“In the Criminal Justice System, the people are represented by two separate, yet equally important groups: the police, who investigate crime; and the District Attorneys, who prosecute the offenders. These are their stories.”
There is a certain satisfaction in watching the bad guys brought to justice in just a single hour of Law & Order. The police find the criminal, the District Attorneys prosecute, and justice is served. In the world of California water, however, things are never so easy.
It is commonly held that “you can’t manage what you don’t measure.” It is also widely agreed that the management of California water suffers because of inadequate measurement data. What is not accounted cannot be held accountable, after all. All too often, lack of transparent accounting is used as a shield against accountability. Even when the accountability is there, there’s a stunning lack of follow-through. No one is charged, no one is prosecuted, and the dysfunction continues.
The most depressing demonstration of the State of California’s lack of adequate accounting data is the State Water Resources Control Board (SWRCB)’s dismissal, earlier this year, of a complaint against the Byron Bethany Irrigation District (BBID) for illegal diversion and use of water. The Water Board’s staff had issued a curtailment order in 2015, concluding that there was not sufficient water in the San Joaquin River to meet the appropriative rights held by BBID and other users with water rights that predated 1914. BBID chose to continue diverting water in violation of the curtailment order, claiming that its water rights were not subject to the Board’s control and that there was water available for diversion under their rights. In response, the Water Board’s staff filed a complaint alleging that BBID had illegally diverted water, leading to an adjudicative (trial-like) proceeding to determine the validity of the complaint.
Consistent with numerous court decisions, the Water Board appropriately concluded that it had authority to regulate pre-1914 water rights under a curtailment order, in order to protect other water rights and the environment. However, the Water Board dismissed the complaint filed against BBID because they concluded that staff had failed to meet their burden of proof (using the Water Board’s own data) to show that the diversions had in fact exceeded BBID’s water rights.
I’m certainly not claiming that the state water board was wrong to dismiss the complaint. I haven’t gone through the evidence to see whether it was sufficient, but the fact that the State agrees that its accounting system was not sufficient is outrageous, and depressing. How is it that in the 21st century—in the age of the Internet of Things, when we have more data than we know what to do with—we can’t accurately measure water diversions and flows? Admittedly, measuring and regulating water diversions is complicated. But we track and regulate quantities of air pollution; why is tracking water such a seemingly impossible task?
And yet, the lack of accounting isn’t the biggest problem we face. Even where sufficient data is available, the board does not hold violators accountable. For instance:
- Drought regulation violators: Cities that violated the mandatory urban water conservation requirements during the drought generally got a slap on the wrist, with many not paying even a minimal fine to the State, instead using that money for water conservation problems in their city, like “a water education campaign featuring two savvy alligators.”
- Lower San Joaquin River flow violations: On May 23, 2016, The Bay Institute filed a formal complaint with the Water Board because the Bureau of Reclamation violated water temperature standards below Shasta Dam and violated minimum flow standards in the Lower San Joaquin River. These standards are the minimum necessary to protect fish and wildlife, including salmon that sustain fishing jobs across the state, and the Water Board already had weakened the flow standard on the San Joaquin River than what was necessary to protect fish and wildlife. Yet the Bureau of Reclamation violated this even weaker standard, and to date, the Water Board has not taken any enforcement action on the complaint. Indeed, in 2012 the board found that the Bureau of Reclamation had violated these lower San Joaquin River flow standards, but took no enforcement action. Instead, the Water Board just tells the Bureau to comply in the future.
- Bay-Delta water quality violations: Over the past four years, the water board has routinely granted waivers of flow and water quality standards in the Bay-Delta, weakening the standards protecting fish and wildlife and agricultural users in the Delta to benefit junior water rights holders. Instead of implementing existing, legally required protections for endangered species, the agencies have waived the rules or looked the other way when they were violated. These waivers may drive Delta Smelt extinct, and have wiped out at least two years of winter run Chinook salmon. Flexibility with the rules is a one-way street today—“regulatory flexibility” is simply an excuse to weaken rules protecting the environment, but flexibility never seems to require greater environmental protections.
- Violations of legal requirements to update water quality standards: The Water Board is required by law to update water quality standards every three years under the federal Clean Water Act and state law, yet the water quality standards for the Bay-Delta have not been substantially updated since 1996. The triennial review begun in 2008 is still ongoing, and the Water Board has begun proceedings for the environmentally damaging Delta tunnels project before finishing the update of the water quality standards. Still, the Water Board isn’t held accountable for failing to update standards as required by law. If the Water Board had done its job over the years, we would not need the active protections of the federal and state Endangered Species Acts. After all, the Water Board is supposed to protect fisheries and the environment so that the ESA isn’t necessary. But even as fisheries declined over the past 20 years because of unsustainable water diversions, the Water Board failed to update water quality standards and protect fisheries. Thank goodness for the safety net of the ESA.
I’d be remiss if I didn’t acknowledge that the State also has made some progress during the drought, including changes in the law to require more reporting and accounting of water use, as well as the State finally beginning the process of sustainably managing groundwater. And the Water Board should soon issue a revised proposal to update Lower San Joaquin River flow standards, as part of the long overdue update of the Bay-Delta Water Quality Control Plan. Unfortunately, the benefits of these changes will arrive years or decades from now (like the Sustainable Groundwater Management Act), and in the interim, the problems are likely to continue to worsen.
While California has myriad problems related to water, one of the biggest issues we face is a lack of enforcement and accountability. When violators aren’t held accountable, it creates a powerful incentive not to comply with the rules. Instead of holding violators accountable, the water board waives the rules when it is political expedient, and generally refuses to use its authority to update standards or hold violators accountable.
It should not only be in fictional TV series that the laws are enforced and violators are brought to justice.