At the December meeting of the State Water Board, Delta Watermaster Michael George gave his semi-annual update to the Board. His presentation focused on the Office of the Delta Watermaster‘s efforts and the Division of Water Rights to prepare for administering water rights in the Delta during the next drought, which given the dry fall so far, could come as soon as this summer.
“I really want to take most of the time today to take a deep dive into the challenges of administering Delta water rights,” he said. “I do so at this moment because 2020 has been a dry year, and we are heading into 2021, which has also been dry, and current forecasts suggest that dry period may continue. So we’ve all been very focused on the need to be ready when we are challenged by the next shortage in the Delta by capturing what we’ve learned from previous droughts and recognizing what we could have done better. And that’s a large part of what I’m talking about a deeper dive on administering water rights in the Delta.”
Brief update on 2020 Initiatives
Mr. George acknowledged the collaboration with the Division of Water Rights, which he said was very much a joint effort. The water rights system is a statewide system and needs to be consistent across the state, so the collaboration between the Office of the Watermaster and the Division of Water Rights is essential.
They have been focused on improving the quality, accuracy, and credibility of the data that the Water Board and other water managers in the watershed depend upon to make better real-time decisions, particularly in times of shortage. They have made some progress in pulling together the needed information that was previously lacking in their system.
They also continue to work on the accelerating deterioration of the Southern Delta for navigation, irrigation, water supply, and fish passage. The deterioration of all of those functions in the south Delta is a matter of concern for everyone, he said. He noted they have been working with concerned stakeholders on an ad hoc and voluntary basis to address the multiple issues.
The 2009 Delta Reform Act established a policy of reducing reliance on the Delta as a future water supply, something that has come into sharper focus the last few months because of the specter of looming drought and the implementation of the Sustainable Groundwater Management Act. People are looking elsewhere for water supplies, so Mr. George has been actively talking to people about the Delta and what’s available for uses within the system, whether for economic uses, environmental uses or other uses.
Mr. George said he’s also focused on multi-benefit projects and is encouraged by the extent these projects promise flood-control, better navigation, improved ecosystem function, and other benefits. Some of the projects have been catalyzed by the Board’s water quality control planning effort, and the emphasis on voluntary agreements.
Finally, the Office of the Delta Watermaster has been extensively involved with the ad hoc voluntary Delta Measurement Experimentation Consortium, which is now developing a Delta alternative compliance plan for compliance with the diversion requirements of SB-88. Much progress has been made, notwithstanding challenges.
Diving into Delta water rights
Mr. George then turned to this presentation’s main topic, which was a deep dive into Delta water rights and other issues, which becomes extremely important in times of drought. Preparing for the next drought is what Mr. George and his office have been preparing for, especially given the dry fall that we have had so far.
He noted that administering water rights in the Delta presents unique challenges. First of all, most of the water usage in the Delta is comes from water rights developed and in use at the time when the Water Board’s predecessor agency, the Water Commission, was established back in 1914. This is important because the State Water Board’s administrative responsibilities and authorities for water rights established before 1914 are more limited than they are for those licenses and permits issued after 1914.
He also noted that water use reporting in the Delta only is about a decade old; prior to the 2009 Delta Reform Act, which gave the Board the authority to require water use reporting in the Delta, it was thought that that water use reporting was complicated and because the Delta was at the bottom of the watershed, it was not as critical. So we now have about ten years of data, which Mr. George acknowledged is useful, but it is just a small amount, considering that water use in the Delta dates from its reclamation back as far as 1850.
Mr. George acknowledged that estimating water diversion use is complicated by the fact that the Delta is primarily a tidal estuary with riverine influences, and as the tide changes twice a day and with different transmissivity in the soils and in different elevations of the agricultural land use, those estimations are challenged in many ways that are unique to the Delta.
He also noted that due to the history of adjudications of Southern California groundwater basins, there is a built-in incentive for people who are reporting their use for the first time to exaggerate or at least estimate on the high side, and the implications of that in the Delta are becoming more clear as they get deeper into the data and improve the mechanisms for monitoring and measuring use.
“Our traditional sense of how much water is used in the Delta is probably a bit exaggerated,” Mr. George said. “So we’re moving to try and get a better handle on actual water use in the Delta. However, in the Delta, there are water supply and quality contracts that affect a large portion of the Delta primarily in the northern part of the Delta and in parts of Contra Costa County, but those contracts are not available throughout the Delta. And so the administration of water rights is meaningfully impacted by the water supply contracts availability for some, but not all.”
