided so that the Water Board or the Watermaster and the Division of Water Rights can determine whether and how to provide information and take action in the face of future droughts,” he said.
They are also working on trying to respond to what was learned through this dismissed action, such as what they could have done better, how they could have met the burden of proof, and how can they improve the quality and the transparency and the credibility of their water availability analyses, he said.
“We’re now discussing with all of the elements of the water board and with those outside the water board about what we could have done better, and what we should do going forward,” he said. “One of the things I’ve been working on with my colleagues in the Division of Water Rights is a retrospective analysis of what we did … Ultimately that retrospective will be posted on the drought web page so that people can see our own analysis of what we did well and what we could do better, and presumably critique that and make it better.”
He said they are assuming that as early as March of 2017, they’ll be back in a drought circumstance and have to take action. “We will try to have the insight that we’ve developed in 2015 available to us, transparent to the community, so we can operate more intelligently and on better data that’s more credible and more transparent going forward.”
INAUGURATION OF THE NEW DELTA ACCORD PROCESS
Partly due to the dismissed actions and the unique circumstances experienced in the Delta during the drought, another action being sponsored through the Delta Watermaster’s office is the New Delta Accord, Mr. George said. “It’s designed to be a very open process,” he said. “We invited about 75 people to come to a kickoff meeting in July and said, ‘we received a lot of input from the stakeholders, a lot of criticism from the stakeholders, and a lot of that criticism was that you didn’t get from us the information we’ve got as the people actually operate the system and you should have that before you move forward. So we created this as a forum to gather that input, to organize it, and to figure out if there are potentially modest areas where we can come to agreement where we can solve some of the conundrums or differences about factual issues and about data issues in the Delta. This is an area where I think the Delta Science Program has been absolutely invaluable.”
The process does hold the potential for reducing some of the conflict that exists over facts, he said. “So we can agree on facts, we can agree on data, or maybe even just agree on data we would like to have but don’t yet have, so that we can have our disagreements over policy and over the legal positions that are informed by the data,” he said. “At first, there were some awkward silences. People are more used to taking shots at straw men or proposals that are out there then they are at actually suggesting how to move constructively forward, but after that awkward silence, we had some good discussion.”
“I have to say that after the kickoff session, we got a lot of people who said, ‘I wouldn’t say this in public, but I’ll tell you in private, you ought to be looking at this,’ and it reminded me of what Phil Isenberg said on his way out. But this is a forum for getting some of that data out into the public, and the way that we’re trying to do it is to say, you can tell me privately and I’ll put it up without attribution so people can respond to it not based on the source but based on the data.”
The two areas they are focusing on initially are estimating net Delta outflow as that was very critical in water shortage circumstances, and if they can get agreement on connections between groundwater and surface water in the Delta. They are breaking the group down into working subcommittees, where anybody can volunteer to be on any subcommittee they like. “But we’re going to try and staff them so that we get information in the subcommittee that we can then communicate more broadly to the larger group. We hope that this process will inform a whole suite of management decisions that will ultimately be required when we come to the next shortage, which we’re planning for, in case we’re there by next March.”
STATUS UPDATE ON THE WATER QUALITY CONTROL PLAN
The last time the Delta’s Water Quality Control Plan was updated was in 2006; by statute it’s supposed to be updated every three years, so they are a little bit late on that, Mr. George acknowledged.
“We’ve broken it into phases: Phase 1 is the San Joaquin River flows and Southern Delta salinity analysis which was the subject of a scientific basis analysis that was published in 2014,” he said. “What we’re now anticipating “any day” but probably by mid-next month is the Substitute Environmental Document. When you develop a new water quality control plan, it’s a regulation, so you don’t go through CEQA, but you go through a CEQA-like process that requires you to develop something called a Substitute Environmental Analysis. We expect that to be on the street for a 60-day review period beginning the middle of August.”
“There will be public hearings after that, and depending on how much revision has to be done as a result of the public hearing process, the current schedule is for the State Board to adopt the SED sometime in early 2017,” he continued. “That will be the trigger for changes in certain sections of the Water Quality Control Plan having to do primarily with flows in the Delta watershed upstream of the Delta, and water quality objectives, particularly in the southern Delta.”
Phase 1 focuses on the Sacramento River and the east side streams and looks at flows, outflows, and project operations. A working draft of the Scientific Basis Report should be out late this summer with public workshops to follow. “This is an area where again the Delta Science Program skills and capability are going to be very valuable, because once we put this scientific basis analysis out there, by statute it must be submitted not only for public comment but to rigorous peer review process,” he said. “We’ve had meetings with the science council to talk about how we can bring the Delta science process that has been created and honed to bear on this scientific basis analysis.”
Mr. George said that there is a different process required by statute as to which the State Water Board has a contract with the University of California Berkeley for a peer review process. “It is a very less open process and it’s designed to shield those who are doing the review from lobbying and from public interaction as they are supposed to be independent,” he said. “We’re trying to figure out how to take that process which is required by statute and contract and now marry it with the newer process that has a lot more public input and is much more transparent because we think that process ultimately results in a better document and in more credibility for that document.”
Jessica Pearson clarified that a review by the independent science board would be something separate altogether, but they can facilitate an independent peer review as is recommended in the science plan.