Report has good news on Delta water rights and measurement of diversions, but not so good news in the South Delta
At the May meeting of the Delta Stewardship Council, Delta Watermaster Michael George gave his quarterly update on the activities of his office. He had good news about water rights and measurement of diversions, but had bad news about the South Delta. He began with an update on the effort to negotiate voluntary agreements as an alternative to the Bay Delta Plan.
UPDATE ON VOLUNTARY AGREEMENTS AND THE BAY-DELTA PLAN
In December, the State Water Board adopted the first phase of the Water Quality Control Plan update which set flow objectives for the San Joaquin and three of its tributaries, the Tuolumne, the Stanislaus, and the Merced rivers. In adopting the phase 1 objectives, the Board was briefed on voluntary agreement negotiations that were in progress; although they voted to adopt the new objectives, the Board was clear that they would still consider those agreements as a possible alternative to implementation of the adopted standards. On March 1st, more details on the voluntary agreements were submitted to the Board.
“There is a very robust process in which the California EPA, Resources Agency, as well as Food and Ag and the Water Board really are trying coordinate a cohesive state policy to see if it is possible to take those voluntary agreements and weave them in to the water quality control plan program of implementation,” Mr. George said. “Everybody recognizes that the big advantage, if we are able to do that, is that we’ll get real improvements starting sooner, because there is at least the hope that we’ll short circuit and avoid a certain amount of litigation that is inevitable with the adoption of anything as comprehensive as the water quality control plan.”
It’s an ongoing process that is taking a lot of effort of all those agencies right now, he said.
GOOD NEWS: WATER RIGHTS AND MEASUREMENT OF DELTA DIVERSIONS
Mr. George then discussed the progress being made with respect to water rights and measurement of water diversions in the Delta.
IMPROVING WATER RIGHTS DATA
Mr. George and staff have been working on improving the information on senior water rights in the Delta. Much of the in-Delta water demand is either riparian or pre-1914 water rights which are outside the administrative jurisdiction of the State Board and there was very little information on those rights. This lack of information became a problem during the height of the drought in 2014 and 2015.
In 2015, the Board issued an information order where for the first time, those who claimed these senior water rights were asked to come forward with the documentation to support them. The Division of Water Rights worked with the data that came in from the information order as well as mining a lot of other data sources, and built a taxonomy of senior water rights in the Delta. There is an ongoing process of crowd correction with claimants and others which is dramatically improving the understanding of those water rights.
Mr. George said the process is helping everyone to understand in-Delta water demands and providing an opportunity to correct misconceptions. “One of the best examples of that is the misconception about overlap between pre-1914 and riparian rights,” he said. “So we’ve published a memorandum that states our view of what the law is, and we’re trying to help people as they report their water use to implement those distinctions and to get better response.”
They are now getting annual statements of water use and diversions which is improving the data as well. “The value of this is really for the water user community to know what’s out there, what the demands are, and we’re already seeing that as we’re making that information available, we’re finding water users in the Delta starting to try and shore up their water rights potentially by entering into water supply contracts and other mechanisms that indicate that they are taking this data and using it to better implement their drought response plans.”
COMPLIANCE WITH ANNUAL REPORTING REQUIREMENTS
The chart shows over the past three years, how many people are filing their reports on time and how long it takes to get to 100% compliance.
“I’m pleased to say that as of May 20, we had 100% compliance in annual reporting by licensees in the Delta,” said Mr. George. “You can see from the number there, there are only 327 licenses in the Delta compared to 2653 senior water rights, but getting 100% compliance is pretty remarkable in a pretty short period of time.”
He accredited that to the partnerships they have developed with the water agencies in the Delta. The statements were due April 1st, and by April 3rd, water board staff sent a list of all those who had missed the deadline to the Delta water agencies and other consulting firms, and the agencies went to work on clearing the delinquencies. The last of the late reports was filed on May 13th.
They are now working on QA/QC of the reports to improve the quality of the data reported and also to cross-reference it so there are multiple data points to support the view of water use in the Delta.
“One of the things we do is make it well known through those agencies that late submissions get increased scrutiny,” Mr. George said. “There are two reasons for that. One, it’s a little added incentive to get it in on time, but secondly, we’ve discovered that those which are late tend to have the most errors. It makes sense. You’re late because you don’t have the right information or you don’t understand it well enough, so we really work with the late submitters not only to correct errors when we find them, to help give them assistance, and put them on track for next year.”
This also allows them to spot consistent sources of errors and to work to correct that by publishing guidance, putting notices out on the lyris list, and posting information on their website.
Mr. George noted that they do receive a lot of requests for assistance this time of year; they are conducting a lot of field visits and working closely with the intermediate agencies as well as get feedback. “I always think when you go out to help somebody, it’s a learning opportunity. You’re going to understand more when you walk away then you did when you walked in, so it’s really a two way street,” he said. “One of the things that comes out of that is feedback to improve the quality of our forms so they aren’t so confusing and we don’t get double counting or mis-reporting because of errors or difficulties in our forms.”