Mr. George noted that the state made a decision to temporarily use the Delta as a conveyance for exporting water to other parts of the state. He pointed out that it was always contemplated in the development of the State Water Project that eventually there would be a peripheral canal to avoid the situation now where the water projects draw water from the southern part of the Delta which has important implications for not only water supply but for the function of the estuary. He also acknowledged that many of these problems are common throughout the state: the failure or the inability to reconcile our two systems for allocating shortage, which are inherently incompatible.
“On the one hand, we have a heritage riparian system that depends on common law, which was adopted by the state at its initial founding in 1850,” he said. “And on the other hand, we have a priority system of appropriation that overlays on top of that, and when we’re in shortage, those two systems allocate that shortage in different ways: a correlative or shared basis for riparians and a priority basis for the appropriators.”
Those systems have been able to work side by side in large part because there haven’t been consistent shortages with riparians and appropriators so closely intertwined until 2015, at the tail end of a multi-year drought that the incompatibility was a problem throughout the watershed and most acutely felt within the Delta. Mr. George also noted that the water supply for uses throughout the watershed was developed at a time when no one was adequately paying attention to the environmental needs, so they are having to overlay those environmental demands on an allocation system that dates from the 19th century.
There are also inconsistencies in reporting periods and due dates that have been built into the water code and regulatory processes that the Division of Water Rights and the Delta Watermaster are working together to propose legislation to bring those reporting periods and due dates into conformity throughout the state. He noted that that will be helpful by giving the data that’s collected and reported on a consistent basis and available early enough in the year to make real-time decisions during the most difficult times, which tend to be the summer irrigation season.
Mr. George said that they are also continuing to deal with ambiguities in laws designed to protect the Delta and the areas of origin. “There are differences of opinion about how those protections are supposed to work, which bedevil administration of water rights throughout the watershed and in the Delta,” he said. “And the export projects, the State Water Project and the Central Valley Project, entered into contracts to deliver supplies, but then the development of those supplies was truncated or reduced, primarily because of those environmental sensitivities. And those issues are common throughout the state and are most acute within the Delta.”
So there are some fundamental questions that the Office of Chief Counsel and the Division of Water Rights are trying to answer. One of those is how much water the Delta actually does use. because it is apparent that some of the estimates of water use are a bit on the high side, maybe egregiously so at certain places and at certain times, and those estimates impact some of the ways in which we manage water supply and water use within the Delta.
“That leads to the question, is it possible to wring some water out of the Delta to find some inefficient or inappropriate or even unlawful use, that can be wrung out of the Delta so that we can use that water supply more efficiently somewhere else in California?”, Mr. George said. “Are Delta diverters, those within the Delta, taking water to which they are not legally entitled? And if there are diverters taking water to which they are not legally entitled, is there a practical way to discipline that process to stop it and potentially to wring water out of the Delta for use elsewhere? And how do we successfully adapt this very fragile tidally influenced and riverine system that we depend on for so much of water supply, as well as ecosystem function? These are the fundamental questions I have in mind as we move forward in terms of how to administer water rights in the Delta.”
Riparian rights in the Delta
Mr. George reminded that the prevalent water rights in the Delta are common law riparian rights, primarily because the Delta was reclaimed from swamp and overflowed lands, and the natural watercourses were held back by the levees, which allowed large parts of the Delta to be reclaimed. He noted that 500,000 acres out of 750,000 acres in the Delta are devoted to agriculture, all of which at one time was contiguous to a natural watercourse and therefore having implicitly or inherently a riparian right under the common law.
Riparian rights can be lost when a parcel is separated from the river or the watercourse, which happens when there is a subdivision that removes an interior parcel from contiguity with the watercourse, and ordinarily that would eliminate the riparian right. However, this year, after 10 years of litigation, the Court of Appeal came down with the decision in the Modesto Irrigation District v. Tenaka case, which provides principles for determining when one of those subdivisions severed or preserved that riparian right. That decision came down in the spring, and the Supreme Court refused to rehear it and let it stand as the final unappealable decision.
“Therefore we’ve been able to use those principles to look the validity of the continuing riparian right depending on evidence of the historic intent at the time the subdivision took place,” said Mr. George. “And as a result, we’ve successfully settled five unlawful cease and desist orders that were issued about a decade ago. We’ve been able to apply the principles in the Tenaka case and find the extrinsic evidence that determines the historic intent of the parties. And we’ve settled those cases on the basis that we in the office of the Delta Watermaster, supported by the Office of Chief Counsel and the Office of Enforcement, have been able to identify the extrinsic evidence that supports the claimed intent of the parties to maintain riparian rights. Notwithstanding there was some ambiguity in the language of the deeds that is precisely the language that the court helpfully explicated in the Tanaka decision.”
