FELICIA MARCUS on the State Water Board 50th anniversary: ’50 is the new 30’

Felicia Marcus was appointed to the Board by Governor Brown in 2012, and designated as the Board Chair shortly after.  Ms. Marcus has had a long and diverse history in water and natural resources, having previously served in both federal and local government positions, as well as with several environmental organizations.  At the McGeorge Water Law Symposium 2017:The State Water Resources Control Board Turns 50 held in March of this year, Felicia Marcus gave her thoughts and perspectives about the State Water Board in her speech titled, “50 is the new 30.”

Ms. Marcus had praise for Justice Robie’s genius in seeing the value of putting water quality and water rights in the same institution and under the auspices of a five-member full-time board.  “It has the common sense value of dealing with issues that are integrated in reality, and it has the intellectual value of forcing folks to deal with the complexity of that reality, even if it’s challenging, and it is,” she said.  “The Board framework adds more than a dash of humanity and transparency to public policy decision making, which in my mind is an essential ingredient.  You can call it the secret sauce if you will.”

She said she didn’t exactly know why she came up with the title, ’50 is the new 30’.  “I think I wanted to convey that we are still a work in progress and that we’re energized as we take on responsibility, new and old, that may have alluded us before for a variety of reasons.  So Justice Robie, your brainchild is growing up but not all grown up, yet.  We are in a phase of coming into our own and hitting our stride.  But I think we’re mature enough to try and do all of that in concert with others with more humility than we get credit for and with an open mind, and also with the energy and drive to do our best to help navigate the challenging ever churning and changing waters of California water.

With respect to combining water quality and water rights, Ms. Marcus said there’s a quote attributed by many to Paul Bonderson: ‘Just as you would not separate water into its component parts of 2 parts hydrogen and 1 part oxygen, and have a separate regulatory board for both, likewise separating the water rights and water quality functions made just as little sense.’

It makes logical common sense, and it’s actually surprising in a way that more states haven’t followed suit,” she said.  “On the other hand, other states, with some exceptions, also have not developed a robust public trust doctrine, nor a provision of the constitution that explicitly states that water should be used in a reasonable manner, both of which also makes sense to regular people.  They also don’t have the expanse and the vision of Porter Cologne, and no one has the Bay-Delta thicket of issues and challenges that we face that make this more obvious than it might be elsewhere.

Ms. Marcus said she’s always been partial to Justice Sandra Day O’Connor’s words in describing why section 401 of the Clean Water Act encompasses quantity as well as quality in a case involving the State of Washington where she wrote that the distinction between quantity and quality is an artificial distinction: ‘In many cases, water quantity is closely related to water quality, as a sufficient lowering of the water quantity in a body of water could destroy all of its designated uses, be it for drinking water, recreation, navigation, or as here, as a fishery.’

I’ve always assumed over the decades that it simply made more sense to have people administering water rights, who understood that quality and quantity are both essential to human and aquatic life, and that considering them in separate vacuums would result in sub-optimal decisions on behalf of Californians,” she said.  “They are clearly not one and the same, but different characteristics of water that both matter enormously in the real world.  To put them together in one entity, even if applying separate statues and rules or even decision making methodologies just makes sense because the people making both sets of decisions are aware of the full implications of those decisions at minimum.”

The periodic updates to the Bay Delta Water Quality Control Plan are the most obvious example where having the responsibility for and expertise in dealing with both water rights and water quality makes logical sense and avoids overlapping layers of jurisdiction, Ms. Marcus said.  “It’s extremely hard to do so, even with joint expertise and authority, but it’s really impossible to do so with only one tool or the other.  California’s water code demands that kind of integration with every decision on a water rights change requiring not only that other legal users of water not be injured, but that fish and wildlife also not be harmed.  That’s a special kind of water right system to begin with that requires an ability to understand fish and wildlife too.”

