Stakeholders all said they wanted better communication, but data and SB-88 compliance are a problem
In 2014 and 2015 during a period of severe and persistent drought conditions, then-Governor Brown had declared a state of emergency and signed urgency legislation that provided, in part, for the adoption of emergency regulations by the State Water Board “to prevent the waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion, of water,” or “to require curtailment of diversions . . . .” The State Water Board did so adopt emergency regulations and issue curtailment orders, but their methods were soundly criticized and several lawsuits were filed. Since that time, the State Water Board has embarked on a number of actions to intended to improve the Board’s response to the next drought, which could even be this summer.
At the February 16 meeting of the State Water Board, Erik Ekdahl, Deputy Director of the Division of Water Rights, presented an overview of recent interviews conducted for the Water Rights Drought Effort Review (or WARDER) report. The report was an effort to solicit feedback and recommendations on the Division of Water Rights actions and efforts during the historic 2012-2016 drought period to inform the Water Board on how to better plan and prepare to implement dry year activities when needed in the future.
Deputy Director Erik Ekdahl noted that the WARDER report is timely given this year’s dry conditions. Although it’s too early to declare a formal drought, one of the stakeholder recommendations was that better planning and preparation are essential to effective dry year management. The WARDER report specifically focused on the actions of the Division of Water Rights.
Mr. Ekdahl reminded why the 2012-2016 drought was so severe. 2014 was the hottest year on record for California; in 2015, snowpack, the water content was 5% of the long-term average. The period of 2013 to 2016 was the driest, warmest three year period in about 1500 years of records based on tree ring proxy and paleoclimate data.
“So it really was historic and massive in terms of magnitude,” he said.
That magnitude of drought resulted in over 9000 curtailment notices issued by the Division in the Bay-Delta watershed in both 2014 and 2015. There were temporary urgency change petitions for Central Valley Project and State Water Project operations in both years. The Board issued several information orders, including information orders for diverters in the Delta to provide information on their basis of right.
Over a two and a half year period, the Division’s enforcement staff conducted over 2200 field investigations where typically, they conduct between 100 and 200 per year. These investigations were often with relatively short notice and the need to move quickly. Board staff also conducted emergency instream flow regulations on several creeks, including Mill, Deer, Antelope Creek, and some tributaries to the Russian River.
Jenalyn Guzman, Environmental Scientist at the State Water Board, noted that the water year 2020 was the ninth driest year on record; it was dry across much of the state and continues to be dry. As of June 1, 2020, the statewide average snowpack was about 39% of the average. Precipitation for the North Coast region averaged only 15%, and the Russian River Watershed reported its third driest year in 127 years of record. While many reservoirs in the state entered the summer of 2020 with near-average storage, there are questions about the likelihood of ongoing dry conditions and how we can prepare if dry conditions continue.
The Water Rights Drought Effort Review
To answer these questions, the Division of Water Rights and the Office of Public Participation, with direction from the Board, set out to collect input from those affected by the previous drought on how the Division could better prepare for future dry conditions. The effort was called the Water Rights Drought Effort Review (or WARDER). As part of this effort, staff interviewed 23 groups over the last six months, with participants ranging from academia, non-governmental organizations, former staff, water rights attorneys, water users, a tribal government, consultants, and water rights holders.
Ms. Guzman noted that while this number of participants is relatively low, the spectrum of participants and their feedback appears to have adequately captured the recommendations that would have likely been received from a larger advisory group. The intent of this report was to capture recommendations from interested parties related to water rights activities during drought or dry conditions, and any additional comments or recommendations to the report are welcome.
The interviews were synthesized and the participant recommendations compiled into the draft report. Each interview was 90 minutes long and covered topics such as:
How should the Division determine the available water supply?
What should the Division’s process for curtailments be, if any?
How can the Division improve its communication and outreach?
What legislative or policy changes are needed to better manage future drought?
Over 500 unique comments and recommendations from participants were received, which were organized into four categories: communication, data, legal and policy, and collaboration.
Participants all said they wanted better communication …
The participants were unanimous in stating the need for more frequent and comprehensive communication on water availability during dry or drought conditions. Many expressed a desire for more regulatory certainty in advance of dry conditions or drought, which roughly aligns with either needing data and hydrologic information that could affect planning and other water supply decisions. Participants also stated the need for a clear understanding of how the Division will respond to dry conditions or drought with its policies, regulations, or actions, with the idea being that if the Division can provide earlier communication, data, or regulatory certainty, users can better adjust demands and prepare for potential water shortages.
