At the July 22 meeting of Metropolitan Water District’s Special Committee on the Bay-Delta, attorney Becky Sheehan updated committee members on the State Water Resources Control Board’s activities as they relate to the Bay Delta.
She began with a little history, noting that this extremely dry year was preceded by two very dry years. Earlier in the year, DWR and Reclamation were concerned that if they continue to meet water quality control plan requirements, they would run out of stored water, so they asked the State Board for some relief, primarily from outflow requirements, but also from some of the water quality control plan requirements for the operation of the Delta Cross Channel gate, which has a water supply impact, she said.
The water agencies request highlighted the need to preserve stored water to have it available for dry year actions like meeting water quality standards and to manage salinity intrusion into the Delta, both to protect beneficial users in the Delta and to maintain diversions, she said. The water agencies also wanted to protect salmon as required by the biological opinion and the water quality control plan by preserving the cold water pool in Shasta Reservoir so they can keep the stream downstream of the reservoir cool enough so the salmon eggs are able to hatch, she said. The water agencies also needed to preserve the stored water for health and safety and to preserve supplies, she said.
At the same time, it highlighted the need to protect stored water as there are illegal diversions occurring in the Delta, she said. “On the slide, I say ‘continuing illegal diversions’ because we are aware that in most years, there are some number of illegal diversions occurring,” she said. She then read an excerpt from the State Water Resources Control Board Decision 1641, the water quality control plan order. “As it relates to the south Delta, the Board found after an evidentiary proceeding, that on average, there’s insufficient water available to supply the south Delta in below normal, dry, and critically dry years in the months August through October. On average, there isn’t sufficient water available in September to the south Delta water users except in the very wet years, and then they also found that there’s insufficient water available in July in 16% of the years, in August in 56% of the years, in September in 78% of the years, and in October in 70% of the years.”
“What that highlights is that when there isn’t enough water users to divert, and yet they continue to divert, they are taking somebody else’s water, and most likely it’s the stored water supplies that they are diverting that they don’t have a right to, because they don’t have contracts,” said Ms. Sheehan.
She then presented a slide with data on supply and demand for water in the Delta watershed, pointing out that the slide was created by the State Board, and the numbers for demand are based on the Statements of Diversion and Use that the diverters submit to the State Board themselves under the penalty of perjury, so it’s their representation of what their demand is. She also noted that the Sacramento has more flow then the San Joaquin, and that the San Joaquin flows are quite low, particularly in September.
“This is one way to look at it; this is the watershed level,” she said. “Another way to calculate how much illegal diversion might be occurring, or the mismatch between supply and demand, is flow on the San Joaquin River at Vernalis, which is a compliance location of the river as it comes into the Delta. The average flow in July was 250 cfs. The south Delta water users have represented to the State Board during the 1641 proceeding that their demand in July is 1400 cfs, so there’s clearly not enough flow coming in to support the water uses but they have represented that they believe they have a right to continue to divert. At least some of them have represented that they continue and plan on doing so.”
So what are we going to do, she said. “The State Board does have authority obviously to stop illegal diversions and protect the priority of water use,” she said. “Generally they use this authority to protect senior water right holders, but they also use the authority to protect stored water supplies from those who don’t have a right to divert it.”
She then briefly reviewed the different types of water rights:
- Riparian water users: “Those who have land adjacent to a waterway would generally claim a riparian water use, whether they really have that right or the magnitude of that right, they believe they have is a factual issue, but they would be considered a senior water right holder,” she said. “They have the best water rights in the system.”
- Pre-1914 appropriators: A pre-1914 appropriator would be someone who had staked a claim to water use before the water rights permitting system was in place in California, she said. “Do they really have the right they think they have and can they prove that they were pumping the quantity they are pumping now back in those early days; that’s a factual question,” she said. “They have a right to pump natural flow as do the riparians, but they also have a bit more of a right, they can do some of the irrigation return flows, some of those flows that might have been abandoned that aren’t natural.”
- Post 1914 appropriators: Post 1914 appropriators are those who received a permit after the water right system was in place, and so they do have permits with the State Board and they are to pump according to those, she said.
“Unless they have a contract, none of these groups of water users have a right to use stored water supplies because that would exceed their rights,” she said.
There are two processes for how the State Board could enforce curtailments: the usual process and the authorities they were granted to enforce and order curtailments on an emergency basis, she said. “The difference between the two processes is that the usual process is very slow; it’s an individual determination, they have to do fact finding, they have hearings, and if you do more than one or two, it’s definitely a long extended process and you don’t’ start accumulating fines until after the Board has made the determination,” she said.
“The emergency regulation is a shorter process,” Ms. Sheehan said. “It’s supposed to be on an emergency basis to try to make sure that priority is upheld in this dry year. Fines will start to accrue as soon as the Board submits its order; however, there is due process because there’s an appeal process that would proceed after they received the order. Some of the senior water rights holders were concerned that the Board took too long to address the concerns during the appeals process, that their fines could accrue quite a bit and beyond their control, and the State Board had indicated that they would try to move things along as quickly as possible.”
She then reviewed the timeline of the year’s events. “In January, the Governor submitted his drought declaration, and on that same day, the State Board sent notices to everyone in the Delta watershed saying you’re on notice, it’s a very dry year and there’s not going to be enough water in the watershed for everyone to be diverting as normal; please make your decisions accordingly,” she said.