A similar bigger picture but intensely practical thinking was at work in 2013, when the Governor proposed and the legislature chose to move the state’s regular drinking water regulatory program to the state board, which was implemented in 2014,” she said.  “The notion of having one agency responsible for water from source to tap sharpens the mind and a sense of responsibility for the whole.  If you’re dealing day to day with whether Californians have safe drinking water, you have a keener appreciation for the need to keep that water clean through prevention as well as treatment.”

The move recognized the value of one-stop shopping for communities for their funding and their regulatory needs which is helpful to all communities, but particularly helpful for small or disadvantaged communities.  Why go to one agency for wastewater regulation and funding, and another one with a different language and a different set of players for drinking water.  And in an era where water recycling is and should be a bigger and bigger part of our water resource management, makes even more sense to have rules and permitting and technical assistance in one shop, versus having to navigate and negotiate with two agencies on each permit.”

We’ve been streamlining recycled water through the course of the drought, and we’ve put out hundreds of millions in grants and low cost loans to get that program off the drawing board and into construction in many places around the state.  I think our focus on that has sharpened because of the dual nature of what we do and the responsibility for a more holistic view of water than other folks might have.”

Greater expertise and experience with the value of both water quantity/water supply issues, and water quality has also helped us be far more open to creative solutions that are multi-benefit approaches in urban stormwater management as we implement our traditional water quality role,” Ms. Marcus said.  “We could implement out stormwater quality regulation duties simply by mandating meeting a numerical limit and force cities across the state to treat all the water that runs off the land and streets carrying hydrocarbons, urban pesticides, trash, dog droppings and anything else when it rains or when folks overwater their lawns or hose down their driveways.”

But instead of simply focusing on our duty to deal with water quality alone, we’ve supported and opened the door to incentivizing stormwater capture projects that use greening, slowing the flow, and other infiltration methods – projects that take a lot of time and money and require the challenging work of bringing people together across traditional silos of geographies and functions to dream bigger and to get more bang for the buck by integrating flood control, water supply, water quality, and urban greening.  In this case, we were open to other methods of achieving water quality goals that would also help with water supply and other important needs.  That sensibility is in our DNA in part because our mission crosses the water supply and the water quality worlds.”

The value of this combined expertise and these tools became even more apparent during the drought, as we had to make decisions to adjust water rights conditions to deal with the worst drought in modern times,” Ms. Marcus said.  “As we were just forced to think about how to deal with it while other folks were staying in some narrow view of the world, blaming others and the usual stuff that goes on by the stakeholders in what is a very small world, thinking about their small world rather than thinking big picture about how things affect real people in real places and in real time.”

Ms. Marcus said that the board had to make these decisions while taking into account fish and wildlife needs in both spring and fall, water quality needs, particularly maintaining salinity control in the Delta, and water supply.  “Much of the headlines and talking points out there made it sound as if it were all about fish versus farms, or Delta exporters versus Delta farmers, or it was all about cfs or acre-feet in absolute terms versus what was actually happening out there and how that water might be used and what it did,” she said.  “Actually a great many of the choices were based on water quality concerns.  We knew and we acted based on our awareness that had we lost salinity control in the Delta, any water that was there would be useless for urban and agricultural use in or south of the Delta with an impact on millions and millions of people, whether urban or farmer.  We didn’t get everything right during the drought, nor did our other federal and state colleagues, but we were able to bring insight and effort on behalf of all aspects of the water picture far better than if we didn’t have the broad portfolio sensibility or awareness.”

Without the centering capacity that the board forum allowed, it brought all parts of the picture together, it could have been chaos.  There would have been more players fighting with each other even within the state family.  It would have been more challenging to try and figure out how to make the best decisions we could under challenging circumstances, and it certainly would have been far less transparent, and the transparency that the Board offers and the stakeholder engagement offers makes for far better public policy decision making.”

Similarly, because we had so much more engagement with the tragedy that befell communities whose wells ran dry, as well as our familiarity with those that for years have suffered from contaminated supplies, I think we were better able to keep level heads and perspective about how much was at stake,” she said.  “In each decision we made, it gave us perspectives.  As folks complained about many things, it helps to have the sense to be grateful if clean water comes out your tap.”