One of the reoccurring suggestions received was for the Division to establish clear drought protocols in advance of potential implementation. These could include hydrologic thresholds that trigger voluntary or mandatory response actions. Another reoccurring suggestion was to create a publicly accessible tool that evaluates supply and demand data to show real-time watershed conditions.
Participants also said that information should be communicated in ways that are clear and understandable by the diverse range of interested parties. These communication strategies can include visual tools, graphics, and narratives like data stories to explain the complex analyses used to make decisions, such as curtailments and water availability determinations. Participants also emphasized building relationships with interested parties in the regulated community to facilitate trust, data, information exchange, and collaboration.
However, data is a problem …
For data, many of the comments drew connections between targeted timely and effective communication and implementation and the need for better data.
“Data are critical to the Division’s drought management actions, which are reliant on estimating initial water supplies in the watershed, calculating user and environmental demand, and then evaluating supply and demand against each other to determine whether water is available at any given point of diversion and priority,” said Ms. Guzman. “We heard pretty much unanimously that data is an issue for everyone. There are challenges with the quality of the data submitted to the Division. The Division’s electronic reporting systems lack the modern features that identify and reject clearly erroneous entries, such as the entries with the wrong unit of measurement. ”
Participants also highlighted the need for the systems to better understand water contracts to eliminate any double-counting of water diverted during a water availability analysis. Many participants also highlighted the challenges of annual reporting because it essentially creates a lag time for the Division’s response.
“In the communication section, we heard that participants want more frequent communication, and in order to deliver that, the Division would need to receive data more frequently,” said Ms. Guzman.
Generally, participants highlighted the need for more stream gauges and the role that telemetry could play in facilitating data collection and reporting. Participants also said the Board should improve communications on how reported data is being used and to make that data available so that others could check the analyses. Other suggestions included being more clear on how data informs the Board’s methods and regulatory actions.
Many participants brought up the concept of curtailment triggers, with established thresholds that, when reached, could initiate predefined response options like curtailments. One of the potential benefits could be increased regulatory certainty, which could encourage more voluntary agreements, she said. She noted that with all of these recommendations, participants stressed that the Board and Division need to provide opportunities for the public and Tribes to weigh in on what data is being used and how it’s being analyzed during any decision making process.
And poor compliance with SB-88 a bigger problem …
Erik Ekdahl then highlighted a couple of the data challenges in front of the Division. He said the curtailment processes adopted in 2014-2015 were based on data reported for 2011 because that was the most up-to-date data the Board had.
“There was no requirement to meter or measure your diversion, generally, across most of the state’s almost 40,000 plus water right holders,” he said. “So you can imagine how difficult it would be to try and manage your checkbook, to use that analogy, when you don’t really know how much is going in and how much is going out and when it went in or went out.”
In 2015, the legislature passed and then-Governor Brown signed Senate Bill 88 or SB 88, which provided the Board the authority to pass regulations for metering and measuring diversions. The Board did pass regulations in 2016 that are tiered, based on the size of the diversion, and require diverters to report data files specific to their measurement or metering device. This is in addition to the annual reports, which describe their monthly diversion volumes.
The goal behind this regulation was to address some of the key criticisms of the Board’s actions, which included that a monthly timestep is inadequate for making curtailment decisions. Mr. Ekdahl pointed out that if they don’t have a good understanding of how much water is being used, it constrains the ability to make curtailment decisions.
“What we see, unfortunately, is that we’re having very low compliance with those regulations,” he said. “So for 2018, there are about 13,800 diversions that we believe are subject to the SB 88 metering and measurement regulations. Only 2500 submitted an actual data file, which is an initial compliance rate of just over 18%. It’s actually much worse than that when we look at what’s in the data files themselves. The compliance rate here was between 3% and 4%. A lot of what was included was either not what was asked for, incoherent, or sometimes even blank files.”
For 2019, Mr. Ekdahl presented a table which illustrates that the lack of compliance is across all size of diversions in scope and scale. “We actually had a lower compliance rate here of only 13% for 2019,” he said. “It’s very difficult to do some of the things that the stakeholders are talking about, where they want better communication, they want better information and data, when there’s already such low compliance with these requirements and the data coming in. So that’s a challenge for the Division. We’re working on how to address that.”