In the five years since the last drought, a lot of effort has been expended untangling riparian rights from the pre-1914 claims. “Now, I respect the fact that there are well-trained lawyers who may disagree with some of this, but nonetheless, I believe that it is only in the rarest of circumstances that riparian and pre-1914 rights overlap or exist in the same place of use are using the same point of diversion,” said Mr. George. “That’s a determination that I’ve made that has been aided by a number of court cases. But the fact is, those who have apparently valid riparian rights are significantly challenged to also demonstrate that they have a perfected pre-1914 right. We didn’t just stumble on to that conclusion; we’ve worked hard at it. We published in 2018. a memo that we believe correctly states what the water law is, and again, respecting and recognizing there may be some disagreement about that, vindicating those principles, in the long run, may require enforcement litigation that we’ll have to bring to demonstrate that what we published in that overlap memo is, in fact, the law of California, and go through a litigation process in order to vindicate those principles.”
Mr. George emphasized that there has been remarkable cooperation within the Delta. In each instance that this conflict has been brought to the surface, including in all five of the recent settlements, they have negotiated an agreement where the underlying riparian owner agrees to report all of its water use under that most senior right and agrees that, without waiving its pre-1914 claim, they won’t exercise the pre-1914 claim to take water unless they come forward to the Office of the Delta Watermaster and present the evidence of that pre-1914 right. At that point, there will be an opportunity to challenge it and to take whatever action is appropriate.
“For right now, primarily through voluntary agreements, we’ve really improved our understanding of the most senior rights, how they’re exercised, and how much water is being used in the Delta under those water rights,” said Mr. George. “I think that’s a big improvement compared to where we were in 2015.”
Riparians only have the right to natural flow in the adjacent stream.
The use of the water to be diverted from that natural flow is limited to beneficial use on the riparian parcel. It can’t be transferred or used somewhere else.
If a riparian does not take the water to which it’s entitled, that water stays in the system, and is subject to appropriation, downstream or elsewhere in the watershed. Therefore, riparian rights are inherently and uniquely unquantifiable except through a court adjudication, because under common law, a riparian is able to take as much water is available from the natural flow, so long as it’s not wasted and put to beneficial use on the riparian parcel.
In times of shortage, riparians are required to share the shortfall with other riparians of the watershed, which is in contrast to appropriators who fully meet the senior demand by cutting off junior demand to the point where available supply is in equilibrium with the senior demand.
“As we now think forward to the next shortage, whether it’s the summer of 2021, or beyond, we’ve been charged with figuring out how we best apply the law as it is in the circumstances that we have,” said Mr. George.
He also pointed out that California statutes allow lawful water users to use the streams or the natural conveyance system to move their water from place to place. For instance, the rim dams capture water when it’s available, and use the natural streams to convey it to downstream users at various times. Common law suggests that other legal users of water can’t be disadvantaged when someone takes advantage of the opportunity to use that stream.
“You can appreciate that that comes into potential conflict in the Delta, where there is no practical way to differentiate the commingled water supply that is in the Delta from the how much of it is the natural flow in the channels and how much of it comes from, for example, a release of previously stored water, plus the impact of tidal influence pushing water into the Delta, and remembering that salt water is heavier than freshwater,” said Mr. George. “It’s a complicated process.”
Lastly, Mr. George pointed out that the Board’s decision on Byron Bethany Irrigation District, which was one of the curtailment cases that came out of the last drought, really challenges prosecution of a riparian for unlawful diversion in most circumstances of the Delta.
“That is a challenge because once an admitted riparian or an apparently valid riparian right asserts that right, then it shifts the burden of proof to the prosecution, and in the Delta, it’s the Delta watermaster that has to demonstrate that the riparian is taking water to which it’s not entitled,” he said. “What we’ve learned from Byron Bethany Irrigation District is the way we tried to do the water supply and availability analysis was insufficient, because of a number of infirmities: it was watershed-wide, it was a monthly time-step, and it was very hard to apply those broad areas and long time-steps to demonstrate that there was an unlawful diversion at a specific point on a specific day in the Delta.”
In addition, he acknowledged that most of the information on water demand contained within the Water Rights Information Management System is reported to us by users, who use inconsistent methods for estimating and reporting. Also, because there is this built-in duplication of reporting the same water use in two different ways, the duplicate reporting tends to stack up.
