JUSTICE RONALD B. ROBIE: The State Water Resources Control Board: How it All Started

Justice Ronald B. Robie has had a profound influence on the development of water and environmental law in California.  Justice Robie served as a judge since 1983 and joined the Court of Appeal in 2002.  While he was a student at McGeorge in 1967, he served on the legislative staff to the Assembly Committee on Water, and had an integral role in conceptualizing and passing the 1967 legislation establishing the State Water Board.  In 1969, Justice Robie was appointed to the State Water Board; he later became the Director of the Department of Water Resources.  After joining the third district Court of Appeal, he authored many key water law decisions, including a tour de force opinion in the 2006 Coordinated Cases opinion.

At the McGeorge Water Law Symposium 2017:The State Water Resources Control Board Turns 50 held in March of this year, Justice Robie gave this keynote speech, explaining how the State Water Board came into being.

Justice Robie, in his own words …

“It began with a recommendation by the state’s “Little Hoover Commission” in the Spring of 1965[1] that the functions of the then-existing, part-time “State Water Quality Control Board” (which included nine public members and five State Department heads, including the Department of Water Resources) be consolidated with the “California Water Commission,” then and still a unit of the Department of Water Resources.  The Regional Water Quality Control Boards under the scheme from the Hoover Commission would then be under the Department, not the Water Quality Control Board.

While this proposal was welcomed by the Department of Water Resources, it was severely flawed.  Since the Water Quality Control Board adopted water quality control standards under the Federal Water Pollution Control Act (the 1965 act), and since the Department was to be a project operator and diverter from the Delta, it seemed to me that this would be the fox guarding the hen house.

The Water Committee held “interim” hearings on the Hoover Report in the fall of 1965.  There was a lot of opposition to the Hoover Commission Report.

As the single staff member of the Assembly Committee on Water since 1960, when I arrived as a Legislative Intern, I talked with the chair of the committee, Assembly member Carley V. Porter of Compton, who was also the author of the Burns-Porter Act which financed the State Water Project; I gave him a proposal.  Since water quality and water rights are so related, particularly in the Delta, I said, “why not merge the 3-member, full-time State Water Rights Board with the part-time State Water Quality Control Board instead?”

Legislators from the Delta in particular, such as Senator George Miller, had expressed concerns to me about the State Water Project’s Delta operations.  The Project hadn’t started yet, but they were concerned about the limited water quality jurisdiction of the State Water Rights Board over water project operation.

It is important to remember, at this time the State Legislature had not yet passed the “Porter-Cologne Water Quality Control Act” – that would come until in 1969; Congress had not passed the “Clean Water Act”  -that would not come until 1972.  We were operating under the 1965 Federal Water Quality Control Act.

Mr. Porter, if you knew him, was a very cautious guy.  Although he thought it sounded like a good idea, he was frankly nervous about going in such a different direction from the Hoover Commission.  So he decided we would float my proposal as a “staff recommendation” and see what happened.

We published it rather simply; we mimeographed it, and I wrote a little blue report — “A Proposed Water Resources Control Board for California — A Staff Study.”  This report was released in July 1966[2], together with a 75-page draft bill prepared by the Legislative Counsel.  The report concluded that the Hoover Commission “tended to oversimplify the functions of the State Board and to overlook the primary responsibilities of the regional Boards.”[3]

We also disagreed with the Hoover Commission conclusion that Water Quality Control policies be established by the Department of Water Resources, subject to review by the Water Commission.  In retrospect, can you imagine how that would have worked out? The staffs of the State and Regional Boards would have become staff of the Department of Water Resources.  Needless to say this proposal was attractive to the then-Director of Water Resources, Bill Warne, a man who I had great admiration for but had relished expanding the Department’s authority.  A bill was introduced incorporating the Hoover Commission’s proposal which the Department enthusiastically supported.

Our Staff Report emphasized “The Need for an Independent Water Pollution and Water Quality Agency.”  It pointed out that when the Department was created in 1956 the Legislature rejected putting water pollution control functions in the Department.  I’m not sure too many people remembered that.  There’s a tendency to forget quickly in this business.