Chair Joaquin Esquivel noted that the response rate is disconcerting, given that the diversion amount that happened in the previous year is a pretty fundamental piece of information for a water rights system and the adequate management thereof. “This isn’t just for the Division of Water Rights to figure out; this is actually something for the state of California as a whole to figure out,” he said. “That includes our water rights holders. Because the water rights system needs to work in times of curtailment and drought, and this data point is so fundamental to even being able to have any further discussion from there.”
Legal and policy recommendations
Ms. Guzman noted that the Division generally does not verify the validity of riparian and pre-1914 appropriative water right claims or the accuracy of claimed quantities. As a result, the volume of water diverted by senior claimants can be highly uncertain, which can make estimating water availability and implementing the priority system challenging, particularly in watersheds where riparian and pre-1914 claims represent a large portion of the demand. Participants largely agreed on the need to resolve uncertainties regarding riparian and pre-1914 rights. The participating tribal government said that the Board should acknowledge federally reserved water rights and work to validate them.
Some participants highlighted the Board’s increased collaboration with other agencies involved in transfers as important. However, participants generally thought that the Division’s transfer process was fast and effective and that there were fewer concerns with its transfer processes relative to other state agencies. Participants also highlighted the importance of protecting public trust resources when approving transfers. Some said that the Division should prioritize satisfying water rights, including federally reserved rights, before approving transfers.
Commenters noted that improvements in conjunctive management of surface water and groundwater could lead to better outcomes for supply and environmental and instream uses. A combined accounting system that includes surface water and groundwater storage and use, along with standardized methods, could reduce burdens on regulated entities.
They also heard that the Division should take meaningful action during drought conditions, although some expressed concern that the Division’s regulatory actions during the last drought, like curtailments and emergency regulations, conflicted with rightsholders due process protections.
“I just want to note here that if you read the report, you’ll notice that in this section, some of the recommendations we received may not accurately reflect current water rights law,” said Ms. Guzman.
Data can limit how early or effectively the Board can communicate watershed conditions and potential dry condition actions or drought actions. Many participants emphasized the value of the Division increasing or expanding partnerships to bridge data, resource, and experience gaps, such as identifying partners that could assist with data gathering and analysis, developing visual tools, and spreading the Board’s messages.
The most recent drought highlighted areas where additional collaboration and coordination between the Board and its sister agencies was critical in protecting water resources and highlighted where coordination was missing or needed improvement. Participants recommended that the Board work with other agencies, such as the Department of Water Resources and the Department of Fish and Wildlife, to start planning an interagency drought protocol during non-drought years that would define roles and responsibilities, establish lines of communication, identify goals and priorities and timelines, and develop plans to coordinate messaging and improve data sharing.
Need for more Tribal input
At the end of this process, Ms. Guzman noted some of the realizations. “The first is we’ve received direct input that the division and board should acknowledge that Tribes with reservations created by federal executive order may have federally reserved water rights and jurisdictional authority to manage such rights,” she said. “Some of these water rights are unquantified yet senior to other water rights and may be harmed during times of drought. Tribal governments are valuable partners that can help work through difficult issues. At this time, we were only able to meet with one Tribal government, which is not enough. During our initial outreach, there were several emergencies, which were particularly difficult for Tribes, and may have affected our response rate. But we are committed to continuing our outreach so that the Tribal perspective is better reflected in this report.”
Ms. Guzman said they have coordinated with Cal EPA Tribal Affairs Committee Chair Sarah Ryan, who helped identify Tribal networks to contact. They contacted those Tribes and gave them a draft of the report and options for providing input, including a 90-minute government-to-government meeting, Board staff attending one of their existing meetings, and emailing any recommendations or additions to the report to staff. She said the report will be revised based on any comments and recommendations received from Tribal governments or Tribal representatives.
Erik Ekdahl said that the WARDER effort was constructive for the Division as it helped them better understand key issues and how nuanced and variable the biggest watersheds are across the state. There’s no one uniform response that can be applied to all watersheds, so flexibility and adaptability are needed.
However, the data issue and the communication issue are really tied together, he said. “What we heard every single participant say was they wanted better communication, and they particularly focused on the need for understanding when the Board or the state was going to take action. So if there’s a reference to curtailment triggers, what people are asking for is understanding when supply reaches this level or demand reaches this level, is the Board going to take action? The Board needs to provide that information – but the Board can’t provide that information if it doesn’t have the data to provide it. What we’re seeing here is a little bit of a never-ending circle… We don’t have the data, we need to provide the data, and we need to provide that information. It really is the basis for all the communication that we need to do going forward.”
