‘But Wait, There’s More!’ Former State Water Board Chair Felicia Marcus Shares Optimism About Southern California’s Water Future



Despite some rain across the state in September, the California Department of Water Resources is forecasting a fourth dry year in a row, the driest ever recorded. In this interview with VX News, Felicia Marcus, William C Landreth Fellow at Stanford University’s Water in the West and Former Chair of the State Water Resources Control Board, reviews some of the recent wins and losses in water regulation that the state has seen in face of serious drought conditions. In particular, Marcus lauds the work being done in Southern California to conserve, capture, and recycle water and new federal legislation, as well as laments a recent court decision to limit the Board’s power to curtail water divisions.

The American West is in the midst of the worst drought in 1200 years, and last month, an Appellate Court ruled that the State Water Board does not have the authority to curtail senior water right holder’s diversions from rivers. What does that court decision mean going forward for water resilience regulation inn California?

Felicia Marcus: It's an interesting question. I think it means that we don't have an easily workable water rights system. The water rights system is designed to allocate water in a time of shortage, which is the ultimate resilience issue. Not being able to easily implement the water rights system for senior water rights holders, which is fully half the water out there, definitely throws a kink in the system.  

The court, to be fair, didn't question the ability of the Water Board to be able to implement curtailments, which is when you tell somebody that their time is up and that there's not enough water in the system for them. You can do it through emergency regulation, which we did for junior water rights holders in the last drought a number of years ago, and which the Water Board did for both juniors and seniors in this drought, in part because of the challenge of implementing it in what we thought was the normal way for seniors the last time. The Court overruled the traditional method but left intact the ability to act through regulatory authority.

The Court held that Provision 1052 of the Water Code didn't give the Water Board the authority to use that provision for senior water rights holders. Senior water rights holders argued in 2015 that the only way the Water Board could or should act was when senior water rights holders complain about another water rights holder and then the Water Board can investigate, but that's very unwieldy. By the time you would have resolved those issues, the drought would be over, potentially and all sorts of other water rights holders would have been shorted because you couldn’t administered the system in a rational workable timely manner.

What we have is a system that's actually unworkable in the timeframe that you need it to work. Now, naturally, most years, and even in most droughts, it's the juniors who get cut off, but we've been seeing droughts that are much worse, where we've had to go up way beyond the start of the modern water rights system in 1914 and got as far back as at least 1906 in 2015.

For the moment, it means that the Water Board can only implement the water rights system we have during a big drought, where a governor declares an emergency and where they can use emergency regulation.

The Water Board can clearly adopt regulations that affect senior water rights holders certain circumstances. We’ve won cases, for example, in the Russian River about the ability to say you can't pump so much water that you dewater the river for frost protection. Courts upheld the Water Board’s authority in another case during the last drought where we said it was unreasonable for senior water rights holders on Mill, Deer, and Antelope Creeks to all take their water at the same time, dewatering the stream so that salmon on the last remaining salmon population on a system that hadn’t been dammed couldn't even get up to the cold water refugia that were left.

There are a number of other cases where the courts have validated the ability of the State Water Board to curtail water rights in a time of shortage, but this decision just makes it way more complicated to do it. To have what you would think of as the good public policy framework to have a healthy water rights system, it's got to be transparent. People need to be able to understand it. They need to know what their rights are in advance and the Water Board needs the tools to be able to administer the system in a timely fashion—that includes clear rules and authorities, good data, and adequate staffing. We we have more of those than we had in the last drought, and the Administration has budgeted funding for modernizing the water rights system (e.g., digitization of what are now paper records) and more staffing, we don’t have nearly enough of any of them.

It’s often said in California that “Whiskey is for drinking and water is for fighting.” Will the Court of Appeals recent ruling be appealed?

It's an interesting question. I think the Water Board is going to have to assess how clear the law is or isn't and whether they think it's worth the effort as opposed to going back to the legislature to get clearer language.

Part of the challenge in our water rights system, having tried to implement it during the last drought, is that it’s so confusing, more confusing than any of the other western states. We've got three different schemes for managing surface water. Now, we have a fourth scheme for managing groundwater at the state level. We’re the last state in the West to do it. We are the most complex and least quantified state in the West. Because it's not quantified nor clear, it leads to a situation where people can believe their rights are whatever they want them to be or whatever their lawyer tells them or whatever their grandfather and grandmother told them it was, which is not frequently correct.

