Aerial view of the historic district of Locke. Photo by Paul Hames / DWR

CA WATER COMMISSION: Conveyance and water rights; Considerations for conveyance across the Delta

Delta Watermaster: It’s physically, ecologically, and economically impossible to squeeze water out of the Delta for export.

At the April meeting of the California Water Commission, as part of their continuing work on examining the state’s role in financing conveyance projects that could help meet needs in a changing climate, the Commissioners heard from a panel of speakers about state policy considerations for conveyance and the cross-cutting issues of flood-managed aquifer recharge (flood-MAR), green infrastructure, collaborative partnerships and governance, and innovation.

The objective for the panel presentations is to help the Commission better understand the implications of water rights and reduced Delta reliance on conveyance projects, and make recommendations specific to how policy-makers should consider Flood-MAR, green infrastructure, partnerships and governance, and innovation when applying state financing to water conveyance projects.

This panel will be posted in three parts.  In this installment, Erik Ekdahl, Deputy Director of the Division of Water Rights, State Water Resources Control Board, provided some high-level considerations for conveyance and how it can integrate with the state’s existing water rights system. 

Then Michael George, Delta Watermaster, discussed considerations for conveying or transferring water across the Delta, including the state policy of reducing reliance on the Delta.  During his presentation, Mr. George pointed out that it’s physically, ecologically, and economically impossible to squeeze water out of the Delta for export.  “ My view, developed over my six years as Delta Watermaster, is that it’s an impossible thing to do,” he said.

ERIK EKDAHL: Considerations for conveyance and water rights

Erik Ekdahl began by noting that in most wet years, water rights and conveyance go hand in hand; there’s water to move around, and there’s plenty of places to use it.  Dry years such as this one highlight that the need even more.  The State Water Project allocation is at 5% this year, and it’s about the same or lower for the Central Valley Project.  So there’s an acute need to move water from those who can make it available to those in need.

If you’re thinking about conveyance and water rights, or just water rights, in general, start your planning process long in advance, as it takes a while to get a water right permit in the state of California,” he said.  “So the earlier you start, the faster things will move, and the better prepared everyone will be to make the decisions and move forward effectively and efficiently.”

The second point is to know the source of the water and where it comes from, as that can have significant and important repercussions for how quickly you can obtain a right – or if you need one at all. The third point is to consider other uses and users and how that will affect whether water is available for a new right or even moving it around.  And lastly, the timelines are long so plan accordingly.” 

Advance planning

A new water right can take a long time to process because there are many steps to the process and a lot of technical detail needed before the State Water Board can decide whether or not there is, in fact, water available for appropriation. So doing work in advance can significantly shorten this permitting timeline.

A serpentine stretch of the California Aqueduct in Palmdale.  Photo by DWR.

Mr. Ekdahl said there are two or three things that can hang up the process. The first is the lack of a completed CEQA document; the Board cannot move forward in issuing a water right permit until CEQA is completed.  If the applicant is a private entity, the State Water Board is the CEQA lead agency. If it’s a public agency, then the public agency is the CEQA lead agency.

We often find in some circumstances where we’ve been waiting 10, 15, 20 years for a water right permit, it’s in fact because the lead agency hasn’t started or finished their CEQA document,” said Mr. Ekdahl.  “If an entity is considering a conveyance project, chances are they need to do a CEQA document, to begin with. And incorporating the water rights or the water availability element into that CEQA document can be an effective way to avoid having to do a separate CEQA document later.”

It is also important to consider the impacts and the effect of the diversion and the water right on the environment as the State Water Board is required to evaluate the effects of the diversion on existing users and ecosystems. This involves working with the appropriate agencies to identify both aquatic and terrestrial impacts, usually a fisheries agency, but sometimes there are other agencies.  This includes the CEQA process that considers impacts to the environment, other beneficial uses, and other water users.

Even today, we get partially completed applications that completely avoid mention of the environment or other users,” he said.  “So just making sure that you’ve done your homework and your due diligence will, in fact, go a long way to making things move more quickly.”

Know the source of your water

With conveyance projects, knowing where the water is moving to or from is important and will, in part, inform whether a new right is needed or not; sometimes it is, sometimes it isn’t, Mr. Ekdahl said.  Water repurposed from existing rights can sometimes require a change petition, which can sometimes be easier, but not always.  This can also apply to some types of transfers.