Mr. George and staff have been working on implementing the legislative requirement to measure every diversion in the Delta, but they are finding it very difficult to do. One problem in particular is that siphons are inherently hard to measure, and there are a lot of them across the Delta that are of different sizes, different ages, different conditions, and different frequency of use. Measurement devices are breaking down a lot and service and maintenance is an issue and oftentimes, the devices are in remote locations that aren’t visited every day.
Another issue is that diversions in the Delta aren’t reported until July of the following year, so the data comes in the middle of the following irrigation season, which is just comes too late to be useful, particularly in times of shortage, he said. On top of that, it’s inconsistent and unreliable, so it’s not actionable data.
So the Delta Measurement Experimentation Consortium has been formed which consists of agencies, engineers, NGOs, water users and others, and they’re working to address the issues through an experimentation process.
“We figure there are an infinite number of mistakes to be made, we don’t need to make the same ones over and over again, so we try and share what we learn,” he said. “We’ve solved some of the problems, particularly the problem of measuring pumped diversions which is easier. We haven’t quite got it on siphons yet which are the predominant diversions in the Central part of the Delta.”
Mr. George is proposing that they move to remote sensing of crop water use rather than measuring every single diversion. The Delta has some unique characteristics that make remote sensing a good alternative. First, in the Delta, there is no diversion to storage, so there isn’t the distortion that occurs from diverting water at one time for using it at another time; when one diverts water in the Delta, it is put to beneficial use roughly immediately. Secondly, if water is over-diverted (or, more water is taken out than the crop needs), it is returned it to those channels in close proximity, time, and location to where it was taken out, so the distortion that over-diversion creates is much less in the Delta than elsewhere. Third, it makes sense to focus on water use and the water that comes out of the system is through evapotranspiration or use by the crops.
“The good news about remote sensing is that we can narrow down to a better understanding of what the actual crop water use is, even in the Delta,” he said, noting that the Open ET process is moving through academic peer review and into actual use for water managers and regulators. “We’ll know closer to real time what’s happening at the field level. We can get down a crop field 30 meters by 30 meters and know what the crop water use was recently. Soon, we’re going to be able to predict it out a week or two ahead as we correlate weather with crop water use.”
“It’s real time information, and it’s consistent across the whole Delta because you’re not relying on ditch tenders to keep the meters up or report when they go down,” he continued. “You’re getting to see the whole Delta every time there’s a pass … we’ve got a pass about every three days.”
Open ET is a cooperative process that involves several NGOs including the Environmental Defense Fund, The Nature Conservancy and others, several academic institutions, industrial users, and the regulatory community, Mr. George said. It’s a five year process to take the science of remote sensing and make it available on a smart phone; they are about halfway through.
“What I am proposing is that the data that is available on your smartphone be a rebuttable presumption of actual water use,” Mr. George said. “The notion being that here’s how much water we think is being used by that crop in that field today, and if you can give us better information so we can do more machine learning, we’ll improve it over time but it’s good enough for making real-time decisions by regulators, water users, and other water managers.”
Mr. George acknowledged that the legislation would need to be amended to allow the remote sensing to be used, but they still have more work to do. “This is still a recommendation, and it has to be supported by data from the experimentation consortium, the rationale has to be developed, and we have to go through a process of explaining first within the administration, within the various departments that will care about this, and then ultimately to the legislature to make the changes to allow this to be done in the Delta.”
Remote sensing also has tremendous application for SGMA implementation, he said. “It’s remote sensing that will allow us to close the water balance calculations for groundwater agencies throughout the state, so we’re proposing to do this, roll it out first in the Delta because of the unique opportunity, but to use this as a learning opportunity for SGMA implementation as well.”
COORDINATION WITH COUNCIL INITIATIVES
The Delta Plan Interagency Implementation Committee supported the Delta Science Funding and Governance Initiatives at its April 8 meeting. Chair Joaquin Esquivel of the State Water Board has assigned resources and staff to support the effort, including Mr. George and others from the Bay Delta unit of the Division of Water Rights. “We are supporting this because we think if we can get improved funding on governance on a consistent basis overtime, it will help the State Board to proceed with regulatory and other aspects of its responsibilities with less controversy over what the science is. So, we’re all in on this.”
Likewise with the Climate Change Vulnerability Assessment and Adaptation Strategy, Chair Esquivel has put resources into that because they see the value to the decision making process for managing water quality and water supply availability. “If we can rely on the vulnerability assessment and adaptation strategy and say for instance, this is the basis on which we’re taking this regulatory action, so we’re putting more resources into this,” he said. “Overall, this is part of our buying into your strategy of herding all the scientific cats into the One Delta, One Science so that we get better peer review at the time the science is developed.”
