Powerful state agency was weak when it came to the Delta
By Mike Taugher
Contra Costa Times
Posted: 03/19/2010 06:24:35 PM PDT
A powerful state agency with broad authority over water stayed on the sidelines as the Delta ecosystem crashed and California descended into its worst water crisis since the early 1990s.
Reforms passed by lawmakers in November are bringing the State Water Resources Control Board back into the game after a decade of inaction, but some question how it will respond.
Critics say they already see some water board members reluctant to act aggressively, taking a more limited view of the new law.
And the board has a history of shying away from the Delta's controversies and complexities.
"All of the laws have put the responsibility to fix this with the state board the whole time," said Michael Jackson, an environmental lawyer and frequent critic of the board. "They've done nothing."
# In 1986, a state appeals court threw out the board's plan for Delta water quality and operations of massive water delivery projects, saying the board, among other things, had a duty to protect the ecosystem and the unquestioned power to protect public trust resources. It never applied those powers.
# A few years later, the board's staff was developing a plan that would have led to cuts in water supplies for politically powerful water agencies in the San Joaquin Valley and Southern California to protect water quality in more established regions, including the Contra Costa Water District, but it shelved the plan, according to a former board member.
# In the early 1990s, the state board tried to apply its public trust authority but then-Gov. Pete Wilson pulled the plug, saying federal officials were rendering the process moot by threatening to dedicate even more water for endangered fish. The decision put state water policy on course for an failed, multibillion-dollar attempt to balance water supplies and environmental needs through consensus.
# The consensus-driven management, known as CalFed, effectively sidelined the state board, and when fish populations nose-dived, plunging parts of the state into a water crisis, the board never asserted itself in the state's thorniest water problem.
# In November 2008, with Delta water policy in disarray, the state board canceled fact-finding hearings to address water flow needs in the Delta and other issues after four board members reversed themselves and decided the hearings would be too difficult and complicated. The fifth board member, Gary Wolff, persuaded the other board members to approve the hearings months earlier. He left the board two months later for another job.
Created in 1967, the state board enforces clean water laws and administers water rights in California, giving it broad powers to fulfill its mission: "to preserve, enhance and restore the quality of California's water resources, and ensure their proper allocation and efficient use for the benefit of present and future generations."
In the Delta, however, water management is in disarray and the estuary's ecosystem is in serious trouble.
The water board has issued or is considering water rights permits in the Delta watershed that have a face value of 245 million acre-feet, even though the average annual runoff in the watershed is 29 million acre-feet.
Although the permits include double-counting and other offsetting factors, the figures are, to some, evidence of overpromised water.
In the 1980s, for example, the board moved to curtail water use from the Delta's thirstiest users — customers of state and federal water projects that together make up the biggest water delivery system in the country. But those moves were shelved.
The water quality plan was meant to protect water quality in regions like Contra Costa, which were established before the big pumps were installed, said one former board member.
"It was a recognition even then that there is more water rights on paper than there is water available in the Delta," said Marc Del Piero, who was on the board from 1992 to 1999 and now works as a lawyer and bankruptcy trustee.
Del Piero said a former state board chairman, the late Don Maughan, told him that the plan was scrapped after Maughan was called to meet with the administration of then-Gov. George Deukmejian officials who voiced a lack of support for it.
A longtime board member rejected the idea that the board is controlled by the California Department of Water Resources, which operates the State Water Project.
"They don't run the water board, I can assure you," said Arthur Baggett, a board member since 1999. But he said, "The project has always had a lot of clout."
The state board also has been chronically understaffed. Baggett said its water rights enforcement staff today numbers fewer than it did in 1968.
"You do what you can with the staff that the powers that be give you," said William Rukeyser, the board's spokesman. "If you had more you would do more."
Rukeyser noted that in November the Legislature authorized 25 more water rights staff members.
It was during the water quality hearings of the 1980s that the late Luna Leopold, a UC Berkeley professor known as the father of modern hydrology, told the board that water depletions were "massive and continue to increase." No water quality plan could protect the ecosystem, he said, "if diversions increase over the present level."
The pumping increases continued.
In the early 1990s, the state board was drafting a Delta plan that would have set new rules for how the Delta pumps are operated in a decision that, for the first time, would have implemented the "public trust" direction of the earlier appeals court decision.
"This water right decision necessarily takes into account both the needs of public trust resources and the needs of water users," begins a summary of the draft.
The decision would have cut water supplies from the big south Delta pump stations by about 800,000 acre-feet, about 13 percent of what was allowable at the time.
Gov. Wilson put a halt to the new regulations, but some environmentalists and fishermen say the draft is further proof the board has long known too much water was being taken out of the Delta.
Critics of the board's performance with the Delta contend the biggest problem is that its structure — five governing members appointed by the governor to four-year terms — make it susceptible to political pressure in high-stakes Delta water politics.
"The arm's-length relationship that is necessary for an impartial approach is just not there," said Dante John Nomellini, manager and co-counsel of the Central Delta Water Agency, who has argued before the water board for nearly 40 years. "They're ruling in the direction of whichever way the (Department of Water Resources) wants to go."
As an example, Nomellini used the board's failure to enforce objectives to protect south Delta crops against saltwater intrusion from the Bay.
The salinity objectives were first adopted in 1978 but the state's water leaders never put in place mechanisms to enforce them.
In the 1990s, state and federal water agencies assured the board they would have something in place — perhaps gates to could control tides — by 2005.
That did not happen, and in 2006 the state board ordered the water agencies to fix the problem and said it would not grant any extensions beyond July 2009.
That deadline too came and went. Now, instead of enforcing the objectives, the board is considering changing them.
Mike Taugher covers the environment. Contact him at 925-943-8257.