Ms. Marcus noted that because of the merging of the drinking water program with the water quality program and the water rights system, they were able to come up with innovative tools to help with the issue of how to deal with small communities that have junior water rights that would otherwise just be cutoff.  “We came up with a way to order those communities to conserve and only use what was necessary for health and sanitation that our drinking water folks came up and that kind of solved the problem for us.  I’m oversimplifying but again, putting more facets of the picture in one place allows for more creative tools but also a greater awareness of the need to manage all of these things.”

Ms. Marcus said it was brilliant to put this complex and multi-faceted issue in front of a five member full time board because that’s part of the strength of the institution.  “It’s one thing to understand the issues of water rights administration with its long and complex history, and it’s another to understand water quality issues with their technical and myriad source and solution complexities.  Those are both good.  Knowing both helps do a better job on each of them, there’s no question.  It requires technical and legal knowledge of varying kinds, which is part of why some of our board seats are designated for an attorney or engineers or water quality expertise.”

However, what’s better, and more profoundly important is bringing humanity into this process,” she continued.  “Developing solutions for complex problems fraught with conflict, controversy, and confusion, because the decisions actually matter and have an impact and are just complicated, requires technical knowledge and skills. But to do it well requires common sense and real world experience and compassion for the legitimate needs and views of all Californians.  Having five humans bringing different expertise but also different real world experience to challenging public policy decisions makes for better decisions that have a greater ability to be fair and thoughtful and durable.”

Part of our job is to open the doors and the windows of the agency to the outside world to invite people in; and to go out in the world to learn about what folks are doing, struggling with and trying to accomplish, and bringing that sensibility back in to our decision making.  It makes for more grounded and thoughtful decisions.  We help the public have a real voice in decisions that affect them, and we have the duty to hear them.”

People tend to like it when we listen to them – not necessarily so much when we listen to others too, however,” Ms. Marcus said.  “Nonetheless at the end of the day, we usually get pretty good marks and folks can see how we’ve integrated stakeholder input.  We also listen to each other, which is very important given our varied expertise or even just our varied judgement.  We listen to each other because we may have had a chance yesterday to have a realization about something that can be brought into the picture or talked to somebody that we haven’t that we’ve learned something of value and perspective to bring to the decision making.  This may not be the most efficient system out there, but its one more grounded in reality than many might expect precisely because we have the time and the mission to listen.  This is my second time on such a Board and I have to say it makes for far better decisions overall and over time than any other I’ve seen.”

The combination of the human ingredient and the integration of water rights and water quality has its greatest expression in the Board’s work on the update to the Bay Delta Water Quality Control plan.  “In the Bay Delta construct, we are proposing to take our responsibility and update these standards using flow which is our tool and is a key need for fish, but also offering an olive branch to get folks on the ground and in the real world to come together and deal with those non-flow real world things, whether it’s production of food or habitat or even timing of the flows that will help the fish sooner, better, and in a more durable way.”

I think it’s a construct that appeals to us precisely because we have a board that has varied experience out in the world and has a track record of being problem solvers on the ground.  I think we’re also focused on trying to see results for fish in our lifetime or sooner, or that can be implemented sooner than the perfect piece of paper that will then go through its litigation and other history, so we’re trying to bring reality into this and try and solve some problems.  It’s a very important thing and I don’t know that that would happen without the construct that we work under.  We’re focused on making that real progress on the ground with people and making a real difference, versus just getting it right on paper.”

Ms. Marcus emphasized that the Board is determined to act and fulfill their responsibilities but the shape of what it is will depend on many people in the room.  “For us, the ideal is to do what’s good for fish and wildlife and the people who rely on them at least cost to those also have grown to rely on that water for beneficial uses.  It’s as simple as that.  If we can get as close to that as possible, we would have done something really good, but it’s not something we can just order people to do. It takes people being willing to work with us as well, so hopefully it will happen.”