BAD NEWS: WATER QUALITY PROBLEMS IN THE SOUTH DELTA
Mr. George then discussed the problems in the south Delta that are primarily caused by sediment buildup in the channels which is choking the channels in the south Delta, increasing water temperature, the number and severity of toxic algae blooms, and concentrating constituents that lower water quality. The net flow in some channels is seriously constricted, causing difficulties in farm deliveries and exports, and it also means lower dissolved oxygen, which is bad for fish. Lower, shallower flows make it easier for invasive species to become established. It substantially impacts navigation so there are less boats out on the water which is affecting marinas, and the channel being choked with weeds make it very difficult to deal with flood response and levee maintenance. It also creates salinity hot spots and buildup which create a regulatory as well as a management problem.
The heavy rains this year have aggravated the conditions. “What happens is you get a lot of flow which used to flush out the Delta, and with the increasing occlusion of the channels, as it moves out into the southern Delta, that water slows down and drops the sediment,” Mr. George explained.
“We’re losing aquatic and terrestrial habitat without any real reconciliation strategy; we have no real budget, no plan, and no vision,” he said. “I want to contrast that with these two maps. On the left, this is Eco Restore and you see the restoration and reconciliation efforts that go through that northwest portion of the Delta; on the right, you see the Delta Corridor development where we’re trying to string together publicly owned lands and try to do restoration there. What each of these maps have in common is white space in the south Delta.”
So a group of interested and affected parties have come together in an ad-hoc process; the State Water Board’s Division of Water Rights, the Department of Water Resources, Bureau of Reclamation, San Luis Delta Mendota Water Authority, the South Delta Water Agency, and others are currently working on developing a problem statement and to think about what the possible solutions are. Once they have developed the problem statement, they will be looking for support from the Stewardship Council, the Water Board, and others to study the problem and possible solutions.
“We already know there are a number of obstacles to solving this problem,” he said. “Permitting is a big one. The expense of both permitting and the time associated with permitting but also the expense of removing the sediment and reusing it, and then the trade-offs between the impacts for managing this sediment and the positive impacts you get from dealing with it.”
Salinity hot spots have also been a problem because with less throughput in the south Delta channels, the water is just sloshing back and forth on the reduced tidal energy which creates a buildup of salinity, and particularly in the summertime when there is reduced inflow, it becomes really serious, Mr. George said. This is generating conflict between water users as well as between water users and the regulators. When the State Board adopted the first phase of the water quality control plan, among the things that was adopted was a somewhat relaxed salinity standard for the south Delta; he noted that in January, there were already exceedances of the new relaxed standard.
So an ad hoc group has been convened to look at the salinity issue. There has been many studies and reports that have looked at this issue so Dr. Callaway as Lead Scientist will convene a panel to conduct an objective synthesis. “I really think this oversight process and the interaction between the panel and the oversight committee is going to be kind of group therapy, because it’s going to force us all to sit around the table and hear from others what their perspective on this,” Mr. George said. “They are going to be listening hopefully to each other and not just going back to their corners and pointing fingers, but hopefully out of this comes a much more collaborative holistic process for dealing with the overall problem.”
Predation on juvenile salmon remains a problem in the southern Delta, he said.
In addition, in the Delta, there is a continued migration from annual crops such as corn and tomatoes to permanent crops such as nuts and grapes. Mr. George noted that this only hardens the water demand.
“We should be capturing that insight,” he said. “We can know when that field gets planted, what it’s 30 year water demand is going to be. We need to start incorporating that, and we need to recognize that the terrestrial habitat associated with wildlife-friendly crops is changing … You can understand why farmers are making this move, they are moving towards mechanization, they are avoiding the problems associated with the high cost and difficulty of finding labor, and they are going to higher value crops with longer shelf life and international markets. It’s perfectly rational. But it is compounding the problems that I’ve talked about in the southern Delta.”
Chair Randy Fiorini asked how much of the conversion from field crops to permanent crops is being done by new landowners in the Delta, particularly on Roberts Island and that region?
“I don’t have any statistics on that but I would say it’s a lot,” Mr. George said. “I think there are only two ways that you get into farming today. One is to inherit your land and a love for it and a passion for it. And the second is to attract institutional money, and there is institutional money coming in. They see the opportunity for a stable, long-term inflation and risk adjusted entry into the business. I came from that business; I spent a lot of my career as an investment banker and I spent several years managing an agricultural land trust in the San Joaquin Valley, so I both been part of that community and an observer of it.”
“On balance, I think it’s bad for agriculture primarily because of the way that institutional money is organized. It’s not long-term money, it’s money with a life, ten years typically, which doesn’t coincide very well with the cycles in the farming commodity business, so what you have is a lot of institutional money piling in at certain times, and that money wanting to get out on a schedule that has nothing to do with the cycles in the agricultural industry.”
“Putting in a new orchard is very capital intensive, it’s five years before you get your first return,” Mr. George continued. “There are lots of risks betwixt here and there and institutional money can take those risks, but when they need liquidity, they all head for the door, irrespective of where we are in the ag cycle. So, it’s a reality of what’s going on in the marketplace. I think it will be disciplined somewhat by the implementation of the Sustainable Groundwater Management Act, but in the Delta nobody uses groundwater. There’s plenty of surface water available and we’re not going to have that same discipline directly in the Delta.”
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