State Water Boards Serve as ‘Water Courts' to Ensure Water Quality and Water Rights

California has a maze of state and local water agencies. How do the responsibilities of the Water Board differ from those of the Department of Water Resources?

We make a very simple distinction: I'm not sure they'd use this term, but we call the DWR, with affection, "the plumbers." They supply the water and are in charge of the dams, canals, and other infrastructure. They make certain that we have an adequate water supply, and it's a vital mission.

We step in where they leave off, and our main goal is water quality and water rights. About 90 percent of what we do involves water quality, and 10 percent involves water rights, because most water rights are fairly settled in California. We sometimes deal with people who are illegally diverting water from rivers and streams, and that's where we jump in. But we spend most of our time on water quality, and that entails everything from overflowing septic tanks to total maximum daily loads (TMDLs), which are the quotas of pollutants that you're allowed to put in our rivers and streams, to cleaning beaches, and dealing with power plants that use once-through cooling, to protecting areas of biological significance. The water quality in California is improving thanks to our work.

Unlike water, air quality can be improved with a couple of things that make a dramatic impact throughout the entire state. By reformulating the fuels and making the engines on cars and trucks cleaner, we eliminate an enormous amount of air pollution. Water is a much more complex subject. We have thousands of water bodies-rivers, lakes, oceans, streams, etc.-and each of them has its own peculiarities in terms of contaminants and the ways to fix them. We may be dealing with mercury in San Francisco Bay, perchlorate at JPL ,or bacteria in Santa Monica Bay, and the solutions are not the same, and they are, frankly, very costly.

Michael George, formerly CEO of Western Water Co., said that "water policy in California is too important to be left to the so-called ‘water buffaloes'" and that the water regulatory system in California is, to be kind, a bit dysfunctional. Do you disagree with his assessment?

I would disagree if he is painting me as a "water buffalo." I do not believe that the regulators are water buffaloes. I think we have very bright, dedicated personnel in the Water Boards. They are innovative, creative, energetic, and, no, I do not believe that they are water buffaloes.

How important is the passage of the state levee bonds on this November's ballot?

The governor's bonds, which deal with levee repair and flood control, are critical. Even though it is not directly in the Water Boards' purview, there is no question that our levees are in dire need of repair, and if they break, they would have an enormous impact on water quality. So in that sense, if levees are not structurally sound, it makes our job much more difficult. There is also, I believe, about $300 million, in the $4 billion earmarked for storm water flood management and storm water runoff projects. Again, that will help water quality. So we support that portion of the bond, and we support the overall bond, not just for water quality, but also for protection of human life.

Prop 84 is an ambitious, far-ranging measure. Some of the provisions, dealing with aid to local communities, clean beaches, stormwater and agricultural pollution, among others, dovetail with programs the State Water Board already administers. I feel very strongly about the value of our existing programs. A number of people are analyzing how Prop 84 would fit in.

What role do the nine regional water boards play regarding water quality? How are they accountable to the state board?

We have nine regional boards, and each has nine board members. Those board members are volunteers. They are paid $100 for meetings, and they meet once a month. They are grossly under-paid, and even if I'm upsetting anyone by saying that, I will continue to say it. They are dedicated individuals who spend countless hours on water issues in their regions.

Those nine regions are the nine watersheds in California. Those boards are essentially what I would call trial courts. They are the front line of defense-or offense, depending on your point of view-for cleaning up the waters within their jurisdictions. When there is a dispute, and things are not resolved at their level, they are appealed to the State Water Board. We are, in essence, an appellate court. We can affirm, reject, remand, and stay their decisions, so we have a myriad of options.

In addition, the state board sets broad policy within the state that the regional boards then implement. The broad policies can be anything from how septic systems should be regulated and monitored to areas of special biological significance (ASBS). They are protected marine areas, of which there are 34 up and down the coast. We also set policy for 316-B once-through cooling, used at 21 power plants on the coast that draw in millions of gallons of water each day for cooling.

For these policies to be implemented and reviewed effectively there has to be expertise and predictability. Other states, such as Colorado, have water courts where expertise resides and predictability results from precedent. Is California's system of having political appointees serve on regional water boards the equivalent?

I guess you could compare it to the Legislature to some extent, especially with term limits and fairly rapid turnover. The Legislature draws its continuity from its staff. In the regional water boards, there is also continuity because of the staff. The staff members are very professional; they are employees of the State Water Board; they are assigned to the various regions, and they have been there, in many cases, for 25 or 30 years.

In addition, there isn't, especially at the regional level, that much turnover. Many of these board members serve more than their initial four-year term. Many of them serve two terms, so they'll have eight years or even longer. I think of people like Susan Cloke, Fran Diamond, David Nahai-these people have been around for quite some time, so there is continuity and expertise.

