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Opinion - Porter Cologne at Age 30
Excerpts from Kolb's speech at the March 1999 State of the Estuary Conference (presenting his own views and not those of the Regional Water Quality Control Board).
"The Porter-Cologne Act (PC) is California's basic law for water. It created the current structure for the State and Regional Boards, and defined much of the way California regulates water. It's been 30 years since PC was passed in 1969, a good time to review how well it has worked. This history falls under two headings: water quality, or pollution control, and water rights, which is the system by which water is allocated in California (acknowledging, however, that most of California's water rights law is in the California Water Code and not part of Porter-Cologne). California water issues can only be understood in terms of both quality and quantity.
"Passage of the Porter-Cologne thirty years ago redefined the regional water quality control boards to regulate pollution, and greatly expanded their powers. One key enforcement element added was a provision that allowed regional boards to stop new hookups to sewage treatment plants that were not meeting standards. This provision has made pollution control a major priority for cities and sanitary districts in California.
"The ink was hardly dry on PC when the Federal Clean Water Act of 1972 passed, which basically required permits for all discharges to surface waters, and more treatment to remove pollutants. The federal government also offered to pay 75% of the cost of upgrades to municipal dischargers. "Thus, in the early 70s, we had in place strong state and federal laws for better pollution control, and an institutional framework to implement them. Did this system work? In fact it worked very well. There was nowhere in the country where upgrading of pollution control facilities went more rapidly than in the San Francisco Bay Area. The pollution loading to the Bay has declined by about 85% since the mid-60's, even though the population is about half again higher.
"This progress was not without conflict. Of the 50 or so sewage treatment agencies in the Bay Area, the Regional Board found it necessary to adopt connection restrictions at one time or another on about half. These actions were necessary as a last resort to overcome foot-dragging on sewage upgrade projects. One moral from this experience is that you cannot make major environmental changes through persuasion alone. All carrot and no stick is a recipe for failure.
"While this dramatic improvement was taking place in pollution control, other changes were taking place in water diversions and water rights. In the 1970s, elements of the California Water Plan, approved by the voters in the 60s, began coming on line, in addition to earlier diversions for the larger federal Central Valley Project. This process has since turned into one of the great environmental catastrophes in North American history. For striped bass, salmon, steelhead, and other migratory species, some critical threshold was clearly exceeded. In a single generation we have seen these species, once at world class abundance, becoming candidates for the Endangered Species List.
"It's worth comparing this fisheries collapse to other North American ecological disasters, such as the extinction of the passenger pigeon, or the near extinction of the buffalo. In those cases there was neither the scientific understanding of what was taking place, nor the legal mechanisms to prevent it. In contrast, the California fisheries disaster has been exceptionally well studied, and it has taken place with an agency, the State Water Resources Control Board, in place with the legal power to do something about it.
"Thus we have this extraordinary juxtaposition of major improvements in pollution control on one hand, together with a catastrophic decline in the fish that this multi-billion dollar pollution control effort was supposed to protect. This disaster was entirely due to actions of government. All the dams and diversions were government projects, and all the decisions as to where that water would go were made by government agencies. This point is worth remembering when someone tells you that government is now unable to remedy these problems.
"Was this disaster necessary, a kind of price that must be paid for progress? And, can this damage be undone? To answer the first question it's necessary to briefly look at how we use in water in California. Of the water we divert from rivers or pump from the ground, our so-called developed water supply, over 80% is used by irrigated agriculture, and less than 20% is used by cities. Our conflicts over water in California are not between north and south, since all the urban users together are not very important, but between aquatic habitat and agricultural use.
"California's crops have a combined value of about $20 billion per year, the highest total in the nation. But this is only about 2% of California's trillion dollar economy. So irrigated agriculture in California uses over 80% of State's developed water supply to grow crops that add about 2% to its economy.
"How does California agriculture use water? The largest users of water are the lowest value crops. For example, irrigated pasture uses almost as much water as all the cities in California put together. Four low value crops-irrigated pasture, alfalfa hay, cotton, and rice-use about 40% of California's water. Together these crops add only about one quarter of one percent to the state's overall economy. Moreover, all these low value crops are widely grown elsewhere. If we took some water away from these crops for people and fish, we would still have water for all our oranges, lemons, tomatoes, almonds, pistachios and grapes.
"The way we spend water in California suggests that we have not a shortage, but rather, more water than we can wisely use. A truly water-starved agricultural sector would not make its largest use the spraying on grass for cows to eat. Our alleged shortages are really an artificial result of the way the State of California misallocates water.
"And this brings me around to California's water rights process as administered by the State Water Board. The water rights function of the State Water Board has sometimes been seen as a counterpart to the State Water Board's water quality program. However, the two are very different. The problems of this weak and inadequate system for regulating water allocations in California have three root causes. First, weak appointments. With a couple of exceptions, the appointments by our last two governors to the Water Resources Control Board have been of people who could be relied on to protect the status quo on water, despite an ongoing disaster with the fish.
"Second, weak water law, which gives the State Board the authority to better allocate water, but not the obligation. Third, a woefully underfunded Division of Water Rights, which has fewer staff for the whole state than the S.F. Bay Board has for pollution control alone. Only four staff are budgeted to enforce water rights law for the entire state. These low funding levels are not based on lack of money, but rather on a conscious decision by previous administrations to starve the regulators.
"In summary, the State's system for managing water is wildly out of balance. We have undone, through a dysfunctional water rights process, most of the good promised by our multi-billion dollar investment in better water quality. Fish have not been the only victims of California's system of water allocation. Millions of urban users drink substandard water while we apply pure snowmelt to alfalfa.
"Is this situation beyond retrieval? Meaningful restoration will not happen so long as existing allocations are taken as permanent and unchangeable. Giving the fish everything they need - except more water - won't work."
Larry Kolb is Principal Engineer and Assistant Executive Officer at the S.F. Bay Bay Regional Water Quality Control Board.
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