“So when you aggregate all that information, it’s hard to come up with a credible and widely validated sense of how much water demand there is,” he said. “So we deal here essentially with the inherent complexity in the Delta and its watershed. I really want to commend the Division of Water Rights’ leadership in taking on this challenge and working to build better tools to estimate supply and demand at a finer scale and shorter time periods than we have in the past. We’re making real progress, but we’re not there yet.”
There are remaining uncertainties, such as the inconsistent interpretation of the area of origin Delta protection statutes among stakeholders.
“There are a lot of people on either side of those questions, and a lot depends on where you sit in the Delta,” he said. “You’re either trying to take advantage of those protections or outside the Delta trying to limit those protections so as to wring more water out of the Delta.”
Additionally, under D-1641, the state and federal projects took on the responsibility for maintaining Delta water quality. “That has raised the question of who are the intended and collateral beneficiaries of that? Are they the diverters within the Delta? Are they the exclusive benefit to exporters or to the environment? Within the Delta and within the export community, there are varying assertions about how the so-called Delta pool theory impacts what we do. Those varying interpretations of the Delta pool theory and the pool theory itself are continuing uncertainties that impact how we manage water rights adjudication, and, more importantly, in the short term administration during times of shortage in the Delta.”
There are three traditional paths to resolving uncertainties:
We can seek legislation, which is a complicated long term process during which all constituencies need to be heard and evaluated. “We have seen the legislature come up with really fairly monumental resolutions of issues, such as the 2009 Delta Reform Act, or the 2014 Sustainable Groundwater Management Act. But that’s a complicated long term process. And any changes in legislation that would address the uncertainties that I’ve described, certainly are not going to be available to us if we come into crunch time in the summer of 2021.”
We can resolve uncertainties through litigation. Parties come into a forum present their evidence and a decision is made, and that has been very valuable over time. “The MID versus Tenaka decision was 10 years in the making,” Mr. George said. “There is also the court decision which came down within the last few months that validated the Delta Plan process that was created in that 2009 legislation. It’s only within the last few months that the court has finally said that the Delta plan is the legally enforceable plan for managing going forward and the Delta.”
We can resolve uncertainties through negotiation of contracts or agreements. He noted that there are a number of those contracts in the Delta watershed that have helped to resolve certain uncertainties, but also then limit the flexibility within and around those contracts.
Those paths to resolving uncertainties are useful in the long term, but Mr. George noted that none will be particularly useful in terms of administering water rights in a shortage that may come as early as the summer of 2021.
“So to make progress in the maze of water rights, law, demands, and mechanisms for operating, it seems to me that the best way to operate is through a program of cooperating everywhere we can. … I think the most effective thing we can do is provide as rich a source of information as we can, take advantage of that better data, understand where the frictions are likely to come. And with that information, shared as transparently as we can, I’m putting a lot of hope and expectation that we’ll get cooperation to ameliorate the problems that we’re going to face with shortage, whether it’s 2021 or beyond.”
The Office of the Delta Watermaster is working to resolve the duplicate reporting issue, and Mr. George said that he is confident that a voluntary agreement will be in place before anyone in the Delta has to submit their reports of water use for the calendar year 2020. They are working to clarify water rights wherever we can, trying to achieve greater clarity without resorting to litigation and without resorting to the uncertainties of the legislative process.
They collaborate everywhere when they think there’s progress to be made. An example is the shared science enterprise with the State Board, the Stewardship Council, CSAMP, and DPIIC, “I think we’ve made real progress reducing combat science, improving enterprise. And I think that’s going to pay dividends, although maybe not by the summer of 2021. There are some new and promising reports that are starting to come out, including one that the Office of the Delta Watermaster has jointly sponsored with farmers in the Delta, the State Water Contractors, and San Louis Delta Mendota Water Authority. Again, those entities tend to be suing each other in various places. But they’ve really come together on some of this shared science enterprise. “
Mr. George said they are working collaboratively with the Delta Science Program on a vulnerability assessment and adaptation strategy for the Delta, participating in Delta Channel Maintenance Working Group primarily in the southern part of the Delta to figure out how to recover channel capacity, and are generally supporting multi-benefit projects wherever they can find them in the Delta. They are refocusing on the long term objectives to preserve, enhance and restore the Delta, and to ensure the proper allocation and the wise use of water for the benefit of present and future generations.
“It’s a steep climb and we have a long way to go, but we are making progress,” he said. “You know the old saying that if you want to go fast, go alone, if you want to go far, go together. And I think that going together, working within the maze that we have, and trying to make progress supporting each other is the way that we’re going to make progress as we face the next shortage.”
