I attended the March 8, 2011, State Senate Hearing where the Natural Resources and Water Committee held a "getting to know you" event with invited guests Craig Wilson, Delta Watermaster and recent author of a report on the Reasonable Use Doctrine, and Jerry Meral, heading up the California Natural Resources Agency's Bay Delta Conservation Plan participation.

Read about Meral's interchange with the Committee here.

Seven other panelists were invited to speak briefly at about 11 a.m. for a few minutes each. More on them here.

Senator Fran Pavley, chair of the committee, opened the meeting with a brief recap of the 2009 Water Reform Package ("seems like years ago now"), and stated that the reform package is being implemented all under the umbrella of the coequal goals for the Delta set forth in the legislation.

Senator Doug LaMalfa, vice chair, also introduced himself to the room, stating he is a rice farmer up north, and stated his position that he is for expanding supplies in order to make them more reliable.

Three other senators attended the hearing as well: Lois Wolk from the Delta, Jean Fuller from Kern, Tulare, and San Bernardino counties, and Christine Kehoe from the San Diego area.

Mr. Wilson spoke first, covering three topics:

Courtesy of Stoel Rives LLP and California Watch

• What is the Delta Watermaster?
• Activities over the last several months
  
• Reasonable Use Doctrine report
  

Senator Pavley introduced him as a 30-year veteran water rights attorney from the State Water Resources Control Board, and with the board he had been chief counsel from 2000 to 2005. Wilson's remarks:

The Delta Watermaster (hereafter referred to as DWM) position was created by the Delta Reform Act of 2009, appointed by the State Water Resources Control Board to a 4-year term. He stated that the DWM is "not your typical watermaster." Watermasters enforce diversion and withdrawal amounts of water from adjudicated watersheds and groundwater basins. The DWM, by contrast, was delegated authority by the Legislature for:

• Monitoring and reporting on Delta diversions based on some 2000 recently submitted statements of use and diversion from Delta water users. This authority is limited to the legal Delta.
• Enforcement of water rights law in the Delta, also limited to the legal Delta.
• Submitting "reports to the Board (SWRCB) and the Council (Delta Stewardship) including, but no limited to, reports on water rights administration, water quality issues, and conveyance operations." This authority is in Water Code Section 85230.
  

Wilson told the Committee that he and his staff have been combing through the 2000 statements of use and diversion from Delta water users, and he chose as his first report topic, the reasonable use doctrine focusing on its application to agricultural water use efficiency potentials.

Regarding the Delta statements of use and diversion, he stated that the DWM has been doing lots of outreach with Delta users to make sure everyone is participating in the requirement of state law to file such statements.

The purpose of the requirement, he said, is to create greater certainty of diversions and rights in the Delta. Alleged unlawful diversions have come up as well, some preceding his time in the job, which are in hearings before the State Water Resources Control Board.

When dealing with these, he told the Committee, he attempts to learn all the relevant facts of the case to see whether land whose property boundaries have become severed from river channels in the Delta have documentation showing intent to retain riparian rights or not.

Wilson turned to the reasonable use report next. He chose the topic because it is a "very powerful doctrine, supported in legislation and court decisions. However, it is not applied much though." He stated his belief that it is "usable for more general issues, such as agricultural water use efficiency."

Wilson then indicated to the Committee and the audience that he has seen many areas of California where agricultural water use efficiency is very high, and noted that correlated strongly with high water costs. Other areas of California (he was not specific, and no one asked him to provide details) he said where water is "not expensive" and use is less efficient.

Wilson stated that in his report when he speaks of efficiency potential he is not referring to capture of return flows. He was referring more to losses from evaporation/transpiration of plant metabolism, evaporation from saturated soils, and other places with standing water.

The Delta watermaster described what he sees as some promising approaches to achieve greater on-farm water use efficiency, such as:

• On-demand scheduling of deliveries as opposed to potentially wasteful "rotational scheduling" (where a farmer's allotment of water comes up and he has to take it or leave it whether he needs it or not).
• Weather-based irrigation scheduling, "regulated deficit irrigation" (a method touted by the Pacific Institute), and
• Use of more efficient crop varieties (where there would be no net loss in yield) were additional promising methods for improving on-farm efficiencies of water use.
  

In his report, Wilson recommends an agricultural water efficiency summit later in 2011, pilot projects to determine how much water might be saved and how utilized, streamlining enforcement proceedings without compromising due process rights of water users, and use of remaining bond funds available for efficiency projects.

Senator Wolk stated her appreciation of his focus on agricultural water use efficiency. She expressed concern that in Delta counties (Yolo, Sac and San Joaquin) agricultural extension experts and programs have been cut dramatically due to budget issues.

Wilson agreed this is a problem and has been advocating in support of their retention in the budget, and that we will need to maximize use of existing programs that survive.

Senator Wolk switched gears to ask about the recent report by the Public Policy Institute of California and its largely urban water conservation focus, acknowledging she had not read the whole 500-page report yet.

Wilson responded that it contains potential examples (including the IID-MWD transfer in the early 1990s, which he noted resulted originally from a reasonable use enforcement action against water waste by IID farmers) of agricultural water use efficiency, and that more could be done incrementally to "spread conservation techniques."

Senator Wolk asked what role the DWM has in flow determinations for the Delta.

Wilson replied that he has no direct role, but would be submitting a report "in late March" about the State Water Resources Control Board's role in implementing the Delta Plan by the Delta Stewardship Council. (That looks like a report worth watching for.)

In response to a further question from Senator Wolk about the DWM's role concerning Delta diversion screening, Wilson stated that unscreened diversions is another future report topic he anticipates producing as DWM. He stated "they may be an unreasonable method of diversion." (probably another.)

Senator La Malfa probed the Delta watermaster for information about his authorities.

Wilson reiterated that the DWM staff are going through Delta statements of diversion and use and are doing monitoring. He also stated that the DWM has authority to issue "cease and desist orders" and assess fines and penalties on violators of their water rights. These authorities are geographically limited, said Wilson. He reiterated too that his reporting authority has no geographic limits.

Senator La Malfa observed that this sounds like he threatens people's water rights, but Wilson defended his reporting authority by stating that these reports are intended to be "just informational."

Senator La Malfsa asked about "how the process of Delta enforcement is going."

Wilson stated that the SWRCB decided its first Delta case last January and that "some good principles were established for future enforcement." These enforcement actions he said are "fact dependent" in a quest to figure out the intent of a subdivision - did farming continue with a presumption that the riparian right continued though the parcel was severed from the streambank? Is anything written in the deed that transferred that states any intent about what happened with the riparian right to water?

Senator Fuller inquired why Wilson felt that SB X7 7 (the water conservation law in the 2009 Water Reform package) "fell short."

"Those are not my words," responded Wilson, "but there is not much to be done with the law on agricultural water use efficiency since it only requires agricultural water agencies to file water use management reports. The law doesn't even require anyone to review the reports that are submitted." He told Senator Fuller that he intended his reasonable use doctrine report to be "complimentary" to SB X7 7 implementation.

Fuller expressed her opinion that she would prefer the DWM take on problems that were more in need of solving (than agricultural water use efficiency).

Senator La Malfa took another turn, asking Wilson about cease and desist orders (CDOs), and whether they recognize practical realities or do they cut off farmers' water supplies in mid-irrigation season?

Wilson responded that CDOs are not used to cut off irrigators' supplies in mid-season. Instead, they include a schedule by which the irrigator needs to become compliant.

Senator La Malfa also criticized the idea of shifting crop types without considering market, soil type, and other factors.

Gerald Meral's Turn...