So the Division has started focusing on how to get better compliance with SB-88, looking at the regulations themselves and trying to understand the compliance hurdles. “What can we do to make those a bit easier? ” said Mr. Ekdahl. “Do we need some education and outreach campaigns to get the effort there, and where needed, do we need to look at enforcement a little bit more firmly? So we’re working on identifying and addressing data issues far in advance so that we can message that and communicate that to all of the stakeholders going forward.”
Mr. Ekdahl also noted that the 2018 data isn’t required to be submitted until July 1 of 2019 – in some cases, 18 months after that actual diversion was used or when that water was actually diverted. It becomes challenging to make real-time planning decisions based on real-time water use in that context.
“When you combine that with a lack of gauges statewide, it’s a double whammy effect,” he said. “It is difficult to do real-time planning, and so we’re reliant on the quality of our previously submitted data from 2011 through 2018, to the best that we can.”
“But what that means is that we’re always looking at drought historically; we’re always looking in arrears,” he continued. “We need to change our perspective and start looking at drought from not only that historical precedent, but start looking prospectively in real-time. How can we adequately plan and understand where conditions are like in every watershed statewide, or at least the critical watersheds, and message that to water users in the watershed, the public, the stakeholders, and the others that are going to make informed decisions at the local level on how that water is used or conserved or managed appropriately.”
Mr. Ekdahl pointed out that the core tenant of the Water Resilience Portfolio is understanding what water supplies are like and planning for managing those supplies in the face of climate change and increasing demand. “But the Division can’t plan ahead if its only able to look backward essentially. And likewise, stakeholders can’t plan a resilient supply if they can’t understand the thresholds and the triggers that drive this state’s drought management actions.”
As for the next steps, the Division will be continuing outreach efforts to tribal governments. The report is available online, and people are welcome to submit their comments and suggestions. They are asking that folks do that by March 31. Mr. Ekdahl said there wouldn’t be a formal public response to comments, but the report will be revised based on additional comments received over the next year.
Board member Laurel Firestone said that the challenges around SB-88 compliance are disturbing. Are there things more immediately that could be done to address barriers to compliance, at least from the big water rights holders?
Mr. Ekdahl acknowledged that it’s a question they have been asking themselves, and staff has reviewed the regulations and identified issues that could help the overall effort of compliance. He acknowledged that the regulations are rather complicated, so they are considering how they can be easier to understand and more straightforward to implement.
The point about the larger diverters is well-taken; Mr. Eckdahl noted that in some watersheds, a relatively small number of diverters account for the majority of water use. If they were to focus on getting the larger diverters to comply, they would have a much better understanding of what diversions look like, even in some cases on a day-by-day basis.
Nonetheless, there are still challenges. Mr. Ekdahl noted that if there were perfect compliance under SB 88, they would have received 14,000 Excel spreadsheets, which presents challenges on its own. Even a couple of 100 Excel spreadsheets when they’re all a little bit different – different numbers, formatting, organization of the data fields – that makes it difficult to compile that data quickly. So long-term, they will have to look at what tools are needed to synthesize and compile the data in a faster timeframe.
Board member Laurel Firestone said she was happy to see staff continuing to follow up with tribes in particular. “I’m interested in understanding how we will be following up on the federal federally reserved water rights and, and just thinking about how we’re incorporating that into our system, particularly in light of drought. How are we working to address that challenge in particular?”
Erik Ekdahl acknowledged that it is a challenge. “It’s very similar in some respects to environmental or public trust flows. When they are not quantified, it’s very difficult to directly integrate them into permits or dry-year management efforts. One of the things on the Division’s end is we need to actively be engaged with our tribal governments and tribal partners to understand where the federal reserved rights are.”
“Where that reserved right is more of a narrative than a quantitative standard, it does raise challenges, and it gets directly back into that data question,” he said. “To quantify it, my understanding is you do need to go through an adjudication type process. And that can be fairly lengthy in scope and expensive in scale. And usually, it’s on the stakeholders to pay for that type of adjudication, which I think has been a little bit of a barrier to entry. But there are definitely things we can do to make sure that we’re considering and are as best informed as we can be when we start a process.”
Chair Joaquin Esquivel noted that tribal water rights could be settled by going to Congress. “That’s where a majority, I think, of the quantified rights that are out there like the Pachanga and the San Luis Rey came to be. It’s through the federal trust obligation at the Bureau of Indian Affairs and Department of Interior that a lot of that work happens.”