Other states have taken the time to quantify what people's rights are vis-à-vis each other. That provides for a much better community approach to what's happening. It's more predictable. Folks generally want to be good neighbors. In the mush that is the California series of water rights regimes, it's very easy for even well-intentioned farmers to simply be wrong about their water rights. Until somebody actually goes through a process to adjudicate or set what they are, along with allowing for others to challenge it, they aren’t settled. We really need to find a way to quantify them better and faster.

Because of that mess, morass, and murkiness, we prioritized getting better information during the last drought. We got legislation that gave us a greater ability to order information in real time versus, you know, a year later on what people used the preceding year. Then, you could actually try and make some decisions. We got the ability to order monitoring devices. So, finally in 2016, the Water Board had a regulation requiring measurement devices for diverters above a certain size. The regulation is only half complied with (or thereabouts) without adequate staffing to enforce it. The Board is trying to do this job without the clear data based on measurement devices that is transparent and accountable.

As you noted, states like Colorado arguably have a much clearer, understandable, predictable water court system. Is there leadership in the California legislature to do what you suggest they do?

I've been encouraged by the funding that the Newsom administration has put into digitizing the water rights system, which gives you a more transparent base. That transparency helps people believe in the fairness of a system and be able to verify it. It also lays a better foundation for a rational discussion about the system and how to make it work better for water users and fish and wildlife. He's also given them funding for greater enforcement which should accelerate getting that data.  It will still take a long time, so given the fact that we know that we will have more frequent and drier droughts, any acceleration is helpful, but we step on what we used to call the gas pedal.

In the recent water policy announcement (a passel of different issues that the Newsom administration put together to highlight about a month ago), modernizing the water rights system was one of those things I was happy to see. At least the governor seems to realize that having a working system would be better than having a mystery or puzzle system, which is what we have now.

Let us turn to the water supply challenges of the Colorado River, which has historic low supplies. The US Bureau of Reclamation last month announced that it will operate the lower basin in a Tier 2 shortage. Give our readers a sense of the significance of operating at this level of shortage.

Well, we've now gone where no one has gone before in a lot of ways on the Colorado River. It's been a slow-moving disaster as that river that runs through seven states has been in a 22-year drought. We've been watching this happen in slow motion while hope springs eternal that next year will bring the rains again. We're finally hitting the end of the string.

In the Colorado, you've got seven states trying to figure out how to deal with water, but it's not an equitable division. It's not like the seven states agree. It's like our state water rights system where you have senior and more junior users. California, particularly the Imperial Irrigation District at the bottom of the river, was the first to claim water and has the largest and most senior share of the water. The same is true in the Yuma area, which is why we can all eat salad in the winter because 90 percent of it is grown down there. That’s a water intensive thing at the moment and is done largely by flood irrigation, although that's changing as drip irrigation starts getting rolled out particularly in the Yuma area. It becomes much more complex when you get to the Imperial Irrigation District because the Salton Sea is fed by return flows from that flood irrigation. You can't blithely roll out drip irrigation all through the Imperial Irrigation District and not have some pretty horrendous consequences for the Salton Sea. It's not an unsolvable issue, but it's complicated.

In any event, you have the seven states trying to figure out what to do with the federal government as the manager of the river. It's managed by something called The Law of the River. What happened over the past six years are some pretty interesting and historic agreements by the seven states to forestall this day. Tribes weren't part of the agreements, but many of them engaged in some of the temporary solutions anyway, and the tribes are going to end up being the heroes of leaving water in Lake Mead in particular, maybe Lake Powell as well, to keep the water levels higher than these trigger points that are in the agreements between the states for as long as they did.

But, we're at the end of the string. I think the negotiators for all of these parties are to be commended for stalling this day by a good six or seven years, but now there's just not enough water. We're dropping to historic lows. I was just there last week to see the bathtub rings for myself. It's truly shocking how low the river is, and how low Lake Mead has gotten. We've got a year or two or three and then the hydropower can't happen and the pumps won't work. We're in desperate times, and unfortunately, the solution’s a bit stalled.

It's been reported that LA is conserving more water than ever before. Is it enough? You led the VerdeXchange VX2022 Water Charrette this year. Share how the region is approaching water resilience challenges and the questions that remain for implementing a One Water approach in Southern California.