The Board is up to a lot these days, Ms. Marcus said.  “We’re set up to not only administer statutes and funding, whether water rights, the drinking water program, water quality, funding programs that cost you billions in grants and loans, or the newer authorities, but we’re set up to integrate across programs.  We’re in a good position to be comfortable with the complexity and synergies between different tools that are essential to respond to what’s coming at us in the future as opposed to the day to day that we’ve done to date.  In other words, that comfort with juggling and integrating across issues that our structure fosters is good, because it’s what we need to do to respond to climate change.”

Just as the solid waste and energy worlds have diversified and integrated efficiency and alternative management models over the past few decades, water is finally poised to become more thoughtfully and efficiently managed to meet the challenge of a changing and more constrained world,” she said.  “The conflicts and challenges we’re struggling with now will seem like a picnic, compared to what we’ll face in the next decades if we don’t act differently towards water.  As temperatures rise, as more precipitation arrives as rain rather than snow, we will more frequently lose our largest reservoir, which is our snowpack, which replenishes our reservoirs and our rivers and streams and groundwater basins as it melts out over the spring and summer, if we have it.”

As we seemingly quibble over every action, the Mack truck of climate change is coming at us; we saw what that looks like during this drought and it was not pretty, she said.  “It promises to happen more often as temperatures rise, and we know that our population will continue to grow.  We also don’t know how long the next one will be, and we don’t know if this year is just a punctuation mark in our ten year drought.  We can’t know.”

We know that we value a lot of things.  We value our agricultural capacity and our people that are unique in the world.  We also value our fish and wildlife, and we value our communities, drinking water and economic needs for water as well.  Californians need, want, and deserve attention to all of them, so we need to use all our tools, technical, legal, legislative, financial, and human – to be better prepared to protect all of them in the face of the climate change challenge.”

Ms. Marcus said the administration’s guiding light or road map has been the California Water Action Plan, which is an all-of-the-above strategy.  “Instead of saying that conservation and recycling will save us, or that storage and conveyance will save us, we’re saying, we need to do all of it in the appropriate places, given the variety of water supply and water rights and all those other differences across the state.  We need to employ all of those if we’re going to have a chance of making it towards the future, and if we do, we can.”

Groundwater management is probably the most important piece because the groundwater basins are the only thing big enough to capture to make up for the snowpack we’re going to lose, she said.  “It’s essential to the future, keeping our eye on the future and keeping the past in an important place because it’s important, but putting it where it belongs as something to inform us, not something to guide our future.”

The California Water Action Plan also includes storage of all sizes, above and below ground, protecting ecosystems ahead of the endangered species curve, preparing for drought, and upper watersheds.  “All of it requires integrated thinking and we’re fully bought in,” she said.  “I think that was easier for some of us than others, because of the nature of our framework and because we’re comfortable with embracing complexity and being able to combine different tools and issues.  The Water Action Plan has us working on all cylinders, not only to get stuff done but to change the discourse, to let the talkers talk and to hear them, but to focus on and reward the doers.  We’re a team member in all of this and we’re focused on getting things done and staying in motion.”

Because the State Water Board provides a frequent public and transparent forum for developing programs and making decisions, the Governor and the legislature have given them more authority, which has kept them hard at work.  This includes the move of the drinking water program, the State Water Board’s role in groundwater management as a backstop and to provide technical assistance, oversight on groundwater monitoring of oil and gas in aquifers, and cannabis.

I want to say we appreciate the repeated votes of confidence, but if I sound a little tired in how I say that, there’s a reason.  We do appreciate the repeated votes of confidence we’ve gotten in the form of more authority, responsibility, and staff to tackle these issues the past few years, and I do have to confess that there have been moments that appreciation is really exhausting, but we are honored and proud to step up.  We get more brickbats than bouquets in this work and the reward is frankly in having the opportunity to try and make a positive difference, so we appreciate that very much.”