Actually the Administrator of the Resources Agency testified before our committee in October 1965 and agreed that designating the Department to set water quality standards “has met with substantial objection to the effect that the Department as a water project developer and purveyor has at the same time the obligation of constructing a master drain for waste waters in the San Joaquin Valley “ so he was focusing on the drain, but the legislators from the Delta were focusing on the Delta.  And the administrator at the time pointed out that this would create  “a conflict of interests between the different functions which the Department must perform. . . .  It seems to me [the administrator testified] that the recommendation of the Little Hoover Commission, if acted upon, would place the Department in a situation which could reflect adversely in the questions of the public’s confidence in its project planning.  I think this must be avoided at all costs.”[4]

We were sort of on a roll now; we had some support.  The then-Chair of the California Water Commission, Ralph Brody, who was the Deputy Director of the Department and Governor Brown’s primary water advisor told the Committee “we must strongly point out that the State of California no longer can view the problems of water supply and water quality separately as it generally has up to now.  It has become increasingly apparent that all facets of water development must be viewed from an overall vantage point.”[5]

Ralph said that before he became head of the Westlands Water District, but it’s amazing that people were expressing these views so early, and such a long time ago.  Now I was, of course, expected to drum up support for our proposal.  I had no trouble with the Water Rights Board, which would be greatly enhanced by the proposal.  In fact, they were a little afraid that they would now come out of the shadows.  But the Water Quality Board was another thing.  Trying to be nice, I kept telling Paul Bonderson, the Executive Officer of the Board, what great work the they had done.  His response:  “Well if that is true, why abolish us?”  I finally had to just say you’re not up to the task.

But I was gratified for the widespread support for the staff report conclusion that “The record is clear that the Legislature does not wish to consolidate this [water quality] work with the Department of Water Resources.”[6] Having tested the waters and lobbied everyone I could find, at the 1967 session, Mr. Porter introduced a bill incorporating the staff recommendation to create the Water Resources Control Board.

I will never forget the Legislative hearing in 1967 when the two bills were on our Committee’s agenda at the same hearing.  After listening to various witnesses, the Committee, of which Mr. Porter was fortunately the Chair, approved his bill and defeated the bill incorporating the Little Hoover Commission recommendation.  Of course, it was smooth sailing from then on and Mr. Porter’s bill went on to Senate approval and was signed by Governor Ronald Reagan. The law was operative December 1, 1967.[7]

I might point out that Assembly Bill 163 passed both houses unanimously, the Assembly 73-0, and the Senate 32-0.

Thus, California became the first state (and still the only one) to formally unify the consideration of water rights and water quality.  A single, full-time, five-member, independent Board administered both functions.  My friends in other western states with traditional, appropriative water rights systems still think we are a little daft for going in this direction, and they still talk this way.  Very distinguished water leaders in other states can’t understand how we make it work, but I am absolutely convinced it was the right decision, and I think 50 years of experience with the Board has proven that.

By the time the Board became operational, Mr. Porter and I had a good working relationship with the then Executive Officer of the Board, the first one, Kerry Mulligan.  We discussed with Mr. Mulligan the need for an updated state water quality control act to go with the new Board.  Thus, Mr. Porter, at the suggestion of Mr. Mulligan, wrote to the Board in February 1968 calling for an “in depth review” of our water quality law.  His letter noted that “we are indeed in different times and facing different situations than existed in 1949 [when the Dickey Water Pollution Control Act was enacted] with regard to protecting the environment.”[8]

He actually used the word ‘environment’ back then, and it’s interesting to note, if you recall history of the Dickey Act, prior to the Dickey Act, pollution control was in the Department of Health.  And there were a lot of people who thought the Department of Health was too hard nosed.  So the motivating factor behind creating the Dickey Act was to get out from under the power of the Department of Public Health and diversify it by putting it in regional boards with these various interests, including people who pollute, and so the water quality program in 1949 and the reform, if you think about it in the theoretical way, was a backward move.  And I documented some of this in the law review article I wrote for the Pacific Law Journal back in1970.  So it was very interesting that we went from the 1949 hard nosed operation, and softening it up a bit, and then finally coming in 1967, asking to review the whole idea and decide what we should be doing.

The State Board responded to Mr. Porter’s letter by creating the Study Project — Water Quality Control Program headed by the respected first Director of the State Department of Water Resources, Harvey O. Banks.[9] Even though he was the Director of Water Resources, he was a very broad thinking guy and he was a good chair to bring all the diverse people together.  The study project, and I should say Jerry Gilbert on the project, as well Bill Dundee, so both contributed significantly to that effort.