I'm very excited about what's happening in LA. The things that are happening today are the things we dreamed of 30 years ago. It's nice to live this long and to be a witness to what's happening. I actually just presented this to a 24 hour sustain-a-thon put on by the United Nations Food and Agriculture Organization and partners. When asked, I wanted to talk about the LA area story and I talked about the historic leadership of the Orange County Water District with their largest-in-the-world potable recycling project with the groundwater replenishment system. It’s 130 million gallons a day, which is a lot of water.

More recently, we have both the city of Los Angeles (LADWP and the Bureau of Sanitation in the Department of Public Works) and Metropolitan Water District in partnership with the LA County Sanitation Districts taking it two steps further with much bigger projects. You have the Metropolitan project with LA County Sanitation Districts building on 40 years of recycling inland that the Districts has led on in the region and taking on the joint pollution control plant at Palos Verdes. Having Metropolitan, which has been seen as the imported water people stepping in to do this 150 million gallon-a-day project is important. They have the capacity, the skills, and the scale to do what the small water agencies don't have in a way that I think is potentially earth shaking, not just in its scale and not just in terms of Metropolitan becoming a key water provider of more than imported water, but in terms of creativity and reach.  They even have or are developing agreements potentially to connect their system physically with the City of Los Angeles’ OperationNEXT/Hyperion 2035 project, and connect virtually as far away as Las Vegas and the Central Arizona Project. The latter two agencies could contribute to this enormous project in exchange for Metropolitan allowing them to use some of its share of the Colorado River water directly. The idea of expanding the scope of thinking about water to that scale is exactly where we need to go.

Even in LA proper, they have done a good job of recycling water at their upstream plants. That was what I was privileged to be a part of when I was at public works back in the late 80s and early 90s. Hyperion 100 Percent Recycling[FM1]  The City’s Operation NEXT/Hyperion 2035 project will recycled 100% of the Hyperion Treatment Plant, which is is going to be something like 214 million gallons per day. If you take the City of LA, the Metropolitan/LA County, and Orange County projects, you end up with Southern California being the epicenter of urban water adaptation in an urban area dealing with scarcity. If you add to that San Diego's Pure Water Project, which is for reservoir augmentation, it gets even more impressive. It's a fitting legacy to Orange County's two decades of leadership that now their peers are finally catching up.

All together, that gives me hope that Southern California will be able to weather the non-storm, so to speak, that we're going to have under climate change because of the vulnerability of Southern California to simultaneous drought on the Colorado River and the Sierras via the Delta system or the Owens Valley. Actually being able to take this recycled water and get it into our groundwater basins, and eventually, to our reservoirs and direct potable reuse is definitely the work of the next 15 years.

But wait, there's more! Even better is you have at the same time--and it took a decade to do this and three failed tries--you have the voters in LA County agreeing to fund $300 million a year in multi-benefit stormwater capture projects so that you can use green space, which we need desperately, to capture water to get it in the ground, and get it cleaned through the magic touch of nature with soil and foliage before it goes to the bay or the harbor. You're also getting an element of flood control. It's a multi-benefit win that's very complicated, very difficult to do, and will take a good decade or two to build out.

Once it's done, you'll see the face of LA County transform because you'll be seeing this green space above ground, and recycled water will be a transformation we will have underground. Between the two of those and greater conservation, getting rid of lawns while adding trees, and buttoning up leaks, I think Southern California has a bright future, but we've got to do it even faster than we're doing it now.

How are contaminants like PFAS and microplastic pollution complicating the challenges for water resiliency and affordability?

To quote Roseanne Roseannadanna, “it's always something.” As we are able to discern more through advances in measurement technology, we keep finding more and more contaminants. Each contaminant that you find in water, whether for environmental discharge or drinking water, is a problem. Sometimes you can find a new contaminant and your existing treatment systems can deal with it.

Other times, they don’t. Then, you've got to come up with an entirely new treatment train. Depending on what their water issue was, you’ll have facilities that have to do multiple treatment trains. In some cases, you can use granular activated carbon, sometimes you're using ion exchange, sometimes another system.  Disinfection follows with a variety of systems. Each one is expensive. What we're finding is that, particularly because we have so many small water systems, they're never going to have the economy of scale to treat water to the level that we want.

