Leave the wa­ter um­pire alone

Los Angeles Times - - OPINION - S Cal­i­for­nia wa­ter

Abe­comes an in­creas­ingly precious and con­tentious re­source, the state needs an um­pire with the power to en­force laws against il­le­gal di­ver­sions and pro­tect the rights of the pub­lic and oth­ers with en­force­able claims to state wa­ter. That de­ci­sion­maker must be both mus­cu­lar and fair.

There is in­deed such a wa­ter um­pire in Cal­i­for­nia. It has the rather cum­ber­some ti­tle of State Wa­ter Re­sources Con­trol Board, and although for many years it was quite lax in its ap­proach to en­force­ment, the long drought has roused it from its slum­ber and it has be­gun to show its po­ten­tial. That’s a wel­come de­vel­op­ment for most of the state’s wa­ter users and rights hold­ers.

But not for all. Some of the pri­vate busi­nesses and even pub­lic agen­cies that sell wa­ter to farms and other users have got­ten quite used to mar­ginal over­sight by a sleepy wa­ter board that barely frowned at wa­ter theft or mis­use. Some have pre­vailed upon As­sem­bly­man Adam Gray (D-Merced) to carry a bill to un­der­mine cur­rent the en­force­ment process, and the en­tire Assem­bly has signed on — ap­par­ently in the mis­taken be­lief that the board has a built-in con­flict of in­ter­est that can best be reme­died by adding ad­di­tional lay­ers of bu­reau­cracy and re­turn­ing to the days of more plod­ding over­sight.

AB 313 is the lat­est in a se­ries of at­tempts by wa­ter agen­cies to get the board off their backs by gum­ming up the en­force­ment process. Pro­po­nents of the bill may have got­ten as far as they have be­cause the me­chan­ics of ad­min­is­tra­tive law are so ob­scure to the av­er­age Cal­i­for­nian, and ap­par­ently to the av­er­age law­maker. In fact, the cur­rent process fol­lows time-tested and court-tested stan­dards and works just fine as it is.

Like many over­sight agen­cies, the wa­ter board is made up of gu­ber­na­to­rial ap­pointees who are vet­ted and con­firmed by the state Se­nate. The board di­vides its staff into two parts that op­er­ate in­de­pen­dently of one an­other, as be­fits their par­tic­u­lar tasks.

A pros­e­cu­to­rial team vets com­plaints and brings the most se­ri­ous ones to the board for ad­ju­di­ca­tion. A separate staff of wa­ter en­gi­neers, sci­en­tists and other ex­perts then as­sists the board in its hear­ings. The board can dis­miss the com­plaint, as­sess a fine or or­der the wa­ter user to stop do­ing what­ever it’s do­ing. A user that is un­happy with the board’s de­ci­sion can seek re­view in su­pe­rior court.

This is the process that other state agen­cies use to, for ex­am­ple, sus­pend liquor li­censes or curb con­tract­ing abuses. It’s the way the wa­ter board has op­er­ated for years, although the pros­e­cu­to­rial staff has brought too few ac­tions and the board has been too con­tent to ig­nore un­law­ful wa­ter di­ver­sions.

Now, though, a host of wa­ter agen­cies is com­plain­ing that the wa­ter board is both pros­e­cu­tor and judge and that its process is be­set with bi­ases and con­flicts of in­ter­est.

No, it’s not. A state agency with quasi-ju­di­cial pow­ers nec­es­sar­ily has dis­tinct pros­e­cu­to­rial and ad­ju­di­ca­tory com­po­nents. The state Supreme Court al­ready has con­cluded that the wa­ter board’s struc­ture ad­e­quately pro­tects due process.

The sup­posed im­prove­ment of­fered by the bill is to take the hear­ings away from the wa­ter board and as­sign them to a panel of ad­min­is­tra­tive law judges — with no par­tic­u­lar ex­per­tise in wa­ter law and with­out a staff of en­gi­neers, sci­en­tists and wa­ter ex­perts at its ready dis­posal — in a dif­fer­ent state of­fice. This panel wouldn’t make the fi­nal rul­ing in a case, how­ever. In­stead, it would make a rec­om­men­da­tion — to the wa­ter board.

So the ini­tial re­view would be backed by less sub­ject-mat­ter knowl­edge, but the board’s staff would still pros­e­cute and a dif­fer­ent part of the board’s staff would still offer ex­per­tise. The board it­self would still ren­der a de­ci­sion. All the bill of­fers is an ex­tra hoop through which ev­ery­one must jump.

That means ex­tra time, and that’s prob­a­bly the point. In a drought, when wa­ter is in short sup­ply and a sea­son’s worth of the stuff could mean the sur­vival of one crop ver­sus an­other or ver­sus a salmon run, the wa­ter board needs to be able to act not just fairly and de­ci­sively but swiftly. The pro­posed change in the process takes Cal­i­for­nia in the wrong di­rec­tion.

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