Does the idea of water courts appeal to you?

I think that's exactly what we have now; it's just in another name. The California Water Boards are water courts, and we do have the expertise to tackle those problems.

Has the State Water Board staked out a position regarding surface water storage?

We are not pro or anti surface water storage. What we are for is ground water recharge and capturing the water that is, right now, running off into the ocean. As you certainly know, in the last couple of years, California has had tremendously wet winters. Much of that storm water ran off into the ocean, and there was not enough recapture.

We need to recharge our ground water and use it for storage. In Southern California, of the total water supply, approximately 40 percent comes from ground water, 10 percent from the Colorado River, and 50 percent from Northern California. Most people think 100 percent is imported and that's not at all true. We are attempting to increase that amount of storage in the ground so that over 50 percent and, eventually, two-thirds would come from groundwater. In addition, it's not just the storm water runoff.

We'd like to use recycled water-water that is cleaned to a pristine level that can be re-injected into our reservoirs and eventually pumped out and used for household use. We should also be looking at the "purple pipe," which would carry gray water, which has been recycled but perhaps not cleaned 100 percent and use that water for toilets and irrigation. We can do a lot to re-use water, and it would go a long way towards solving our water problems.

What is the quality of the ground water in Orange and L.A. counties?

There's no question that the ground water has been contaminated in spots, whether it's MTBE or perchlorates or other contaminants that have seeped into the ground water. Having said that, most of our groundwater is quite clean and useful. I live in Pasadena, which does a lot of ground water pumping. I assure you that any ground water that is used meets the highest quality standards. There are simply some wells that we cannot use.

In fact-and I'm not a scientist; I'm a lawyer-I have been told that the water coming out of the tap in most cases is much cleaner than bottled water that you purchase at the supermarket. I never drink bottled water; I drink it out of the tap.

In June MIR interviewed Heal the Bay's Mark Gold about the state Supreme Court's recent upholding of the right to impose trash TMDL limits. What is the Water Board's view of that ruling?

We think it's a terrific decision, and we support it all the way. It gives the regional boards the right to impose TMDL limits and clean up the trash, bacteria, and other pollutants.

What impact will this decision have on cities in the watershed? Do they have to achieve zero pollutants, as some interpret the ruling?

I'm not sure about "zero." Basically, a TMDL is an allocation among various entities that contribute contaminants to a water body as to how much they are allowed to put into that water body so it can meet beneficial use standards. Those standards can be based on a number of different things; it depends on what that water body is used for. If it's used for recreation, the standard is probably slightly lower than if it is for drinking water, which would be the highest standard. Those standards, to the best of my knowledge, do not call for zero. They call for the water to meet the standards for those uses, and our scientists have determined exactly how much that should be.

When Governor Schwarzenegger appointed you, you said you were especially interested in capturing storm water and recharging aquifers. How much progress has the Water Board made towards this goal?

I think we are making progress. One of my frustrations, though, is that these programs take years to fulfill, and they cost enormous amounts of money. So you cannot wave a wand and have a solution overnight. In storm water, we are now dealing with numeric limits as to exactly what should be the limit in terms of storm water discharge. We've had several hearings on that in the last month, and within a year I hope we will come to a decision.

The Water Replenishment District in Southern California is doing a great job of increasing the amount of water that is recaptured by the ground each year and increasing our reliance on groundwater as opposed to imported surface water.

The population is projected to grow from 36 million to 50 or 55 million in the next 20 years. Do we have the infrastructure and regulatory oversight and incentives to ensure that that citizens will have clean and reliable water?

I believe we have the infrastructure, and we certainly have the regulations. We don't need additional laws. The laws are on the books, and it's a question of implementing and enforcing them. But we also believe in both the carrot and the stick. The stick being very strong enforcement and regulation and the carrot being funding, especially for smaller and disadvantaged communities so that they can build the infrastructure that will, for example, capture storm water and clean it or go off of a septic system or put in tertiary treatment. Propositions 12, 13, 40, and 50 have provided a great deal of money over the years in order to do that, and we also have a State Revolving Fund. But we are starting to reach the tail end of those funds, and we need some additional initiatives.

My view is that we all want clean water, clean air, great transportation and healthcare-we all want them; they're near the top of the list in any poll. Then you poll the public again and ask them if they want their taxes increased, and they'll say no. I'm not sure you can have both. We have to be able to pay for this, which means that the public is going to bear the cost. There is no pot of gold at the end of the rainbow. Proposition O, which was $500 million for the city of L.A., is exactly the type of thing we need.