The need to take action
Board member Sean Maguire noted that much was learned from the last drought, and yet there’s still a long way to go for us as a state to harness the potential of balancing the limited resources that we have. “Even though it’s going to take some time, we shouldn’t let that be a barrier to thinking through where can we make progress in other areas, such as thinking about triggers, because that could provide useful information in any year to help water users take voluntary actions.”
Erik Ekdahl acknowledged that where things stand at the beginning of the planting season is critical information that’s available on a larger scale, such as Central Valley Project and State Water Project allocations, but for an individual watershed, that’s information that’s not always readily available, which ties into water users understanding where the data comes from and why their reporting matters.
“We do need to be taking actions, now and in planning for the future, and not waiting for the perfect,” he said. “The perfect is the enemy of the good is the saying, and we do need to be able to manage the system and to take actions with the information and data that we have.”
Board member DeDe D’Adamo agreed. “We need to be using all of the resources that we have, and I think we ought not to be afraid of what we don’t have. Even though we are somewhat restricted by some actions that have occurred in the past, at the same time, we are building and moving in a forward direction.”
PUBLIC COMMENT HIGHLIGHTS
Dante Nomellini, the manager and co-counsel for the Central Delta Water Agency
“I’ve been very disturbed at the direction the Board is going … In the case of Stanford Vina, the Board used the emergency authority to pass legislatively a determination that the current water use, which was agriculture, was an unreasonable use, thereby depriving those parties who held senior water rights of the right to compensation for the water that was taken away from them, as well as an adjudicatory hearing. … ”
“Somebody needs to determine who has, in the contract area of the two major projects that are driving water in California, who has the priority right? During a drought, who among the water contractors has the primary right? There are different levels of rights in the federal water project. And then the State Water Project has what they call Article 21 water. Article 21 water is supposedly surplus water. Now what have they done with Article 21 water? The original contracts required that there be an assurance that that temporary delivery of water would not result in permanent demand. Permanent demand is, for example, tree crops that have to be irrigated every year for the life of the crop. And that’s the way the farmer looks at it. Water that goes to development in the desert – people living on that water will need water all the time. So we’ve gone fast and loose in our water system on committing water which is not firmly available. … You’ve got to get to the bottom of what is the availability of water that you’re dealing with during drought. It’s not an emergency. It was planned for, and we’ve deviated from that, trying to get everybody a water supply when it is not available. …
Rebecca Aykroyd, on behalf of the San Louis Delta Mendota Water Authority
“… There are several recommendations for which there are broad consensus and likely ability to implement in the short term that warrants careful consideration. Stakeholders are interested in reducing uncertainty and improving data, as was discussed in a number of recommendations in the WARDER report. Do you support those goals? So, for example, to highlight a few items that could be implemented in the short term. The Board could quickly designate division liaisons by geographic region to develop relationships and local expertise prior to the drought. It can daylight current water supply estimates for different watersheds and regions. And it can work to improve SB 88, data gaps, priority drought, and some of the ways that were already discussed. These are just a few suggestions for items to prioritize. … ”
John Herrick for South Delta Water Agency
“… I think on page 15 of the report, it talks about alternatives to the priority system of water rights. And although those may be the subject of discussion sometimes, I don’t think they should be included in a report as they are just contrary to law – things like ‘it’s not an ideal way to allocate water during a shortage.’ That’s not what the law says; the law doesn’t say, ‘we want the state board to figure out how to even out everybody.” People have certain rights, and those should be respected. …
“The report barely even mentions the temporary urgency petitions. And that’s one of the big problems because those petitions under the statutes are not public. You guys made them semi-public, but they’re not public. As Dante said, droughts aren’t emergencies; we know they’re going to happen. And you can’t say, oh, it stopped raining, suddenly, we need to do an urgency change petition, because you knew that time was going to come. The modeling, D 1641, all of that included critically dry periods that were coming, and they set minimum flow standards. So if you’ve already modeled the fact that there will be times when basically flows are down to zero in some places, and you’ve set minimum flows for fish. What does it mean when that time arises, and the Board grants a temporary urgency to change petition to change that? It doesn’t make any sense to us ... ”
“… Emergency orders in the drought, I think, are backward. In the middle of the drought, the state board is trying to determine who to shut down. We don’t agree with the test to begin with, but they’re trying to determine who to shut down. So last time, we got an order for hundreds of people, hundreds of diverters that said, ‘provide your proof of your water right.’ So we tried to have a truncated water adjudication in the middle of a drought to determine who should divert. That can’t work. When we go through court actions on water rights, it takes us two years and a couple hundred thousand dollars to do the water right research. And you can’t do that with an emergency order. … ”