The Project used subcommittees consisting of the full panoply of interests affected by water quality –farmers, environmentalists, industrial interests, and urban entities to name a few.  They had regular meetings.  The Board devoted a lawyer full time to the Project and Dundee was the engineer.  I was fortunate to be an ex-officio member of all the subcommittees, and it was sort of nice.  I had some influence on the outcome.  When they had a proposal, they would say, What would Mr. Porter think of this?  And I’d give my idea, so we did a pretty good job of having the recommendations be really progressive, rather than just sort of a mush because you had so many different interests involved.

And when the final report was released in 1969,[10] the Board made a few changes improving the recommendations and the results were then introduced in the 1969 session of the Legislature.  The author of the bill in 1969 was Assemblyman Porter and the principal Senate coauthor was Senator Gordon Cologne, who was then Chair of the Senate Water Resources Committee, and later became an appellate court justice.  On July 14, 1969, Governor Reagan signed the Porter-Cologne Water Quality Control Act into law.[11]  Once again, Assembly Bill 413, which was then part of the Governor’s legislative program, passed both houses unanimously.  Assembly 67-0, Senate 33-0.  It’s amazing, those numbers don’t exist much these days, particularly on something as controversial as water quality.

Mr Porter bragged about the fact that this new law was the result of five years’ work by the Assembly Water Committee and the special study undertaken by the State Board.

While the bill was moving through the Legislature (in fact between the Assembly vote and the Senate vote) a significant change in my status took place.  In April 1969, Governor Reagan appointed me to be the attorney member of the Board.  Fortunately for me I had joined the State Bar of California in December 1967, so I qualified for the job!

I had a great time in nearly 9 years with the Legislature and had a chance to play a significant role in major changes in how water quality and quantity are regulated.

With the Board now established and the Porter-Cologne Act in place, Professor Harder asked me to comment on some of what happened during my nearly 6 years as a member of the Board.

Before I go there, however, I would like to acknowledge the second and third Executive Officers of the Board, two really great engineers- Jerry Gilbert and Bill Dundee; we had a really good relationship.  I was asked how big was the Board at the time, and we all lived on one-half of the 11th floor of the Resources Building and the supply room was right across from my office.  If I wanted a pencil, I just went over and got it.  Now the Board is giant, you have to fill out requisitions.  It was very small, we all got along really well, and we worked very closely together, the board and the staff.

These were heady times for the new Board.  First it embarked on the first exercise in requiring the State and Federal water projects to meet what we called water quality standards in the Delta which regulated releases to protect water quality.  Now those water quality standards were not federal water quality standards, they were standards in a water rights decision.  The process was lengthy, with 90 days of hearings before the release of Decision 1379 in 1971.  Relying on the reserved jurisdiction in both SWP and CVP water rights permits, new conditions were imposed to protect uses in the Delta.

The decision was unanimous except the Board Vice Chair Jerry Dibble dissented from the key requirement that water stored by the projects must be used to meet the requirements of the decision if natural flows are not sufficient.  This is the heart of the impact of the decision and it was vindicated in the so-called Racinelli decision by the Court of Appeal for the First District in 1986, United States v. State Water Resources Control Board (1986) 182 Cal.App.3d 82, authored by Justice Racinelli.  If you cannot require water previously stored by the projects to meet water quality standards in the Delta, you simply can’t meet the standards.

When D. 1379 came out, however, there was still one missing link in the Board’s effectiveness — the United States through the Bureau of Reclamation did not have to comply with the Board’s release requirements.  They appeared before the Board as a matter of comity; since they both operated projects in the Delta, it was nice that they did that.  In fact, in the drought of 1977, as then Director of DWR, I had to release state water to make up for releases for which the Bureau of Reclamation would not release to meet the then existing standards in D 1379, and I got sued for that of course.  In 1978, the United States Supreme Court resolved the issue in our favor in California v. United States 438 U.S. 645 (1978), in which they said the federal government must comply with state water right laws in general.

But back to the early history of the Board.  In 1972 I had the opportunity to work with the U.S. Senate staff –Leon Billings and Tom Jorling — on the Clean Water Act which passed the Congress in 1972, then called the Water Pollution Control Act amendments of 1972. We were able to get several provisions into the statute favorable to California, including the requirement that federal agencies must comply with the act.  We had long running disputes with the Navy over its discharges from ships, especially in San Diego Bay and San Francisco Bay.