The state’s water rights system is rather complicated. “The Board’s change petitions generally applied to post-1914 appropriative rights,” he said.  “The Department of Water Resources will have other requirements if they’re moving water through the state conveyance system. So make sure that you’ve reached out and considered where your water’s coming from will be a helpful step.”

Mr. Ekdahl pointed that water isn’t always available.  He presented a map showing the streams that are considered fully appropriated, which means that the State Water Board has made a formal determination that there is no more water available for appropriation from those stream systems.  The blue shows stream systems where the State Water Board has made a determination that the stream is fully appropriated for part of the year.  

So making sure that you’ve planned for where water is available and where it isn’t is going to really help clarify what’s in the realm of possibility and what isn’t,” he said.  “Like everything, there are nuances to this.  There are ways to look at opening up a fully appropriated stream system. One of the things that the Board has highlighted over the last several years is the consideration of capturing flood flows during these really big, wet years and storing it underground or somewhere so that it can be used or moved around later.  There may, in fact, be opportunity as we look at some of the other potential repercussions related to climate change on hydrographs in those fully appropriated stream systems and trying to capture flood flows under a new water right. There’s a process to do that, it’s not too complicated, but it does add timelines to the process.”

Other uses and users

Other uses and users of water must be considered when seeking a new water right.  New water rights cannot negatively affect senior water rights holders, and the effect on the environment must be considered and evaluated.  This also applies to change petitions for existing rights; a potential change in operation or change in point of diversion could potentially affect senior right holders and the environment.

Other users and other stakeholders can formerly protest a new right or petition, and the State Water Board by statute cannot issue a permit until those protests have been resolved. There are several ways a protest can be resolved. One is through direct negotiation with the protestant. However, large, controversial projects that move a lot of water will have a water rights hearing, which is a quasi-adjudicative quasi-formal proceeding before either a hearing officer at the Board’s newly established Administrative Hearings office or before the board member themselves.

Again, we cannot move forward until the protests have been resolved,” he said.  “This can typically hang up a new water right as the protests can take a long time to resolve.”


A new water right and change petition can take a long time, but a lot of that depends on the applicant, Mr. Ekdahl said.

If you’ve done the work upfront – you’ve done the CEQA work, you’ve considered protests, and you’ve submitted a complete application to the extent that you can, that can really shorten the timelines,” he said.  “Many projects take five to 15 years just for the water right permitting process. But again, if you come in with your homework, that can be much closer to the five or even three to five-year time range.”

Hearings can be an effective way to resolve protests early as it essentially brings it before the hearing officer to decide how to resolve the protest.  That can speed up the process, but it should not be considered a shortcut because it will still be a pretty lengthy process on its own, he said.

In summary …

Start planning early, identify the source of water, and consider whether or not you need a water right before you start planning the conveyance project itself,” Mr. Ekdahl said.  “Consult with the Division of Water Rights at the State Water Resources Control Board; we have expert staff that can help weigh in on whether water right is needed or could be needed and can provide some high-level input on just the steps to consider on how to move forward most quickly.”

Don’t always assume that water is always there, as the fully appropriated stream system map showed, there are some places where there isn’t water available for additional diversion. Consider the public trust flows; these are what we sometimes shorthand to mean for environmental flows.  Water that has to stay in the river for fish and the ecosystem; this can also apply to terrestrial resources.  There needs to be some water in the stream system for all users of water. And if an applicant doesn’t consider those public trust flows and doesn’t consider those types of uses and users, that will significantly lengthen the permitting process. And just understand the timelines and the expectations before you begin.”

MICHAEL GEORGE: Specific considerations with conveyance across the Delta

Delta Watermaster Michael George then discussed conveyance across the Delta, touching on the highly variable watershed and how that impacts usability and conveyance through and around the Delta.  He also discussed the regional differences within the Delta and the capacity constraints in cross delta conveyance, both with existing infrastructure and how that infrastructure might be updated, managed differently or augmented.

Highly variable watershed

It’s important to think about how flashy our system is, Mr. George began.  Water comes into the watershed, in large part, through atmospheric river events, which bring a lot of water in a short period of time.  But we’re essentially whiplashed between drought and flood, which increases the unpredictability of when and how to convey water across the Delta.

So planning for an average year is pretty foolish,” he said.  “Because although we can mathematically calculate averages, we almost never have an average year; we get wet years and dry years and, and variations in between. So again, the unpredictability.”

The infrastructure throughout the Central Valley that drains into the Delta has been built for managing the snowpack in the Sierra. So the snowmelt is captured in the reservoirs and doled out during the warm and dry times when demand is high and precipitation is low. He also noted that the existing infrastructure and whatever upgrades, maintenance, or augmentation of that infrastructure that might occur are paid for by contractors, who pay for it to receive benefits.