PFAS and microplastics throw an extra monkey wrench into that because treatment for them happens to be particularly expensive. For microplastics, obviously trying to keep them out of the system in the first place is important. The same is true with the "forever chemicals” like PFAS and PFOA and others, where regulations will be coming in to ban certain chemicals. However, they are ubiquitous by now and have seemingly contaminated everywhere, including being excreted by us on a daily basis.  Lovely, I know. Basically, both drinking water and wastewater folks are going to have to treat to an extremely high level, higher than they needed for either ocean discharge or water delivery. What it's going to lead to is the need to go to the higher level of reverse osmosis, which is pretty much what you need to do to go to direct potable reuse plus some other measures.  But, it is getting close enough that the reach to direct potable reuse no longer feels like the economic and operational leap it used to.

I think for a lot of us, our thinking is changing because of this and advances in sensors. It used to be that direct potable reuse was something that only a few could do out of necessity because they don't have a groundwater basin to use to put recycled water or stormwater into the way Orange County and LA can. We’re going to have to treat to a higher level anyway, which means our water treatment is going to be more expensive. It's going to need to be more centralized for an economy of scale in many places. As long as we're going that far, we might as well use it for potable reuse.

It's a very expensive problem, but one we need to deal with because the health impacts are great. For these forever chemicals, we take so much of them into our bodies from our food and containers and Teflon that we're excreting it or washing it down the drain. It's not like someone's dumping it in the wastewater system, we're dumping it in the wastewater system.

With respect to measurement, the fact that you can pick that up is marvelous from a scientific standpoint. You can see with all the COVID testing that wastewater treatment plants became this amazing resource to understand public health indicators in a large-scale system far earlier than reporting, and far more reliably.

Again, treating everything to a much higher level and then using it is going to create a more virtuous circle, but it's going to cost a lot. Not doing it in the face of climate change and health impacts will cost a lot more in the long run.

Let’s pivot to the recently-passed Inflation Reduction Act and its inclusion of funding for water and infrastructure. Our political and civic culture today is heavily impacted by social media and as a consequence, the public rarely understands what public agencies like the Water Board and water agencies do and what their regulatory challenges are. How then should that federal funding coming to California for addressing mega-drought and other climate challenges be best put to use in a transparent way so the public appreciates what's being done in their names?

The framework of that question is really important in that, from a public policy standpoint, I'm a big believer in transparency and communication. I think it's a part of good public policy. It's not just for the high priests and priestesses in agencies to judge everything. We're much stronger if we share data and we're transparent about it.

It is challenging in a tough media market to get coverage of this basic kind of public policy. In a smaller community, it's a little easier because people are interested in public works or public policy. California is a much more fragmented and congested and complex media market. When at public works I often had reporters apologize to me for not writing a story on solid waste recycling or water recycling. The only way to get a story is for something to go wrong. I always said it was okay because at least you're writing a story now! Maybe we did something wrong, maybe we were going too slow, but at least people will know we had a program. People would be able to understand what their tax dollars are going towards and what we were trying to do to address their collective interests.

I really do buy the fourth grade civics lesson about how government is our collective expression of our social contract with each other. If you think of government as “the other” or if you can’t effectively communicate what the government is doing on our behalf, that social contract can break down, which we've seen in the water rights system and a whole bunch of other places. In contrast, when we were able to break through the noise and communicate our mandatory water conservation rules, complete with monthly data that everyone could see to compare themselves with other communities, the public stepped up and hit it out the park, saving 24%. Ditto when the text came during the last heat wave that our grid was in trouble, and the public cut their energy usage by 25% in just an hour or two.

In the case of the funding you mentioned, both in the Infrastructure and Jobs Act from earlier this year and from the Inflation Reduction Act more recently, we've got money coming in for water in the West. Some of it's already been awarded. Interior Secretary Haaland was here last month announcing $331 million of some of those projects. I think there'll be more projects to come.

The interesting question on the Inflation Reduction Act is that it includes $4 billion specifically to deal with the mega-drought on the Colorado River. I've looked at it, and it can be used for a number of things. It can be used to buy water, it can be used to make structural changes, and it can be used for ecosystem restoration, which I think is clearly geared at dealing with the Salton Sea issue, which is a must-deal in order to have Imperial Irrigation District feel comfortable giving up any water even for purchase.

I'm hoping that the $4 billion is going to be used on the Salton Sea, some longer term structural issues (like water right buy outs), and maybe buying some temporary water this year to buy us some time. There's a large coalition of farmers in Imperial and Yuma that are willing to sell an acre foot of water each for $1,500. You wouldn't want to spend all $4 billion on a one-year deal. Coming up with something that has more structural, longer-term benefit is important.