Chair Joaquin Esquivel had praise for Mr. George’s efforts in the Delta. “The discussions and the real relationships and connections that you’ve been able to make that build the trust, to share data and information with the Board are so important to administering the water rights system in a way that preserves everyone’s faith and trust in it. Because it’s what we have. It isn’t about the boogeyman of a regulatory agency developing something but about actually the faith in the system and the data that’s being produced. And then discussions around management they can have disagreements there from, but at least we’re building ourselves to be the best decision makers we can be. And that’s what you continue to contribute for this Board, in your capacity. And I do greatly appreciate that.”
Chair Esquivel then asked, “What is the most important thing that we should be thinking of this next year? Is open ET? You mentioned your further data gathering activities with stakeholders. What is helpful for us as a board to be most aware of?”
“I think the most important change in terms of understanding water use the Delta will be if we are successful in getting duplicate reporting out of the system,” said Mr. George. “If we can achieve that broadly agreed upon voluntary process for reporting on a consistent basis, I think that’ll be really valuable. It goes hand in hand with the proposed changes in legislation to bring all water rights holders to report on a water year basis, rather than some on a calendar year, some of the water year, some on a fiscal year basis – instead, get them all at the same time. So I think that the progress on eliminating duplicate reporting is the big thing to watch this year.”
Board member De De D’Adamo noted that a lot of time was spent in the last drought just getting educated on the issues and looking at various possibilities and the hope is that during the next dry spell, voluntary agreements can be entered into similar to the last drought. So what’s the likelihood of that?
Mr. George pointed out that the curtailment litigation from the last drought has not been finally concluded and is still ongoing. “Given where we are today, if we conclude that an individual diversion is a valid riparian diversion, that is that there is a there is a riparian right to take it, we are really challenged to demonstrate how much of the water that is at that point of diversion is natural flow and how much of it is, for instance, previously stored water released for a downstream purpose. And that is a matter of critical importance that is not yet determinable given where we are with some of these uncertainties. So I think we’ve got a ways to go to figure out how to manage that shortage when it comes down to the Delta. Those are issues about which there’s a great deal of contention. And I don’t believe we’re going to have those really thorny issues resolved this year. And that’s one reason why I think it will be much more valuable if we talk about collaborative ways of dealing with the potential shortage, rather than to try and demonstrate that somebody is taking water to which they’re not entitled. If that is the case, then let’s talk about it, and let’s figure out if there is a way to manage within the situation where there is uncertainty and where there is contention.”
Board member Sean Maguire said that possible shortage is on his mind, as well as the long-term implications of management and the Delta, with climate change and the myriad of stressors … How can the Water Board and the Delta Stewardship Council make good management decisions for the Delta broadly? Any thoughts?
“I absolutely think the most important forum, for grappling with that is the one hosted by the Delta Stewardship Council,” said Mr. George. “That’s the place where we have the best opportunity to bring all the parties together to participate in a transparent process of developing the insights that will allow us to make decisions about how we’re going to manage in the face of climate change. And there are lots of aspects of that. … In my view, the best place to do it is collaboratively within the Stewardship Council framework, which is well staffed and well-funded. The Delta Plan Interagency Implementation Committee has built in mechanisms to bring lots of parties together to work it out. Because I will tell you, there are no climate change deniers in the Delta. There’s nobody who works in the Delta day in day out who doesn’t see the impacts that climate change is already having, and who aren’t frightened about what the implications are for the continuation of climate change. We’re going to face really tough decisions.”
“Frankly, as much contention as there is over the Delta tunnel project, I think that pales in relationship to the real existential threat of the Delta, which is climate change,” continued Mr. George. “We are going to have to make decisions within the next generation about how we’re going to respond to climate change. Whether that means some managed withdrawal, whether it means massive investment to armor up, whether it means to look at the incursion of salinity along with sea level rise and how we’re going to manage those rim reservoirs. The regulatory scheme that we’ve got now for keeping the Delta sweet cannot operate going forward in the face of climate change. They’re tough issues for us as regulators, they’re tough issues if you own ag land in the Delta, if you participate in maintaining levees, if you care about flood control, fish passage, navigation, watersports, exports – we’ve all got to figure out in a sloppy fashion that mature democracies always use to kind of figure out how to deal with these big problems. That’s the place where I think we should be putting our effort right now.”
“I’m humbled and very pleased that Chair Esquivel and Vice-Chair D’Adamo have put me in a position to work on the Collaborative Science and Adaptive Management Program, and on the Delta Plan Interagency Implementation Committee, and of course, I report jointly to your board as well as the Stewardship Council,” Mr. George said. “I feel like I’m in the middle of it. And I feel like that’s the right place to be.”