It’s also important to recognize is that the Delta is not a black box monolith that can be managed on a mass balance basis – water in, water out.  It’s a complicated estuary that is connected to San Francisco Bay and ultimately the ocean, and the Delta is influenced more by the tides than by the rivers.

We talk about river influences as net flows, but it’s important to recognize that twice a day, we have much larger tidal influences in the Delta that are differently experienced in different parts of the Delta,” said Mr. George.

The excess water in the system, which there is at times, comes in a big gush.  “Managing that supply below the rim reservoirs is an expensive proposition – expensive in terms of ecosystem impacts, political impacts, economic impacts, ecosystem impacts – it’s really expensive. It’s important to understand what that expense is and how it’s managed.”

When we look at the Delta, as we think about the different sections of the Delta that are outlined in the map to the right, there are important environmental reparations that are needed because of the ecosystem compromises that we’ve made over time as we’ve allocated the most precious resource in our system,” Mr. George continued.  “Because of climate change, all that that I’ve talked about is more complicated. And that complication comes to roost in the Delta.”

Conveyance through the Delta

The Delta is both the hub of California’s water system, and it’s also the choke point, Mr. George said.

He noted that just last year, after seven or eight years of litigation, the Delta Plan was determined in a final, unappealable court order to be the legally enforceable plan for managing the Delta going forward, requiring all state agencies to manage within that plan.  

Importantly, within that plan, for purposes of the discussion today, are the requirements of the parts of the plan that deal with conveyance and that suggest that conveyance should support regional self-reliance.  Reduced reliance on the Delta is also part of the Delta plan.”

There are many facets to planning a conveyance project.  One important aspect is to figure out how conveyance fits into the overall requirement for reduced reliance.

When you’re thinking about conveyance across the Delta, it’s important to recognize that protecting water quality in the Delta is one of the critical gating functions because we have to keep the Delta sweet to allow fresh water to be transferred across it,” said Mr. George.  “That’s particularly difficult in dry years, when there may not be surplus water coming in through the riverine system to manage the tidal pressure that’s coming in from the saline system.”

In addition, you have to avoid injury to others,” he continued.  “That can become more complicated in certain seasons of the year, in certain types of years, and in certain circumstances that are very hard to plan for, which requires a lot of flexibility. Then you have the overlay of the CEQA and NEPA processes, state and federal ESA requirements with biological opinions and incidental take permits, and so forth – all of which have to be considered in terms of conveyance across the Delta.  This means that getting the timing right is critical.

When transferring water, you have to consider not only the origin to destination, but everywhere in between.  If it involves the Delta, there are many approvals and issues to be taken into account and managed in a complex planning system that doesn’t move very fast, he said.

It’s also important to keep in mind the regional difference of the watershed.  In dry years such as this, transfers will likely be originating in the northern part of the state, which is the largest water supply to the Delta.   The northern part of the state is where the largest reservoirs are and is the source for most transfers that have to go through the Delta.

It’s also an area that has relatively more rapid groundwater recharge, meaning that groundwater substitution transfers can generally be made up relatively quickly,” said Mr. George.  “But it’s important to know, particularly now that we have SGMA since 2014, you’ve got to account for when that groundwater usage actually hits the river.”

It’s an entirely different region on the San Joaquin River, which also flows into the Delta. 

The Delta is the drain point,” he said.  “Because there’s an enormous amount of hydraulic pressure and tidal coming from the west, supply in the Delta is not an issue.  There is an ample supply of water in the Delta. And yet the Delta is importantly reliant on water quality from those riverine influences.”

Aerial view of the North Mokelumne river by Staten Island, in the Sacramento-San Joaquin Delta region. Photo by Paul Hames/DWR

Mr. George pointed out that it is physically, ecologically, and economically impossible to squeeze water out of the Delta for export.  “We’ve moved a lot of water through the Delta; we’ve made compromises with the ecosystem. So the notion of solving significant south of Delta demands through some mechanism squeezing water out of the Delta is a ‘chimera.’ It’s an attractive one, and it’s woven into a lot of planning. But within the Delta, my view, developed over my six years as Delta Watermaster is that it’s an impossible thing to do.”

The areas south of the Delta are the areas that are in chronic short supply.  The Delta export community has some partial reliance on the Delta.  When thinking about Delta exports, it’s important to distinguish between urban demands and ag demands.