I don't know how much of that could be used to augment some of the water recycling projects in LA. It would only be valid if LA or Metropolitan was willing to more permanently give up the right to some of the Colorado River water, which I don't think they will do.

The other encouraging news is that in the Inflation Reduction Act and in the Infrastructure and Jobs Act there are billions of dollars for upper watershed forest management and even more for agricultural practices that are going to yield benefits for water in the Western States and California, at minimum in avoiding negatives that are hanging out there. If we can catch up on managing our forests in an ecological manner, we can prevent the otherwise inevitable outsized wildfires we’ve been seeing.  Those outsized fires release massive carbon plumes to the atmosphere and massive tons of toxics and sediment into reservoirs. That load of sediment and toxics take up precious storage space and have water quality implications and cost a lot to remove. Investing ahead of the curve to prevent those outsized blazes will yield a long-term benefit where our whole water system will benefit, lives and property will be saved, and the climate change will be mitigated. It's a win win win win of massive proportions.

Adel Hagekhalil in the leadership of Met and others have expressly pivoted towards a One Water strategy. As you presently are not politically responsible for any decision-making on the Bay Delta, can you give us an update on the Delta’s “issues?”

I would just do a friendly amendment to say that Metropolitan hasn't pivoted away from imported water, it's more of a both-and, which is preserving the ability to be able to import water while adding a One Water approach of stormwater, recycling, and conservation in a much bigger way. They've been supporting it for many years, but this is amping it up to the scale it really deserves. I do think that a more holistic view and as diverse a pool of water sources locally is critically important to the future of the region and, frankly, to the protection of the ecosystems from which we draw a lot of our water.

In the Delta, you have a lot of different things going on. I think you do have a lot of denial going on in many circles about the extent to which we have over-diverted water from the systems flowing into the Delta and how it's demolished the ecosystem there coupled with a naive hope that you can do everything through restoring habitat and nothing through adding some of that water back. We absolutely have to do both. We're going to need to do habitat restoration, but we need to add more water than they're currently talking about. I think a lot of folks are hoping they can get away with far less water than we need. Good people are believing it, but it's just not scientifically correct.

The second issue is the plumbing and the periodic attempts to do canals or tunnels, which from an engineering standpoint definitely makes sense when you're going to have sea level rise and increasing salinity. Sometimes it is talked about as stabilizing what can be extracted from the system as a hedge again tougher environmental regulations or encroaching salinity, but the rhetoric also flips toward taking more water from an already depleted system.

I think that the challenge there is actually making a proposal that people will be sure isn't going to further hurt fish and wildlife or other legal water users in the Delta, or above the Delta, and in fact, will contribute to protecting fish and wildlife and won’t destroy the Delta during construction. Those were two big questions during the last iteration before the proposal was withdrawn by the current administration. I can't stay can't speak for my colleagues, but I'm allowed to say what I think. I think the Water Board might well have put pretty significant conditions on it that might have enabled the project to go forward if people believed that the Water Board’s conditions would be enforced. That's questionable at the moment, and at any moment.

There's going to need to be some kind of grand bargain with a contract or something that people can go to court to enforce. It only works if it's really built as “big gulp, little sip” and you can be sure that's how it's going to be operated. It can only be built if the construction methodology doesn't nickel and dime the Delta and makes sure it leaves the Delta better than when they found it.

In the current proposal, I think moving the location shows that folks were listening during those 18 months of hearings that we held, but I haven't had enough time to actually look at the proposal to see whether they put conditions on the amount of water they can take: where, when, and how. People tend to not want to negotiate against themselves, so proponents of projects tend to propose something at the high or low end that favors them, and then leave it to the Water Board to be the tough guy. That only works if the Water Board can make tough decisions and then enforce them.

In our interview in 2017, you shared the need for California to become more intentional in disseminating innovation in water technology. How far in the years since have California Water Agencies  come in that area and what more needs to be done?

I don't think we've stood that up in that period of time. I think some things have been done. The CEC has set some standards, but I still don't think we have as robust an infrastructure of fostering water technology as we will need. I think with Dee Dee Myers heading up Go-Biz it would be a great time to try and come back to that issue.

“Well, we've now gone where no one has gone before in a lot of ways on the Colorado River. … We've been watching this happen in slow motion while hope springs eternal that next year will bring the rains again."—Felicia Marcus