We’re also trying to set the bar high for ourselves to serve the people who need us most through implementing the human right to water direction of the legislature and coming up with a directive to all of our staff to try and integrate that and prioritize that in all we do,” Ms. Marcus said.  “Similarly just last week, to prepare and be mindful of the Mack truck of climate change coming at us, the board did adopt a climate change resolution so that we are thinking about how to integrate that into all we do because it is happening and we need to deal with that and a host of other things.”

Our goal is to move and make decisions to avoid the stasis that so often sets in over time and in the wake of forces that seek to stop rather than to shape action,” she said.  “We’re in motion with an eye to preparing for what’s coming at us and looking for creative solutions versus refighting yesterday’s battles over and over and over again, which is more common in the water world than anywhere else I’ve ever been. … it is a very big difference in the water world, even with some of the smartest most committed wonderful good-hearted people on all sides of the equation, there is a cultural norm and bias towards repeating ourselves louder and slower across the decades, rather than just sitting down at the table and getting to work, coming up with better solutions.  We’re hoping to break that stasis.  We want people to take yes for an answer on a lot of these things.”

Finally, 50 is the new 30,” Ms. Marcus said.  “The built-in breadth that we deal with because of our varied mandates keeps us flexible and adaptable, which helps because the world isn’t static.  There’s a lot to be said for bringing that varied expertise to public policy making.  You get a crash course in it just by virtue of dealing with the myriad aspects of the board once you get to the board.  That experience brings maturity I think in life as well as decision making and I think it has been the staff and the board being more mature and professional than anywhere I’ve ever been.”

Here we are with a lot on our plate and focused on making a difference in a thoughtful way in the world and being given more and more authority.  Sounds kinda like our thirties, doesn’t it?  So how do we do it?  By being better able to listen to and work in partnership with whoever will partner with us.  Listening to but not paralyzed by those who won’t work with us.  There’s a lot to do to improve how we deal with water across the spectrum and administering our complex water rights system to the extent we can we the tools we have. … I think we do a lot with a little.”

There’s a lot to how we deal with water across the spectrum, how we administer our complex water rights system to the extent we can, while continuing our work on water quality in a way that can recognize the multiple benefit approaches that can achieve the best results for people while taking our traditional regulatory and enforcement authority seriously; implementing our responsibility as drinking water regulators while also spending a lot of time, heart, and money helping communities get drinking water, rather than simply regulating them which is the old model and the original tools we were given.”

We’re also actually capable of playing whatever roles we are given, whether for technical assistance, financial management, tough guy backstop, 800 lb. gorilla, or impartial umpire,” Mr. Marcus said.  “Sounds like what it means to be an adult, right?  Of course, we still have a long way to go to meet the needs out there, and a lot of maturation left to go, but I like to think that we’re hitting our stride and willing to take responsibility to act but to act thoughtfully and maturely, centered by what feels most right based on the facts and stakeholder input, versus tacking back and forth, hiding from challenges, or allowing the forces of stasis to overtake us.  We’re humbled by the responsibility we’ve been given, including all that new faith being put in us, being given more and more responsibility, but we’re ready to take it on and try new things and new approaches, and while we love bouquets as much as anyone, we can handle the brickbats, because we’re focused on making progress in the real world where the real Californians and real people out there are, versus simply focusing on the closed and small arena right around us, which the 5 member board really helps to make happen.”

It actually sounds as much like a 50 year old as a 30 year old, or a 60 year old.  I actually looked up 50 is the new 30 last night and discovered that in a recent poll, the age that most people would want to be frozen at was actually 50, for reasons that many in this room can appreciate.  I’m thinking maybe it’s because one has the perspective and experience to handle the brickbats with a little more grace.”

So happy birthday, State Water Board,” said Ms. Marcus.  “Thank you, Justice Robie, and Messrs Gilbert and Dundee, and everyone else who helped, and thank you to all of you for helping us and joining us on this most important voyage that we’re all on together.”

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