“March 1st, drought legislation was passed that gave the State Board some emergency curtailment authorities,” she said. “Mostly it added some fines – their ability to fine people as far as emergency regulations go. For curtailments, in April, the Governor did another proclamation as a part of that. There was some CEQA relief, and that CEQA relief applies to the Stat Board’s ability to do emergency curtailments without further CEQA compliance.”
In May, we really started to see how the spring and the summer was going to proceed as far as how much water supply was going to be available, she said. “The State Board sent out curtailment notices to all the junior water rights holders, everyone who was post-1914, and said that there isn’t enough water in the system for you to continue to divert, so you must stop. Please send us, on penalty of perjury, a form that says that you either stopped pumping or that you have a senior water right and you’re now pumping under that right.” She said there were other categories, such as hydropower plants just passing flows through, or other categories. “They wanted you to explain that either you’re stopping or why you’re not, and those were to be submitted in a very short amount of time.”
At the same time, the Board imposed Term 91, a permit term that only applies to junior water right holders who have permits after 1965, she said. “What it says is that if there isn’t enough water in the system and most of the available supply in the system is the stored water releases trying to meet water quality standards, that the junior appropriators cannot then pump that water,” she said. “They need to stop pumping so that the state and federal projects aren’t having to make more releases to serve them and also meet water quality standards. Of course, they don’t have a right to that water, which is why that term is in place, to try and stop their pumping so the reservoir water can be used just to meet water quality standards.”
“On July 2nd, the State Board considered whether it would do emergency curtailments,” she said. “Part of what prompted their decision to take on the issue was compliance with the certification forms form the junior appropriators.” She then presented a slide from a State Water Board presentation in July showing rates of return on the certification form. “As you see here, compliance wasn’t great. For example, in the Sacramento watershed, they sent out about 5000 notices and about 1500 were returned which is about 31% compliance.”
“If you look at it from a water supply perspective, 78% of the water complies, really meaning some of the big diverters are the ones who sent in their notices,” she said. “However, what it also shows here is only 8% of the supply, 78% of those who complied actually curtailed, which means some of the big diverters complied, but they said I have a more senior water right, I’m going to continue to pump on the right, and only 8% of the water was actually stopped being pumped. That is obviously a very small quantity as compared to the numbers I showed you earlier about the magnitude of the difference in the mismatch between supply and demand.”
In early July, the State Board considered emergency regulations, Ms. Sheehan said. The staff initially proposed that the emergency regulations should apply to everyone because staff felt they had enough information to show that there were pretty widespread illegal diversions, she said. They also proposed a health and safety exception for those who could show a need, such as a small town or subdivision with no other water source.
“What was ultimately adopted by the State Board is that they decided not to have a health and safety exception written into the emergency regulation; however, the emergency regulation only applies to the junior appropriators,” she said. “It does not apply to the seniors, so as far as enforcement goes, the quicker process and the higher fines would only apply to the junior appropriators. The State Board indicated that if there were enforcement against more seniors, it would be under the regular, longer process. The regulations are in effect for 270 days.”
Another component of the emergency regulation is that the State Board decided that they really need more information about the senior water right holders who do affect enforcement, she said. “It’s actually only recently that they’ve even been required to report anything. In 2009, there was legislation that finally said you need to identify who you are, what kind of water right you think you have, and what are you diverting under that right, and even having that basic information is pretty new. It’s not the best information yet. They are very new as far as this reporting goes, and there are certainly some gaps in the information.”
The State Board’s emergency regulation sets up the ability for someone who has a complaint to either do a formal complaint or provide information to the State Board that they suspect someone is illegally diverting, and if the State Board investigates and finds they are in fact illegally diverting, they would take action, but it would be under the normal process, she said.
“We do believe there are illegal diverters, particularly in some areas of the Delta,” she said. “There probably will be a letter from folks representing the state and federal water projects objecting to those diversions and asking the State Board to use their authority in the emergency regulation to gather more information from them, who they are, what is their right, what is their basis for that right, and get that information so enforcement can occur in the future. As soon as possible, but has to be in the future, because we don’t have that information today.”
She then gave a quick update on the Bay-Delta Water Quality Control Plan, Phase 2. She noted that the process has been going on for several years. The State Board received a lot of information during several days of workshops in 2012, and to help the Board sort out the information they received, they asked the Delta Science Program to convene expert panels to go through some of that information, and try to help clarify the state of the science for the State Board, she said.
Two workshops with the expert panels have occurred already, one on Delta outflow and the other on Delta inflow and hydrodynamics.
“The first report on Delta outflow has been released,” she said. “The panel really did take their task to heart, and there is a lot of good information in it. Some of it is really helpful and we’re glad they took on the issue, and other stuff we’re thinking they kind of missed that point … I wish they had thought about it differently, but when we have these panel reports, you have good and bad. In all, good and bad from everyone’s perspective, so I guess there’s something in it for everyone.”
“The next report, which is on interior flow and hydrodynamics, I believe is actually going to come out this week,” she said. “We’re not exactly sure what the contents are. They have a meeting this week where they are going to report on it, and then it’s going to be released shortly thereafter.”
The State Board’s next steps after receiving these reports is not entirely clear, she said. “They did have a schedule but I’m not sure if that schedule’s going to be upheld mostly because they’ve been extremely busy with the drought, with the curtailments, and with addressing some of the projects concerns over meeting water quality standards,” she said. “They haven’t submitted a new schedule, so I’m not sure where they’re going to go next, but they had anticipated some activity later this year, maybe early next year.”
And with that, she concluded her presentation.
For more information …
- For the agenda, meeting materials, and webcast for this meeting, click here.
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