Delta Watermaster Michael George was appointed in 2015, the second to serve in the position created in 2009 by the Delta Reform Act. After serving two terms, Mr. George announced his retirement at the end of his term in early January 2023; his successor has not yet been named. At the December meeting of the Delta Stewardship Council, Mr. George recounted his impressive accomplishments during his eight-year tenure, as well as his outlook and advice for managing the Delta going forward.
The importance of the Delta Plan Interagency Implementation Committee
It all starts with science and the development of ‘One Delta, One Science’ and the Science Action Agenda, which makes critical connections between the science and the decisions we’re trying to inform, said Mr. George. The collaboration between the State Water Board and the Delta Science Program has resulted in the Board’s regulatory actions being driven by the best available science that is transparent and peer-reviewed.
Mr. George cited the importance of the Delta Plan Interagency Implementation Committee, pointing out it’s the only forum where seventeen different state and federal agencies meet to exchange information and agree on actions. He acknowledged that the agency heads, who are the principals of DPIIC, are busy people with big responsibilities, but the weakness has been getting their consistent participation.
“We should empower DPIIC to do what it’s capable of doing, and that means that we’ve got to prevail on the heads of these seventeen agencies to actually show up, participate and commit to actions,” he said.
We also have to get adaptive management right, he said. “The concept is in basic conflict with our regulatory processes, which are risk averse. They take a lot of time. They become ossified as soon as that permit is issued. But because of the ossification of our risk-averse regulatory system, we have enormous difficulty taking that learning and turning it into an alternative action.”
He acknowledged that the State Water Board and Delta Stewardship Council collaboration is attempting to overcome that, and those efforts need to continue.
Progress in the Delta depends upon vision and persistence
Progress on all these issues depends on the vision for the Delta as articulated in the Delta Plan and the flexibility to work things out.
It also takes persistence to get things done; in the Delta, that means a lot of outreach and listening, said Mr. George. “You can tell people, ‘We’re not going to meet your objective’ after they know you’ve heard their objective, and there is transparency around how their objective had to be balanced against other objectives. It’s not rejecting their point of view; it’s not rejecting their needs. It’s saying in order to make progress, you can’t get what you need right now. But it’s noted; it’s understood.”
Progress on water rights in the Delta
One of the major accomplishments during Mr. George’s tenure was clarifying water rights in the Delta. When he began his first term, reports of diversion and water use in the Delta were reported under pre-1914, riparian rights, licensed rights, salvage water, and/or conserved water – if reported at all. Once the drought hit in 2014, there was a need to implement curtailments, but to implement cutbacks under California’s complicated water rights system, the water rights and order of use must be known. This was virtually impossible in the Delta.
So the State Water Board Division of Water Rights in 2015 sent an information order to all water rights holders in the Delta, requesting information on their water rights. As a result, the Board received a lot of data, most of it hard copies of maps, graphs, and deeds dating back a hundred years or more. Board staff worked through the data and created a digital map connected to the original patents when the land was transferred from either federal or state ownership to individual ownership. A lot of claims overlapped which then had to be detangled.
So in 2017, the Office of the Delta Watermaster published the overlap memo, which included a discussion of the legally enforceable water rights in the Delta. The main finding was that it was nearly impossible to have both a pre-14 water right and a riparian right because the riparian right took precedence. As a result, the pre-1914 right was not needed, not used, and therefore expired. Mr. George noted that the memo was very controversial and remains controversial, but since it was published in 2017, it’s never been successfully challenged.
“Some of that is because we’ve been fairly adroit in settling cases,” he said. “We’ve said, ‘You can keep your claim of a pre-1914 Right. The Delta watermaster recognizes your riparian right because of the work that we’ve done in this settlement conference. So you report your water use under your riparian right. And if you ever want to report your water use under your pre-14, right, that’s fine. You agree in this settlement agreement to give the Office of Delta watermaster 30 days’ notice that you’re going to exercise a pre-1914 right. And when you do, standby for an information order asking you to support that pre-14 Right.’ So we have that as an enforceable settlement agreement in a number of controversial circumstances, but nobody has ever tried to exercise a pre-1914 water right after that. So we’re making progress.”
Water rights in the Delta were further clarified when the Court of Appeal handed down the decision in the Modesto Irrigation District vs. Tanaka case, which provided better insight into the judicial application of the elements of a riparian right. Riparian rights are related to the land that is riparian to the watercourse; since historically, the entire Delta was swamped and overflowed lands, it started with universal riparian rights. With the subdivisions of parcels throughout the Delta, there was a question as to whether those pieces of land had lost their riparian right; the Tanaka case settled that. There was a request for review by the California Supreme Court, which was refused, so the Tanaka case is the final unappealable order of the court of highest jurisdiction.
“So we’ve been applying it, and that has enormously improved conditions in the Delta,” said Mr. George. “Now you know what right it is. We still have many people reporting a lot of other stuff because they’re protecting their right to claim it at some point in the future. But it has enormously de-complexified the issues about what water is used under what right and where. And that helped us when, in the next drought, when we needed to curtail water rights, knowing what the water rights were and how they should be approached.”
The clarification of water rights in the Delta has also helped in other areas, such as flood control and master planning, particularly in the southern part of the Delta, and with the water transfer policy.
Caution is needed with water transfers
Mr. George said that in the future, we must prevent the Delta and the watershed from being deprived of water through lax accounting for water transfers. He gave the example of groundwater transfers; someone in the Sacramento Valley transfers surface water to someone south of Delta and uses groundwater instead. When water is transferred across the Delta, DWR and Reclamation use their facilities to move the water, traditionally deducting 13% of the water because they know that taking that groundwater out ultimately deprives the stream of some water. So they protect the projects during the transfer period by taking the 13% ‘haircut,’ he said.