Over the last 25 years, urban water agencies have made massive investments to take into account the variability in supply by recycling wastewater, using groundwater more extensively, capturing stormwater runoff, and even some desalination.  

Urban agencies have done a lot of things to manage their fixed demand on a variable supply,” said Mr. George.  “In Southern California, there are several different portfolios that include Colorado River water, Owens Valley water, as well as Delta water, and a lot of investments to reduce that reliance on any one of them to be able to more effectively manage a portfolio of water rights.”

The agricultural community, particularly in the San Joaquin Valley, has also made massive investments in the ag community, which were generally incentivized by governmental programs and economic incentives.  However, the impact of that has been a move from annual crops with variable demand to vineyards and orchards – nuts and grapes, instead of tomatoes and onions.  That has hardened the demand; however, the supplies remain highly variable and becoming increasingly so as a result of climate change.

In the San Joaquin Valley, particularly now with the Sustainable Groundwater Management Act being implemented, reduces one of the important safety valves or relief valves that we used to have, which is substituting groundwater when you haven’t got surface water,” he said.  “That’s going to be less possible as we focus on not over-pumping, not overdrafting, but indeed recovering the conjunctive usability of those groundwater basins.”

Mr. George said he outlined the regional differences to emphasize that the need to recognize that there are inherent competing interests, which generate a lot of conflicts.  “So as you think about how conveyance fits into meeting the Commission’s objectives and the state’s objectives, focus on how to deal with that conflict. And I suggest to you it’s far better to recognize the origins of that conflict, the interests that are at stake so that you can negotiate intelligently.”

Capacity constraints

It’s also important to be aware of capacity constraints, he said.  “Every single diversion from the Delta to take water out of the area of origin and to use it somewhere outside that area of origin has limited physical capacity. I’m talking here about the existing pumps for the State Water Project and Central Valley Project, but also other diversions above the Delta that bypass the Delta –such as San Francisco’s Hetch Hetchy project, which actually takes water out of the watershed and sends it to an urban use at the coast. But I’m also talking prospectively about the tunnel project currently going through a regulatory design development process. There is limited capacity physically.”

There are also hydrological limits based on supply variability, such as regulatory compliance constraints that often deal with endangered species or other environmental impacts. In addition, because the infrastructure is paid for by the contractors, they have priority for that limited capacity, so this needs to be considered when planning for transfers across the Delta.

All of this presents a host of additional incremental uncertainties because every one of these pieces of infrastructure presents different gatekeepers,” said Mr. George.

It’s also important to take all of this into consideration when thinking about public benefits.  For example, the Sites Reservoir has water to be released to provide a public benefit for a south of the Delta wildlife refuge.  Realizing that benefit would entail moving water across the Delta and therefore putting the water in the ‘conveyance queue.’   

The most critical times tend to be drier times.  “If there’s a lot of water in the system, there’s a lot less conflict and a lot more win-win multiple benefits opportunities, but when it’s dry, and when that wildlife refuge needs the water most acutely, that’s precisely the time when we all recognize how dear cross-Delta conveyance is and will be in the indefinite planning horizon. So any planning to move water across the Delta must incorporate a very high degree of uncertainty for all the reasons I have talked about.”

In summary …

The Delta is a really complicated place,” said Mr. George.  “It has lots of networked, interconnected issues that need to be negotiated. So the point I’d leave with you is that in addition to thinking about the conveyance challenges and to achieve public benefit challenges that involve transfers across the Delta, keep in mind that you need to get in that line and that some of the negotiation for achieving that public benefit has to take into account the need and the timing and the location of achieving that public benefit.”

Thinking about that public benefit includes the issue of reduced reliance.  Using conveyance investment to achieve reduced reliance probably is most susceptible to win-wins and partnership negotiations to fill in the gaps in conveyance infrastructure that exists primarily in the San Joaquin Valley.”

Where the challenge is, is to grab those intermittent rushes those flood flows when they come, slow that water down so that it can be put into the groundwater and can, over time, refill those vacated groundwater aquifers, so that they revive that conjunctive use opportunity that has been compromised through over-pumping of groundwater and the shift to fixed demand on an inherently variable supply.”

The last thing I’ve got to say is as you think about those challenges of getting water across the Delta, also think of the potential for more leverage, both in terms of investment and in terms of partnership development, that may exist by filling in gaps in the San Joaquin Valley that is trying to move from its dependence on North-South conveyance to start looking at more East-West conveyance.”

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