There was one other thing we got involved in the law … We also slipped into the federal law the conflict of interest provisions that there today, which severely limit the Board membership on both the regional and state boards, and for people who have interest in polluters.  It always bothered me that California had a system where you institutionalized people who had a vested interest in pollution regulating pollution, and so behind the scenes, because we were back there working on it, we managed to slip that provision in which is still there.  And from my anecdotal history with various people I’ve talked to over the years, that has resulted in many people not serving on the boards when they otherwise wanted to, so if anybody asks you where that provision came from, it came from California; that’s the state that had the greatest interest in that. The California people had some influence back in 1972.

It was also very nice for California to be the first state to be delegated to administer the new federal NPDES permit program.  We amended the California law to incorporate the differences in the federal law, and we had a ceremony in Washington with EPA Administrator William Ruckelshaus, so California was the first.  We wanted to be the first with everything.

There were two more important water right decisions during these early years of the Board.  The first was D. 1400 in 1972 which established minimum flows for recreation in the lower American River through Sacramento.  There is a story here.  The parties to this proceeding were the United States and the East Bay Municipal Utility District.  Intervening was the Save the American River Association, a group of non-lawyers, they still exist in Sacramento, who were very enthusiastic and knowledgeable about environmental requirements for the river.  I met with a couple of them and I encouraged them to get an attorney.  I said, if you’re going to be appearing before the Board, you’re in the big time, you’re against the Bureau and the District and you need to have a lawyer.  So they signed up John Bryson, from Portland, a lawyer and cofounder of the Natural Resources Defense Council, and he presented their case to the Board.  The minimum environmental flows which were ordered are still the requirement today.  I was so impressed with John I encouraged Governor Brown when I was Director of Water Resources to appoint John to replace me as the lawyer member of the Board, which he did.  As to John, the rest is history.  He went on to become a member of the Public Utilities Commission, later became president of Southern California Edison, Edison International, and Secretary of Commerce.

The second early major decision was D. 1422 in 1973, the New Melones decision, which preserved for as long as possible the whitewater portions of the Stanislaus River. Although it didn’t have a lasting effect, it at least sent a message that the Board was concerned about values other than water supply.

Those early years of the Board were an exciting time for me indeed. Even though I went on to head the Department of Water Resources for eight years beginning in 1975, I continue to believe this unification of water quality and water rights was and is the right way to go.

And during the years that I was Director, I supported the Department as an active participant, not one fighting the Board but working with the Board, because we’re all part of the state of California, and I think that was really important and made some of the water contractors grumpy from time to time, but it was I think the best thing to do.

Thank you so very much.”

[1] Commission on California State Government Organization and Economy, “The Use of Boards and Commissions in the Resources Agency,” April 1965 (hereafter, Hoover Report).

[2] This was just as the Legislature was becoming a full-time body.  My report was issued by the “Interim” Committee on Water.  In 1967 the Legislature began operating nearly year round, every year.

[3] Assembly Interim Committee on Water, A proposed Water Resources Control Board for California, July 1966 , p. 9 (hereafter, Staff Report).

[4] Transcript of Hearing of Assembly Interim Committee on Water, October 26-27, 1965, p. 15.

[5] Ibid. p. 20.

[6] Staff Report, p. 18.

[7] Cal. Stat. 1967, ch. 284. Assembly Bill 163 passed both houses unanimously (Assembly 73-0; Senate 32-0).

[8] Journal of the California State Assembly 3003-05 (May 13,1968), (Reg. Sess. 1968).

[9] The background on the Study Project and a comprehensive discussion of the Porter-Cologne Act which resulted from it is found in Robie, Ronald B., “Water Pollution:  An Affirmative Response by the California Legislature.” 1 Pac. Law J. 2 (1970).

[10] California State Water Resources Control Board, Recommended Changes in Water Quality Control, Final Report of the Study Panel, (1969).

[11] Cal. Stat., 1969, ch. 482, Assembly Bill 413 was part of the Governor’s Legislative Program.  It passed both houses of the Legislature unanimously.  (Assembly 67-0; Senate 33-0.)

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