“What we’ve started to say is that it’s fine for DWR and the Bureau, but it doesn’t identify the deficit that is ultimately going to be felt in the surface water system, because that groundwater depletion is going to hit the integrated surface system at some point,” he said. “So figuring out what that point is and dealing with it in the transfer context is one of the next big challenges. We’ll probably move to a 25% haircut next year, at least in some transfers. Ultimately, we need to get to where Colorado has gotten because they did these reforms in 1969 after about 35 years of litigation, but now they know how to do it. We’ve got to be able to do that here in California.”
More reliable data
Water management depends on reliable data. We don’t want to have arguments about what the data are; we want to discuss how we apply the data that we can agree on, Mr. George said. When he began his first term, the reporting response was abysmal – 29% or less. Through direct outreach and explaining the importance of accurate data, and with assistance from engineers, lawyers, and water agencies, the response rate is now 95% or higher, and even 100% for one reporting period, and the quality of the reports is far better.
Legislation requiring diversion measurements was enacted in 2015, but implementation quickly became challenging because of the difficulty of measuring diversions in the Delta. So the Delta Watermaster and others participated in the development of Open ET, which uses satellite imagery to determine how much water was taken out of the Delta through evapotranspiration. There is now agreement that Open ET is how evapotranspiration is measured in the Delta. Open ET is also now used for the Delta alternative compliance plan for the measurement regulations.
The Delta Drought Response Pilot Program, now in its second year, is a program to reduce drought stress in the Delta watershed by incentivizing agricultural water users to incorporate practices into their operations that conserve water, protect water quality, promote soil health, and mitigate potential drought impacts on fish and migratory birds. Open ET is an integral part of the program and is used to verify the efficacy of various practices. The first year has yielded a lot of data; a report is being developed and is expected in February. However, the data collected in the first year is being used to improve the second year of this program.
“I think it will give us a lot of data that will help us manage more intelligently going forward,” he said. “That’s critical because one of my mantras is, we’ve got to follow the data where it leads us. You can start with a hypothesis, but then you’ve got to test it rigorously. And if it doesn’t work out, you’ve got to have the chutzpah, the willingness, and the open-mindedness to give it up and test other hypotheses. That has been extraordinarily valuable to us as we’ve faced this challenge of how to conserve water in the Delta and to protect it from salinity intrusion.”
A look over the horizon
Mr. George then gave his thoughts on going forward. First, an avalanche of data is coming in, and that’s good. But it will have to be managed, verified, QA/QC’d, and outliers identified. Through the alternative compliance plan, every water user in the Delta is reporting their water use accurately, which has never existed before.
“We’re going to get all this data; we better be prepared to deal with it, manage it, make it useful, and insist that it be delivered, which only government can do,” he said. “But then we need to make it accessible, to make it visible and usable. So I’ve been telling Jay Lund at UC Davis Center for Watershed Science we’re going to create for future generations of your Ph.D. candidates the databases that will make their careers. They’re going to get into those databases and tell us things we couldn’t possibly tease out on our own. And that’s going to help us be more strategic about our science action agenda, because we’ll have the data available that people will want to be looking at and moving through.”
We have to reengage the federal government, he said. “For a period of time, they had a different agenda, but now we’ve got an opportunity to reengage the federal government. So let’s not miss it.”
We have to give up the notion of permanent, immutable contracts in a dynamic system and subject to existential change, such as the Delta, said Mr. George. “We have to figure out how we move from the system designed for a static system to one that is changing rapidly. All the commitments have been made largely left out the environment and left out a lot of stakeholders who weren’t around when the water rights were handed out – there has to be a way of including those uses and those needs in a shrinking environment.”
“I believe it can be done for the betterment of the entire system, because we’re not going to have reliable water rights if we don’t have an improving ecosystem. And we’re not going to have an inclusive society if we don’t figure out how to address the fact that when water rights were handed out, they were handed out at a time when women were not allowed to own property, including water, when we still had enforcement of fugitive slave laws so that African Americans could not compete to own or use that precious resource … we have to figure out how to ameliorate the ongoing systemic exclusions. And we’ve got to do it in a circumstance where climate change is moving faster than our ability to adapt.”
Adaptive management is like an average year – we know it’s out there, but we’ve never seen one. “We have to figure out not only how the average is being skewed by climate change but what we’re going to do about it. There will be circumstances where there are ten years of litigation before the outcome is known, but in the meantime, we’ve got a Delta that we’ve got to manage, and we’ve got to do that collaboratively while seeking that judicial outcome and guidance.”
“This is where I come back to the logic of the 2009 Delta Reform Act and the logic of the Delta Plan,” he said. “There has got to be an overall plan for what we’re going to do with this precious resource, or face losing it – losing it for water supply, losing it for the ecosystem, losing it for equity, losing it for recreation, for our way of life, and for the economy of the state of California. So if we can’t use the Delta Plan while the litigation is going on, we’re going to lose the Delta. And I think that’s a scary thing to say, looking over the horizon.”
“ … I want to say that I appreciate the opportunity you’ve given me to get to the plate and take a swing at some of those pitches. Some have been grounders, some have been pop-outs, a couple of home runs, and mostly a few singles. Get the next guy to the plate and move it forward. I’m proud of what I’ve done. And I’m proud to be in a situation of turning over what we’ve done in better shape than we found it. So once again, I appreciate it. I am grateful for the opportunity. And I’m looking forward to watching how you work all this stuff out.”